The jailing of a Kentucky county clerk for refusing to issue marriage licenses to same sex couples was a normal judicial step in such cases. Faith-based opponents who assert God’s law against such action of a federal judge don’t understand, or accept, that United States jurisprudence is a secular system, not a theocracy.
Kim Davis, the jailed Rowan County clerk, claims same sex unions violate her religious belief that marriage is between a man and a woman; she believes forcing her to issue marriage licenses to gays violates her First Amendment right of freedom of religion. It does no such thing. She’s not being told she can’t believe as she does or to worship as she wishes, only she can’t effectively impose her religious beliefs on anyone else by denying two people the ability to marry. And she can’t refuse to obey an order of the court without consequences.
Issuance of a marriage license is a ministerial action; it requires no judgment to be exercised. The clerk only determines whether the applying parties meet the requirements established by law: are they of a certain age, do they meet residence requirements, have they paid the required fee, for example. A clerk’s signature on a license doesn’t imply personal approval of the parties’ fitness to marry.
Kentucky’s law a marriage is between one man and one woman was declared unconstitutional by the Supreme Court’s recent decision in Obergefell v. Hodges, whether Ms. Davis or anyone else disagrees with it. Courts try to find ways to resolve the issue and release detainees as soon as possible, as the judge did in this case on Tuesday.
Interpreting the Constitution is the exclusive responsibility of the judiciary, and everyone must comply with a court’s decision. Courts have only two ways to enforce their judgments: they can impose fines and/or jail offenders for contempt of court. As harsh as it is to take away a person’s freedom, jailing a person for contempt of court, until he or she complies with an order, goes back to English common law and is authorized by federal and state law.
Evangelist preachers and politicians have shown either their ignorance or contempt of the law, or both, by their unfounded and inflammatory utterances since Ms. Davis was jailed. One minister at a rally for her made the irrelevant declaration “divine law trumps human laws.” Another called on the judge to “get saved and repent for his sins.” How arrogant it is to presume a person is a Christian and “unsaved.”
Three Republican presidential candidates have jumped on the band wagon. Mike Huckabee called the jailing of Ms. Davis “the criminalization of Christianity in our country.” Senator Ted Cruz said “Today, for the first time ever, the government arrested a Christian woman for living according to her faith.” As a Harvard law graduate, he knows that’s not why she was jailed. And Senator Rand Paul chipped in “I think it’s absurd to put someone in jail for exercising their religious liberty.” Call all those comments what they are: irresponsible and pandering.
Ms. Davis’ attorney said she’ll comply with the court’s order if a license doesn’t bear her signature and title. Presumably, she would then process applications. In that event, would she not be complicit in the eyes of her God?
One thing is clear: Ms. Davis and other elected public officials can believe as they wish. But they can’t refuse to carry out their duties under a cloak of religious freedom. That amounts to anarchy.
Bo Statham is a retired lawyer, congressional aid and businessman. He lives in Gardnerville and can be reached at email@example.com.