Cases and Precedents


A friend posted an unusual (for her) Facebook post about Kim Davis, the Rowan County, Kentucky, Clerk. Apparently her feed was filled with ugliness, and she was concerned that people were judging her for her beliefs and asked if only certain people were allowed to have religious beliefs, i.e., the pretty and the rich.

I’m a big fan of debate. Debate allows me to articulate my beliefs, find holes in them, re-evaluate and, if need be, change my beliefs.

But I can’t stand incivility.  I’m guilty of it at times, mistaking position for people, and lowering myself into an insult match that attacks the person and not the position.

I’m working on it.

For me, to debate a position–without degrading oneself by mudslinging–is one of the finer things in life.

I’m pretty sure I got my love of arguing from my father, and the fact that we differ so much politically, can make it both invigorating and flat-out frustrating.

This is a post from a friend of mine whom I absolutely adore. Her concern, she said, is “how quickly we as a country are to judge this lady for her belief.”

I cannot deny that there are people who are doing that. I think it’s atrocious that people have attacked her appearance, put words in her mouth, and basically called her just about every epithet in the book.

But there are many people, of whom I consider myself, who respect her belief but condemn her action.

I think anyone has the right to believe anything he wishes. Religion-wise, anyone can believe anything that they want to. It’s one of the great things about the United States.

Everyone has the right to hold any opinion they wish as well. I don’t think, however, that all opinions are equal. No matter how often one says, for example, “1 + 1 = 3,” doesn’t make it so. No matter how often they say it, no matter how many people believe it, 1 + 1 does not equal 3. They still have the right to believe it, but it does not make it right.

A more real-word example is people who do not believe in evolution despite copious amounts of evidence (of which I always cite the partial use of anti-biotics and sickle-cell red blood cells). They have the right to not believe in evolution. They’re wrong, of course, but they have the right to believe anything they wish.

Same thing with religion. The United States of America was formed, in part, to avoid religious persecution and to ensure not only freedom of religion but also freedom from religion. To clarify: I do not think Kim Davis’s religion is wrong, whatever brand of Christianity she follows. For me, it’s not even particularly about religion. Or, rather, her religion.

For me, Kim Davis’s religion isn’t the issue.

It’s the fact that she’s a sworn agent of the state, of the court, elected and paid to do a very specific job, which she is required to do, a job which she is refusing to do.

Now, I understand that she doesn’t wish her name to appear on marriage licenses for same-sex couples. I respect that.

But, since signing marriage licenses is her job, she has two choices: either do her job or resign, perhaps even find another position with the state that doesn’t come in conflict with her beliefs. To keep taking a salary for a job you’re unwilling to do is, in my opinion, highly unethical and tantamount to stealing.

I get that she doesn’t see it that way, too.

A Grenada county clerk, Linda Barnette, after the Supreme Court’s ruling, resigned, citing the ruling and her beliefs. (Source)

I disagree with her beliefs, but I have mad respect for this woman. She didn’t grandstand. She didn’t stay closed in her office refusing to do her job and forcing those under her supervision to refuse to do their jobs, either. She didn’t keep taking a tax-payer funded salary.

When someone is in office, they are an agent of the government, whether it’s state-level or national-level. And, government cannot–absolutely cannot–respect an establishment of religion. Because of the “state action” requirement of the establishment clause, private individuals cannot be guilty of establishing a religion–but an agent of the state can. (Source.)

This is exactly what she was doing by refusing marriage licenses. She was using her office to “establish” a religion for the government of Rowan county, Kentucky, and that is clearly unconstitutional, completely irrespective of the Supreme Court’s ruling.

Her beliefs matter. Her faith matters. She matters.  Unless her employment contract forbids her, she is more than able to protest anything she wishes–while she is “off the clock.”  She is free to exercise her religion in any way she chooses–while she is “off the clock.”

Just not while doing government duties–or, in her case–refusing to do her sworn government duties.

To refuse to do her job while accepting a salary is one thing, but to require that those under her immediate supervision also refused–based on HER religious beliefs–is a clear, and by clear, I mean abso-fucking-lutely crystal clear, establishment of religion by an agent acting on behalf of the government.

A marriage consists of two primary parts (not including the actual hard work that goes into making one successful!): legal and civil.

