This is terrible optics.

Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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421 Responses

  1. greginak says:

    Yes and no. It is the gift of perpetual martyrdom that a lot on the anti-ssm side seem to want. On the other hand it does sort smack people in the face that the anti-ssm people aren’t going to stop trying to stand athwart the tracks of the big rainbow gay marriage train barreling down on them. If you are pro-ssm this is just more impetus to keep fighting and, sadly, fire up twitter storms of rage. Firing her would have been a much simpler solution but the judge can’t do that.Report

  2. Stillwater says:

    I think it’s great optics, myself. Her role as a Christian ends exactly where her role as a county clerk begins.Report

  3. Chris says:

    What do you do with her? I mean, if there are no consequences for her not doing her job, then other clerks in other counties and states are going to try the same thing. If there are consequences, she’s a martyr for her co-believers. Rock and a hard place.

    I admit I’d rather they just start up whatever procedures there are in place for removing her from office than arrest her, though.Report

    • Stillwater in reply to Chris says:

      “I love the taste of super-Sherbert in the morning.”Report

    • Glyph in reply to Chris says:

      Presumably there have to be some procedures in place for the job getting done if she’s unable to fulfill her duties, if she was injured or sick (or, you know, jailed for contempt of court).

      Could they have simply said “Don’t bother coming back to work, until you plan to do your job; if you are not back by the time your vacation time is up, we start the impeachment process”?

      Was that simply not an option?Report

    • walter in reply to Chris says:

      The fact is that other than her son, the clerks in her office (under her supervision) all want to do their jobs. This isolates her and makes clear her wish for Star/martyrdom.So let her have it, jail her like the lawbreaker she says she is.Report

  4. Vikram Bath says:

    Are there people who are wavering on the issue to whom optics might be important?Report

  5. Jaybird says:

    Take away her pension!Report

    • greginak in reply to Jaybird says:

      Isn’t there some way to blame this on a union. Well other then the icky gay union she will go to Hell for consecrating.Report

    • Chris in reply to Jaybird says:

      What would you do?Report

    • Burt Likko in reply to Jaybird says:

      No, don’t do that. Whatever pension she’s earned, she’s earned and is hers.Report

      • nevermoor in reply to Burt Likko says:

        Agree with this. Losing your pension doesn’t fit the crime here. She’s not a criminal, she’s just an idiot trying to make a name for herself who doesn’t understand what her oath of office meant.Report

        • Jaybird in reply to nevermoor says:

          I think it’s worse than that:

          She’s not trying to make a name for herself.
          She actually believes things.Report

          • nevermoor in reply to Jaybird says:

            I believe things too. Those beliefs are irrelevant when I represent other people. That’s so bleedingly obvious that the truth of your last sentence does nothing (for me) to refute the prior one.Report

            • greginak in reply to nevermoor says:

              I’m a state government employee ( with a pension….wooo hoo…starts running to the bank) and i also believe things. My beliefs don’t frickin matter in my job. I need to follow the law and not put my beliefs on people.Report

            • Glyph in reply to nevermoor says:

              “Those beliefs are irrelevant when I represent other people”

              Is that always true though? Surely there might be *some* action that is technically legal, that your beliefs would preclude you from performing for your clients, right?

              And the fact that Davis is an elected official, means she presumably IS representing other people. She could just as well say, “Hey, I am personally 100% OK with gay marriage, but the overwhelming majority of my constituents aren’t, and so I bow to their will.”Report

              • nevermoor in reply to Glyph says:

                Not sure what you’re thinking of. If there’s an action that’s legal, ethically allowed, and in my client’s interest but I don’t take it (or, at minimum, advise my client on it and do what they instruct) that sounds a lot like malpractice. Saying “I have a personal objection to that” wouldn’t seem like a useful defense (and more likely evidence my client would use in a malpractice action than evidence that would help me defend one)Report

              • Glyph in reply to nevermoor says:

                “Ethically-allowed” is to some degree subjective, right? Presumably, Davis feels she is not ethically-allowed to sign these certificates.

                So, could there be a theoretical action which is legal, and in your client’s best interests, but that you still feel is not ethical and would decline to do? I don’t have a specific example, but there must be something, no?Report

              • Griff in reply to Glyph says:

                No, professional ethics are different than morality. There may be some overlap, but ultimately your own personal moral views don’t matter if they conflict with the accepted professional ethical guidelines.Report

              • Burt Likko in reply to Griff says:

                This. Professional ethics are readily distinguishable from personal morality. For a lot of professions (like mine) in a lot of places (like mine) there are fairly rigid rules about professional ethics written into state law or at least are quasi-law.

                For a county clerk in Kentucky? The actual rules may be quite a bit more than the California State Bar’s Rules of Professional Conduct. There may be no more than the “don’t take bribes” sorts of rules that every state has adopted some form of. After that, what she thinks is professionally ethical has to do with the way she discharges the functions of her office, not with personal choices she makes about how to live her life.Report

              • nevermoor in reply to Burt Likko says:

                And, more importantly ethics rules exist solely to restrict, not expand, someone’s authority to act under the law.

                Which is why her claim that her ethics supersede now-settled law is so laughably indefensible as a legal matter.Report

              • nevermoor in reply to Glyph says:

                Not really. Legal ethics are pretty clearly detailed (to the point that they are subject to standardized testing)

                Really ethics are:
                1. You can’t take clients’ money unless they intend it for you
                2. You can’t knowingly lie to the court
                3. You can’t have a financial interest in your work other than the one between you and your client
                4. You must disclose information regarding FUTURE crimes in many cases
                5. You can’t have sex with your clients (in some states!)

                Attorneys don’t mean nebulous personal beliefs when we talk about ethics.Report

              • Glyph in reply to nevermoor says:

                @griff @nevermoor – OK, so you mean “ethics” in a specifically professional-legal-ethics sense, not a more general sense of the word.

                Totally unrelated questions about this point:

                4. You must disclose information regarding FUTURE crimes in many cases

                Presumably, in many cases people retain a lawyer in the first place, to advise them of the legality of planned actions.

                1. If a client comes in and says, “I am thinking about doing X”, and your understanding of the law is that X would be illegal, do you have to report them? In some, or all cases?

                Do you have to believe they are definitely going to go through with the crime, to report them?

                2. Upon you telling your client, “X is definitely illegal, and I strongly advise you not to do that”, they laugh and say “Ah, I figured as much, it was just a hypo. Thanks for the advice, pal, you just saved my bacon!”

                Then, they go out and do X anyway, and get caught.

                Do you represent them?

                Are you covered, legally, by the fact that you TOLD them not to do anything so dumb, but they did it anyway?

                Would you decline to represent them, since they declined your advice?Report

              • Griff in reply to Glyph says:

                Lawyers aren’t the only people who have professional ethics; all state employees do. Usually (in non-legal positions) they have to do with things like bribery, conflict of interest, etc.

                As for your questions, a lot of that stuff depends on the specific details of the case. But in general, if you genuinely believe that someone is going to harm someone else (either physically or in a pecuniary sense), then you probably are either allowed or obligated (depending on the specifics) to report it regardless of any attorney-client relationship.

                On the second point, whether I would represent them would depend on what it was that they did, exactly what was said during the consultation, and (if it was a pre-existing client) what the relationship was like with that particular client. But if you have the luxury of deciding which cases to take, “the damn fool won’t follow my advice even when it’s really important” is an excellent reason not to take one.Report

              • nevermoor in reply to Glyph says:

                Here’s an entry point if you’re wanting to learn more about the crime-fraud exception that I’m referring to.Report

              • Glyph in reply to nevermoor says:

                I thought of an example maybe.

                Let’s say you are defending a person accused of rape. You come into possession of evidence that the victim was well-known to be very promiscuous.

                Now, there’s pretty broad agreement here that using the “they were a known slut, and so probably had sex willingly in this case” tactic is a sleazy, crappy thing to do, since their sexual history is completely-irrelevant to the incident in question in this case.

                But there is also broad agreement that the tactic often works (and so would be in your client’s best interest); and, the tactic does not appear to be prohibited under any of the general ethics rules you’ve listed here, nor would the tactic be illegal in any way that I am aware of (assuming the evidence is true).

                You decline to use the evidence, your client goes to jail, and you are sued for malpractice for failing to introduce the evidence.

                Would your conscience (the one that told you, “this tactic will probably work; but it’s not right”) be a valid defense?

                Or are you obligated to try any tactic that might work so long as it is legal and within the ethics guidelines, no matter how questionable or outright wrong you may personally find it?Report

              • Griff in reply to Glyph says:

                Most jurisdictions now have “rape shield” statutes that would prohibit introduction of that kind of evidence at trial. BUT, if I were practicing in a jurisdiction where the evidence was admissible, I would absolutely be obligated to use it if I thought it was the best bet to get my client acquitted. And if I wasn’t willing to do so, I shouldn’t be trying rape cases.Report

              • Kim in reply to Griff says:

                If you’re hired to be a bastard, you damn well better do a good job at it, huh?

                We’ll just note that lawyers aren’t required to kill people as a part of their duties, unlike soldiers.

                But, you know, conscience kills.

                (and now I’m wondering exactly how many defense attorneys camped out to get those rape shield laws passed)Report

              • nevermoor in reply to Glyph says:

                You decline to use the evidence, your client goes to jail, and you are sued for malpractice for failing to introduce the evidence.

                A few reactions:

                1. At minimum, you have an obligation to inform your client of the evidence and counsel him about the pros and cons of using it. And I’m sure there are cons to explain as well.
                2. If you’re not willing to attack the victim (which, as you say, is a sleazy and effective thing to do) I’m not sure you should be defending accused rapists. I, for example, don’t.
                3. If the Defendant wants to use the evidence, I don’t see how you get out of trying to get it in short of withdrawing from the case. Flatly refusing would certainly risk malpractice exposure.

                As to your question, no. Conscience would not be a defense. @griff is right that the only workable solution to protect victims is a rape shield law (which is why they’re great laws).

                Also @kim

                If you’re hired to be a bastard, you damn well better do a good job at it, huh?

                Yep. One of the great things about this country is that everyone charged with a crime is entitled to a zealous advocate. (that they don’t always get one is a separate scandal and worth addressing) That’s how we are supposed to have confidence that a conviction means something.Report

              • Stillwater in reply to Glyph says:


                Man, you’re sure making your interlocutors on this thread go the extra mile to demonstrate a point you can’t make yourself. 🙂

                I guess at this point I’m just wondering what you’re arguing for here. That Davis ought not have been arrested for failing to follow a court order requiring her to perform the duties entailed by her job description because of [fill in the blank]?

                Can’t quite figure it out….Report

              • Glyph in reply to Stillwater says:

                Nah, I already said they don’t appear to have had much choice but to arrest her.

                I’m just, as usual, not entirely comfortable with making blanket statements that a person should always be required to subsume their beliefs (no matter how ridiculous I find them) to the state. Even if they are representing others. People should not automatically become slaves or automatons just because they are discharging official duties. That way lies “I was just following orders.”

                Just because I think this particular person is wrong in this case, doesn’t mean that I want a cop saying, “Well, the Supreme Court ruled that I can bonk you with a nightstick for no reason, so I will”, you know?Report

              • Mike Schilling in reply to Glyph says:

                This is the point at which if she were a member of BDS or Occupy, people would be saying that civl disobedience means you make your point and then accept the consequences, not look for a get-out-of-jail-free card.Report

              • Glyph in reply to Mike Schilling says:

                Sure, she should accept the consequences. But the consequences should hopefully not greatly-exceed the crime, or that becomes its own injustice. I’m more than OK with her losing her job, since she obviously can’t or won’t do it. If she won’t resign, then she should be “fired”, by whatever process that needs to happen.

                I’m just not crazy about her being jailed (though it seems there may have been little other recourse, for an elected official in her position).

                Federal weed Prohibition is the law of the land. If a Federal LEO refuses to pursue/prosecute weed smokers, even after being ordered to by her bosses, then losing her job seems inevitable and justifiable, no matter what you think about weed Prohibition itself.

                But jailing her over her steadfast refusal to pursue/prosecute weed smokers – particularly if she claimed it was an issue of conscience – would seem…unfortunate. This person is derelict in their duties and in violation of their oaths, but nobody is in danger of dying over that, so let’s exhaust other corrective avenues if possible before going the jail route (and again, it’s my understanding there may have been no other available avenues here).Report

              • Morat20 in reply to Glyph says:

                A reminder: She’s in jail for contempt of court, not for a criminal act. As such, she can walk out of her jail cell at any time — she merely has to obey the court OR resign. Either act will let her out of her cell.

                A LEO who kept letting pot-smokers go or who refused to write tickets for them is, well, unlikely to end up in contempt of court. They’d merely be fired.

                This lady would be fired, if she wasn’t holding elected office.

                As noted many times below: She has the key to her cell. All that’s keeping her there is her refusal to resign a job she won’t do (or decide to perform her duties).

