Government employees

Kim Davis Should Not Have Been Jailed

The Kentucky county clerk can't use the force of law to further her religious beliefs, but incarceration should be a last resort.

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Lynn Friedman/Flickr

Shortly before the Labor Day weekend, a federal judge in Kentucky ordered the Rowan County clerk incarcerated for violating his orders. Five days later, he released her. The judge found that the clerk, Kim Davis, interfered with the ability of same-sex couples in her county to marry by refusing to issue them applications for marriage licenses. Davis argued that she was following her conscience, which is grounded in a well-known Christian antipathy to same-sex marriages, which, in turn, is protected by the Free Exercise Clause of the First Amendment.

Here is the backstory: Davis is the clerk of Rowan County, Kentucky. Among her duties as county clerk is the issuance of applications for marriage licenses. When she assumed office, she took an oath to administer her duties consistent with the U.S. Constitution. Her job with respect to licenses is ministerial: issuing documents to those who legally qualify for them and filing the documents when they are returned to her.

Kentucky law requires that applicants for marriage licenses be unmarried, residents of Kentucky, and at least 18 years of age. As a county clerk, Davis cannot add to these requirements another requirement— namely, that the applicants be of the opposite sex. She cannot do that because the Supreme Court has ruled that marriage is a fundamental liberty, the exercise of which is protected by the Constitution, and within that liberty is the right to choose a same-sex marriage mate, uninterfered with by the state.

By adding her own requirement and using the force of law to enforce that requirement, she is frustrating the ruling of the Supreme Court, interfering with the fundamental liberties of marriage applicants, and violating her oath to uphold the Constitution, the final interpreter of which is the Supreme Court.

After Davis refused to comply with two orders to issue applications to those who comply with Kentucky law and not to add her own requirement, a federal trial judge found that she was in a state of civil contempt, and he incarcerated her.

Civil contempt is not a crime. Hence she was not sentenced to a jail term. The purpose of her incarceration was not punishment; rather, it was coercion. The courts have limited resources with which to coerce reluctant litigants to comply with court orders, and incarceration is one of them. 

The court properly interpreted its duties under the Constitution, but was wrong to incarcerate her.

Davis is running a county clerk's office, not a church and not a legislative body. Moreover, her imposition of her own religious requirement upon the license applicants violates the well-respected and long-held First Amendment value of separation of church and state. She is free to believe as she wishes and to practice her beliefs, is free to impose her beliefs on her children and family, and is free to attempt to persuade others of the salvific value of her beliefs. But she is not free to use the force of law to further her beliefs by denying legal rights to those unwilling to accept them.

Suppose her religion forbade interracial marriage (as some Mormon Churches do). Could she deny a marriage license application to an interracial couple? Or, suppose she was a traditionalist Roman Catholic, who believed that Catholics should only marry other Catholics. Could she deny a marriage license application to a Catholic planning to marry a non-Catholic? Or, suppose her religion condemned the private ownership and use of guns (as some Quakers do). Could she refuse to issue applications for gun permits? The answers are obvious.

If her personal religious views could trump her obligations under the law when she is in a ministerial and not a discretionary government job, and other government officials similarly situated could do the same, then we'd lack the rule of law in America, and we would live instead under the discretion of bureaucrats.

But she should not have been sent to jail. Judges must do all possible to resist the temptation to incarcerate defiant litigants, because incarceration should be the last resort. Judges should enforce their rulings using the least force necessary, not the most force available. And history teaches that for those who conscientiously defy the law—particularly for religious-based reasons—incarceration is often fruitless.

I would have removed her authority to issue marriage license applications and assigned it to others in the Kentucky state government, and directed them to issue the applications in accordance with the law. That would have kept Davis free and her conscience clear, and permitted those in Rowan County to get married to whom they choose.

What about the St. Thomas More argument: "I die the King's good servant, but God's first?" That is not relevant here. More was tried, convicted, and executed for his personal refusal to accept a heretical doctrine: that the monstrous King Henry VIII was somehow the head of the Roman Catholic Church in England. Even More admitted that one must do all one can to avoid martyrdom, even leaving public office knowing that one's successor will do what one has refused.

