What Kim Davis’ jailing says about gay marriage and religious liberty

Hundreds yell, preach outside courthouse where marriage license case unfolds

Kim Davis, the county clerk in Kentucky who refused to issue marriage licenses to same-sex couples or resign, even after losing in court, was sent to jail Thursday.

In 2013, Kentucky passed a religious-liberty law.

These two facts are not in conflict.

Despite what you may have heard, these state Religious Freedom Restoration Acts, including those proposed here in Georgia, do not grant people the right to do as they please and throw the Bible (or Torah, or Koran …) at anyone who objects. Davis, a Democrat who was elected clerk of Rowan County last November, was found in contempt of a federal court; the federal RFRA of 1993 didn’t help her, either.

In the two months since five members of the U.S. Supreme Court discovered a constitutional right to same-sex marriage (“Hey, will ya look at that! It was over here in the corner all this time!”) America has not been beset by a spate of government officials or private business owners citing the federal law while flouting that ruling. The Kentucky case made headlines nationally because it was out of the ordinary.

Nor have we seen disorder in the states where gay marriage was made legal before this summer. The exceptions are well-known because there are so few of them: the photographers in New Mexico, the baker in Oregon, the chief justice in Alabama. So far, they’ve lost in court just like Kim Davis did.

Are there those on the traditional-marriage side who tell their constituents RFRA really does speak to this issue? Yes. But the loudest voices linking the two belong to gay-rights advocates. Having observed them in Georgia over the past couple of years, one can almost watch them moving the goal-posts:

2014: No RFRA unless it matches the federal language.

2015: No federal-language RFRA unless it also includes anti-discrimination protections.

2016: No RFRA at all, and legislators better pass a new state civil-rights law.

Never mind that RFRAs have not trumped gay rights in court, or that RFRA opponents can’t tell you which legal standard for religious-liberty cases they prefer to strict scrutiny — the relatively arcane subject matter these laws actually deal with. The illusion has become the received wisdom. Some of Georgia’s corporate titans have put a great deal of political capital into cementing that perception, splitting the right on this issue.

Now the line for all those who don’t want to be branded “bigots” for disagreeing on policy starts behind the American Civil Liberties Union, which after this summer’s court ruling went so far as to disavow the 1993 federal religious freedom law it once worked to pass.

Thus have activists backed themselves into opposing a law that over the years has almost exclusively served to protect the rights of religious minorities, from Sikhs to native Americans.

There was a path to resolving this issue in a way that bolstered liberty on all sides. It was a path that started by recognizing what RFRAs do and don’t do, set that issue aside, and then led lawmakers toward the serious work of determining where one person’s rights end and another’s begin on the very narrow, very specific question of goods and services related to same-sex weddings.

That path might still exist, but it is increasingly hard to find amid the overgrown verbiage.

Reader Comments 0

109 comments
PudHead
PudHead

I remember an America that if you did not do your job you were fired, not jailed…

Kyle_Wingfield
Kyle_Wingfield moderator

@PudHead She's an elected official. Only the voters can fire her. She should just resign.

willardkovacs
willardkovacs

Running the government and meting out punishments based on the holy book of a religion is only bad in the Middle East.

Aren't we fighting people like this in Iraq, Syria, and Libya?

BocaBaby
BocaBaby

The gay activists continue to push their agenda down a road that I don't think they will like in the end.  The pendulum swings in both directions and if they think this is over they are sadly mistaken. 

AWA1
AWA1

What gets me are all the exceptions that we are carving out of laws.  ACA to name one example .... by forcing the availability of birth control, we now have exceptions for religious organizations.  For the morning after pills, we have exemptions for pharmacists.  At what point do the exemptions take the teeth out of the law?  To use the analogy that's zooming around the internet, will an elected Quaker be allowed to withhold gun permits?  An elected Mormon be allowed to refuse to issue liquor licenses/ 

How about we tell the people who want these jobs that you take the job, you take all parts of it, not just those you agree with.  Run for office, you agree to uphold the laws, regardless of whether a statute or a Supreme Court decision determines what that entails.


