Sunday, September 6, 2015

The Fight for the White House: Religious Liberty Revisited


The Trumpster? Who cares? Here's The Kimster!

A little while ago, I wrote about the Odgaards.

Now, we suddenly have Kim Davis, a county clerk in Kentucky who has been jailed because she refuses to issue marriage licenses to gay couples (indeed, to all couples, because these couples would include gay ones).

And it seems that, in doing so, Davis has rather confounded a lot of people on the issue of what is euphemistically known as "religious liberty".

This is from an article posted on The Washington Post's website:

"Kentucky county clerk Kim ­Davis’s assertion that she answers to a higher authority won her no reprieve from a federal judge this week. But the question of whether people must obey the law when they say it violates their religious beliefs is being debated in state legislatures and the nation’s courts and has become a galvanizing issue in the Republican presidential nomination campaign."

Well yes, perhaps in a case such as the Odgaards'. But surely not here, right?

After all, the first time you read about this case, you might well think that it's not about what Davis can or cannot believe. You may well think that it's just about her duty, as a county clerk, to issue marriage licenses in accordance with the law of the state of Kentucky.

And yes, it is true that Davis is and remains perfectly free to have objections against same-sex marriages, and that issuing licenses to gay couples in no way infringes that liberty. She could hand out licenses to gay couples all day long, and still go home happily believing in all the horrors that God has in store for gays tying the knot. Not a single license she issues need have any influence whatsoever on that belief.

It is also true that Davis, believing (as it seems she does) that gays must not to be allowed to marry, finds herself in a position (that of county clerk) where she can actually act on this belief. She is, in other words, in a position where she can superimpose her will on those who think differently. Such action has nothing whatsoever to do with "liberty"; such action constitutes the exact opposite.   

So, in this line of reasoning, you might easily reach the conclusion that this is a fairly simple matter.

However, there are at least two aspects involved which could change your mind. Let me briefly address both of them.  

The first is this: Davis has been incarcerated. And that, frankly, might be considered odd.

Davis happens to be the county clerk, and as such she has a duty when it comes to issuing licenses. It is questionable whether the authority to issue such licenses can be taken from her and, against her will, bestowed on others (specifically her deputies). However, the judge ruling on the case clearly thought so: in fact, he ordered that her deputies can and must now issue licenses without her consent. And that's exactly what happened: after the judge gave his ruling, Davis's deputies began issuing licenses to gay couples.

The problem with this, though, is that it renders Davis's own non-compliance almost moot. After all, if the judge's view is correct, same-sex couples wanting to get married in the county can get (and some have by now indeed gotten) their licenses, and it doesn't really matter what Davis herself thinks on the issue.

But the question then rises: why jail her? If such a step cannot be seen as a reasonable and necessary measure to protect the rights of gays, what other reasons might there be? 

Well, the first answer to this is very simple: Davis was jailed because she refuses to abide by court orders to comply with the law. She is therefore in contempt of court. As such, she could be fined, but the judge (rightly, I would assume) thought that doing so would not be a sufficient inducement. The alternative is imprisonment.

From a purely legal perspective, the judge's decision makes total sense; from any other perspective, however, not so much. If fines should be eschewed because they wouldn't work, the same can be said of incarceration. It was clear from the outset that this would not force Davis to start issuing licenses to gay couples, and so it has turned out.

The second way to answer the question would be to point out that she refuses to do (part of) her job. That's true, but since when does such a situation justify jailing the person involved? It may well justify other steps - it might ultimately justify dismissing an employee, for example, or (as in Davis's case) a process of impeachment (*) - but incarceration? Surely not. 

The third way to answer the question, however, is even worse. That would be to argue that Davis should be jailed because her religious beliefs conflict with the law of Kentucky (and, indeed, with federal law). That, however, implies that her imprisonment is a direct consequence of her belief that gays should not be allowed to marry and, as such, could be considered an acceptable infringement of her "religious liberty".

So jailing Davis is, to my mind, problematic. It effectively makes her a martyr, and that is unfortunate, given the (unappealing) particulars of her stance. 

So much for the first aspect. The second one is this.

During the legal proceedings so far, she has argued that one of her main objections is the fact that her name is on the licenses that are issued. As such, she argues that she is being forced to in some way "condone" gay marriages. To my mind, this argument should fail simply by virtue of the fact that the mention of her name does not imply any personal endorsement or condonement (it is there because Kentucky law requires the license to be issued by a county clerk and Davis happens to be that clerk). However, I could well be wrong, and in that case, the argument becomes quite clever and potentially hugely complicating. Dealing with it would mean that you would have to investigate what changing the documents would actually imply. How hard would it be, for example, to change them so that they only mention "the clerk', and not the clerk's name? Is such a document still legal? If it isn't, what steps could be taken to legalise it? Before you know it, you are up to your chin in a skew of legal tangles, each and every one of which takes you further away from what you thought the case is actually about.   

These two aspects make this case much more complex than it at first seems. Ultimately, I think the writers of the article quoted above are quite right. Issues such as these are galvanising. Moreover, they are often also just damned difficult.

Meanwhile, various candidates for the Republican nomination have come out to support Davis. These include people such as Mike Huckabee, Ted Cruz, and (rather surprisingly) Rand Paul. None of them seem to appreciate the complexities of the case; all of them appear, instead, to want to capitalise on what is a fairly difficult situation. Gosh - who would have thought?   


ADDENDUM: The above article was written on Sunday, September 6th. Today, August 8th, Davis was released from prison. The judge stated that he was satisfied that the County Clerk's Office was complying with the law and issuing licenses to everyone who requested them (including the original gay couple who has been turned away by Davis). If, the judge stated, Davis were to interfere in any way with the issuing of such licenses, he would take further steps.  

If nothing else, the judge's action today has shown that putting Davis in jail in the first place was not such a good idea.


(*) Why impeachment? Because Davis is not an ordinary employee of the state of Kentucky. Instead, she's an elected offical. As such, she can't be fired; she can, however, be impeached. 

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