The Free Exercise Clause guarantees individuals the lawful ability to practice their religion free from government interference. It does not permit those in government to use their offices to deny the rights of those who reject their beliefs. That is the lesson for Kim Davis.

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  1. No Mormon churches forbid interracial marriage. There is nothing against it in the teachings of the Church of Jesus Christ of Latter-Day Saints (Mormons or LDS).

    There may be some other church that was formed by previous members of the LDS faith that do forbid it. However, to claim that some Mormon Churches do is completely misleading and incorrect. This, given the fact that the term “Mormon” is associated with the actual organization of the LDS Church and not any churches formed by previous members.

    1. The term “Mormon” is also associated with the breakaway sects. The main LDS church doesn’t get to decide how everyone else uses the word. Or should we stop calling protestants “Christians” too?

      1. …said Zeb, who can’t identify a single “Mormon breakaway sect” that prohibits interracial marriage.

  2. Judges must do all possible to resist the temptation to incarcerate defiant litigants, because incarceration should be the last resort.

    She wasn’t some private sector baker not wanting inclusion in a same-sex wedding. The rules are different when you choose to hold public office. Simply shifting the burden of her workload to others isn’t a proper correction, either, and it invites others to claim conscientious objector status to get out of doing the jobs tax dollars pay them to do.

    1. Simply shifting the burden of her workload to others isn’t a proper correction, either, and it invites others to claim conscientious objector status to get out of doing the jobs tax dollars pay them to do.

      I fail to see how it invites others to claim conscientious objector status by any inappropriate means. I’d be fine if loads of government employees agreed that climate, abortion, fixing the economy, etc. was not their problem. IMO, your argument borders a little on the assertion that just because the government signs the check with your name on it and deposits the money in your account, you gotta do the work. Not as relevant, exactly, with Kim Davis, but in defending Kim Davis, we’re granting options to everyone who has figure out what to do when the government comes knocking with the old “That sure is a nice [insert business type here] you’ve got there… sure would be a shame if something happened to it.” There are, and should be, a lot more options than ‘give in to the looters’ or ‘go full Ellis Wyatt’.

    2. With respect to the “last resort,” I urgently call upon Judge Napolitano to recognize the radical social danger posed by the Dead Sea Scrolls provocateur. Indeed, America’s leading criminal satire case had made it quite clear that prison is the necessary punishment for inappropriately deadpan Gmail mockery as well as other forms of defiant protest, because we simply have no other way of dealing with the trouble increasingly fomented by the recalcitrant individuals who engage in such conduct. See the documentation at:

      http://raphaelgolbtrial.wordpr…..rsonation/

      Once again, as I’ve argued elsewhere, there is obviously nothing properly satirical about a fake “Gmail” in which a distinguished academic department chairman is portrayed as accusing himself of plagiarism and as justifying his alleged misconduct with comments such as: “This is simply the politics of Dead Sea Scrolls studies. If I had given credit to this man I would have been banned from conferences around the world.” The necessary, last-resort reaction to fake “confessions” of the sort is prosecution and incarceration in one of our nation’s many suitable penitentiaries.

  3. So how would one remove her authority? I’ve read, and not researched that Kentucky has virtually no way to recall an elected official. It would take the legislature time to redefine and codify a change. In the meantime, same sex couples would continue being denied their rights. Please offer a solution as an alternative to incarceration.

    1. Yep. I think the judge made quite a good call with just locking her up for a few days, getting the licenses flowing by her deputies, then letting her out to see what happened after.

    2. Napolitano says “I would have removed her authority to issue marriage license applications and assigned it to others in the Kentucky state government, and directed them to issue the applications in accordance with the law.”

      But did the trial Judge have the authority to do this? I thought the only remedy was for the legislature to change the law.

      I agree other remedies should be considered, such as a fine or other monetary penalty.