Else, give me one of those exemptions. I don't like working with stupid people. So my exemption would allow me to ignore them entirely and deal only with the pleasant and competent co-workers.

LilBarryBailout
LilBarryBailout

@AWA1

If the government wasn't so busy forcing people to do things, we wouldn't need exceptions.  Note that I'm not talking about government employees not doing their jobs; it's perfectly appropriate to sanction those who don't.

W2XAB
W2XAB

What we really need is a FREEDOM FROM RELIGION law to protect us from other people's religious beliefs.

LilBarryBailout
LilBarryBailout

@W2XAB

Maybe we need a freedom from rap music law.  Or a freedom from communist propaganda law.  What other speech should we ban?

JimCarv
JimCarv

So now we have it.  An official jailed because she failed to uphold and obey the laws she was sworn to do.  However, one  question.  Didn't our President take an oath to uphold the laws of the nation?  Yes it did!  What about immigration?  He has chosen not to enforce immigration laws.  How is this any different that what this woman is doing?  Why isn't he jailed?  Are we picking and choosing which laws to enforce without invoking legislature to change the laws first?  Who died and made him King?  Or is this an opportunity for Christian persecution in modern day times?

RexHavoc
RexHavoc

Providing a marriage license to a gay couple (or baking them a wedding cake) does NOT infringe on your rights.  Denying them infringes on theirs.  Having been raised in the church and voted R as an adult it sickens me to see how anti-constitution both have become. 

May be time to move (ideologically) somewhere else.

sssinff
sssinff

Hitching your wagon to this sinking ship, really?

TMD1
TMD1

Ok - if the law is being enforced on Kim, let's jail those who are not enforcing the immigration laws - now!



kehstonemtn
kehstonemtn

My guess is 90% or more of the people who post here that say Kim Davis should be in prison for failing to follow the law support President Obama for failing to follow the law on immigration, and support sanctuary cities (an other actions) - so it's this pure hypocrisy that gets me (yes, you'll see it on the other side as well).  My point, Obama should be in jail for his lawlessness as much as Kim Davis should be in jail (and I think she should be in jail).

AynRant
AynRant

 Let's hack through the overgrown verbiage right now! 

The Supreme Court did not discover or invent the provision of the Constitution that grants Americans all civil liberties except those specifically reserved for government and the "people", i.e. voters. The Constitution, in fact, does not grant government or the "people" the right to regulate marriage.

Same gender marriage does not impinge on the civil liberties of other people. Ms. Davis' religious freedom is not compromised in any way if she issues marriage licenses to applicants. If her "conscience", i.e. prejudice, is compromised by the duties of her office, she should resign the office.

As long as she refuses to perform the duties of her office, she is in contempt of the law of the land and she is impinging on the civil liberties of marriage license applicants. If she will not resign, she should be jailed for a week each month so that her staff can issue marriage licenses to applicants.

gaboy983
gaboy983

She holds a PUBLIC office...she's free to practice whatever she likes but she is not allowed to impose her religion on the people that live in her county.  Their religious freedom matters too.

cyadra
cyadra

Under KY statute she should have been arrested and charged with a Class A Misdemeanor. 

522.020 Official misconduct in the first degree.

(1) A public servant is guilty of official misconduct in the first degree when, with intent to obtain or confer a benefit or to injure another person or to deprive another person of a benefit, he knowingly:
(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; (2) Official misconduct in the first degree is a Class A misdemeanor

foo2u
foo2u

What this "says" is if you can't find it in your conscience to serve all of your constituents (that pay your very salary) in a lawful endeavor you either delegate to another or find another job.

What we're talking about here, is a simple governmental function acknowledging a civil contract between two constituents. 

It has ZERO to do with religion, all the pearl clutching, wailing, gnashing of teeth, and hyperbole aside.