                It’s wrong to consider her ‘in jail’ the way we do people on convicted criminals or people being held pending trial. They can’t leave until the courts let them go. She can, and she knows exactly which two acts will let her out.Report

              • DavidTC in reply to Glyph says:

                Is that always true though? Surely there might be *some* action that is technically legal, that your beliefs would preclude you from performing for your clients, right?

                Sure. And the solution is *generally* to tell the person that, and allow someone else to do that job.

                In *most* cases, this would mean simply ‘drop them as a client’. But in a few cases, like lawyers that run into ethics conflicts with their own firms, or who work for a corporation, the only solution is to resign.

                As her ‘client’ is, in fact, the county she was elected in, she pretty much has to resign, ethically.

                Now, here, like in other cases, there are some issues with transition. I don’t know if there’s someone else that can step in, or if no one is in that position until a special election. But, even then, the correct thing would be ‘I have turned in my resignation and am willing to stay and do *any other duties* until I can be replaced, or alternately I will leave now, whichever the county wants.’Report

            • Jaybird in reply to nevermoor says:

              It seems to me that “she’s just an idiot trying to make a name for herself” implies that she’s just an idiot trying to make a name for herself.

              My take on it is that she’s just an idiot trying to act in accordance with her idiot conscience.

              Which puts her idiocy in a completely different compartment.

              But maybe she’s smarter than all of us and figured out a way not do her job, still get paid, and, on top of that, get tips from idiots.Report

              • nevermoor in reply to Jaybird says:

                she’s just an idiot trying to act in accordance with her idiot conscience.

                Seems inconsistent with not resigning. Staying in office but refusing to conduct the duties of that office looks to me like grandstanding no matter how sincere the underlying beliefs.Report

              • Jaybird in reply to nevermoor says:

                I disagree, but, again, my suspicion is that this culture war is just warming up.

                And we’re going to see a mirror image of this.

                And, strangely, the person who admits, oh, an illegal immigrant into an elementary school or something despite the law saying “you can’t do that” will be upheld as a hero rather than as someone who ought to have resigned zir position.Report

              • Morat20 in reply to Jaybird says:

                What’s wrong with that? Again, that’s the point of civil disobedience in general — trying to raise the profile of an unjust law.

                So indeed, I could feel free to hail him as a hero or view him as a villain as I wished, but jail is where he’d belong either way until the law changed or he obeyed the court.

                Whether he or she is the villain, the hero, the reckless fool, the noble idiot, or the master strategist matters no more than his or her ideals to the process.

                *shrug*. She’s in contempt of court. Whether I think she’s right or wrong, jail is where that leads. If she’s right enough, laws will be changed and she will be a hero. If she’s wrong, she’ll sit there until she obeys or resigns.

                But the sitting in jail part isn’t really an optional part of the civil disobedience process, or else the whole structure collapses as people substitute whim for law.

                *shrug*. I think she’s a grandstanding idiot who should have resigned. But even if I thought she was a brave Christian soldier standing up for Jesus in a morally compromised land, jail is where she belongs as long as she’s in contempt of court.Report

              • Jaybird in reply to Morat20 says:

                I could not possibly agree more.

                On top of that, I think she ought to lose her job.

                On top of *THAT*, she should lose her pension.

                Oderint dum metuant.Report

              • Morat20 in reply to Jaybird says:

                Really? If I get jailed for contempt of court, should I lose the contents of my 401k?

                What if I get fired from my job, should I lose my 401k — including the roll-over from my previous job?

                Why should she lose her pension?Report

              • Jaybird in reply to Morat20 says:

                If you have a government job that you have been refusing to do, how many of the taxpayer dollars do you think you should be entitled to from your many hours of just charging time while refusing to do your job?Report

              • Morat20 in reply to Jaybird says:

                You realize a pension is compensation, right? That taking it from her would be outright theft? Not only that, most — if not all! — of her pension was (I think) from her previous, non-elected position?

                So you want to retroactively garnish her wages for a previous job?

                I could see not paying her from the day she refused to do her job. But a pension is no different than the matching funds in my 401k — it is what I was given in lieu of cash.

                She earned it. Again, I’m happy to discount any earnings from the moment she refused to do her job forward, but anything PRIOR to that should be off limits for entirely obvious reasons.Report

              • Jaybird in reply to Morat20 says:

                If she was sitting at her desk and refusing to do her job, she was stealing from us, Morat.Report

              • Morat20 in reply to Jaybird says:

                *eyeroll*. As I stated, I could see NOT paying her for the work she didn’t do! I could see NOT adding time onto her pension plan for the length of time she refused to do her job.

                What I cannot fathom is you basically stating she should forfeit years or decades of earned income! That does not in any way logically follow.

                If I decide to stop doing my job one day, do I pay back my company the years of 401k match they offered that I took? Would you demand I pay back a tithe of my salary from the day I was hired?

                Of course not. Yet for some reason, here and now, you’ve decided that she should forfeit years of earned compensation, for work she did.

                It seems strangely alien to your normal ideological positions, as it seems like flat-out theft. After all, you are wanting her to pay back a significant portion of her earnings for all the years she DID her job — however long that might have been.

                Is that a precedent you want to set? Why are you so hell-bent on stripping her entire pension from her, rather than simply refusing to pay her until she does or job? What’s your justification for retroactive punishment here — you’re wanting to cut her pay for years for a crime she hadn’t committed.Report

              • Griff in reply to Morat20 says:

                People don’t usually get trolled this hard on these boards. It’s kind of refreshing, actually.Report

              • Morat20 in reply to Griff says:

                Like I told Jaybird — it’s impossible to tell sometimes. It certainly makes more sense than him really believing that, but it’s not like I haven’t run into people who don’t view pensions as earned compensation before.Report

              • Jaybird in reply to Morat20 says:

                It’s not just about her, Morat.

                It’s about all civil servants who get all “consciousy”.Report

              • Morat20 in reply to Jaybird says:

                So are you trolling here or what? Sometimes it’s a bit hard to tell. Poe’s law always applies, and frankly I know enough people personally who come out of the blue with “How does that even fit into your worldview?” ideas to be confused.Report

              • Jaybird in reply to Morat20 says:

                Eh, it’s more that the whole “civil servant” thing vaguely irritates me and “hereditary civil servant” thing irritates me specifically.

                Given that civil servant jobs are famously difficult to fire people from, I figured that this one was high profile enough to set a precedent.Report

              • Morat20 in reply to Jaybird says:

                She’s elected, not a civil servant. If she was a civil servant, this would actually be easier. If nothing else, the job could have been given to another one while this was dealt with.

                The fact that she’s elected i 99% of the problem, because there’s no “boss” but the courts above her that can order her around, there’s no impeachment or recall mechanism and the only effective fix (other than the Courts) requires the Legislature, which is out of session.

                She’s a politician, albeit a very tiny one.

                Her pension might have been from her previous career, but obviously she was not fired from that. (And, for the record, I don’t believe getting fired loses you your pension from any job. How could it? Getting fired doesn’t lose me my 401k, or the matching funds placed in it. I think if you got fired early on, before the pension equivalent of vesting, or if your pension was small enough you won’t get it or it’ll get cashed out or something…)Report

              • Michael Cain in reply to Morat20 says:

                No recall, but the state legislature can impeach her if they’re in session. If they were, they are much more likely to modify the law so that Davis doesn’t have to sign the marriage licenses (which is apparently what has her upset). In fact, the senate majority leader has already asked the governor to call a special session so they can do just that.

                In Kentucky, a government official or employee who is convicted of a felony in association with their official duties forfeits their pension. The Rowan County attorney has referred a charge of official misconduct against Ms. Davis to the Kentucky AG. That’s a misdemeanor, unless it involves enough of the right kinds of public funds, which this case doesn’t.Report

              • gingergene in reply to Jaybird says:

                You think denying a child an education and allowing two people to get married are moral equivalents, and the only reason other people might disagree is because they’re blinded by partisanship?Report

              • Jaybird in reply to gingergene says:

                You think denying a child an education and allowing two people to get married are moral equivalents, and the only reason other people might disagree is because they’re blinded by partisanship?


                It’s not about whether the government official is upholding the laws he swore to uphold.

                It’s now about making some various ethical and moral judgments.

                The people from our religion are praiseworthy.
                The people from their religion ought to have resigned instead of failing to follow the laws they swore to follow.Report

              • gingergene in reply to Jaybird says:

                It’s now about making some various ethical and moral judgments.

                All I am saying is that some people have always rejected the framing you want to give it (legal vs. illegal) and have always framed it differently (doing good vs. not doing good). The fact that other people frame it differently doesn’t make them bad people, or even inconsistent. It’s just that they see things differently.

                Maybe what you’re trying to say is that Davis is one of the latter group, but her definition of “good” isn’t the same as the majority’s.

                If that’s the case, I wish you would just say it, because I’ve spilled a lot of electrons trying to translate Jaybird into English, and there’s a strong possibility I am still failing at it.Report

              • Jaybird in reply to gingergene says:

                I am doing nothing more that saying that we hold “our” side to a standard of “intentions” and “their” side to a standard of “following the rules”.

                If the law said “illegal immigrants cannot receive X” and there was some brave soul out there who bravely stood up and said “I will not follow this law that covers my job, I will give X to the undocumented people who had the misfortune to be born on the wrong side of an invisible division!”, would you still say “Dude should have resigned instead of breaking his oath”?

                If not, why not?Report

              • nevermoor in reply to Jaybird says:

                I think it was unjust to imprison Black people for conducting sit-ins. I think it was legally correct for a trial court judge to do so. Which was the scandal in the first place.

                So there, as with educating those who enter without inspection, I would sympathize with the person doing the disobedience, understand why the judge did what he did, and try to change the law.

                Not sure why you think this is a hard question.Report

              • Jaybird in reply to nevermoor says:

                Not my question.

                Should a trial judge who refused to do so have been fired? (Or jailed until s/he stopped refusing to do so?)Report

              • nevermoor in reply to Jaybird says:


                Not sure where you get to asking about a trial judge there…

                If you’re asking what should happen if a trial judge refused to enforce the law, the answer is an appeal.

                If you’re asking about what should happen if a judge enforces a law I believe to be unjust to put something in jail, I refer you to the civil rights movement.Report

              • gingergene in reply to Jaybird says:

                So, the brave soul who says

                “I will not follow this law that covers my job, I will give X to the undocumented people who had the misfortune to be born on the wrong side of an invisible division!”,

                is a judge? What is “X” that he is giving to people?

                ETA: anyway, same answer: judges who feel they can’t morally enforce the law should resign. If the don’t they should expect the procedures to remove them from their posts to commence immediately, including jail for contempt of court if they refuse to do something they are ordered to do by another court that has jurisdiction over them. (I don’t think that any judge, including the Supremes, has the ability to hold another judge in contempt, though, so I am not sure what the point of your question is.)Report

              • Jaybird in reply to gingergene says:

                Is a judge? Not necessarily.

                Maybe he’s a school administrator. Maybe she’s a college financial aid officer.

                All that is required is that they have a job that has legally set guidelines and laws that cover what they can and cannot do (and what they *MUST* and must not do) and they take an oath to follow these laws.

                I’m sure we can come up with all kinds of examples of them standing athwart the law for some higher moral principle.Report

              • gingergene in reply to Jaybird says:

                Same answer: do your job. If you feel you can’t, resign. If you don’t resign, prepare to lose your job. If a court orders you to comply with the law and you don’t, expect to be held in contempt of court. Understand that contempt of court includes the possibility of jail and/or fines, and that if you’re sent to jail a police officer may stop by to escort you there.

                If enough people agree with you, the law may change. If not, it won’t.

                That answer (which I’ve given 3 times) does not change regardless of what law is broken. It. does. not. matter.Report

              • Jaybird in reply to gingergene says:

                Fair enough.

                For some reason I remain suspicious that we will find these same people instead saying stuff like “You think denying a child an education and allowing two people to get married are moral equivalents, and the only reason other people might disagree is because they’re blinded by partisanship?” in response to the question in the future.

                The *NEAR* future.Report

              • gingergene in reply to Jaybird says:

                Yes, I would. Or if the dude didn’t resign and went to jail for contempt of court, I would say, “that’s civil disobedience for you”. It doesn’t mean I think the dude is morally wrong, or that the laws don’t need to change.

                I know what civil disobedience is: it’s breaking the law on purpose because you think it’s a bad law. It means jail or fines or police in riot gear are all possibilities. It’s a serious undertaking, with inherent risks that makes it best used as a last resort when other means have failed, because it’s illegal.Report

              • Patrick in reply to Jaybird says:

                No (but that’s not what I’m saying in this case.)

                In this case I’m saying, “If your moral compass conflicts with your sworn duty, you have three options: compromise your moral compass, resign from your sworn duty in protest, or accept the consequences of failing to execute your sworn duty because of your moral compass.”

                You can also do all sorts of other things, like “try to get your sworn duty to align with your moral compass”, but you’re doing that parallel to making that choice, not in serial.

