There is no short of controversy surrounding Rowan County Clerk Kim Davis, and her continued denial of marriage licenses to homosexual couples. On face value, it may seem indeed, that Kim Davis is entitled “reasonable accommodation” for her sincerely held religious beliefs.
I don’t believe so — and it may not be for the reason you think.
Wether or not Kim Davis’ beliefs are “right” or “wrong” is of no moment, nor is the fact that they are “deeply held.” Indeed, I have no issue conceding the fact that anyone is entitled to believe anything they like; and I have no real problem with that.
Here’s where the reasonable accommodation issue loses integrity:
– The issue isn’t “hers,” it’s that of those she is refusing service to. If this were an issue of “No Shirt, No Shoes, No Service,” or some other codified, specific law that can be pointed at — with reverence or dejectedness. Indeed, the ban that did exist no longer does, per the ruling of the Supreme Court.
– Mrs. Davis also had the ability to redress her grievances without violating law by allowing her deputy clerks to act in her capacity, while she brought the issue forward with the State government. Her failure to do so, and to simply say “No,” and pointing to her beliefs as a right to do so took the issue of “deeply held, sincere religious belief” out of the equation, and knowingly placed HERSELF in the mix — not her beliefs. Indeed, if her beliefs required her to not do such a thing, is she now legally able to discharge her office? As such, is she legally able [or even CURRENTLY STILL] the county clerk? Many public offices have a “capacity clause,” stating that if the officer in question is unable to discharge the office to which s/he took, that the individual is declared temporarily incapacitated, and the duty falls to that officer’s deputy. If that’s the case here, does her senior deputy clerk now act in her capacity — legally? That I don’t know, but an interesting thing to investigate. As a government employee specifically charged with issuing proper and legal marriage license, assuming that there were no other issues surrounding the validity of the request, ability to pay, or whatever — she’s willfully violated her contractual and even fiduciary duty to the State, and to her constituents.
– Governor Huckabee, and others on the side of Kim Davis, often cite the issues surrounding the Supreme Court’s “ability to write law,” and that the Supreme Court overstepped its bounds in “legislating from the bench.” This also doesn’t hold water for several reasons, but it stems from one very important supreme court case:
In Marbury v. Madison, the Supreme Court was confronted with a question surrounding federal appointments. In its review of the laws surrounding them, it determined that indeed, Marbury was entitled to his appointment and that his suit through the court system was a rightful correction to his grievance. This case established the process known as “judicial review,” a court test that grants the Supreme Court the ability to review a case, a law, a regulation or other question that the Supreme Court grants certiorari to; as a form of checks and balances on Federal, State and Local government regulation. Using the authority of Judicial Review, the Supreme Court trailblazed civil rights and fostered the safety of the people through overturning poll taxes [Harper v. Virginia Board of Elections, 1966], that random drug testing of students involved in intramural sports don’t violate their Constitutional rights [Board of Education of Independent School District #92 of Pottawatomie County v. Earls, 2002], the “Separate but Equal” doctrine [Brown v. Board of Ed, 1954], the establishment of “Miranda Rights” [Miranda v. Arizona, 1966] and that the President is not above the law [U.S. v. Nixon, 1974]. The power of judicial review has allowed the courts to correct legislative errors or otherwise “fill in the gaps” where laws, the Constitution or other codified law stops, but injury can begin.
Often, pundits claim that judicial review isn’t constitutional, or otherwise “allowable” by law, because it allows for judges to effectively write law and legislate from the bench. There is a Constitutional flaw in that logic:
– The Judiciary Act of 1789 [in the First Congress] was signed into law, which allows the Supreme Court to hear cases on appeal from State courts — Section 25 specifically states:
“And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.”
This law alone forms the basis for judicial review. Further is that of the Equal Protection clause [Section 1] of the Fourteenth Amendment, which reads:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
— Establishment Clause, First Amendment of the Constitution
– Of further note: there’s an obvious Establishment Clause violation here — but not just ON Kim Davis, but BY Kim Davis. As a government employee, holding an office she’s freely run for, and unwilling to resign from, by denying government services to a [seemingly] qualified constituent due only for religious reasons, SHE has raised an issue under the Establishment Clause, by forcing her religious beliefs on the constituents. Where do her rights as a religious adherent end, and her duty as a government employee begin? Indeed: in 2006, the conservatives on the court stated in Garcetti v. Cebalos, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
To sum it up, does Kim Davis deserve to have her deeply held religious beliefs? Of course she does.
Does she deserve to enforce them on others through her elected office? No. This is an Establishment Clause violation.
Is the State or Federal government in violation of the Establishment Clause? No. She is an employee of a local government, and the government is charging her with a duty — not stating what religious beliefs she must or must not have.
Does Kim Davis belong in jail? No, I don’t think so. I think it was wrong [legal, and “a bluff,” perhaps — but one she called] to do so.
Is she the “new” Rosa Parks? No. She willingly put herself, as opposed to her beliefs, in the middle of this issue by letting herself get involved with the situation, as opposed to letting the government handle the issue on her behalf. If a decision is “above your paygrade,” there’s nothing wrong with handing that issue to your supervisor and awaiting instructions. Her supervisors are anyone from a county executive all the way up through the Governor. She chose to simply “deny” her constituents.
Does she deserve an accommodation? Maybe. There are arguments either way — that she shouldn’t have to violate her religious conscience to carry out her duty. But on the flip side, if a Muslim banker found bank account interest distasteful and denied an interest bearing bank account to a non-believing customer, would people be so quick to defend him? If a Jewish teacher refused to read a paper because the subject included Buddhism and found it objectionable — is that right?
Further, if we put the shoe on a similar-sized foot — my computer handles my email. Should my computer determine wether or not I should be able to read it?