If a civil marriage license is only religious in nature, please explain the division of material property in the event of a divorce... an event that is, allegedly, equally frowned upon by "religion".

RoseUp
RoseUp

Kyle, pardon me for "throwing the Bible at you," but I advise you to tread lightly. According to 1 John 2:22, "Who is the liar? It is whoever denies that Jesus is the Christ. Such a person is the antichrist--denying the Father and the Son." 


One day we will all face judgment. According to Matthew 12:31, Jesus himself said, "So I tell you, every sin and blasphemy can be forgiven--except blasphemy against the Holy Spirit, which will never be forgiven." 

mackdenny
mackdenny

Rule of Law, rule of God, or rule of Man?  Sorry, I'll stick with rule of Law.  

Enoch19
Enoch19

For the gays there is no room at all on this issue.  Not only do they not care about religious liberty as a principle. They actively wish to smash any religious liberty that opposes gay marriage. Never mind the thousands of years of precedent. Never mind the sincere questions of conscience and faith.  Never mind the fabrication of a new right long lurking unnoticed in the corners of the constitution.  They only want it their way and all their way. 

WalterLIttle
WalterLIttle

What Mrs. Davis' illegal imprisonment says it that some groups have more freedom than others of us and, God forbid, you try to correct that, you will pay a price. I think everyone who has played a part in this travesty of justice (the gay couple, the Federal Court judge in Kentucky, and, yes, even the Supreme Court justices who passed the "law" knowing it was illegal) should definitely face civil penalties up to and including dismissal from their position and criminal sanctions for false imprisonment.

RaymondJ
RaymondJ

That line was crossed when Kim Davis obstructed other deputies from carrying out the law.  It is the step too far.

Hillary's Emails
Hillary's Emails

Anyone know of a crowdfunding site collecting donations for her?

FIGMO2
FIGMO2

Gay activists come in two varieties...those looking to change the law, and those looking to change hearts and minds.

The first has been proven doable. The second is not always possible.

The first may, very well, create more of the second.

A Catch 22. 

TheRealJDW
TheRealJDW

AN RFRA is a solution looking for a problem and Ms. Davis's predicament is certainly not that problem.  She is welcome to practice her religious freedom in any way she choses...so long as she faithfully discharges the duties of the office to which she has been elected.



LilBarryBailout
LilBarryBailout

@TheRealJDW

Tell that to the owners of Hobby Lobby, who were only able to retain their religious liberty thanks to RFRA.

jamesatl
jamesatl

@TheRealJDW Agree pretty much but there's just much more to the issue. I assume we'll get around to that later. Bottom line right now is that it is wrong that this citizen is in jail.Once you get beyond all the petty finger pointing it seems to me the judge here is just practicing good ole c.y.a.

BocaBaby
BocaBaby

@TheRealJDW  So we should expect President Obama to support laws he swore to defend and protect and not do, as he has done, by refusing to defend laws he thought unconstitutional, correct?  What is the difference between what Obama has done and what this woman is refusing to do?  Please, oh hypocrite, explain.

TomGaff
TomGaff

@TheRealJDW It should be nobody's business except the citizens of Rowan County, Kentucky to decide her fate! The rest of the posters in other parts of the country should keep their mouths shut!

TBS
TBS

It doesn't matter if the number was five, six, seven, eight or nine

Bottom line like every other decision it goes the way of the majority just as this one did. This is not a new thing.

You win some, you lose some.... Those who oppose gay marriage have last this issue at the highest court in the land

Those same people are welcome to disagree, protest or continue to wage legal battles

What folks like Kim Davis can't do is deny gay couples the right marry.

I did not want to see her put in jail for contempt but she didn't leave the judge much recourse

Did Kim Davis have a list of sins that she asked each straight couple if they engaged in before issuing a marriage license? I highly doubt it

Hopefully Davis and the court come to some sort of resolution but as of today Rowan County is abiding by the law and they will continue to do so.