                So sure, if someone gives support to undocumented folks (or, for another actual current example, feeds kids who don’t qualify for subsidized food services) it needs to be established that the system needs to do what it is legally required to do (discipline/fire/whatever that person) while folks involved need to change the system.

                The alternative is that we just ignore the rules, willy nilly. That’s not going to ever make the system better, that’s not much better than anarchy.

                In this case, there’s the added wrinkle that Ms. Davis chose not only to execute her sworn duty, but also to prevent other people in the government from executing their sworn duty. Meaning she’s not only refusing to do her job, she’s still attempting to use her (now illegitimate) position as a government authority to prevent other people from doing their job.

                There are plenty of historical examples of folks choosing to go into the hoosegow as a form of civil protest *against* the government’s actions wrt the citizenry.

                She’s choosing to go into the hoosegow as a form of civil protest against the government’s actions wrt government services.

                This is the crazy.Report

              • Jaybird in reply to Patrick says:

                Well, we’ll have opportunities to see what happens in the near future as we’re coming up on some serious issues WRT immigration (and, in Europe, WRT refugees).

                Personally, I think that God’s Laws will be seen as much more important than Man’s.

                And people who disagree will be shown to be exceedingly immoral.

                Time will tell.Report

              • nevermoor in reply to Jaybird says:

                Where can I go to find these “God’s Laws” which you believe we should all be bound by?

                I’d appreciate an answer that takes into account this scene explicitly.Report

              • Jaybird in reply to nevermoor says:

                Go find a washroom and wash your hands.

                Dry them.

                Go outside.

                Take one of your clean fingers and lick it.

                Hold it into the air.Report

              • Oscar Gordon in reply to Jaybird says:

                I think the judge sums it up rather nicely here:

                “I myself have genuinely held religious beliefs,” the judge said, but “I took an oath.”

                “Mrs. Davis took an oath,” he added. “Oaths mean things.”

                From what I understand, there is legal precedent when it comes to holding people to their publicly sworn oaths (even if we let bigger fish wiggle out of that trap more often than we should).Report

              • Chris in reply to Jaybird says:

                I respect her for sticking with her beliefs. She still can’t keep the job if she’s not gonna do it. And she, as a public official, can’t deny court orders and not suffer consequences. Or perhaps that’s a precedent you want set?

                “Mr. President, the courts have ordered you to stop bombing that country, but you persist.”

                “My conscience tells me to, and there’s not a damn thing you can do about it. Go away, silly Congress.”

                Anyway, I would expect the same to happen to anyone who essentially commits an act of civil disobedience. It is part of what makes civil disobedience meaningful: if the law is unjust, the punishment highlights its injustice.Report

              • James K in reply to Jaybird says:


                And, strangely, the person who admits, oh, an illegal immigrant into an elementary school or something despite the law saying “you can’t do that” will be upheld as a hero rather than as someone who ought to have resigned zir position.

                Speaking for no one but myself, that hypothetical person should be similarly sanctioned. Civil Servants may only act within the parameters of the official powers – the rule of law relies on the laws being applied at least somewhat evenly, not at the whim of every government officials’ inclinations.

                I have some sympathy for Ms Davis. She woke up one day and found that her duties had changed so as to conflict with her personal ethics. I’ve not been in that situation before, but I can certainly understand how distressing it must be for her.

                But there is only one honourable course in her position – to resign in protest. But she continues to insist on holding her position while refusing to follow its legal requirements. For that matter she has rejected options for reasonable accommodations. Not only will she not personally approve gay marriages, but she won’t permit her subordinates to do it either. She will accept no outcome but a constructive ban on gay marriage in her county, and she does not have the legal authority to institute such a ban.

                While imprisonment is hardly an ideal solution, the fact she is elected (and lets leave the absurdity of that to one side) means that more appropriate remedies (such as dismissal) are not available. Short of declaring every government official a king or queen of their own petty fiefdom, I don’t see what else can be done here.Report

              • Michael Drew in reply to James K says:

                Not that this is a defense of her actions, but she, or someone in her position, may feel that, as an elected representative, she is representing those who elected her in refusing to carry out certain orders, and that while the system might be entirely right to see that the lawful order her office is instructed to obey be obeyed by removing her form office under the appropriate legal process for doing so, it would be an abrogation of her duty to those who elected her to resign before being removed.

                I would say that the oath to follow the law, where federal law supersedes local and state law, supersedes any such feeling on her part – that her duty is obviously simply to carry out the functions of the office as the law defines them.

                But I think I would credit an argument from her that it is not merely her own conscience that stands against the current duties of her job; it’s the understanding upon which voters put her into office in her last election about how she would discharge those duties that is now in conflict with the law due to a change not taken into account in that election. I think that argument should obviously not protect her from having an order to perform her duties enforced against her person (as it has been), but I think I would actually stop somewhere short of calling that position dishonorable.Report

              • James K in reply to Michael Drew says:


                I’ll admit I haven’t given this question as much consideration from the perspective of an elected official. I agree with you that the argument still isn’t sufficient, but I could at least see the point of view you raise as being more ignorant than dishonourable as such.Report

              • Richard Hershberger in reply to Jaybird says:

                Refusing to resign while also refusing to perform her duties is inconsistent with Christian morality. She is accepting compensation for work she isn’t doing. It is entirely consistent with (a) grandstanding, and (b) cupidity. She either wants the publicity (with, one suspects, its potentially lucrative results) and/or she wants to maintain her moral purity while still drawing that sweet sweet paycheck.

                Reports have it at $80K a year, which isn’t much if you are in New York City or San Francisco, but in BF Kentucky puts her in the economic elite. It also seems to be regarded as an inheritance right: she took it over from her mother, and her son is one of her deputies. I suspect it would never have occurred to her to sacrifice her service to Mammon in support of her Christianity.Report

              • DensityDuck in reply to nevermoor says:

                If anyone’s grandstanding, it’s the judge, who is making this out to be You’re A Bad Person Who Is Getting A Time-Out, rather than “the RFRA allows you to object, but it also says that if something is a legitimate government interest and there’s no other way to achieve it then you can still be compelled to act against your stated beliefs.”Report

              • Morat20 in reply to DensityDuck says:

                The judge is grandstanding, because he didn’t phrase his decision the way you’d prefer? Not the employee who has ignored a court order, appealed to the Supreme Court, been told “No” and then refused to comply while raising money on it?

                Interesting definition.Report

              • nevermoor in reply to DensityDuck says:

                @densityduck The Court ALREADY had the case where it told her she needed to stop. Then she appealed and lost.

                Now she’s still refusing. Either courts have power to enforce their orders or they don’t. In this country, they do. So off to jail she goes until she resigns, obeys, or gets bailed out politically.Report

              • Burt Likko in reply to DensityDuck says:

                …the RFRA allows you to object, but it also says that if something is a legitimate government interest and there’s no other way to achieve it then you can still be compelled to act against your stated beliefs.

                You know that’s very close to what the RFRA actually does say, right, @densityduck ?Report

              • DensityDuck in reply to Burt Likko says:

                That’s, um…my point? That the judge (and most everyone else) is presenting this as though it’s Respeck Mah Authoritah rather than “we don’t have a choice but to compel you”.

                I can see how people might say “well that’s a bullshit distinction because it comes out the same either way”, but it’s the reasoning that makes the difference.Report

              • Troublesome Frog in reply to nevermoor says:

                “Forget it, pal. I don’t need your phony-baloney job. I’ll take your money, but I’m not gonna plow your driveway.”Report

  6. LeeEsq says:

    Kim Davis is in contempt of Court. Being jailed is a traditional punishment for those in contempt of court.Report

    • Kim in reply to LeeEsq says:

      Yes. This.
      Judge has to take his court’s rights seriously, or he is not doing his duties towards our government.Report

    • Burt Likko in reply to LeeEsq says:

      It’s one form of the traditional punishment.

      If I’d been the judge, I probably would have issued a monetary sanction first — $1,000 a business day for the first week. Payable out of her personal funds, no contributions or reimbursements from third parties allowed under pain of a second contempt citation. All fines dischargeable upon the issuance of marriage licenses pursuant to the court order or her resignation from office. Return date, September 8, the day after Labor Day. After that, it’s going to be $10,000 a day. Return date after that, September 10. Then, after two opportunities, sanctions vest and you do the body attachment then.

      (Did you know that contempt sanctions are not dischargeable in bankruptcy? There’s your legal trivia for the day.)

      Now, I can see why Judge Bunning skipped those steps, because it’s for sure that she wouldn’t pay and the week-long farce of her not paying would not likely yield compliance. But I’d have done it that way to demonstrate that the Court is serious about its orders and specifically not to have had her get to flash about her “go to jail, go directly to jail, do not pass GO” card.

      Why? Because doing so means she’s going to wind up collecting a whole lot more than $200. I’m sure the cash is already starting to flow in. And if I were the judge, I wouldn’t want to set in motion a dynamic by which defiance of court orders becomes not only politically useful but also personally profitable.Report

      • Kim in reply to Burt Likko says:

        This is why people call lawyers snakes, you know?
        Because they have some grasp of strategy.Report

      • Chris in reply to Burt Likko says:

        The judge also noted that people were raising funds for her, so a fine would be ineffective. And honestly, if we’re talking “optics,” letting her draw this out longer probably doesn’t help.Report

      • nevermoor in reply to Burt Likko says:

        Do we know what she said in the hearing? If, as I’m assuming from the Judge’s actions, she was openly defiant/resolute I don’t see why this wouldn’t be the right outcome.

        Also, the more money idiots send her, the more money she has for lawsuit creditors to get in on since there’s no way in hell she’s entitled to qualified immunity and someone is going to find a pathway to significant damage claims (e.g. parents flew in to witness wedding, reception catering, whatever)Report

        • Kim in reply to nevermoor says:

          I dearly hope someone’s collecting names on these idiots.
          PT Barnum was wrong, there’s not a sucker born every minute.

          But these people are suckers, and taking their money serves them right.Report

    • Morat20 in reply to LeeEsq says:

      Exactly. That’s what contempt of court means.

      And I think it’s exactly the right sort of optics: Just because you’re an elected official, or a Christian, or a Muslim, or an atheist doesn’t mean you have some “ignore the law” card you can use at will and cite your faith or your conscience as reasoning.

      The “ending up in jail” bit is a rather crucial part of civil disobedience. It’s what makes the difference between principled stand on your conscience and anarchy — because it makes darn sure that it really IS a principle to you, and not a “Nah, I don’t feel like obeying the law today”.

      Jail for contempt is proper. She can always end this by resigning her office, or doing her duties under the law, so effectively this is her choice.Report

      • LeeEsq in reply to Morat20 says:

        Separation of religion and state was one of the most important parts of the Bill of Rights. We are a secular Republic ruled by secular law.Report

        • nevermoor in reply to LeeEsq says:

          And, if you belong to a religion, you should WANT it that way. Which is (yet another) thing I can never understand about Christianists.Report

          • LeeEsq in reply to nevermoor says:

            To be fair to those against separation of religion and state, many religions have always envisioned themselves as being the governing force in society and part of the state. Islam is the most notable example. One reason why Islam is having a hard time adjusting to modernity because of this. In it’s original conception, Islam and the state were supposed to be one. The Caliph was King and Pope in one person. The same is true for lesser officials in a Muslim realm. This was more or less true until the end of the Ottoman Empire and is still true in many places.Report

  7. nevermoor says:

    I’m saying that having federal officers arrest her and place her in jail until she complies with the government is terrible, terrible optics.

    As compared to what? Fining her her whole salary? Issuing a strongly worded letter but not otherwise enforcing a 100% correct court order?

    You willfully refuse to do what a judge orders after you lose all your appeals, you should probably go to jail.Report

  8. Oscar Gordon says:

    Aren’t there multiple commands in the bible that good christians should obey the laws of man, even if they are disagreeable?Report

    • nevermoor in reply to Oscar Gordon says:

      Well, it also has 1 Corinthians 13 but somehow that doesn’t motivate any of these Christianists.Report

    • gingergene in reply to Oscar Gordon says:

      Tell us therefore, What thinkest thou? Is it lawful to give tribute unto Caesar, or not? But Jesus perceived their wickedness, and said, Why tempt ye me, ye hypocrites? Shew me the tribute money. And they brought unto him a penny. And he saith unto them, Whose is this image and superscription? They say unto him, Caesar’s. Then saith he unto them, Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s”

      The other Christians in her life are doing her and themselves a disservice by not counseling her that this issue has been very clearly addressed by Jesus himself. And remember, giving “tribute” to Caesar was about more than paying your taxes. Caesar was a god in Rome, and taxes were like a tithe. Jesus still didn’t think paying your taxes was a violation of the second commandment. I think he’d feel even less so about marriage licenses, even if he was opposed to two men joining together in a love-based legal arrangement, which FTR, I do not think he would be.Report

  9. aarondavid says:

    First, in general, this is why I am a libertarian.

