Jeff Bishop: Why All Of Kim Davis's Defenders Are Wrong

Kim Davis’s supporters have made a wide variety of arguments in support of Rowan County, KY’s rogue clerk. Many of these arguments are mutually contradictory, all of them wrong. This article is intended to address all of the most common ones.

1. Kim Davis is the only one following the law.

By refusing to issue licenses to gays, she’s violating the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, as interpreted by the Supreme Court in Obergefell v. Hodges. By simultaneously refusing them to everyone else, she’s violating Kentucky Revised Statutes 402.080, 402.110 and 402.230 which spell out the circumstances under which a county clerk shall – not may – issue a marriage license and record a marriage. There is no plausible interpretation of either federal or state law she can be reasonably said to be in compliance with.

1. But she has a First Amendment right to follow her conscience!

Everyone has a First Amendment right to believe whatever they want. If your religion calls for human sacrifice, you certainly have the right to believe in them but you have no right to carry them out. In Employment Division v. Smith (1990), the Supreme Court ruled that the Free Exercise Clause of the First Amendment merely protects against laws targeting religion or religious practices. It provides no defense whatsoever to a neutral law of general applicability, solely because that law happens to conflict with someone’s religion.

Wait, you say, didn’t the Supremes rule just the opposite last year in Burwell v. Hobby Lobby? Actually, no, they didn’t. The Hobby Lobby case was decided under the Religious Freedom Restoration Act, which was passed in response to Smith, and not under the First Amendment. For avoidance of any doubt, Justice Ginsburg noted in dissent that:

Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990).

Justice Antonin Scalia, who authored the Court’s opinion in Employment Division v. Smith, did not write any opinion in Hobby Lobby. He surely would have, however, if he had disagreed with Justice Ginsburg’s characterization of his past opinion.

Even RFRA, let alone the First Amendment, has never been successfully invoked by private citizens, let alone government actors, to justify discrimination.

1. OK, so if she isn’t following the law after all, Kim Davis is practicing civil disobedience.

Civil disobedience is for civilians. As County Clerk, Davis is not acting as a private citizen resisting an unjust regime but as an arm of the regime itself. That’s not what civil disobedience is about. When a confused tax collector asked what he should do about Henry David Thoreau’s refusal to pay, Thoreau’s advice was to resign. Justice Scalia has offered the same advice for judges who cannot in good conscience apply any other law, such as the death penalty. Yet even where civil disobedience is considered morally justifiable, accepting the punishment for violating the law in question is part of that deal.

1. Gay marriage wasn’t the law in Kentucky when Kim Davis took her oath, so shouldn’t have to follow that law now.

Government officials swear to uphold the law in effect at all times during their tenure, not to enforce stale laws that used to be in effect when they first took office. Imagine the outrage if any traffic cop who’s been employed since 1995 were to ticket drivers for going 70 mph in a 75 mph where the speed limit was once 55. That is essentially the argument Davis’s supporters are making.

Further, as one who’s been on the job for less than a year Ms. Davis can scarcely plead ignorance that gay marriage was on the horizon when she took office. Throughout the 2014 election season, gay marriage was the law in Kentucky, albeit stayed pending appeal. Judge John G. Hayburn issued his first ruling in Bourke v. Beshear on February 12, 2014, more than three months before the May 20 Democratic primary, and a more general ruling in the perfectly named Love v. Beshear case on July 1. Those decisions were ultimately reversed 2-1 by the Sixth Circuit, thereby creating the circuit split that would make a Supreme Court ruling inevitable, but not until November 6, 2014 – two days after Davis was safely elected. By the time she was sworn in the Supreme Court case was all but assured.

1. If Kim Davis has to grant the licenses, Christians are second-class citizens who can’t hold the same jobs as everyone else.

There is no special rule for Christians, but to be sure, there are some jobs persons of faith simply should not do. Some Christians, for example, believe all wars are immoral. Those Christians should not serve in the military, where they can be called on to fight wars they believe to be immoral. Even Christians who believe in the “just war” doctrine need to be prepared for the the possibility that after signing up for a war they believed just (e.g., the war in Afghanistan following the 9/11 attacks) they may later be called on to fight in a war they do not (e.g., Iraq). And there are some lawful jobs, such as porn star in any state or prostitute in Nevada, that would violate the tenets of just about any Christian’s faith. So a person of faith should not begin with the expectation that every lawful job available to any other citizen will be appropriate for him.