      1. The judge did not have authority to change laws like that.

        I think the judge recognized that a monetary penalty was probably going to be toothless; she would have gotten donations from this circus that would have more than compensated her for the fines.

    3. Impeachment and removal?

      1. The only body that can impeach and remove is the Legislature, which is out of session until January. That’s the earliest the law could get changed, too. The Governor could call a special session of the Legislature but… is it really an emergency situation that a clerk is being compelled to do the job she was elected/hired to do?

  4. Nice to see a conservative legal mind from FOX so clearly explain why what she was doing was out of bounds. As I have said elsewhere, there might be room for disagreement about jailing her, but those who think she was right to do simply don’t have a reasonable argument.

  5. I was stunned when I found out she was a Democrat. I guess she’s one of those Bill Clinton-style Dems? Hard to say. Either way, she’s abusing her power to push a certain religious/moral view upon others. She has no right to do that.

    Taking away her authority, to issue licenses, is not a fix. If anything, it would encourage others who are dead set against same sex marriage to do the same.

    I’m Christian but this facist behavior pisses me off to no avail.

  6. I’m utterly amazed at the deep and abidingly dumb comments coming from people who should know better. All libertarians should be in unwavering agreement that friction within the halls of government over principles is a very good thing. Isn’t there a wise old saying that “you better be thankful you’re not getting all the government you’re paying for?”

    And for any libertarian to agree that Davis should have ever been jailed is extremely hypocritical. If this matter were about a county clerk refusing to sign the demolition order for private property that was being taken by the government, and that taking was deemed legal by the Supreme Court, but illegal under state law, which of you would so vociferously shout for the clerk to do her job?

    1. This isn’t the “Halls of Government”, this is the bureaucracy. Bureaucrats do a job. This woman failed to do hers. If she had a moral objection to it, then she should have resigned her post.

      There is nothing intrinsically libertarian about supporting someone who flagrantly avoids doing their job because they simply don’t want to.

      As for if she didn’t want to be jailed or not – the remedy for that is simple, do not ignore a court order and you will not be jailed. You can’t do that? Then quit. It’s that simple.

      1. Case in point, see above comment.

        1. Yeah, good retort.

    2. Friction for the sake of friction isn’t somehow intrinsically good.

      Napolitano explained in this article that judges have limited options for those in contempt of court. I don’t know what his other options were. Elsewhere, I have read that she had the option of having her deputies handle the cases and sign the paperwork in their own names, but she refused this workaround.

      With that in mind, I can see how a judge might conclude that this is a woman who isn’t looking for a solution to a problem but is creating a problem to get attention. If so, then I think a short time in the slammer is reasonable.

      Also, the jail time solution appears to have worked. She wanted to be a martyr, just not the kind that really suffers.

      1. You honor, I rest my case.

      2. “She wanted to be a martyr, just not the kind that really suffers.”

        Citation needed.

        I mean, sure, maybe she conspired to institute govt-recognized SSM, then plotted to put herself in prison for an indefinite sentence – oops, I mean an indefinite civil commitment order – knowing all along that the judge would reverse course after five days and let her go.

        I mean, isn’t it obvious?

        /sarc

        1. The judge didn’t reverse course, Davis did. She agreed to have the licenses issued from her office in exchange for getting out of jail.

          As for being a martyr, she chose to go to jail b/c she could have changed BEFORE going to jail. HER choice. She just didn’t want to suffer toooooo much.

          1. I don’t think she changed her mind, but if you have a link I’ll check it out.

      3. Friction for the sake of friction isn’t somehow intrinsically good.

        Unless that friction is in support of gay marriage, then it’s an unquestionable good (on par with a belief in God). Even if it leads to the *exact behavior* we despised the Christians for doing to homosexuals.

        1. Sophistry. Don’t pretend I said friction can’t be a good thing. I simply objected to the notion that it’s inherently good.

  7. and we would live instead under the discretion of bureaucrats.