    Second, in specific, this is why the gov’t should not have anything to do with marriage.

    She might be breaking a federal law, but she is probably representing her electorate quite well. Conflict of interest, remove it. Or, is this that vaunted Civil Disobedience?

    (For the record, I am in favor of anything(s) being able to marry anything(s))Report

    • nevermoor in reply to aarondavid says:

      Or, is this that vaunted Civil Disobedience

      We’ll see. Part of engaging in civil disobedience, though, is going to jail. So if she’s trying to spark a Christianists Rights Movement and starts writing Letters from her jail cell, that’s fine. Maybe it’ll work, maybe it won’t. I know where my money is.Report

    • Stillwater in reply to aarondavid says:

      First, in general, this is why I am a libertarian.

      What’s the “why” here?

      Second, in specific, this is why the gov’t should not have anything to do with marriage.

      And, what’s the “why” here?

      Adding: Maybe the questions should be about what the “this” is, in each case. Oh heck, let’s go crazy: what’s the this and what’s the why?Report

      • aarondavid in reply to Stillwater says:

        The why in both cases is in ref. to the fact that this solidifies my belief that the gov’t (KY in this case) should back the fuck off. I see zero reason that the state should have anything to do with marriage, other that enforce the contract. No creating the contract, and no deciding who gets the contract. Let anyone marry anyone, sign a piece o’ parchment (sticky pad will do) date it, and that is it. Then the state can go “yep we enforce that, its a contract.”

        The This covers anything that the gov’t doesn’t have to do. If it can be done any other way, it should be done some other way.Report

        • Stillwater in reply to aarondavid says:

          Ahh. So, you’re a libertarian despite anything that’s happening in Kentucky, yeah? And your libertarianism emerges from considerations that don’t have anything to do with Kentucky. So Kentucky oughta just drop out of the argument, right?Report

          • aarondavid in reply to Stillwater says:

            “. So, you’re a libertarian despite anything that’s happening in Kentucky, yeah? ”

            Your gonna have to parse that one out for me @stillwater My Libertarianism is confirmed because of what is happening in Kentucky. In other words, the judge is taking a specific legal point (representing the law,) which is correct. At the same time, the clerk is taking an ethical stance, and as she is elected, presumably correct (representing her constituents as she see’s fit.) That they are in conflict is the question, and one that I feel is best resolved by removing the the issuing of the license (her specific job in this) from the hands of gov’t. Step the G’s job back to the simple enforcing of contracts (not to say she wouldn’t balk at that) it’s most important. In my eyes it makes pushing this over the finish line much more legitimate, legal wise.

            Does that make sense? Answer questions?Report

            • Stillwater in reply to aarondavid says:

              My Libertarianism is confirmed because of what is happening in Kentucky. In other words, the judge is taking a specific legal point (representing the law,) which is correct. At the same time, the clerk is taking an ethical stance, and as she is elected, presumably correct (representing her constituents as she see’s fit.)

              OK. Now it appears you’re generalizing from a specific instance in Kentucky to an entire analysis of gummint which justifies you’re libertarianism rather than confirms it, since if Davis had chosen to issue SSM licenses rather than not, your view of gummint involvement in marriage and libertarianism in general would remain equally confirmed, yes? So the facts on the ground – the pragmatics of the situation – aren’t what drives you to libertarianism. It’s that you “see zero reason that the state should have anything to do with marriage, other that enforce the contract” and “anything that the gov’t doesn’t have to do. If it can be done any other way, it should be done some other way.” Which is a principled (or at least cashes out as a principled) objection to the state.

              Which is fine, I guess. It just begs a bunch of questions, for example, that enforcing marriage equality is something the state doesn’t have to be involved in. Or marriage more generally, for that matter. ALso, what type of “have to” are we talking about here? Logically necessary? Practically? Politically? I mean, I get that there’s a conceptual space (ahhh, I see it now: Libertopia!!) in which your views make perfect sense, but that conceptual space isn’t the world we live in, seems to me.Report

              • aarondavid in reply to Stillwater says:

                “since if Davis had chosen to issue SSM licenses rather than not, your view of gummint involvement in marriage and libertarianism in general would remain equally confirmed, yes?”

                No. That would have been a sign (but just) that liberalism/conservatism works. In other words, that overarching gov’t works. That alone might not have moved me (its been a long time coming) but it would have been something to think about. The main thing is not the G, but the pluralistic conflict. That is what has motivated me.Report

        • Alan Scott in reply to aarondavid says:

          don’t see how that really helps, though.

          I mean, private, individual contracts were often what same-sex couples relied on before same-sex marriage was recognized by state.

          But under that regime, the Kim Davises of the world could ignore those contracts too, making them impossible to enforce. That left same sex couples with pieces of paper whose worth were unknown until someone was at the hospital, or trying to adopt a child, or re-finance their home or whatever.

          Having your marriage rights ignored at the “getting married” stage rather than the “using the powers of marriage” stage is a feature, not a bug.Report

          • aarondavid in reply to Alan Scott says:

            I totally think you questions are the important ones to ask @alan-scott especially to libertarians. My biggest fear is that, even though laws are passed, and judgements are handed down, that opinions aren’t changed. And as I get older, I am struck by two things. One, no one is challenging (legally) the fact that two women are running for president right now. Second, that even with Civil Rights acts from 50 years ago, we still have a serious racism problem in the US. I want total equality in this country. I am not sure that is would get any one there.

            If this fails, and the pushback is massive enough to elect someone like Cruz, I wont lose anything. But you would. And that sucks. But that is democracy in a nutshell. Things like civil rights are a trailing indicator, social justice is a trailing indicator. Everything SCOTUS hands down is trailing indicator.

            And a hardening indicator. Martyring, if you will.

            Most of the people who want SSM aren’t eligible for SSM. To me that is a very important fact, as they really don’t have anything to lose but pride, or a marker in the game of politics. I want the idea of SSM to not even be a bump, like the idea of women running for president.

            Does that suck for those who are eligible?


            • Alan Scott in reply to aarondavid says:


              If you haven’t read former OTer and current Cato Editor Jason Kuznicki’s article “Marriage against the State“, I recommend giving it a read. It’s one of the best political perspectives on marriage I’ve ever read, Libertarian or otherwise.

              I also want to push back a bit on your statement “My biggest fear is that, even though laws are passed, and judgements are handed down, that opinions aren’t changed.”

              Because they are, at least when it comes to SSM. Folks living with same-sex marriage grow to accept it, even when they didn’t like it at first. The best example is found by looking at Iowa and Maine.

              In Iowa, the state supreme court found that SSM was legal. The upset public voted to ouster the supreme court justices based on this issue, 60-40. In Maine, the legislature passed a bill allowing SSM, and it was overturned in a referendum, 55-45.

              A few years later, both states had an opportunity for a re-do. Justices who hadn’t been up for a retention vote the first time round were on the ballot in Iowa, while a new ballot measure sought to legalize SSM in Maine. In the intervening years, Iowans lived with SSM. Maine residents had no such luck.

              Iowa voted to retain the pro-SSM justuce 60-40, a 20 point swing. Maine voted for SSM 55-45, only a 10 point swing. Both moved toward broader acceptance in favor of SSM, but the acceptance was much quicker in Iowa than it was in Maine. The idea that having SSM be “forced on” holdouts somehow makes them more resistant to it doesn’t really hold up in that case, and I think as we see more fallout from Obergfell, we’ll find that to be the case in places like Kentucky too.Report

              • aarondavid in reply to Alan Scott says:

                I hadn’t read that, and thank you.

                Everything you are pointing out is good, and points in the right direction, But I am unswayed by the data (good though it is to hear.) The reason I am unswayed is that this isn’t the only issue to be looked at from a partisan perspective and even where to resolve today (hopefully in your favor) it wouldn’t change the trajectory of my politics. I am fully convinced that the only way forward in a pluralistic democracy is Libertarianism.

                The main reason for that is no matter the validity of your opinions on this, I cannot take away the validity of dissenters opinions. The greatest strength of democracy is the ability to contain opposing views. And that is why I cannot countenance liberalism/conservatism (the same coin, different sides.) And the greater the idea and practice of liberalism (more peoples, more ideas, more ways to live a life) the greater the desire to destroy those who don’t conform.

                The only way to curb tendency (destroy the enemies) is to curb the power of the state.

                Sorry, I am rambling a bit here, but that is how I came to this position and why it would be hard for someone to knock me off of it.Report

              • Alan Scott in reply to aarondavid says:

                I’m not trying to convert anyone away from libertarianism. Even if it were possible, it would turn OT into a pretty boring place.Report

    • Box Turtle in reply to aarondavid says:

      I am in favor of anything(s) being able to marry anything(s))

      My time has come.Report

    • greginak in reply to aarondavid says:

      Ahh yes, the government should not have anything to do with contracts or legal rights argument. Always a good one.Report

  10. Damon says:

    You’ve created a new martyr. JUST what was needed.

    Now, if Kim is really really serious about her faith, she could seriously view this as a test by God of her faith. Shit like that has been know to give folks all kinds of motivation not to cave. So, who’s gonna break first, her or the judge?Report

    • Jaybird in reply to Damon says:

      From what I understand, 3 of her 6 deputies have said that they have no problem providing marriage licenses to anyone who asks for one. So that might quietly resolve the problem today.

      But if my intuitions do not fail me, for the next month or so, the office will have a problem with people coming down regularly and requesting a license from her specifically. (People will come from all over the country to do this.)

      And then we get to play this game again.Report

      • Michael Cain in reply to Jaybird says:

        Some of the people from her office raised the issue this afternoon that under Kentucky law, the licenses might not be valid without the clerk’s signature. That was my impression when I was skimming through some of the Kentucky statutes yesterday — that Kentucky uses the clerk’s signature rather than some sort of anonymous official seal.

        There seem to be several ways that the Kentucky legislature could deal with this by modifying the statutes, but they can’t call themselves into special session and the governor has declined to do so.Report

    • nevermoor in reply to Damon says:

      What’s your alternative?Report

      • Damon in reply to nevermoor says:

        Ideally, her party or other gov’t officials like the mayor or such might wanna have a chat with her. Would it work? Don’t know. Has it actually been tried?Report

        • nevermoor in reply to Damon says:

          No idea.

          But just so I understand, she’s willing to go to jail over this and defy federal courts but you think a quiet chat with a local politician is a solution? Anything else to suggest?Report

          • Damon in reply to nevermoor says:

            I think a “sit down” PRIOR to this whole shitstorm MIGHT have been useful, but the battle lines have hardened now and it’s too late. So now, here we are. I think this woman is one of those types of people that is perfectly willing to go full out in defense of her principles. So, she’s going to consider it a test of her faith not to give in to the judge’s order and she’ll remain in custody. How’s that going to look, optics wise, in a year when she’s still in jail? Two? Three?

            Also, as was mentioned above, the marriage licenses her subordinates complete may not be legal without her signature, at least in the short term. So, how does throwing this woman in jail actually solve the problem? It doesn’t, and this woman is in jail, perfectly happy to play the martyr for her faith if she needs to. The jailing wasn’t about making her do here job, it was about the judge being defied. I understand why the judge did that, but I’m not sure it actually fixes the problem.Report

            • nevermoor in reply to Damon says:

              So no other solutions than “maybe if someone had asked nicely”?

              The judge doesn’t have the authority to fix the problem. He has the authority to order her to fix the problem and punish her for refusing. As in every other case about every other thing. She’s created a problem, she’s been ordered to follow the law, that order has been appealed to the highest court of the land and remains standing. Now we’re in the “or else” phase that accompanies any court order.

              If the “or else” phase wasn’t harsh, people would have to strategically decide whether to obey court orders and our system would be a lot worse than it is. It’s the same reason my state has post-judgment interest rates of 10% in civil cases. You pay the money you owe and you do it damn fast. Or much worse things happen to you.Report

              • Damon in reply to nevermoor says:

                Oh, I wasn’t offering a solution to fixing the problem NOW. I was suggesting that, before, it might have been handled better. And as you said, “The judge doesn’t have the authority to fix the problem. He has the authority to order her to fix the problem and punish her for refusing.” so the Judge can tell send her to jail, and she can sit there. And we can be talking about this in a year when she’s still in jail and the problem hasn’t been fixed.

                So, you want to offer a suggestion other than “she should just follow the judge’s order”? Cause it’s likely she’s not going to. And how long will it be before someone petitions the court to end the incarceration since SHE IS NOT GOING TO COMPLY (I’m assuming she’s not going to comply) or do you suggest that she just be left there to rot?Report

              • nevermoor in reply to Damon says:

                I understand it’s tempting to throw questions back in the questioner’s face, but I’ve answered it repeatedly in this thread.

                She should (a) do her fishing job; (b) resign from that job; or (c) stay in jail until someone else fixes the problem she created.

