Thursday, September 10, 2015

Kim Davis, According to the VC

I have blithely and overcynically said for years that "the news always gets it wrong, as one can verify whenever it reports something you have first-hand knowledge of." After which, I immediately believe the next article, of course. That's what readers do. They believe text.

I fell into that with the Kim Davis story. I accepted the CW that she was attempting to deny any gay couple who came in the door a marriage license. The truth is a little trickier. She's objecting more narrowly to having her name on the forms. She says that she would be content with "Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form." (Exact quote) It's not very different from the antiwar "Not In Our Name" petition against invading Iraq. Both her supporters and her opponents seem to be missing the point.

It's possible to still disagree with that. In fact, I think both the Kim Davis and the "Not In Our Name" arguments are specious. But I at least see the point, and it may fit the law. As is often the case, the Volokh Conspiracy provides an interesting, balanced analysis.

12 comments:

terri said...

I read the linked material. It seems to me that the argument for Davis' accommodation is still weak. It is widely known that Muslims are forbidden to partake in alcohol and that Jehovah's witnesses eschew any adherence to pledges/flags and what-have-you.

While it is widely known that many Christians are against same-sex relationships, it isn't part of general doctrine that having your name on a certificate makes you a willing participant in an act which you consider sinful.

What bothers me about Davis' position is her expectation that the way a County Clerk's office works--and what being elected as a Clerk with that special stamp/signature that makes things official--has to completely change simply for her own moral convenience. She will basically do everything she's legally supposed to..as long as she can bend the entire process/county/state to her will. In some way it's a small accommodation, simply removing her name. In some ways it's huge...is her name going to removed from every official license that is issued, or only same-sex ones? Who's going to oversee that process? Laws have to be passed to make it official. It will take time and effort by a lot of people to make it acceptable/legal.

The whole point of having an official who provides their name/stamp is to make sure that everything flows through an accepted, legitimate, state-sponsored gatekeeper. She wanted to be gatekeeper. She is the gatekeeper. Now, she wants to keep the perks of being the gatekeeper without actually accepting the responsibility of being the gatekeeper.

Christopher B said...

In looking at the examples that Prof Volokh provides, all of them are cases where the activities were either tangential to the core functions of the job, or were core functions but tangential to the religious belief. None, with the possible exception of health care workers performing abortions, were situations where a core belief was required to be directly violated. Kim Davis is making the same argument against participation in the performance of a gay marriage that clergy, bakers, caterers, and florists are or could make, that her participation violates her belief that marriage is a union reserved for one man and one woman. Slicing the salami to minimize her participation doesn't make it go away.

Your comment also illustrates a bi-polarism that I've seen in many comments slagging Kim Davis. On one hand you want to argue that her name appearing on the marriage license is such a triviality that she has no valid objection to it. At the same time you also seem to claim that a marriage license has no legal effect if her name specifically doesn't appear on it. It's almost as if the point of the exercise isn't to provide marriage licenses but to make sure that Kim Davis is forced to do something she objects to doing.

terri said...

No. Not exactly what I was saying.

It has less to do with whether it is a triviality or not and more to do with the accommodation aspect that the link discusses. Kim Davis has her objections which, to her, are very real and important. The question is what are other people obligated to do in order to pacify her individual conscience?

In order to accommodate her, the county/state has to overhaul their requirements and put in in writing/law. It isn't simply a matter of shifting responsibility to her co-workers in some sort of arrangement that doesn't really cost anybody anything.

In order to accommodate her, legislation has to occur, most probably in the midst of disagreement and extended lawsuits, meetings, etc. That will cost time and money for the county/state. I would think that that would constitute "undue burden."

Kim Davis' situation isn't the same situation as lower level employees with religious objections. She is in charge. That's her role. That's what she was elected to do...to approve official, legal documents. Right now, there is no one to shift her responsibilities to. She can say that she will let her deputies do the job, as long as her name isn't on the certificate...but in essence, by making that qualification, she is preventing them from doing just that. So, at this time, if she is allowed to do things the way she wants to do them, her individual religious accommodation would keep the job from being done at all.

As far as my personal feelings seeming "bi-polar", that argument cuts both ways. Kim Davis will still do the work, as long her name isn't on it...yet she'd still be providing licenses for SSM. She isn't any less complicit in the act by removing her name, or letting other employees do her job for her.

Also, issuing a marriage license is not the same as officiating. I would bet that there are numerous licenses which are requested that are never completely legalized because people don't go through with the wedding. Nothing is official until it is signed by an authorized justice of the peace/clergy/etc. and it is turned back into the county clerk to be recorded.

dmoelling said...