Everyone have a great holiday weekend

Peace

AWA1
AWA1

@TBS Kind of hard to stand on her religious grounds when she's personally flouted those same dictates for THREE divorces.  I won't even trouble to list her adulterous behavior.  Hello Pot, meet Kettle.

Jefferson1776
Jefferson1776

Sad to be in jail just because you won't listen to people when they tell you "you don't know what you are talking about"

RexHavoc
RexHavoc

@Jefferson1776 Yes, if that were the case.  However, when a superior court judge issues a lawful order it gets a tad more serious than that.

Jefferson1776
Jefferson1776

@RexHavoc @Jefferson1776  It is the judges that are telling her she does not know what she is talking about.  Her rights ARE NOT being infringed, but she is infringing on other's rights.

MarkVV
MarkVV

Some people like to warn about “unintended consequences” of any law they do not like, but easily forget it when they support something like the “religious liberty” laws, even though they cannot submit evidence of a need for such a law. Such laws, of course, actually are proposed for the intended consequences – to discourage efforts to seek a remedy of discrimination under the guise of religious liberty, and to make it very difficult to obtain such a remedy, which is why the proponents of those laws refuse a clause guaranteeing non-discrimination.

GMFA
GMFA

@Kyle_Wingfield @Nick_Danger And that is a very bad idea! In Utah the Mormons would have it done according to their beliefs, and so on and so on. I would have to check which state I was in every time I went someplace.

LilBarryBailout
LilBarryBailout

@Nick_Danger @LilBarryBailout @MarkVV

The state RFRAs are very similar or identical to the federal RFRA.  RFRA has protected the religious liberties of a number of people who otherwise would have been discriminated against, most recently the owners of Hobby Lobby.

Now you answer my question.

Kyle_Wingfield
Kyle_Wingfield moderator

@GMFA Actually, Utah is one of the states roundly praised for a compromise that goes well beyond RFRA. 

Kyle_Wingfield
Kyle_Wingfield moderator

@Nick_Danger SCOTUS in 1997 specifically said the federal RFRA can't be applied to the states as Congress intended. States have been passing their own versions ever since.

LilBarryBailout
LilBarryBailout

@MarkVV

Federal RFRA has been around for quite a long time.  Tell us about the bad  consequences, intended or not, from your perspective.

Nick_Danger
Nick_Danger

@LilBarryBailout @MarkVV 

Is anybody complaining about the federal RFRA, Barry?  If that's the only issue, why do we need a state version?

Let's try this:  In your opinion, what is the number one problem this bill will solve?

WilJohnson
WilJohnson

After the Hobby Lobby decision far right conservatives immediately saw an opportunity to modify the Federal RFRA language to lock in state religious freedom rights regarding providing goods and services to gays. They circulated important legal code words to be added by the states including "likely to be burdened", "strict scrutiny", "private parties" and "corporations".These are exactly the code words Indiana finally removed and many are asking not to be included in Georgia's.

Opponents to Georgia's proposed RFRA do not object because it would  lead to discrimination but that it could lead to discrimination.

If the Georgia RFRA were to pass a judge could rule in favor of a photographer who refused to photograph a gay wedding and require the gay couple to pay the photographer's attorney fees and damages. The possibility and cost of this outcome could keep some from filing lawsuits.


This is the possibility that Mr. Wingfield and strict RFRA proponents are hoping to keep alive.



Kyle_Wingfield
Kyle_Wingfield moderator

@WilJohnson If you think "strict scrutiny" is a term coined after Hobby Lobby, you really ought to get a new hobby yourself.

Kyle_Wingfield
Kyle_Wingfield moderator

@WilJohnson Oh, and about this: "If the Georgia RFRA were to pass a judge could rule in favor of a photographer who refused to photograph a gay wedding and require the gay couple to pay the photographer's attorney fees and damages. The possibility and cost of this outcomecould keep some from filing lawsuits."