                If her ethics prevent (a), they should require (b). That they don’t is why I think she’s grandstanding and fishing for a Fox News sinecure once she has sufficiently established her credentials.Report

              • Damon in reply to nevermoor says:

                I guess I missed your comments where you answered those questions…this thread has been very active.

                But, why should she resign? If the people of that area elected her, then the assumption is that “but democracy” and they want someone who’s anti ssm, that’s what they’re getting.

                Note, I assume she has 1) a very strong faith and is holding the line or 2) she’s grandstanding, but I’m leaning towards 1.Report

              • Will Truman in reply to Damon says:

                She should resign because she has a job that she cannot perform. That she was voted into that job doesn’t change that fact. Until or unless they vote someone into the job willing and able to do the job, anyone they elect will need to resign… because voters can’t vote away SSM by their clerk elections more than a town to vote alcohol away by electing a sheriff who goes out and arrests people for drinking.Report

              • Damon in reply to Will Truman says:

                Didn’t I recall some discussion about a process of clogging the bureaucracy of a soviet prison on this site recently? Seems applicable to this scenario.

                After all, how many divisions does the court have? And by that I mean, if no one listens to the court or the the judge, whatcha gonna do? Send in the army?Report

    • Kolohe in reply to Damon says:

      It ain’t going to be the judge. The judge goes home at night eats dinner does whatever recreational activity they want and then sleeps in their own bed.Report

  11. Saul Degraw says:

    I don’t really know if it is terrible optics. Can you tell me what demographic in the United States supports SSM but wouldn’t want to see Kim Davis jailed? How many people are really going to switch from D to R because of this.

    As far as I can tell the lines are already drawn and I don’t know anyone in the middle.

    Pro-SSM people are already against Kim Davis and think she is angling for the wingnut welfare circuit and/or she should not use her beliefs to bully or deny rights to others.

    People who are sympathetic to Kim Davis are probably anti-SSM and probably anti-Democratic Party (Kim Davis is a Democratic politician but I wonder how much of that is just the history of the county. Maybe there are some libertarians who are pro-SSM but against jailing Davis but I also think they don’t swing to the D column.

    The social conservatives who support Kim Davis do not and will not vote Democratic. The beliefs of the Democratic Party base are not worth sacrificing or compromising for that section of the electorate.Report

    • Jaybird in reply to Saul Degraw says:

      While it’s true that Kim Davis was technically a Democrat when she refused to provide marriage licenses, she’d be a Republican today.Report

      • Saul Degraw in reply to Jaybird says:


        Cut the dada. What is your point?

        George Wallace was a Democrat when he got into a confrontation with Nicholas Katzenbach on the steps of the University of Alabama. Just because they belonged to the same party does not mean that Wallace was part of the party being left behind. A few years later he did leave.Report

    • Tod Kelly in reply to Saul Degraw says:


      “Can you tell me what demographic in the United States supports SSM but wouldn’t want to see Kim Davis jailed?”

      Yes. That demographic commonly referred to as “The Vast Majority.”Report

      • nevermoor in reply to Tod Kelly says:

        [Citation Needed]

        I suspect Americans generally accept and support the rule of law.Report

        • Tod Kelly in reply to nevermoor says:

          They do. And if this woman repents in two days time, they will probably continue to do so.

          But if she doesn’t, and a year from now she (and presumably others in NC, AL and other states) are all still imprisoned rather than fined to a degree that strains their backers (as well as being forced to pay the total cost of those who wanted to get married in that county and not another, including pain & suffering) then I think all bets are off.

          If this woman is in jail for too long, the legal particulars of her case won’t matter at all when the push comes to pass laws to grant people who are gays or transgender equal rights on all fronts. Because all anyone who is in the middle os going to know is that one woman didn’t believe in SSM and the government threw her in jail.

          They could fine her $100,000 a day and see how long her backers could keep paying and no one would care in a year. Most people will care a lot if she’s still in jail a year from now.Report

          • Kazzy in reply to Tod Kelly says:

            Again, Tod, citation. You are speaking with an awful lot of authority for someone with no facts to back up his position.

            Quick: How long was Greg Anderson in prison for contempt of court?Report

            • Tod Kelly in reply to Kazzy says:

              With all due respect, Kaz, some things are obvious enough you don’t need to wait for polling on. That people will reflexively have a different level of sympathy for a nobody hick who loves Jesus than they will a PT who sold millionaire athletes illegal steroids is one of those things. And that’s even skirting the issue that there was no major political party waiting in the wings to run campaigns on Greg Anderson.Report

              • Kazzy in reply to Tod Kelly says:

                And yet… to most of the folks here, this is entirely NON-obvious.

                Now, maybe we are non-representative. But I’d be shocked if this loses anybody any votes, now or in the future.

                Of course, your entire argument here is predicated upon the fact that courts, judges, and the government should act according to optics as opposed to what is right. Is that really the territory you want to claim?Report

              • Tod Kelly in reply to Kazzy says:

                Four things:

                1. I fully admit I could well be wrong. Stranger things have happened.

                2. That being said, criticizing me for stating an opinion rather than the fact of what could happen in the future in a post where everyone is doing the same is a little odd.

                3. What people here — or at any politics blog — think about political matters is a poor predictor for what most people are going to do in elections, because most people pay scant attention to the stuff that we feast on 24/7. And FWIW (probably nothing), I think that in those times I have said well in advance “here’s how the public is going to respond” in these pages and got pooh-poohed by folks here for that opinion, I’ve ended up being right right far more often than wrong. (The quick Trump flame out being an obvious exception to this.)

                4. I didn’t say the government needs to base decisions on optics, I said that this one decision is terrible optics. I personally would have find the bejesus out of the woman, but even so I think the decision the judge made is entirely justifiable. I don’t find him at fault in anything.

                But just because it needed to be done doesn’t mean that it wasn’t bad optics at a time we’re trying to push through full equal rights for LGBTs, or that it won’t help revive what had been a pretty pulseless anti-SSM movement.Report

              • nevermoor in reply to Tod Kelly says:

                a nobody hick

                A career dynastic politician, I think you mean.

                no major political party waiting in the wings to run campaigns on Greg Anderson.

                God I hope the Ted Cruz’s of the world promise to pardon her. And everyone says Trump is the crazy one…Report

              • Alan Scott in reply to Tod Kelly says:

                Tod, I think you’re really overestimating how much sympathy a “nobody hick who loves Jesus” gets after being thrown in Jail.

                Obviously, to folks on the left side of the culture wars, Davis is just the sort of conservative boogeyman liberals like to imagine. Southern (or close enough) good old boy (albeit a female one) redneck with the kind of religious enthusiasm one rolls one’s eyes at, standing in the way of equal rights.

                But she’s also a Democratic civil servant who got caught breaking the law and went to jail for it. She’s got a troubled past and belongs to the sort of fringey church one squints at with suspicion. In a one sentence headline, she’s a hero to the right. With the sort of scrutiny that happens if this becomes an ongoing news issue, she doesn’t hold up as the right sort of hero.

                Here’s the thing anyone looking for this generation’s Rosa Parks needs to remember: Rosa Parks wasn’t a coincidence. She was chosen because she was the most photogenic, well-behaved, and otherwise unobjectionable person on what started as quite a long list.

                That’s not Kim Davis.Report

          • nevermoor in reply to Tod Kelly says:

            So your citation to the “Vast Majority” opposing her being jailed is that you think if she stays in jail for a year and a bunch of other people join her in jail (which I doubt) that people might shift to oppose “gays or transgender equal rights on all fronts”? I just don’t think there are enough marriage-license-issuers out there who feel sufficiently strongly to stay in jail voluntarily for any period of time. As to this woman: I’d happily take the under on a year.

            Yeah… not persuasive as a citation or argument.Report

          • Stillwater in reply to Tod Kelly says:

            They could fine her $100,000 a day and see how long her backers could keep paying and no one would care in a year. Most people will care a lot if she’s still in jail a year from now.

            And when she fails to pay you just throw her in jail, yeah?Report

          • DavidTC in reply to Tod Kelly says:

            They could fine her $100,000 a day and see how long her backers could keep paying and no one would care in a year.

            And the magical spell that stops *the other side* from figuring out the optics and finding a clerk willing to *not* pay the fine is? And the other magical spell that keeps the money rolling in to multiple people for a year straight is?

            You realize when the money stops going in and she can’t pay the fines, she *goes to jail*, right?

            All your idea would accomplish is she goes to jail a week from now instead of today, and I have no idea how that is supposed to alter anything.

            If anything, that makes it *worse*…it’s a fairly important point, on that’s sorta hard from the other side to overcome, that she can actually recover from all this, and walk out the door of the jail completely unharmed, *without* having to do a single marriage she doesn’t want, if she just *resigned her damn job*. (1)

            I don’t understand why you think taking all her money and *then* imprisoning her make the optics look *better*.

            1) Hell, she worked in that office as a deputy for years, and deputies don’t marry people…I see no real reason she shouldn’t be able to get her old job back…well, now I see a reason, because people who can’t actually obey government directives probably shouldn’t work in the government. But there wasn’t a reason before she decided her job was more important than jail.Report

          • aarondavid in reply to Tod Kelly says:

            “They could fine her $100,000 a day”
            Actually @tod-kelly I don’t think they could, 8th amendment and all.Report

          • Morat20 in reply to Tod Kelly says:

            I think you vastly overestimate the public’s attention span.

            To a certain sub-set of the population, her still being in jail a year from now will make her a martyr to the cause and an icon. But from a coldly political point of view: Those people aren’t going to vote Democrat anyways and weren’t ever going to support SSM.

            The vast bulk of America, left and right alike, would — upon learning she’s been there a year — most likely simply think “What an idiot. She should have resigned or something” and move on.Report

      • Will Truman in reply to Tod Kelly says:

        I was about to get all sparky about how we seem to have entered an era in which liberals have decided that they need never worry about the unconverted…

        But in this case, I think they’re right. I knew a lot of PRO-SSM people who were mad about Memories Pizza and bakers, but so far the only people who seem to be mad about this were already against gay marriage.Report

        • greginak in reply to Will Truman says:

          I’m not sure liberals don’t’ care about the “unconverted.” I don’t expect or believe everybody to be converted to whatever i think. There is only so far anybody or movement can bend or try to play super nice to people with differing views. At some point we just have to accept not everybody will agree.Report

          • Will Truman in reply to greginak says:

            That “some point” is moving earlier and earlier to the conversation. How many conversations have we had here about how swing voters are a myth and Dems don’t need to worry about them and let’s rally the base? It’s becoming conventional wisdom, and hey look that means that they need not worry about converting the unconverted!Report

            • greginak in reply to Will Truman says:

              I’m fine with trying to convert the unconverted or at least forming alliances based on shared concerns on specific issues. That is fine. Parties should always be reaching out. However there are always going to be people who disagree and there is limited time. I’m doubting outreached to hardcore Rushbo listeners is going to be a wise use of time. Plenty of the anti-ssm folks seem far beyond reachable. Are there people who it is possible to have conversations with: of course, i just don’t think Rick Santorum is one of them.Report

        • Saul Degraw in reply to Will Truman says:


          I think that a lot of people (especially on the Internet) have more or less given up on rhetoric. I am equally underwhelmed by the rhetoric of conservatives and libertarians as trying to convince me of anything.

          That being said, I wonder if it is not so much that liberals have given up on convincing people but you are seeing a new generation of more strident and combative liberals who are willing to fight in the trenches. When I was younger, I remember a lot of people wailing about how the Democratic Party just existed in a fetal position wearing a kick me sign when attacked by the GOP. I remember election after election hearing complaints of “If given a choice between Republican lite and Republican, people will pick the Republican.”

          Maybe the Democratic Party and their base is just getting a fighting spirit again and this is just confusing to those who remember the Democratic Party from the “please don’t kick me” days.

          I think part of Sanders mania is that he is a fighter where HRC sometimes does the “please don’t kick me” hem and haw before stating a liberal position.

          You can also see this in Abortion where a new generation is thinking we need a more proactive and full-throttled defense of abortion rights over the Clintonian “legal, safe, and rare” line.Report

          • Exactly. No need to play nice anymore. People not with the program can be derided and disregarded. They’re not reachable and you don’t need them.

            It’s a viable strategy as long as you have a majority.Report

            • greginak in reply to Will Truman says:

              I’m not sure where you are getting that from Will. In the Davis case she is refusing to sign licenses. She is explicitly denying the right to marry. I’m not sure how to play nice with her. She pushed this, with help of lawyers of course, repeatedly to the courts. Is there room for discussion, yeah but that doesn’t mean she can ignore the law. Where is the conversation with her?