This is the inevitable consequence of failing to address SSM the correct way via a Constitutional Amendment. Women's suffrage, Prohibition (and repeal), eliminating slavery all were passed by the American people via the amendment process. While difficult and time consuming it establishes the broad and strong consensus required in a republic. To have a vague argument via the supreme court establish SSM as the law of the land leaves many people feeling that it has little weight. It also had no lead time for local legislatures to work out the kinks.

Unfortunately SSM as an issue was pushed for some sort of normalizing acknowledgement for gay's rather than any practical impact. I firmly believe the whole thing will founder on the legal issues related to children. I met a woman on the plane the other day who had just gone to see her biological father for the first time at age 37. She had not problems with her adoptive parents but the need was there. This will get ugly for children in SSM since one biologic parent is necessarily not involved. A tough place to be.

Sam L. said...

SSM and Abortion: "settled" by SCOTUS. Not being settled by The People, it will remain a humongous bone of contention.

terri said...

Also, after reading more about this, I found another article by Volokh which also briefly considers if what Davis really wants creates an undue burden for accommodation...towards the conclusion of the article. Apparently, not only doesn't she want her name on the license, she doesn't want her title listed (Rowan County Clerk), and she wants an official declaration that they are not being issued under her authority.

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/

james said...

Is the only acceptable option to resign in favor of someone who is willing to sign a lie?

Texan99 said...

I have to turn the situation into something different in a thought experiment: some act the County Clerk is being required to sign off on that any of us could imagine is inconceivable morally. For example, the sign-off that permits the train to start rolling, carrying Jews to Auschwitz. It's ludicrous to imagine her staying in her job, but taking her name off the form that her office will still issue. I can't get past the idea that her job has become something she can't be reconciled to, so she has to quit.

It gets much harder to think through when it's a "victimless crime," one where she can take the position that she's not trying to stop other people from doing it, she just can't be sullied by touching it with her name. It's not quite like saying, "This is wrong, and it's not happening on my watch; you'll have to lock me up, or impeach me, or have a recall election to remove me as an obstacle, because I will neither quit my elected position nor comply with your demand." She's saying, "Go ahead and do it, just go around me."

I've been reading an account by Thomas Morton of life in New England in the 1620s. He reports fierce quarreling between the Puritans and the prayer-book set over the forms of marriage. I get the impression the Puritans found nearly all forms of religious ceremony for marriage (such as wedding rings) to be papist idolatry, and insisted that the whole thing be handled as a simple matter for the state registrar. (Morton was a prayer-book man, himself, and not what you would call devout or reliably truthful, so perhaps his testimony is suspect.) Anyway, we sure can fight over the intersection between religious and secular treatments of marriage.

Grim said...

I still see "VC" and think "Villainous Company."

Tex, I am somewhat more sympathetic to the idea of 'take my name off the form,' but I think it's because my analogy isn't to Jews going to concentration camps. There are lots of moral issues in the community in which "Do whatever you want, but don't make me any part of it" is a sensible standard. This is a change that has been imposed on her state since she was elected to do a different job; she's just refusing to have anything to do with the change, while not standing in its way as long as she can be cut free of association with it.

My suspicion is that the right result is not for her to resign, but for the area to have a recall election in which the voters would be asked to either elect someone else or to confirm that it is their will that she defy the courts in this way. If the latter, as well may be the case, the courts might need to take on board that this isn't one idiosyncratic woman -- she's the elected voice of her community on this moral issue, which should be of concern to a government allegedly of, by, and for the people. If the former, the matter is resolved.

Texan99 said...

You may be right. I'm certainly of divided mind on this.

Donna B. said...

Perhaps the issue here is to what extent does her office have authority? Is it the authority to say "these two people may marry" in this jurisdiction or is it the authority to determine whether any two people meet the requirements set by a higher governing authority to marry.

I think she's using the latter definition, but she's overstepping the authority of her office by determining which higher governing authority has control. She wants to use religion, but I think her office is bound by the county, state, and federal laws. That's what it means to me to separate religion from the state.

Simply put, she doesn't have the authority to decide who the county clerk's office is answerable to. That hasn't changed since she ran for office.

ymarsakar said...

Might want to upgrade those old propaganda firewall filters of yours, Assistant. It will become a great liability in the future if you think going around picking up viruses is a good idea. The damage they can do is sometimes permanent, so even if you "catch up" and discover them later, it won't do you much good.