Une Vignette Fantastique du Kentucky


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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48 Responses

  1. Avatar Simon says:

    I’m not sure why, but I can’t shake the image of Beshear being played by Stephen Root in this little one act drama.Report

  2. Avatar aarondavid says:

    Out of curiosity Counciler, have you ever seen the movie Absence of Malice?

    This reminds me of the final scene in that fine film.Report

  3. Avatar LWA says:

    I am seeing Ermold and Moore being played by Kirk Cameron and that youngest Baldwin brother.

    Directed by John Waters, with lots of gratuitous and close up kissing.Report

  4. Avatar Jaybird says:

    I imagine reading the story that inspired this farce in 2050 and I am struck dumb by how it’s incomprehensible that someone would think that this is an appropriate position to take to the point where I can see children wondering if we’re pulling their leg when we share it with them.

    I imagine reading the story that inspired this farce in 1950 and I am struck dumb by how it’s incomprehensible that someone would think that this story has half as much verisimilitude as it requires for the audience to suspend disbelief.Report

  5. Avatar Saul Degraw says:

    Good job Burt.

    The whole thing with this one clerk is getting absurd but I guess there was guaranteed to be a hold out.Report

  6. Avatar Michael Cain says:

    Excellent! Some questions about reality, as opposed to drama, though.

    I believe Kim Davis was elected running as a Democrat. “Red state” is usually used to mean Republican rather than a more non-partisan conservative. Perhaps the governor should be saying something about a big tent not being an excuse to fail to do your job.

    The Kentucky constitution appears to me to make counties creatures of the legislature. I suspect that Mr. Shaver is correct in the sense that when the Governor’s action here reaches the Kentucky supreme court, the court would reject the notion that the governor can take over the functions of the county clerk’s office (eg, he appears to have claimed that he, or a designated person from his office, is now the chair of the Rowan County election board, which must meet at least monthly).

    Mr. Moore and Mr. Ermold and their attorneys clearly understand “mootness”. They could have gotten a license and been married weeks ago by simply driving to an adjacent county and getting a license, with no question about the legality. Now they have a license of perhaps questionable legality (I certainly think there’s room for doubt) and have failed in their goal of forcing the elected Rowan County Clerk to issue a marriage license. I would think they would be unhappy with this outcome.Report

    • Avatar Kim in reply to Michael Cain says:

      Last I heard this was heading to the Civil Service, with the relevant “you’re not doing your job” tag attached.

      The governor doesn’t get to fire people, but the executive does have procedures for people completely derelict of duty.

      Which she very, very clearly is.Report

    • Beshear is a Democrat.

      I don’t know precisely how the state-level constitutional power split would break down, in Kentucky at least. Seems to me from a cursory survey of the state constitution and an overview of the statutes that decent enough arguments could be cobbled together on either side about whether the Governor has, or does not have, the power to do this.

      The hypothetical Governor Beshear in my scenario does what he does (as I have him explain at the very end) not so much to clear the air on SSM, but to shift the focus of the fight to something dryer, something less publicly interesting, something more legally obscure and ambiguous, something that will distract attention away from SSM for a time while it gains a degree of cultural purchase. It won’t be a permanent distraction, but it will give SSM some time to settle in place and gain greater general acceptance.

      You’re likely right that the same-sex couples in these counties are spoiling for a fight against the local officials like Ms. Davis, whom the LGBTQ folks there perceive as bigoted. It’s fair to assume that a couple that could easily avoid a controversy but gets one anyway is seeking that controversy. It also seems a near certainty to me that Ms. Davis and the lawyers coaching her behind the scenes are spoiling for a chance to undertake a rear-guard resistance against Obergefell. Someone stepping in and shifting the focus of that fight to a different legal area would make the whole thing a lot less fun for everyone involved. Which, as I noted in the previous paragraph, is precisely the political objective of a maneuver like this, whether the maneuver would be legally vindicated or not at the end of the day.Report

  7. Avatar Burt Likko says:

    Relevant. Prof. Adler does not overtly address the religious test issue raised by Davis’ legal claims, but his reference to the pacifist considering (conscripted?) military service in wartime seems to assume that such a claim is meritless: you needn’t be of any particular religion to be eligible for public office or to be sworn in to it, but once you hold that office you need to be able to somehow discharge the duties thereof.Report

  8. Avatar Jaybird says:

    Personally, I think we need to fire this government employee, confiscate her pension, and make sure that she never gets a job in the public sector ever again.

