nickbarnes: (me)
[personal profile] nickbarnes
A long post about Kim Davis. Thanks to Richard Brooksby for getting me to think more carefully about this.

First, an apology. This post is probably going to offend some people. I will simply plead that you not mistake my thoughts about the legal situation for my views on marriage. For the record, it is completely obvious to me that marriage is a fundamental human right, that Kim Davis's beliefs are deeply mistaken and offensive, and that God can and does marry couples without deference to human laws. Same-sex marriage, exactly like opposite-sex marriage, is marriage, is a sacred union, and has always taken place.

I recommend spending half an hour or so reading the various court judgements, in particular the district court ruling from 2015-08-12.

A few facts:
  • Davis refused to issue any marriage licenses.

  • Davis instructed her deputy clerks not to issue any marriage licenses, and they followed this instruction.

  • In Kentucky law, a license for marriage in a county has to be issued by the county clerk (Davis) or a deputy clerk. Only if she is absent can a license be issued by a judge.

  • Neighbouring counties continued to issue licenses, to all couples. However, "The surrounding counties are only thirty minutes to an hour away, but there are individuals in this rural region of the state who simply do not have the physical, financial or practical means to travel." The plaintiffs could have travelled but preferred to get married in their home county.

  • At the time, marriage licenses carried the name and title of the county clerk (Davis) in two places, whether issued by her or by a deputy.

  • The form of the licenses has since been changed so that they no longer carry the name of the county clerk (unless she is the signing clerk).

  • The clerk's office has resumed issuing licenses.

  • Davis has returned to work as county clerk.

  • Davis is an elected official. She can't be fired. She could be impeached by the state house of representatives, but that will not happen for political reasons. She can't be indicted for "willful neglect in the discharge of official duties" because the law covering that fails to mention county clerks. This is an obvious oversight in Kentucky state law, but the law is the law.

Now, some discussion.

Consider a worker in a vegetarian restaurant which starts serving meat: if that ran counter to her religious convictions then she might refuse to handle the meat. If she did so, in the UK, the restaurant would not be allowed to fire her for doing so. It ought instead to find her alternative duties. Employers are bound to make reasonable accommodation for employee's religious beliefs. Otherwise all sorts of indirect discrimination and constructive dismissal becomes possible (and not just theoretically: Jews and Muslims suffered terrible indirect discrimination in these ways, just as other religious groups have for centuries). As I say, this is the UK law and I agree with it.

I think that Davis's action in refusing to issue licenses - however much I disagree with her - clearly comes under this principle, and it would be discriminatory and wrong to fire or discipline her for it. However I personally think that her instruction to her deputies not to issue licenses is not a simple exercise of conscience, but constitutes misconduct and (were she an employee) it would have been reasonable to discipline (or fire) her for it. The point about the licenses bearing her name does introduce some nuance here, but I think not enough to swing the matter. In particular, a government official putting in place any policy for religious reasons puts that government (here I think the state, i.e. the Commonwealth of Kentucky) in violation of the Establishment Clause of the first amendment to the U.S. Constitution, so that government is bound to do something about it and fast.

But, of course, it wasn't that simple. She couldn't be fired, she couldn't be indicted, she could have been impeached but that was never going to happen. I don't know whether it would have been possible to force Davis to take some sort of gardening leave. Kentucky was caught in something of a bind, between a rock and a hard place: they had to (a) avoid infringing the human rights of its citizens - for example, to marry; (b) avoid "mak[ing] a law respecting an establishment of religion" - for example, by a policy created according to one religion in preference to others or to none; but (c) respect the right to free exercise of religion, and the employment rights, of this official.

The relevant part of the US Constitution is the First Amendment, and it reads, in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof": thus requirements (b) (governed by the "Establishment Clause", i.e. "respecting an establishment of religion") and (c) (governed by the "Free Exercise Clause", i.e. "prohibiting the free exercise thereof") could not be closer.

In any case, short-term fixes appear to have been put in place: the people of Rowan County are free to marry, the policy is no longer in place, and Davis continues in post. Longer-term, KY and other similar states should change the law so that people can obtain a marriage license without being subject to the whims and vagaries of local officials and institutions.

I'm not going to get into the actions of the pope, except to point out that his meeting with Davis was not publicised by the Vatican and the Vatican has not said anything about what happened at it. I don't trust Davis further than I could throw her, and I certainly don't trust her account of what happened there.


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October 2015


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