Mimesis Law
22 May 2019

The Passion of Kim Davis

Sept. 4, 2015 (Mimesis Law) — To some extent, I really have to hand it to Kim Davis. It isn’t hard to tell where she stands. She isn’t going to let some court tell her to do her job as a court clerk and issue marriage licenses to gay couples. Her orders come from a higher power. A judge might be able to fine her or put her in jail, but she says she believes an eternity in hell would be waiting for her if she affixed her name to a certificate joining two committed same-sex individuals in holy matrimony. No court can compete with that sentence.

I’d say that, in another context, she might be a hero, but she’s a hero to many as it stands now. Opposing the people protesting her refusal to issue gay marriage licenses is her own herd of supporters singing songs and demonstrating outside of the courthouse. Had the courts condoned the denial of marriage licenses to gay couples and she insisted on doing it anyway because of her beliefs, the same people probably would’ve been in front of the same courthouse saying the same things. The difference would’ve been which side was encouraging lawful behavior and which side wasn’t.

Many who work in the system dream of officials following their consciences when confronted with unjust laws. It wouldn’t be a bad idea to think about Kim Davis each time we hope a judge ignores a mandatory minimum prison sentence or a jury nullifies, as it can cut both ways.

What about the judge who gives an illegally long sentence for a heinous crime? Or the jury that convicts not because it believes the defendant violated the law, but because it believes the defendant has done something worthy of punishment based on its thoughts about the morality of his actions? The warm, fuzzy feeling we get when someone follows their conscience is more a product of its consistency with our beliefs than it is of the importance we attribute to following our consciences.

We can all agree that plenty of our laws are unfair, but what I think is unfair might be different from what you think is unfair. I can claim that I’m right, that my philosophies are somehow more worthy of lawlessness than other philosophies, but for every one of my arguments about how the system is too harsh, there’s going to be someone railing against repeat offenders getting off too easily and cases being thrown out on technicalities. My view of the world seems great to me, but it isn’t everyone’s view.

The idea of an executioner unwilling to do his job because of his beliefs about the constitutionality of the death penalty is inspiring to me, while the jailor who deeply believes in the efficacy of harsh sentences as deterrence and decides to hold inmates well past their expiration dates is disturbing. I want people to agree with me. Only then do I want them to follow their consciences.

People who stick to their beliefs like Kim Davis are uncommon. When they do come along, I’d say we need more of them, except if I’m being honest, I can only say I want more of them who share my values.

Kim Davis has decided that her cause, the thing that makes her refuse to do her job and defy the courts, is refusing to let two people of the same sex have their love and commitment acknowledged by the state. I can’t help but respect her resolve, but her judgment leaves plenty to be desired.

And for refusing to comply with an order of the court to issue marriage licenses, she has been held in contempt. If she truly believes in her cause, then she should be prepared to pay the price.

17 Comments on this post.

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  • Jeff Gamso
    4 September 2015 at 7:30 am - Reply

    And the price she should be prepared to pay is resigning from her position and giving up the salary that she is paid TO ISSUE THE FUCKING MARRIAGE LICENSES.

    It’s a mighty troubling god she has, that one who wants her to keep her job and its salary but not to do the work – and to forbid others from doing it.

  • Tzar Chasm
    4 September 2015 at 8:32 am - Reply

    I don’t agree with her position, but I am curious as to what law she has broken, I have not seen that discussed anywhere. Is it really possible that she is being jailed for simply not doing her job?

    • shg
      4 September 2015 at 8:56 am - Reply

      Since you asked:

      1. The issuance of marriage certificates is a ministerial duty of a county clerk. She violated that law.
      2. A public officials refusal to perform a required duty of office is a crime in Kentucky. She violated that law.
      3. The refusal to comply with an order of a court of competent jurisdiction is punishable as a contempt of court. She violated that law.