This could also happen even if the RFRA weren't to pass. It has been ~70 years since a Georgia court took up a free-exercise case. We really have no idea how a Georgia court would rule in one today -- i.e, whether it would use strict scrutiny (again, not a post-Hobby Lobby made-up word as you apparently believe) or another standard.

We would, however, know which standard the court would use if RFRA were passed. That is, after all, the entire point of that law.

LilBarryBailout
LilBarryBailout

@WilJohnson

Why couldn't the gay couple find a different photographer?  There are plenty of them.  No need to get one ticked off at you.

Kyle_Wingfield
Kyle_Wingfield moderator

@Nick_Danger One very large difference is that most of these businesses will sell goods and services to gays in general, but just don't want to participate in any way in a gay wedding. Whether you agree that's really "participation," that is a huge difference between what we're talking about now and what happened with Jim Crow laws.

Kyle_Wingfield
Kyle_Wingfield moderator

@AvailableName "The Indiana law went quite a bit further than RFRA and I think that is where Mr. McKoon and others on your side what to go."

And yet, that's not what's in the bills they've introduced.

LilBarryBailout
LilBarryBailout

@WilJohnson @LilBarryBailout

If I had any respect for the rights of others, including their religious liberties, I would.  Not for the clerk though--she is a government employee and needs to do her job or resign in protest.

Most of this kerfuffle over photographers and bakers is just gays trying to force their beliefs on others.

AvailableName
AvailableName

@Kyle_Wingfield @AvailableName I'm not too impressed with your hypotheticals.  


We do agree that "it is flatly absurd that Republicans in Georgia who are sympathetic to the critics couldn’t be bothered to figure out what that narrower language needed to be."


As to "added on language" that isn't the way I should have said it.  I was thinking about Josh McKoon and his supporters.  As reported during the legislative session earlier this year:


"McKoon smugly pointed to Indiana where a day earlier, Gov. Mike Pence signed a 'religious freedom' bill into law in a ceremony closed to the press and public.


'The state of Indiana is still standing today, things are still running normally, they are still doing business there and the simple common sense protections of individual religious freedom have now been extended to every citizen of that state,' McKoon said."


http://www.projectq.us/atlanta/anti_gay_bill_sponsor_we_going_prevail?gid=16695


The Indiana law went quite a bit further than RFRA and I think that is where Mr. McKoon and others on your side what to go. They want to use "religious freedom" laws like RFRA as swords rather than shields.  


They are the same people who were cheering on Ms. Davis in Kentucky yesterday.  I don't trust 'em; given what I think is your good faith, I wouldn't trust them either were I you.




AvailableName
AvailableName

@Kyle_Wingfield @WilJohnson Then why all the added on language beyond what is in the Federal law?  Why the angry reaction from the right to Mike Jacob's proposed amendment.  If all that is needed is a standard, why not adopt the federal statute and state the standard to be used in Georgia courts?

Nick_Danger
Nick_Danger

@LilBarryBailout @WilJohnson 

"Why couldn't the gay couple find a different photographer?  There are plenty of them.  No need to get one ticked off at you."

Just the same as if they were refused service at a restaurant because they were black, right, Barry?  Just find another restaurant?

WilJohnson
WilJohnson

@LilBarryBailout @WilJohnson While I might wish they had I don't think that's the point. I  believe that "liberty and justice for all" means something.  I believe in "do unto others as you would have them do unto you". I know that gay marriage has challenged my conventions but my faith is a larger umbrella than it is for more evangelical Christians.


My question for you:  If you were gay and had been discriminated against at all turns and a window finally opened for you to step into the light would you choose a different photographer? Would you choose a different baker? A different county clerk?

AWA1
AWA1

@WilJohnson @LilBarryBailout I get the different baker, photographer - those are contractual situations where you are engaging someone to do work for you.  Why go to someone who clearly detests your lifestyle and is likely to do a poor job just to spite you? 

But the country clerk is there to uphold laws.  Not to pick and choose which laws to observe.  She's an elected official. She doesn't get options.  And the constituents should not have to go to another county to get a license.