              I respect that some people will always think marriage equality is a hell mouth opening up and devouring the country. I can’t sway those people. There are others who aren’t so hardcore who can be persuaded though.Report

            • Saul Degraw in reply to Will Truman says:


              I think we might be in a protracted period where GOTV and the base is more important to all parties that convincing people on the fence. Or both parties seem to be going for a GOTV strategy.Report

            • Damon in reply to Will Truman says:

              Actually, it’s a viable strategy if you’ve concluded that there is indeed, no hope to change the path we are on, and that things must continue to their logical end. Once that happens, you might have the ability to reach people and craft something new and better.Report

      • Burt Likko in reply to Tod Kelly says:

        It leaves me a bit queasy, too — as I wrote elsewhere in this thread, I’d have gone through the motion of monetary fines first, and for that reason. Yes, imprisonment must be on the table and eventually may need to be resorted to, but a judge ought to be slow to imprison for civil contempt.Report

        • LeeEsq in reply to Burt Likko says:

          The Judge said he didn’t go for monetary fines because he thought that anti-SSM people would just raise all or most of the money for her to pay those fines.Report

          • Burt Likko in reply to LeeEsq says:

            I get that. That’s a valid concern.

            And it may be that there is no effective way to prevent that from happening, no way to guarantee that the fines come from her personal funds.

            But you could escalate the fine by $1,000 per day. First day is $1,000. Second day is $2,000 ($3,000 total). Third day is $3,000 ($6,000 total). And so on. Eventually, either their supporters will run out of money.

            And doing at least something else first graphically demonstrates that this…

            …was not a result that the Court desired.

            We’ll see what happens tomorrow.Report

      • Chris in reply to Tod Kelly says:

        I am not a vast majority, but I don’t want to see her in jail. But I do want there to be consequences for her actions.Report

        • nevermoor in reply to Chris says:

          What consequences?Report

          • Chris in reply to nevermoor says:

            I don’t know. I don’t know what’s legally possible. It sounds like there is no way to remove her from office without the legislature, which is not in session, so fines, hell house arrest, before jail.

            What she’s done is quite serious, but I’d reserve incarceration for the violent and repeat offenders, especially with the way we do jail and prison in this country.Report

            • nevermoor in reply to Chris says:

              The only two options are fines (which the Court specifically held would be ineffective) and jail.

              @burt-likko has the right sense (in my view) of how/why one might prefer fines, but it would also put this story back at the top of the news every week and would certainly not change her behavior. Jail might.Report

              • Burt Likko in reply to nevermoor says:

                Again, judges know that the contemnor the keys to her own jail cell. She can walk out of there any time she wants and all she has to do is agree to do what the law required of her anyway.

                So it’s not hard to see how a judge would feel this is not the same thing as incarcerating a criminal defendant. From the perspective of the bench, it isn’t the same thing.

                But it looks like it from pretty much every other perspective imaginable, and if you’re the one in confinement, it’s sure as fish gonna feel like it.Report

              • DavidTC in reply to Burt Likko says:

                She can walk out of there any time she wants and all she has to do is agree to do what the law required of her anyway.

                Hell, she doesn’t even have to do *that*.

                Most people being actively held in jail for contempt of court are refusing to do something they find objectionable, and they have been ordered to do it or remain in jail.

                She is not alone in this sort of thing. Other sorts of people held in contempt include examples like a reporter held because he won’t reveal his sources, or a person given immunity and ordered to testify against a friend, but won’t.

                But unlike *all* those other people, she has an out. An ‘out’ they don’t have. She doesn’t have to do what she finds morally objectionable *at all*.

                She can just *resign* as clerk, and, tada, she’s magically not required to do *anything* by the court, and would be released.Report

      • Saul Degraw in reply to Tod Kelly says:


        The Vast Majority sounds a lot like Nixon’s Silent Majority or like Peggy Noonan’s deli guy friend. Jaybird seems to think that there is a culture war backlash brewing but it seems like the big difference between the 1960s and today is that the more liberal culture was new then. We have had decades of rock n’roll and stuff. I don’t think a Nixonian campaign can work in 2016.Report

        • DensityDuck in reply to Saul Degraw says:

          Don’t underestimate the effect that George Wallace being shot had on the 1972 election. It’s entirely possible that, had he been able to campaign effectively, McGoven would have been tossed aside and the Democratic Party’s progressive shift would never have happened.Report

  12. DensityDuck says:

    never mind, asked and answered.Report

    • Saul Degraw in reply to DensityDuck says:


      She is an elected official. She can’t just be fired. She needs to be impeached.

      This does raise the question over whether County Clerk should be an elected position or not.

      Interesting facts I learned yesterday, the Davis family is apparently a big thing in Rowan County and the position was held by her mom or dad for decades before she had the position. Kim Davis also wanted to hand the position to her son.Report

    • gingergene in reply to DensityDuck says:

      Same reason John Roberts couldn’t just fire Obama instead of ruling on NFIB v. Sebelius. She’s an elected official.Report

    • She’s an elected official. Under Kentucky statute she can be removed if the state legislature impeaches her, or (with more uncertainty here) if she’s convicted of a felony. The legislature is not in session and the governor has declined to call a special session. The local county prosecutor has referred an “official misconduct” charge to the state AG; in Kentucky official misconduct is only a misdemeanor and the possible penalties listed in the statute don’t include removal from office.Report

  13. Jaybird says:

    Right now this tweet is going around and being retweeted.

    Which is funny at first…Report

  14. Brandon Berg says:

    Morat20: The “ending up in jail” bit is a rather crucial part of civil disobedience. It’s what makes the difference between principled stand on your conscience and anarchy — because it makes darn sure that it really IS a principle to you, and not a “Nah, I don’t feel like obeying the law today”.

    This strikes me as the kind of thing people say about people with whom they disagree. A while ago, there was an official who was illegally performing same-sex marriages, wasn’t there? If he had been held in contempt of court, would you have been talking about the importance of going to jail to prove one’s convictions then?Report

    • nevermoor in reply to Brandon Berg says:

      Gavin Newsom stopped issuing them after the court told him to. Not stopping is why she’s now in jail, and why she belongs there. I suspect even most people sympathetic to her position see that.Report

    • Performing them how? Doing the ceremony is legal. If you’re talking about a clerk actually issuing certificates, then… yeah, that’s contempt of court and he or she either resign, stop doing it, or both… and a judge would be completely within his or her rights to act.Report

    • Morat20 in reply to Brandon Berg says:

      Yes, if people were complaining that he was going to jail for standing on his conscience. I wouldn’t have randomly brought it up in conversation, because I’m not a walking conversation generator, but if asked that would have been a relatively obvious point.

      That was a really easy question to answer. What strikes you as odd about the statement that civil disobedience requires actually paying the price? You did read Thoreau, right? I mean it’s not a new concept — he covered it pretty extensively.

      It’s taught to most protest groups, especially the ones relying on passive resistance. “You will go to jail. You will be fined.” etc.

      I don’t think your conscience is a “get out of consequences free” card, and I certainly don’t think a judicial system that worked that way would be one worth having. If you’re held in contempt, you pay your fines or go to jail and appeal. If all your appeals are slapped down — you either obey, or sit in jail. *shrug*. Do as your conscience dictates, but that law should not bend to the individual.

      (Of course the purpose of civil disobedience is to bring public light to an unjust law, and thus hopefully the vast public will change the law as you sit in jail. It’s a form of passive resistance, after all).Report

      • DensityDuck in reply to Morat20 says:

        “What strikes you as odd about the statement that civil disobedience requires actually paying the price?”

        What strikes me as odd is the red-meat sense I get from the people saying it; the same sense I get from people talking about how a burglary suspect got a hard ride to the station house and fell down a couple times while he was walking back to his cell. Like there’s a nod and a wink happening along with the statement.Report

        • Morat20 in reply to DensityDuck says:

          And apparently you got this sense from me? From pointing out that part of civil disobedience is facing up to the punishment?

          Or was I just a convenient and hopefully obviously hypocritical proxy for these ‘others’?Report

      • Brandon Berg in reply to Morat20 says:

        Because the whole point of civil disobedience is to generate outrage over the fact that the government is persecuting you for violating an (allegedly) unjust law. Yes, you accept that you may go to jail or receive some other form of judicial penalty, but you don’t just say, “It’s cool. I deserved it. Everyone calm down and go home.”Report

        • Morat20 in reply to Brandon Berg says:

          They should read more Thoreau, since ‘public spotlight’ isn’t actually the only reason to go to jail.

          But yes, it IS part of the whole passive resistance thing designed to highlight unjust laws and try to fix them in an orderly, democratic fashion. Of course, the downside is that if you’re going to engage in it you might not find the public is on your side.

          Everyone’s got choices. She’s got three, in fact. (Stay in jail indefinitely, resign, or obey). Not wanting to actually pay the price for her choice is….childish. Few worthwhile things in life are free, and her religion places much emphasis on the fact that doing the right thing is not always pleasant.

          The ability for the average person to want to be the martyr without suffering unduly is simply beyond me. You make your choices and life with the consequences.Report

  15. Will Truman says:

    The optics aren’t great, but it’s not clear what the judge could have done to avoid it.

    Davis could have avoided it by doing her job or resigning and I would be happy with that.

    The legislature could have avoided it by redefining her job responsibilities and I might be okay with that depending on how they did so.

    I suppose technically the gay rights movement could have avoided it by finding another county to get a marriage certificate in, but… it’s not their responsibility to sit by and be patient due to a failure of the previous two to do what needed to be done to avoid this.Report

    • DensityDuck in reply to Will Truman says:

      I am kind of wondering why the legislature didn’t have a quick “oh by the way, deputy clerks in Rowan County can sign marriage licenses and that makes them official, allinfavorallopposedmotioncarriesnextorderofbusiness” vote to handle it.

      Unless what’s going down is exactly what they wanted, of course. It may be that the optics are exactly what they were hoping for–a clear statement by the Federal government of how far they’re willing to go.Report

      • gingergene in reply to DensityDuck says:

        The legislature is out of session, and only the governor may call them back. He has declined to do so.Report

        • Will Truman in reply to gingergene says:

          The time to do this was when the legislature was in session. Like I said, this was not unforeseen.Report

          • Seriously, dude, do you have any idea how hard it is to get a state legislature to change the law in anticipation of a court decision? Additionally, I would not be surprised if the Kentucky County Clerks Association actually opposed the kind of change we’re talking about — for most of them, signing the marriage license for a happy young couple is probably the best part of their working day.

            Just as a note, in the Kentucky legislative staff’s description of county government, marriage licenses are way down near the bottom of the “miscellaneous duties” list. The clerks’ big jobs are top election official in the county and all that entails, real estate transactions, everything motor vehicle (registration, taxes, etc, and county court records.Report

            • Utah did, didn’t they? Alabama and Oklahoma put it out there, though it stalled as legislation often does.

              I can understand why the clerks might not like the idea and I’m not insisting on it, but that’s what needed to happen if they didn’t want to have to marry gay couples.Report

              • The question of why Utah but not those other states is an interesting one. This is not the only policy area where Utah is different: the homeless program they started in 2005 has been lauded by all sorts of liberal media, and they started reforming their state health insurance system in 2008. The approaches they took to those problems would be, at least in my opinion, DOA in any Southern legislature.

                My speculation would be along three different lines. First, there’s only one church that matters in Utah. Across most of the South, there are lots of different denominations, not all of which agree with one another (see, “herding cats”). Second, all of the Mormons I know strike me as holding the opinion that the church has to deal with the world as it is, not the world as they wish it were. Third, despite what other parts of the country might think, Utah is a heavily non-rural state and much of this is still an urban/rural thing (9.4% of Utah’s population was rural in 2010; 41.6% of Kentucky’s).Report

              • My man in Alabama says there wasn’t any widespread opposition to the bill there. It just lacked the high priority required (and there was no singular church to make it a priority, perhaps) . Which is fine, but county clerks having to marry gay people is the result. And if that’s a problem, they should have made it a priority.

                Also, while its true that Utah did that housing thing, it’s actually similar in direction to where George W Bush took housing policy.Report

              • Kim in reply to Will Truman says:

                If a good deal of the south didn’t fight desegregation, why in heck should they fight this?

                This is coming in a lot slower, and a lot less Southern Pride resting on it.Report

              • Reading through the Alabama statute this AM, it appears that the cases there will proceed differently. The text says that county probate judges (who do the job in Alabama, rather than clerks) “may” issue marriage licenses, and then there’s a bunch of requirements about record-keeping if/when they do. At least one of the Alabama judges has pointed out that, unlike the case in Kentucky where the statute uses “shall”, there’s no Alabama state requirement that he issue marriage licenses.Report

            • Kim in reply to Michael Cain says:

              It certainly is if they’re generally working arraignment court.
              ‘course, shotgun weddings are probably not just a saying in Kentucky.Report

          • aarondavid in reply to Will Truman says:

            Or call them back @will-truman

            If you know what the answer will be…Report

      • There are a number of ways it could have been handled. Utah did something that met with both the approval of the LDS Church and the gay rights community. Alabama and Oklahoma both looked at (though did not pass) ways to keep it out of the clerks’ hands. North Carolina did something, but I’ve heard some not good things about it and don’t know the details. From what Davis is saying, just taking her name off of it and allowing a deputy to do it would have been sufficient.