One may be married by any priest, minister, or shaman, or shipboard captain she wishes, and would be considered, respective to her beliefs, married in the eyes of God. This is the civil part. She can be married with or without religious clergy, with or without friends. But she is NOT married in the “eyes of the state” (i.e., legally married, or, plain married for all legal intents and purposes) until the government recognizes it, and that recognition requires a license and a witness.

By refusing to sign licenses, Kim Davis was refusing to allow couples to be recognized in the eyes of the law, and de facto, denying couples the privileges granted upon marriage. Not just same-sex couples, but all couples. Why did she stop issuing all licenses? Perhaps she knows, and rightly so, that to do one and not the other is, legally speaking, discrimination, no matter what her beliefs are. And so she refused all, therefore completely failing in a vital and mandatory part of her job.

I don’t know what a county clerk’s oath is she takes office, but I’m pretty sure it involves an oath that swears to carrying out the duties of her office, which includes issuing marriage licenses to those who qualify.

“God’s moral law conflicts with my job duties. You can’t be separated from something that’s in your heart and in your soul,” she testified before federal Judge David Bunning. ” (Source)

I do not question her right to believe as she does, or to pick and choose which verses (and versions, for that matter) of the Bible that she follows. She’s absolutely right. You can’t be separated from something that’s in your heart and in your soul. But you can be separated from your job if your job duties conflict with your religious belief.

I watched a video (God bless YouTube!) of Dr. Neil Degrasse Tyson and Stephen Colbert (fantastic by the way), and one of Dr. Tyson’s statements stood out to me: “We need a scientifically literate electorate.”  While I agree with him, I think a good step in the right direction is empowering a governmentally literate electorate.

People, judging by comments on various articles, don’t seem to understand how basic government works. I’m no expert, but an elementary school social studies class teaches the basics. I have seen many people complain that  these “activist judges” “wrote a whole new law.”  Others defend Ms. Davis for “Following the laws of the state of Kentucky, meaning the Kentucky Constitutional Amendment 1 which states: Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. (Source.)

The question put before the Court was, to wit, “Is denying same-sex couples the benefit of marriage constitutional?”

It was found to be unconstitutional, specifically under the 14th Amendment, or the “Equal Protection” clause.  When the majority of the Court found it so (and they did so by interpreting the existing Constitution and citing precedent, such as Loving v. Virginia, not by “making new laws”), all state-level laws that were in opposition to this ruling were automatically nullified.

So, by denying same-sex couples marriage licenses prior to the Supreme Court’s ruling, Ms. Davis, was in fact, adhering to state law. After the ruling, however, she was not.  Nullification of a law deemed to be unconstitutional does not require a repeal by the voters.  It is simply no longer a “lawful law” and is negated.

Case in point: the state of Mississippi did not officially repeal slavery until 2013, despite it being federal law since 1865. (Source) It wasn’t still legal for Mississippians to own slaves simply because they hadn’t repealed any slavery laws–it wasn’t legal because a US Constitutional amendment was passed–with–or, as the case may be–without Mississippi’s formal agreement.

The question I have for those who feel that Ms. Davis’s being jailed for contempt of court is proof positive that Christians are being persecuted, is this: If a member of a pacifist religion were to be elected to give licenses, and later, gun licenses were incorporated into his department, would his refusal to grant gun licenses be acceptable? What if he were Muslim?  What if it were drivers’ licenses that were incorporated, and he were of a religion that believed that women didn’t deserve the right to drive? Or voting licenses, and women should not vote?

And for those that support the Hobby Lobby decision (another soap box for another day), what if it were a Scientologist corporation that refused to pay for psychiatric medications for its employees? Or one that refused to cover blood transfusions? Or mammograms and prostate checks? For whatever sincerely held religious belief.

Would those be acceptable, too?

It’s not just about the single case or the single refusal of duties or a single case about refusing to provide certain forms of birth control. It’s about the precedent it sets as well.

If we allow Ms. Davis to continue in her position while citing religious beliefs as reason not to do her job, all of these things I mentioned are possible. With the Hobby Lobby decision, so many “exclusions” are now made possible.

Because the government can’t allow one religion to trump another.

It’s not the door so much as it is the hallway of doors that are possible just beyond the immediate case. It’s about common sense and precedent.

And these are some very, very dangerous precedents we’re setting.  Especially for a country that purports itself to be “The Land of the Free.”

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