All that said, the notion that the purely ministerial act of a county clerk violates the tenets of Christianity is, to put it lightly, a stretch. County clerks are not called on to “bless” a marriage or approve of it in any way, merely to certify whether all legal requirements have been met. No part of the Bible addresses gay marriage per se, and none of the gospels address homosexuality at all. The most frequently cited verses, Matthew 19:4-5, are actually part of a longer passage (Matthew 19:3-12) about divorce and remarriage, not gay vs. straight. So while that passage makes it crystal clear that Kim Davis’s second, third and fourth marriages are constitute adultery against her first, it says nothing about whether anyone’s marriage to a member of the same sex would. It does, however, make crystal clear in verses 11-12 that whatever he’s saying about marriage is a rule intended for Jesus’s closest followers, not one society at large is expected to follow. Those last two verses should provide all the comfort any Christian clerk needs to certify the legality of anyone else’s marriage, be it Kim Davis’s own adulterous one, some gay couple’s abomination, or any other marriage of which she might not personally approve. It also dovetails nicely with Jesus’s general directive in Matthew 22:15-22 to “render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s.”

1. What do you mean there’s no special rule for Christians? We’re a Christian nation! It’s right there in the Declaration of Independence!

The Declaration of Independence contains a reference to “Laws of Nature and of Nature’s God ” and a more generic reference to the latter solely as a “Creator.” Neither can reasonably be interpreted as a reference to the God of the Bible or of any other specific religion. Moreover, the sole legal effect of the Declaration of Independence was to sever our relationship with England, not to govern the laws of our own republic. Those laws are governed by the Constitution, not the Declaration of Independence. All the original Constiution had to say about any religion was the Article VI, paragraph 3 proviso that ” no religious test shall ever be required as a qualification to any office or public trust under the United States.” It was subsequently amended, of course, to add further that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Neither provision can be plausible read to privilege Christianity over Islam, Judaism over atheism, or any other world view over any other. We each get one vote at the ballot box, and we’re all stuck with the results.

1. Kim Davis is upholding the Kentucky Constitution.

No, she isn’t. Article IV, clause 2 of the U.S. Constitution provides it “the supreme Law of the Land” and that “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. Compliance with a state constitution is no defense – nor in any way relevant – to a violation of the federal one. Nor, I might add, does the Kentucky Constitution make any claims to the contrary.

1. But the Supreme Court didn’t really change Kentucky’s law, only the Kentucky Legislature can do that.

As noted above, two of the cases that were consolidated into Obergefell (Bourke v. Beshear and Love v. Beshear) were in fact rulings from Kentucky. But it doesn’t matter, anyway. State appellate decisions bind entire states, federal appellate cases bind entire circuits, and Supreme Court rulings bind the entire nation. By way of comparison, Roe v. Wade legalized first trimester abortions across the country, not just in Texas, and Loving v. Virginia decision of 1967; it did not remain illegal until Alabama finally got around to removing that odious statute off the books in 2000 (with over 526,000 mini-Kim Davises voting to keep that void, racist statute on the books even then).

1. Where in Article I, Section 8 of the Constitution does it give Congress the power to define marriage?

Nowhere. Good thing Congress didn’t do that, this time. They did with the Defense of Marriage Act, though, which was rightly struck down in Windsor for all the wrong reasons. In my view, it should have been struck down for exceeding Congress’s enumerated powers. It was instead struck down for violating equal protection. But it has nothing to do with Obergefell or Kim Davis.

1. Where in Article I does it give the Supreme Court the power to redefine marriage?

It doesn’t. Article I outlines the powers of Congress, not the courts.

1. OK, Smartypants, where in Article III does it give the Supreme Court the power to redefine marriage?

Article III provides that

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority … In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Congress has made no exceptions for marriage. If the authors of DOMA were smart, they could have included a provision stripping courts of jurisdiction to review the constitutionality of traditional marriage laws including DOMA itself. Fortunately or unfortunately, the authors of DOMA were not that smart.

1. Obergefell violates The Tenth Amendment.

In fact, Obergefell does not implicate the Tenth Amendment at all. The Tenth Amendment provides that all powers “not delegated to the United States by the Constitution, nor prohibited by it to the States [emphasis added]” are reserved to the states or the people. The Fourteenth Amendment explicitly prohibits the states from “depriv[-ing] any person of life, liberty, or property, without due process of law” or “deny[-ing] to any person within [their respective] jurisdiction[-s] the equal protection of the laws.” Since those were the central allegations of the marriage cases, the Tenth Amendment by its terms does not apply.

1. Oh, c’mon. Traditional marriage doesn’t deprive anyone of liberty without due process or violate anyone’s equal protection!