        It’s not like this was totally unforeseen. I’m guessing that Kentucky didn’t act because they did want this to happen, didn’t care enough to prevent it, or were scared off by some of the negative publicity that Alabama and Oklahoma and company got by trying to head it off at the pass.

        Whatever the case, they sure had their opportunity.Report

    • Stillwater in reply to Will Truman says:

      I agree about the lack of choice on the court’s part. My own view is that if she specifically stated, upfront and cystal clear, that she was gonna continue to deny SSM licenses despite the court order outa a desire to protest the law as it stands, the optics of her imprisonment would look a better for the Christian values crowd. As it stands right now, tho, she just looks like someone who doesn’t understand the difference between being a county clerk and being a Christian. Which doesn’t generate much any optical sympathy.Report

      • DensityDuck in reply to Stillwater says:

        “she just looks like someone who doesn’t understand the difference between being a county clerk and being a Christian. ”

        This was exactly the same line of argument used in Burwell v. Hobby Lobby and it wound up not cutting any ice with the Supreme Court, who took the attitude that it isn’t the government’s place to determine the sincerity or validity of a stated religious belief.Report

        • Stillwater in reply to DensityDuck says:

          Yes. And I didn’t agree with their decision in that case.


          • DensityDuck in reply to Stillwater says:

            Keep on slamming your head against that brick wall, maybe it’ll break someday.Report

            • Stillwater in reply to DensityDuck says:


              What does the Hobby Lobby decision have to do with what I said upthread about optics? Further, my view of the HL case is the same as here: just like corporations can’t have religious beliefs, county clerks can’t have them either. (THe people who play county clerks on closed circuit TV can have them tho.)Report

        • nevermoor in reply to DensityDuck says:

          Hobby Lobby did not take an oath to execute a governmental function.

          No one is saying her beliefs aren’t sincere (as far as I can tell, at least here). I’m saying that even granting that she’s still an idiot because when your sincere beliefs get in the way of your job, you resign.

          Try it another way: college kid joins ROTC to pay for college, a couple years in his government starts the dumbest war it has ever started in Iraq. He feels strongly that shouldn’t have happened. Can he simply refuse to go? Sure. Should he be surprised when consequences attach to that refusal? Nope. Does the sincerity of his dislike have anything to do with anything? Nope.Report

          • DensityDuck in reply to nevermoor says:

            “Hobby Lobby did not take an oath to execute a governmental function.”

            No, but the argument of “this is entirely a secular issue and isn’t relevant to your personal practice of religion” was a very popular line of discussion when that case was being argued.

            “college kid joins ROTC to pay for college, a couple years in his government starts the dumbest war it has ever started in Iraq. He feels strongly that shouldn’t have happened. Can he simply refuse to go? ”

            The argument being made, if applied to that ROTC kid, goes further than “you go to jail if you refuse to deploy”, and goes more to “your feelings are invalidated by the choice of employment you’ve made”. When someone says that Davis’s Christian beliefs shouldn’t inform the actions she takes at her job, they are indeed saying that she needs to Just Follow Orders.Report

            • nevermoor in reply to DensityDuck says:

              “your feelings are invalidated by the choice of employment you’ve made”

              That’s exactly it here too.

              And, no. She needs to obey the law, resign, or go to jail. Door #3 is civil disobedience, but here it’s in support of a dumb principle (“my personal beliefs should trump the united states constitution in doing my government job”) so I doubt it’ll be effective at anything other than getting her a sinecure on Fox News.

              I, too, think Hobby Lobby was wrongly decided because I don’t think corporations should be entitled to have religious beliefs. That said, the argument that I think should have won there is WAY stronger (and, indeed, did win at the Supreme Court) here. So I’m not sure what you’re arguing.Report

              • DensityDuck in reply to nevermoor says:

                “She needs to obey the law, resign, or go to jail. ”

                …as long as the government makes an argument that it’s conducted the test required by the RFRA and found that there’s A) a compelling interest which B) can only be served by compelling the person to act against their stated beliefs.

                See, that’s why I think all this “you’re a bad person who should obey the law!” rhetoric is a problem. It doesn’t tell religious people that we’re all in this together and we’re trying to find a solution that causes the least harm to everyone and there may be some hard times until we figure that out. It tells religious people “we won, fuck you, now you’re gonna GET IT”. And that doesn’t make them interested in playing with you the next time; it tells them they need to fight like bastards for every single inch because any concession is going to be jammed up their ass sideways.Report

              • Sam Wilkinson in reply to DensityDuck says:


                But it isn’t simply that Kim Davis didn’t want to sign off on marriage licenses, even though that’s the job she’s paid to do without question. This is something you know of course, but are for some reason pretending isn’t the case. It’s that she was preventing the people who worked for her from doing the same thing. She wasn’t interested in compromise. She wasn’t interesting in finding a workaround. She wasn’t interested in negotiation. She was interested in her own rank (and outrageously hypocritical) bigotry being the law of the land, whether or not it is. If she’s going to reject every single option other than continuing to get paid while refusing to work, how much coddling is she due?

                And that’s BEFORE we get to the positively ludicrous idea that anything is being told to “religious people.” It’s being told to a remarkably small group of religious fundamentalists who embrace their bigotry while occupying governmental positions where they continue to enforce discriminatory polices that have been shredded by the judicial system. It’s not being told to all religious people.Report

              • She was interested in compromise, though. She wanted her name off the documentation and she did not want to have to do it personally.

                The problem is that the judge could not unilaterally grant this compromise without jailing her. The compromise would require legislative action, which the governor won’t sign off on.Report

              • greginak in reply to Will Truman says:

                And if that could work with no inconvenience to the people wanting to get married and she wasn’t going to stop her underlings from doing their part that might work. Maybe. That entire compromise should stay in the office w/o prospective married people know they are getting shunted around. And , like myself she is a government employee, which needs to come with some understanding that it isnt’ all about her. Her county office needs to treat everybody equally before the law. That needs to be part of the compromise.Report

              • Will Truman in reply to greginak says:

                Sure. That describes my own position very well. We can talk compromise, but not at a burden to gay couples or pro-SSM employees of the clerk’s office.

                All of this is different than the suggestion that she is unwilling to compromise.

                She is wrong and her jailing is necessary, but her position should be represented fairly.Report

              • greginak in reply to Will Truman says:

                Part of the problem may come from the media circus and her attorneys. For her attorneys this is an issue fight, they want publicity for their Crusade. She has come out loudly about not wanting to marry those people. She hasn’t been talking loudly about her responsibility as a government employee or not burdening citizens. It has been about her and her beliefs. She has done a lot to create the narrative and offered no good will or good faith ( ha i’m punny) attempt to protect her ticket to heaven while not burdening citizens. Her compromise seems pretty weak and more about protecting her.

                On a wider note, plenty of religious people and the occasional government official seem more than happy to keep stoking the fire over marriage equality and to happy martyrs to their cause. They aren’t offering compromise or solutions. Just brush fires and circuses.Report

              • Will Truman in reply to greginak says:

                No question that there is a lot of showboating going on.

                I’m really not interested in defending Davis as I believe that push has come to shove and she is wrong.

                That being said, our general lack of people that actually are on the other side leaves us with a “conversation” in which only one side is being represented vigorously, which in turn leads to misunderstanding what the other side of the argument is exactly.

                One of which being that there are accommodations that can be made, that a couple of states have made and a couple more have considered, and that Davis has been (from what I understand) requesting since January. That seems worth acknowledging when we talk about “compromise.”Report

              • nevermoor in reply to Will Truman says:

                Since when does “people who disobey court orders should be held in contempt” have “sides”?

                As to accommodations, the issue today is that no one has authority to make ’em. I’m not even sure anyone is opposed to (at least some) of the theoretically-possible accommodations, but they simply don’t help a judge handle a case in front of him today (well, yesterday).Report

              • Will Truman in reply to nevermoor says:

                There are sides as long as there are people lining up pro and con. Not a whole lot of people in Davis’s corner on the particulars, which in my view is how it should be given the particulars of the situation.

                I think there is actually a broader, or more interesting conversation to be had. There are potential compromises to talk about, even if what happened to Davis in the here and now needed to.

                In the here and now, there was no available accommodation to be made, as far as I can see. I don’t think Duck has said otherwise. I don’t think Tod has. I’ve been pretty clear that I don’t.

                But whether this whole situation could have been avoided? Whether there could have been a compromise that Davis might have agreed to that would have given us what we want? Yeah, I think that’s actually the case. I think it’s fair to say that we’re past the point where compromise is possible, but I don’t think it’s accurate to say that Davis was never interested in compromise. It seems to me that she was.Report

              • nevermoor in reply to Will Truman says:

                Seems to me the situation is:

                1. Clerk is unwilling to sign gay marriage licenses
                2. Clerk’s job is to sign gay marriage licenses
                3. Law requires Clerk to be the one to do it.
                4. Clerk is unwilling to resign

                As I understand it, the “compromise” she offered was “I get to keep 1 and 4, you change 2 or 3 so my refusal to do my job or resign won’t actually harm citizens.” So, sure, she’s not saying she’ll barricade the clerk’s office to hurt gay people, but it’s hardly what I consider a compromise. It’s also not an agreement she’s making with anyone, it’s asking for a bailout.

                Obviously changes to 2 or 3 would avoid this situation, and that may be how it all resolves. It seems like a stupid rule to limit the ability to issue these to one person per county from a pure governance perspective, though I do think someone (or some group) should be required to issue licenses. That said, I’d love to see the conservative hot-takes on why other government workers who refuse to do their jobs should be legislatively accommodated by having duties reassigned but pay retained.Report

              • Will Truman in reply to nevermoor says:

                Allegedly, she’s been trying to change 2 and 3 since January. What you outline seems to me to be the very definition of compromise. Each side gets more of what they want while minimizing the costs to the other side.

                I’m personally rather indifferent to the notion of compromise here, but it renders the notion that she won’t compromise false, in my view.Report

              • nevermoor in reply to Will Truman says:

                “I want my $80k/year and to retain my unflinching refusal to treat gays like people, but I’m willing to do LESS work to achieve that”

                Some give. I wish I could settle cases that way.Report

              • Will Truman in reply to nevermoor says:

                She is ceding her sole authority to issue marriage certificates and removing her name from them, and in return she will put up no more objections to allowing gays to marry and we can put this behind us.

                It’s not a great deal from our perspective, which is partly why I am ambivalent, but it would help us get past this, possibly prevent some unnecessary clerk turnover, and had the legislature done this to begin with marriage certificates would not have been delayed and she would not be in jail and that doesn’t seem like a one-sided outcome to me even if it is not actually my preferred outcome.Report

              • nevermoor in reply to Will Truman says:

                @will-truman Assume you no longer stand by this, since the judge ordered exactly this and she’s still fighting.

                (wasn’t digging for this comment but for some reason it was still marked unread)Report

              • Will Truman in reply to nevermoor says:

                What was offered was a compromise. Turns out she was lying. (Or her lawyers were, but since her lawyers are still her lawyers I have to put it on her.)Report

              • DensityDuck in reply to Will Truman says:

                “But whether this whole situation could have been avoided? Whether there could have been a compromise that Davis might have agreed to that would have given us what we want? ”

                It’s looking like we should be far angrier at the Kentucky legislature than we are at Davis.Report

              • greginak in reply to Will Truman says:

                I get it when you say we lack people on the other side of the conversation. There is also a real big part of me that says I’ve been hearing, loudly, from religious conservatives since the early 80’s about their worldview, Their America, how my people are destroying it, how they are the paragon of virtue and how much they suffer from having to tolerate a myriad of things they don’t’ like existing. Is that the fairest and most noble presentation of the religious right wing belief system, not exactly but it’s not inaccurate either and its one they have been more than happy to push.Report

              • Sam Wilkinson in reply to Will Truman says:

                That’s not a compromise.Report

              • Oh, well then that settles it, then.Report

              • greginak in reply to DensityDuck says:

                So what is the solution then??? What is the compromise that allows this religious person to deny service, in a morally acceptable way, to people wanting to get married. Has Davis offered any solution? She said her underlings couldn’t sign off on licenses also.Report

              • Will Truman in reply to greginak says:

                She did offer a solution. Unfortunately for her, it required action on the part of the legislature.Report

              • greginak in reply to Will Truman says:

                As i said slightly up thread, that might be a workable compromise. However i would have a concern the married people might be getting a slightly second class service. You know the ” we got the official ladies signature, but you only get the less official person.” Maybe that would work, i’d have to know more. Having gov offices treat everybody equally is an important principle which the gov has repeatedly failed on but still many of us take it seriously. Any one who wants to hold office, or even just be hired, should really think about whether they can treat everybody equally and should be held to high standards.Report

              • Burt Likko in reply to Will Truman says:

                Right. “A change in the law” is not the same thing as a “reasonable accommodation.” By all means, a good argument can be made that the law ought to change. That’s a political argument, not a legal one.

