The U.S. Supreme Court this week declined to stay the order of a federal court that Kentucky county clerk Kim Davis’s must issue same-sex marriage licenses in spite of her religious objections. The effect of the SCOTUS one-line decision is to leave the lower court’s order in force.
Davis has remained firm in her refusal to issue same-sex licenses, however, and on Tuesday continued her standoff with applicants, advocacy groups, and Kentucky state officials.
Davis, the clerk of Rowan County (pop. about 22,000, in northeastern Kentucky), hasn’t issued licenses to anyone since the Supreme Court ruled on Obergefell v. Hodges in June. For the last two months, she has been defending lawsuits filed by same-sex couples. But Davis doesn’t intend to either issue same-sex licenses, as ordered by a federal court, or resign her office – which Kentucky Governor Steve Beshear (a Democrat) has urged her to do.
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“Some people have said I should resign, but I have done my job well,” Rowan County Clerk Kim Davis said in a statement posted to the website of the law firm that represents her, Liberty Counsel.
“I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage,” Davis said in the statement. “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience.”
The problem for state officials is twofold. Kim Davis is an elected official – she was elected Rowan County clerk in November 2014 – and can’t be summarily removed from office. She could be impeached in the state legislature, but the legislature isn’t in session, and won’t be again until January 2016. Governor Beshear has already stated that he won’t call a special session just to expedite marriage license processing in Rowan County.
Impeachment?
The legislature would also need grounds for impeachment. Davis’s critics are working on that, but the issue is politically difficult for state officials, in part because same-sex marriage has yet to gain the popular support of a majority in Kentucky. In 2004, Kentucky voters passed a constitutional “traditional marriage” amendment by a supermajority of 75% to 25%. The Supreme Court ruling in June hasn’t actually changed the law; it has overridden the will of the people and left a default position – not a positive law – that public officials feel bound to defend, against the sentiments of a majority of Kentuckians.
That’s quite a different thing from the people believing that government action is really enforcing the rule of law. And it probably has much to do with why it took until last week for Rowan County to bring misconduct charges against Kim Davis. That’s the first step in establishing grounds for impeachment.
But Rowan County is a party to the ongoing lawsuits involving Davis and her unsatisfied marriage-license customers – and that means the county can’t involve itself directly in prosecuting her for misconduct. Kentucky media report that in such situations, another county attorney’s office usually steps in to handle the prosecution. But in this case, Rowan County has requested the state attorney general, Jack Conway, to prosecute Davis on the charges the county has preferred.
That in itself is interesting. It suggests that other county attorneys are unenthusiastic about jumping in on this one.
Rowan County passed the hot potato off to Conway on Friday. His office is reported, as of Tuesday, to still be considering the charges against Davis. Conway, a Democrat, may or may not handle this with alacrity. He’s planning to run for governor in 2016, and being the guy who’s prosecuting Kim Davis won’t necessarily be a net positive factor with Kentucky voters.
Predicting how this will go is no slam-dunk. I imagine Conway will have to go ahead and prosecute Davis for refusing to perform her duties as prescribed by statute. It’s hard to see how he can wriggle out of it, even if he doesn’t have much of an appetite for the political fallout.
But there will then be the question of whether the legislature will impeach her. Kentucky’s legislature is “purple” right now: the senate is held with a wide margin (27-11) by the Republicans, and the Assembly with a narrower margin (54-46) by the Democrats. It’s actually possible the legislature won’t impeach Davis, even assuming Conway gets a conviction on misconduct charges.
The alternative: Change what the marriage contract is
Lawmakers may end up simply considering alternative legislation to change how marriages are licensed. That’s the solution favored by prospective Republican gubernatorial challenger Matt Bevin.
The change would basically put state recognition of marriage at the back end of the process instead of the front. Couples would have their marriages solemnized by approved private agents (e.g., clergy), and would then file their paperwork with the county, in the manner of a mortgage for real property or other contractual document. Approval of marriage agents and procedures would be the province of the state government.
Would that change satisfy Kim Davis’s scruples? That’s one of many questions. The compromise looks promising, on its face, at least from a political standpoint. It would seem to get most folks off the hook.
But there is a hook to be gotten off of, and that’s the reckoning Kim Davis’s stand is forcing. The state of Kentucky, which never wanted this fight to begin with, can’t actually force Davis to sign her name to a document, and she won’t take herself off the field and leave the point unforced. Kentucky’s going to have to prosecute and impeach Davis to get rid of her.
If the state decides to change the law instead, to circumvent the “clerk’s signature” aspect of obtaining a marriage license, Kentucky will actually be quietly transforming what a marriage document is. After such a change, a marriage, from the perspective of government, will in fact be nothing more than a registered contract, like a mortgage.
From government’s standpoint, the traditional, centuries-old connection of marriage with community, and with the benevolent approval of local authorities, will be severed. We shouldn’t underestimate the meaning of that. For one thing, it means that people who claim to want “marriage equality” won’t be getting equality with what marriage has actually been. All they’ll be getting is an entitlement to have their contracts registered with the government. That’s not the same thing.
The implication of this change is that marriage is nothing more than a generic contract: something the state makes rules about, and that the people have no prior moral or cultural claim over.
The SCOTUS decision in Obergefell v. Hodges actually made it inevitable that this reckoning would come. The decision of the five-justice majority said, essentially, what Kentucky will be driven to act out: that marriage doesn’t belong to the people; it belongs to the state.
A major question of man versus state
If your head hurts, and you just want something more seemingly concrete to hang onto, I urge you to get over that. This, right here, is what your liberty and human dignity turn on. Attacks on your liberty and your standing with the state always come in this convoluted form. No one starts out, in a democracy, saying, “I intend to subvert the basis of liberty and control what you do.” The decision that the state owns you – not the other way around – is always made by default, at the end of a road like the one we’re on with same-sex marriage.
You can’t afford to complain that this is too abstract to understand. Your future and America’s depend on “getting” this. Kim Davis, in insisting on her religious rights, is arguing that there is an authority the people hold that comes before the state’s authority over us.
She’s arguing as America’s Founders did: that government exists to secure her prior-existing rights. It doesn’t exist to hand her ever-changing lists of things she won’t be eligible to do if she actually exercises her rights. Private parties may do that, as it relates to their own property, and they have the right to; but it’s not what government properly exists for.
At least half of America’s conservatives understand that we do have to have this reckoning. If Kentucky compromises by changing what marriage effectively is, the idea of the people having rights that precede the power of government will be sold even further down the river. Don’t wish for it. Kim Davis is right, on principle: we have to stay the course on this and not look for a convenient compromise to get us out of it.