That’s an opinion held by many Americans. Four of the current nine Supreme Court Justices share it. The other five do not. All nine agree, however, that the plaintiffs alleged traditional marriage laws violated these two constitutional provisions. Therefore, there can be no question that the court had jurisdiction to decide whether they did or not.

1. Courts can’t strike laws down. Marbury v. Madison was a power grab, not a legitimate constitutional ruling!

Before you even start down that path, know what you’re saying. You’re not just invalidating gay marriage and re-criminalizing sodomy in the Bible belt. You’re not just invalidating abortion rights, re-segregating society, teaching the Koran in government schools, or outlawing small religious sects altogether. You’re also endorsing Chicago and DC’s “right” to imprison gun owners simply for owning guns, elected officials’ “right” to censor public criticism of themselves 30-60 days before an election, and every other government’s “right” to discard the Bill of Rights as a mere Bill of Suggestions.

Marbury was decided in 1803. Since then, Congress and the states have amended the Constitution 16 times. Not one of those amendments sought to rein in or even “clarify” the judicial power under Marbury. Nor was any needed, really, given Congress’s plenary power under Article III to make whatever “Exceptions” to jurisdiction it wants, yet have never seen fit to do so. By the time the Fourteenth Amendment was ratified in 1868, Marbury was two generations old. Congress knew what powers they were giving the courts.

1. The Fourteenth Amendment doesn’t apply to the states. That’s judicial activism!

Actually, no, it’s called reading the damned Constitution. Not all parts of the Fourteenth Amendment apply by their terms to the states, but the Due Process and Equal Protection Clauses clearly do:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added.]

There is no non-frivolous reading of “no state” or “nor shall any state” that would not have these clauses apply to the states. A decent case can in fact be made the other way, that the Supreme Court was activist indeed in Bolling v. Sharpe for ruling that the Equal Protection Clause could apply anywhere else.

1. OK, you got me there. Equal protection and due process do apply to the states after all. But all they prohibit the state from doing is denying constitutional rights.

That’s true, but kinda misses the point. The Fourteenth Amendment is itself part of the Constitution, and due process and equal protection are themselves constitutional rights. You may be thinking of the doctrine of selective incorporation, which has been the vehicle by which most of the Bill of Rights has been incorporated against the states by way of the Due Process Clause. No serious constitutional scholars have suggested that is all the Due Process Clause does, or that it implicates equal protection at all.

1. What about her beliefs, though? Why should she have to endorse a lifestyle she finds sinful?

She’s not being asked to “endorse” anything. Marriage licensing laws, like gun licensing laws in most states and driver licensing laws in all, are purely nondiscretionary. If I get a driver license from the DMV, it’s not because the clerk personally approves of my car or of the idea of me driving. It’s because the clerk had a check list of legal requirements that needed to be met, saw that I met them, and signed off on those facts. Marriage licenses are no different.

1. Judge Bunning jailed Kim Davis because of her beliefs.

Judge Bunning jailed Kim Davis for contempt. The purpose of civil contempt is to compel compliance with an injunction. Fines work for most people in most cases, but they wouldn’t have worked in Davis’s since others would have paid her fines for her.

For whatever good it does, As a Bush appointee who by some accounts doesn’t even agree with Obergefell, Bunning most likely shares Kim Davis’s beliefs.

1. Oh yeah? Well, San Francisco Mayor Gavin Newsom had his clerks do the same thing in reverse in 2004, and he didn’t go to jail.

Not exactly. Both violated clearly written laws on gay vs. straight marriage, and both were told by a judge to stop. Newsom stopped. Davis didn’t.

1. What about sanctuary cities? No one goes to jail over those!

Indeed they don’t, for the same reason Gavin Newsom wasn’t jailed, and Davis herself wasn’t jailed over any of the marriage licenses she denied from June 24 through September 3: you can’t be held in contempt for violating an injunction that was never issued in the first place.

So why aren’t any such injunctions issued? Probably because they can’t be. As noted above, federal law as well as the federal Constitution are the supreme law of the land, and state and local governments cannot lawfully act to undermine it, but per Printz v. United States they can’t be commandeered by the federal government to enforce it, either. States are perfectly free to commandeer cities, however, so if there are any sanctuary cities in your state call your legislator.

1. OK, OK, I get that the office should issue the licenses, but putting her in jail seems excessive. Couldn’t the judge have accommodated her some other way?

He can and he did. The judge’s original suggestion was to simply allow her deputy clerks to issue the licenses themselves, but she ordered them not to. Eventually, while she was rotting in jail, her clerks started issuing them on their own, and she was let out. If she doesn’t interfere with them, then presumably she’ll stay out.

1. But what about ….?

No. Just … no.