    Let’s make an example of her.Report

    • Avatar Chris in reply to Jaybird says:

      I’m almost universally opposed to firing people for their beliefs, but in this case, were she to be fired (or, since she’s an elected official, removed from office), wouldn’t it be because she’s not doing the job she was elected to do, and which she is legally compelled to do? In which case, isn’t that what we have procedures for removing people from office for? I have no problem with it.Report

    • Avatar Michael Cain in reply to Jaybird says:

      The following is not defending Davis per se, but rather defending following state procedure.

      All of those things may well happen, but Kentucky has procedures for elected officials. The legislature could impeach her [1], but seems disinclined to do so. The remarks I’ve seen from legislative leaders suggest that they would like to have a special session for the purpose of modifying statute to reach some accommodation [2], but not impeachment. The governor has declined to allow that. The county attorney has referred a charge of official misconduct to the state attorney general. In Kentucky, official misconduct is a misdemeanor, which might cost her the office (the legislative staff’s summaries on county officials aren’t clear on that, and I’ve already spent too much time skimming Kentucky statutes this AM), but probably not her pension [3]. A felony conviction would cost her both, but Kentucky statute seems to require that elected officials mishandle money for misconduct to reach felony level.

      [1] Based on my time hanging around legislators, they tend to be very, very protective of their privileges about removing elected officials. The governor is probably out of the loop entirely, and Kentucky is not a recall state. Nor is it clear that even if it were put to a vote by the people of Rowan County, Kentucky, Davis would be recalled.

      [2] With my former legislative staff hat on, Davis’s problem appears to be that she is required to put her personal signature on the documents — no one else’s signature will do (well, the county judge/executive, but only if the clerk’s position is vacant). One alternative might be the use of an anonymous official “Seal of the County Clerk’s Office” but that requires a statutory change.

      [3] She has pension credit accumulated over 27 years as an employee before she was elected to office. Taking her pension away over something that Kentucky state law treats as a misdemeanor — a level of criminal act that wouldn’t cost anyone else their pension — strikes me as improperly savage, and probably wouldn’t stand up in court.Report

  9. Avatar Kenneth Schaefer says:

    Long long ago in a call center far away, we had an employee who had an attendance problem. This is a serious thing, as being there when you are scheduled means success or failure for a call center. We also had a very specific series of steps we went thru with folks who had attendance problems. First, we had an informal discussion, making sure they had an thorough understanding of the importance of attendance. This happened after the fourth infraction. Then we had a more formal, yet still verbal discussion about attendance and the consequences of not adhering to policy. This happened after the fifth occurence. Then we had a formal, written and signed discussion of the same. This happened after the sixth occurence. Then the agent would be placed on a Performance Improvement Plan (PIP) that formally said that the next occurence would lead to “disciplinary action, up to and including termination”. This was given and signed by the agent after the seventh occurence.

    It came to pass that we had an agent that was on a PIP, who had the great misfortune to have her house burn down. She missed work. When she returned, we gave her her Termination paperwork.

    “You’re firing me because I missed work because my HOUSE BURNED DOWN???” she exclamed.

    “No, we are firing you for all the other infractions you had. If this had been the first, second or third, we wouldn’t even be having a conversation, except to commiserate over the loss of your home.” we said.

    I’ve told his long story because I see a lot of similarities to this situation. She isn’t being fired for her religious beliefs, she’s being fired for not doing her job. The reasons for her lack of performance is immaterial, and is only being raised to try and get her the sympathy vote.


  10. Avatar Oscar Gordon says:

    Just saw a quote. which I will paraphrase here, that wonders how many of Kim Davis supporters would be OK with a Quaker refusing to issue gun/carry permits?Report

  11. Avatar Saul Degraw says:


    According to this thread on LGM, the position was held by one of her parents and she wants to pass it along to her son. Talk about Scots-Irish clan loyalty:


    So that is a rather interesting factoid. The Davis family is supposed to be a big thing in this part of Kentucky.Report