    1. Squirrlz!

      Second line should have been: You mean we don’t?

  8. It’s too bad that Napolitano accepted the dogma that the Supreme Court can rewrite the Constitution at will under the guise of interpreting it.

    After Tom Woods’ book *Nullification,* (and even earlier, I think) the status of Supreme Court decisions, and the rights of other government agencies to challenge the Supreme Court, has become a live issue, at least among libertarians and conservatives. Anyone who wants to defend the old orthodoxy now has to engage Woods’ arguments and show why they’re wrong, not simply assert that the Supreme Court must be bowed down to by everyone else.

    For those who haven’t read Woods’ book, at least check out pp. 82-83 on Amazon, where the Wisconsin Supreme Court defied the U.S. Supreme Court, resisting the Fugititive Slave Act despite the U.S. Supremes’ order to comply with it.

    Anyone defending the theory of U.S. Supreme Court supremacy has to show why the Wisconsin Supreme Court was wrong.

    http://ow.ly/S2v7g

    1. typical conspiracy argument.

      prove x is wrong, or there is a conspiracy.

      ok, you proved x is wrong. now prove that y is wrong or there is a conspiracy.

      ok, you proved y is wrong. now prove that z is wrong or there is a conspiracy.

      rinse. lather. repeat.

      1. Wow, that’s so incoherent it’s not even wrong.

    2. Notorious UGCC|9.10.15 @ 10:01AM|#
      “It’s too bad that Napolitano accepted the dogma that the Supreme Court can rewrite the Constitution at will under the guise of interpreting it.”

      Too bad eddie’s an ignoramus.
      Hint: She would not do her job since she’s involved in some superstiton-cult call xianism. Article One of the constition says superstition and state shall be separate.

  9. I would have removed her authority to issue marriage license applications

    Correct me if I’m wrong, but I don’t think that would have been legally possible.

  10. violating her oath to uphold the Constitution, the final interpreter of which is the Supreme Court.

    The Judge should know that this isn’t true. The Court made this up in Madison v. Marbury, entirely extra-Constitutionally.

    The final interpreter of the Constitution is “We the People”, per the 1st and 2nd amendments (also, jury nullification). That “We the People” don’t care enough to really use either the 1st or 2nd amendment to challenge the Court means that we don’t care enough about the subject to interfere with the Court, NOT that the Court has the power it illegitimately acquired.

    That being said, yes, the Fed nor the States/counties may tell people that a marriage contract excludes them. Still, the Judge should know better.

    1. I don’t think I want “we the people” interpreting the constitution either. “We” seem to be just as keen on interpreting it to mean whatever we want as the courts, if not more so.

      1. I don’t want the majority interpreting it either, but that doesn’t mean it’s up to the Court.

        Tyranny is never right no matter who says otherwise.

  11. Ehhh… The judge wanted to fine her, but she admitted to having a substantial donation fund for legal expenses so the judge rightly decided a fine would not have a coercive effect.

  12. The fallout from a federal judge removing an elected official from office would have been incredible.
    Definitely something to be avoided.
    The judge gave her the option of allowing her deputies to issue the licenses. She specifically ordered them not to. That leaves the judge with the choice of a fine or jail. The were already people lined up to pay the fine so there would be no motivation for her to comply. That left him with the jail option.
    The deputies are now issuing licenses per the judges order to them. When they complied she was released. If she were to take action that in some way removes or alters the county records without definite authority to do it she will find herself back in front of a judge.
    Hopefully the legislature will modify the laws covering removal of public officials to cover this sort of thing.

  13. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ?????? http://www.online-jobs9.com

  14. ” That is the lesson for Kim Davis.”
    You would think, but as it turns out, she was determined to give of us all a lesson on how her god
    has higher jurisdiction over state and government . I firmly believe those were her only intentions.

    1. Nosea|9.10.15 @ 3:05PM|#
      ” That is the lesson for Kim Davis.”
      You would think, but as it turns out, she was determined to give of us all a lesson on how her god
      has higher jurisdiction over state and government . I firmly believe those were her only intentions.