      That you “have not see” this discussed, doesn’t mean it hasn’t been, and at great length. That you “have not seen” tells only that you haven’t looked in the right places. If you are seriously interested in an answer to your question, you would probably do better to look rather than ask someone else to tell you. If you want more information, you might try google. It’s a damn fine tool for learning stuff.

      • Bob
        4 September 2015 at 12:25 pm - Reply

        I gotta ask, Scott. Are you this cantankerous in real life?

        • shg
          4 September 2015 at 1:44 pm - Reply

          I believe that people will rise to meet expectations, or fall to meet expectations. To some people, that may seem cantankerous.

  • Keith
    4 September 2015 at 8:50 am - Reply

    I think your desire to put this in terms of “philosophies I like” overstates the discretionary versus requisite nature of the actions in question.

    That jury nullification falls within an aspect of the law where there’s a breach does seem to present real issues for a system whose jurors purport to swear an oath to uphold the law, but there’s nothing illegal (or even reviewable) if they decide to say “not guilty”.

    KY law requires issuance of the licenses.

    This isn’t an act where discretion is part of the decision.

    “to do her job as a court clerk and issue marriage licenses to gay couples.”

    Technically speaking, she’s an elected county clerk. And she stopped issuing them for everyone.

    • shg
      4 September 2015 at 10:15 am - Reply

      While the “discretionary v. ministerial” distinction matters enormously as to legal analysis, it’s less significant when it comes to the visceral support of ignoring the law for some higher justice, so long as I happen to agree with it.

  • Keith
    4 September 2015 at 1:37 pm - Reply

    What did she swear that oath ON again? It’s a book of some sort, right?

    • shg
      4 September 2015 at 1:52 pm - Reply

      She didn’t get elected president. Rowan County clerk probably just signs an oath card. Let’s not get crazy.

      • Jeff Gamso
        4 September 2015 at 1:55 pm - Reply

        Sneer if you will about oaths, but I really am pretty sure she didn’t pinky swear so it wouldn’t count anyhow – whatever book she might have used.

        • shg
          4 September 2015 at 2:17 pm - Reply

          I never sneer. That’s just how my face works. Don’t be a hater.

      • Keith
        4 September 2015 at 2:04 pm - Reply

        I affirmed a similar oath (appointed, not elected) and I take such things seriously – especially when real people are seeking things from me.

        One almost wouldn’t realize based on the coverage that pairs of humans were waiting for this to end in order to see if the deposit on the hall is transferable.

        • shg
          4 September 2015 at 2:19 pm - Reply

          Well, you just took a bit of a blind leap off a cliff there. Did I say the oath isn’t something to be taken seriously, or more importantly, the duty one undertakes when one assumes a position of public trust isn’t to be taken seriously? Want to give that one a second thought?

  • Mark
    9 September 2015 at 2:32 pm - Reply

    I’m a little late to the discussion here, but Matt Brown theory of relativity seems to ignore the facts of the case. Kim Davis doesn’t even understand what’s at stake. She’s opposed to marriage equality, so she not only refuses to sign marriage licenses for same-sex couples, she refuses to let anyone else in her office do so. It isn’t her religious values causing the problem, it’s her unconstitutional interpretation of freedom of religion.

    Freedom of religion guarantees people the right to practice their religion without interference; it doesn’t guarantee people the right to impose their beliefs on others. In the name of religious freedom, Kim Davis is violating the basic principle of religious freedom. The judge decided that she could refrain from signing licenses herself. But the freedom from violating her principles isn’t enough for her. Instead she believes she must impose those principles on those who work for her and the people she swore to serve, the government she is part of, and a legal decision based on the Constitution. She’s not standing up for her beliefs; she’s standing up for the authority to impose them on others.

    If she were the county director of meat inspection and a Hindu who insisted that none of her employees inspect beef because it’s wrong to kill cows, we wouldn’t be having this conversation. Because none of us shares this particular religious value, it’s easier to ignore the value aspect and see how ridiculous it is to impose this belief on others. The principle at stake here is not sticking up for what we believe in, it’s how we allow our differing religious beliefs to coexist.