      I do, too.
      Her cult has certain rules and she thought those bleefs took precedent over law. So she went to jail to find out her cult does not take precedence.
      She’s welcome to her fantasies; she’s not welcome to use a government position to enforce those fantasies on those who might just laugh at her.

  15. Dear Judge and Reason Mag:

    No Mormon church prohibits interracial marriage. There was a time when it was discouraged, but it was never prohibited. Please correct that statement. Other than that, great article.

  16. Good for you, Judge.

    As deplorable as I find Davis’s views, she did not commit an act of interpersonal violence; incarceration, otoh, *is* a violent act. No civilized people can advocate the initiation of interpersonal violence and still call themselves “civilized”.

    For libertarians, while the non-initiation of violence principle – NIVP – is not logically equivalent with the NAP or libertarianism, it *is* incompatible with nation-states and would allow the practice of libertarianism (while not requiring that everyone be a libertarian) and, imho, lead to a fairly libertarian society.

  17. Especially given the cost to the taxpayer of jail space. Strikes me that she should have been fired.

  18. Statists gonna state.

  19. Judge Bunning has a hammer (jail cell) and everything that rubs him the wrong way is a nail.

  20. I disagree with the judge. I think incarceration and a hefty personal fine were in order. I don’t see how the judge thinks that if he had ruled in this case he could assign responsibility for issuing licenses to another part of the state government. Under what Constitutional authority would he be able to do what is rightfully the legislative branch’s decision?

  21. Does a federal judge have the power to change the job definition of an elected state official? I don’t think so. From what I can tell, it was the judge’s only choice to maintain the rule of law.

    1. We’ve got to break the rule of law to “maintain it”!!!

      Lock up the heretic who defies the politically correct cultural narrative. Scum like that should be burned at the stake.

      Her right to habeaus corpus and due process and requirement of having violated an actual criminal statute doesn’t matter. Imprison her to maintain law.

      This strikes me as a particularly Nancy Pelosi kind of thing to say.

  22. It is amazing how faith blinds looters to the meaning of a four-letter word. Free means uncoerced and uncoercing in politics. Yet mystical bigots read the First Amendment giving them the “coercive exercise” over others. Secular looters stare in bovine incomprehension at that same word in the Second Amendment and instead read into the text their own ideal of “a coercive State”. “Both” their parties reflect that dyslexic scorn for life and liberty, and make me all the happier to bitch-slap them with a ballot in stereo on election day.

  23. Since Ms Davis is an agent of the state, I’m fine with her being jailed. Too bad there isn’t an efficient legal mechanism for stripping her of her office for failing to execute it appropriately. With MORE jail time on top of it. Frankly, her abuse of her position to make a spectacle should be dealt with harshly. What better way to encourage accountability upon the state and its agents?

    I appreciate her having convictions, and she is free to exercise those convictions. That doesn’t absolve her of consequences for choosing personal conviction over duty. I’m reminded of Chelsea Manning; sentenced to prison for years for making such a choice.

  24. Classic error by the judge (the one in Kentucky). It was clearly a move to uphold his authority, and had nothing to do with solving the problem. How dare she ignore his order?

    Authoritarians with power expect their “subjects” to jump on command. This was not a problem that needed to be solved by him, nor so quickly. The clerk took an oath to uphold the law as it existed at the time, but couldn’t have known, then, that there would be a conflict. Such conflicts take time to resolve. The voters hired her, and if they weren’t happy with her work-around solution, there would be plenty of time to recall her, or sue her office.

    Even if the clerk had taken hostages, it would not be a good idea to go in with threats. Any mother with parenting skills knows that storming Waco is a mistake when one can simply wait them out, instead. Time is what is needed, not violence. I don’t think anyone involved with this came out a winner.

  25. Ok, fine, everyone gets the moral, and has figured out the message!!
    Here’s the main issuee:
    WHY DOES KIM DAVIS STILL HAVE A JOB????????????????

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