                And her other solution, “You can go on over to the next county” really is, as @densityduck persuasively argues below, the same thing as “There’s perfectly good seats in the back of the bus.”Report

              • Will Truman in reply to Burt Likko says:

                There is no scenario in which it is okay to force gay couples to go to the next county while straight couples can be married in county.

                That being said, from what I understand, her office stopped issuing licenses for straight or gay couples. Which might have been kosher, except the judge said it wasn’t. But kosher or not, if that was the case, it’s different than a “back of the bus” situation.Report

              • Burt Likko in reply to Will Truman says:


                Option A: I’m not going to issue licenses to same-sex couples, but I will issue them to mixed-sex couples.

                Option B: I don’t want to issue licenses to same-sex couples, so I will not issue licenses to anyone. Look how fair and evenhanded I’m being!

                Option A and Option B are equivalent from the perspective of ascertaining intent. Option B is debatably worse, because now even more people are impacted, for an arbitrary and capricious reason.Report

              • Will Truman in reply to Burt Likko says:

                Except that Option A is, to my opinion, considerably worse because it targets all of the consequence onto a subset of the population. Which in turn creates a degree of sustainability with longer reaching consequences.

                If you cancel buses altogether, a solution is going to be derived a lot sooner than if you just force blacks to the back of the bus, even if the former is objectively a worse thing for more people.Report

              • Burt Likko in reply to Will Truman says:

                Do you at least see why I claim that these represent the equivalent intent?Report

              • Will Truman in reply to Burt Likko says:

                Yeah, I think the intent is obvious, but intent isn’t really the primary thing. The effects are different, even if they’re each unacceptable. (And, in my view, each unacceptable apart from intent.)Report

              • Option B is, IMHO, a just outcome. “If you dumbasses keep electing me, you’re going to get exactly what you asked for”.Report

              • nevermoor in reply to DensityDuck says:

                Dude. Are you really arguing that the FEDERAL COURTS shouldn’t enforce laws? If not, I don’t see what any of this means. That said, I’ll admit I was being sloppy. It isn’t “the law” as an abstract she should obey. It’s a court order in her own fishing case and all her appeals. If there’s one thing in this country people have to respect, it’s that.

                She had her day in court. She lost. She’s still refusing. Should we just shrug and move on? If so, how do we ever enforce any law?

                And she’s a bad person not for having beliefs I disagree with but for insisting that she both (1) not have to do her government job and (2) not have to resign her government job in a context that deprives US citizens of an important civil right. If, instead, she were refusing to register black voters would you have the same reaction or are you trying to make the substance of the issue do work on the procedural rule-of-law analysis?

                How about you stop talking about how people who believe courts should enforce their orders are big meanies until you put forth a workable alternate framework. I’d be interested to see what it is.Report

              • DensityDuck in reply to nevermoor says:

                “Are you really arguing that the FEDERAL COURTS shouldn’t enforce laws?”

                Maybe you should go back through my posts and find the parts where I say “Davis shouldn’t be in trouble over this”. (You’ll have some difficulty finding those parts because they don’t exist.)

                “She had her day in court. She lost. She’s still refusing.”

                And so we say “the RFRA says that there’s a compelling interest in the government doing this, and there’s no way other than you doing it”.

                We don’t say “get with the program, lady, gay marriage is here to stay and you can just DEAL. WITH. IT.”

                Do you honestly not understand why the latter reasoning could lead to results you don’t like in the future?

                Like, when you put someone in jail for driving drunk, do you put them in jail because they were doing something that might hurt someone? Or do you put them in jail because liquor is evil and nobody should be allowed to indulge so freely in it?Report

    • Burt Likko in reply to Will Truman says:

      See that’s the thing about being in contempt. The contemnor the keys to her own jail cell. All she has to do is agree to obey the law and she’s a free woman.

      In the meantime, her own county attorney is throwing her under the bus (though he was good enough to tell her in advance that if she insisted on this course of conduct, that would be his response), has nothing good to say about Liberty Counsel, and notes that half of the employees in the clerk’s office would be just fine with signing a SSM license. Well worth nothing. We’re talking about a single person here, not everyone in Rowan County, Kentucky.Report

  16. Burt Likko says:

    By the way, folks, if @nexttokimdavis isn’t on your Twitter feed, you need to change that state of affairs. It is seriously impairing my ability to shift my focus on work.Report

  17. Kazzy says:

    Depends on who is looking, no? To gays and lesbians and their friends and family, this is the government saying, “We will use the force of law to protect your rights.” Those are *remarkable* optics.Report

  18. LWA says:

    I don’t know why liberals need to be so timid about hurting the feelings of others.
    God knows that pissing off liberals is precisely the intention of most conservative ideas.

    And as someone mentioned upthread, who would these people be who would support SSM except for the visuals of this woman doing the perp walk?

    And its not like anyone is suggesting she get a “rough ride” to the jail, or be held there for months without charges only to turn up dead.Report

  19. Joe Sal says:

    Firewall and hammer, jus sayin’.Report

  20. DavidTC says:

    As I’ve said before about this hypothetical that has now sorta happened, I have some slight amount of sympathy for people whose job duties changed out from under them into something they were uncomfortable with, and if those people will step forward and explain the problem and *try to figure out a solution*, which will almost certain involve them not working there.

    But I’m okay with them getting unemployment and whatnot, or even being transferred into another area of the government.

    But *that* group of people doesn’t appear to exist. There appears to be one group who is willing to do gay marriages, and another group that is *sure* they are entitled to keep working at a job that requires them to do things they take moral issues with, and thus they magically don’t have to do their job.Report

    • DavidTC in reply to DavidTC says:

      And, on top of that, Kim Davis was first elected to that position in *2014*, which is a little past the time she can reasonably claim ‘I had no idea I might have to marry gay people in that job.’. Come on. She had to have *some* idea.

      Sure, it wasn’t a 100% done deal, but the case was already in front of the Supreme Court, and it was a four year term she was elected to. Yes, a lot of people were amazed it happened in 2015…but by 2018?Report

  21. DavidTC says:

    Oh, speaking of terrible optics, I wish people on my Facebook would stop attacking her personally. No one cares how many marriages she’s had. (Well, unless at least one of them was *to* a woman.) That isn’t what makes her in the wrong. What makes her in the wrong is that she was elected to do a job, and is refusing to do it under court order.Report

    • aarondavid in reply to DavidTC says:

      Or, that is why she was elected…Report

      • Burt Likko in reply to aarondavid says:

        It’s probably fair to assume that a large portion of her constituents like that she’s doing what she’s doing. But it wouldn’t be fair to assume that they’re all Republicans. (Note that Davis appears to be, herself, a Democrat; how this became general knowledge I’ve no idea.) As of 2012, only one-third of Kentuckians (is that the right deononym?) supported same-sex marriage.

        It’s reasonable to assume that, as with other states, support for SSM is more heavily concentrated in the urban areas, which for Kentucky means principally Louisville, Covington, and Lexington. Rowan County is pretty rural, with a population density of only 83.4 per square mile.

        Morehead looks like a pretty classic town-and-gown sort of community: there is a small (about 11,000 total enrollment) public university there, which is where we’d expect to find most of the liberal folks associated in some way or another, and the rest of it is going to be mainly agricultural or the blend of light industrial-small commercial-retail-healthcare businesses which characterizes so much of the south.

        The county narrowly supported the Democrat in the 2014 Senate elections, by only 200 votes; the Republican congressional candidate clobbered the Democrat by a two-to-one margin in Rowan County, though, and Romney beat Obama in that county by about 600 votes in 2012. OTOH, in 2011, the county voted nearly two-to-one for Beshear for Governor.

        So my best guess is that Rowan County is up for grabs on a partisan level, depending on the skill, enthusiasm, and turnout of the Campus Democrat club at Morehead State.Report

  22. Doctor Jay says:

    Don’t run away from this. If we are to have rule of law at all, this is how to have it. She had her day in court. She had several. No person’s opinion means more than the law.

    It emphasizes the need to not enact laws frivolously, yes. And to not make requirements of government officials in a way that is callow and insubstantial. If you are going to require that an elected official perform some duty, then you had best determine that you’re ok with throwing them in jail when they willfully refuse to perform that duty. Otherwise, the law means nothing at all.

    And yes, I think this is definitely worth throwing someone in jail over.Report

  23. greginak says:

    I can’t believe people are arguing she is just representing the electorate. Does the electorate get see F off to SC orders? Does that negate the rights of gay people to marry? It doesn’t matter what “her constituents” want.Report

    • Burt Likko in reply to greginak says:

      I don’t think the will of the voters versus the legal outcome is the subject of that discussion, @greginak — the granting of those marriage licenses is beyond democracy at this point. So is contempt of court.

      Whether she’s doing what her constituents actually want her to do, however, is something else. AFAIC, the extent to which Ms. Davis garners public support from her constituents for flouting the law is the extent to which those same constituents ought to be ashamed of themselves when they sober up.Report

    • Kolohe in reply to greginak says:

      There is an interconnected and counterbalanced system of federal, state, and local power vested in an interconnected and counterbalanced system of individuals – some elected, some appointed by elected people – in legislative, executive and judicial branches at the different levels.

      The federal judiciary reaching down and plucking out an independent elected official at the county level *for imprisonment* should not be taken lightly even if it’s the right thing to do. Once upon of time, some people were upset at control boards taking over in some cities, power wrested away from the local elected government – and those deposed officials didn’t even go to jail.Report

      • greginak in reply to Kolohe says:

        Yeah but i’m not sure how that relates to my point. Marriage equality is the law of the land even in places where it isn’t popular. Localities don’t get to decide which federal laws or SC ruling they want to enforce.

        Framing this as the Fed Judiciary reaching down to imprison a local official is a bit odd. Davis took this too court repeatedly rather than execute the law of the land as it is written. She kept going back to court even after she lost and had the option of quiting. She has been driving this bus, it isn’t the big ol feds coming in out of the blue to smack down her out of no where.Report

        • Burt Likko in reply to greginak says:

          What if she arbitrarily withheld performing a different one of her duties, in derogation of a different Federally-protected right?

          Like, say, refusing to process a citizen’s voter registration?

          Or, say, refusing to issue a citizen a gun permit?

          Or, say, recording a transfer of title to real property?

          She’d be just as wrong in either of those cases, too, right? And it would look pretty weird to say that she had a religious objection to registering certain people to vote or letting certain people own guns, and therefore wasn’t going to register anyone to vote or give anyone a gun permit, wouldn’t it? Particularly weird since she’s the effing County Clerk whose job it is to issue gun permits, process voter registrations, record title transfers, and to rubber-stamp marriage licenses. That’s what county clerks do.

          That’s why the issue is not her religious opposition to same-sex marriage. It’s that she is refusing to engage in a core function of the job that she stood for election to do, with the intent to deprive citizens of their Federally-protected rights. The right to vote. The right to keep and bear arms. The right to own property. And, the right to marry.

          That’s why a Federal court is entirely correct to be involved here.Report

          • greginak in reply to Burt Likko says:

            Yeah. I agree. She brought it to the feds and it also reasonable for the feds to protect rights. I think K’s framing was wrong. She has to do her job and it is appropriate for other courts to make sure she does. The feds have two reasons to be in her life, not performing her duties and she kept going to them.Report

  24. Tod Kelly says:

    nevermoor: God I hope the Ted Cruz’s of the world promise to pardon her. And everyone says Trump is the crazy one…

    Oh, I suspect your wish will come true.

    (Actually, can you be pardoned for being in contempt? I honestly don’t know.)Report

    • Griff in reply to Tod Kelly says:

      The short answer is “no.” It’s not a conviction, there’s no sentence, there’s nothing to “pardon.” Also it would be a major separation of powers issue; contempt is an inherent power of the court, used to enforce its valid orders.Report

      • nevermoor in reply to Griff says:

        Well, it certainly never WOULD happen, which is why I’d like to see these guys promise it.

        Whether it could seems to me uncharted constitutional territory. If President Cruz did it on day 1, I have absolutely no idea what happens next. At minimum a major shitshow.Report

      • Tod Kelly in reply to Griff says:

        Thanks @griff That was going to bug me for the rest of the night.Report

      • Burt Likko in reply to Griff says:

        @griff is correct. She is a “contemnor,” not a criminal.Report

        • Burt,

          I’m not a lawyer, and I accept that’s what the law says. And there are probably good reasons–both historical and practical–for why that’s the case. Still, if someone faces a loss of liberty, to me that’s being treated like a criminal. At the same time, the fact that the woman can leave simply by doing what she’s ordered or by resigning mollifies my concern a lot.Report

  25. Don Zeko says:

    I think Our Todd would agree that some of Kentucky’s neighbors are throwing an Obergefell temper tantrum with optics that shake out just a wee bit differently.Report

    • Burt Likko in reply to Don Zeko says:

      Holy crap. As clear a case of judicial misconduct as I can concoct.

      Would you care for some cheese with your whine, Your Honor? Oh, and here’s some paperwork from Nashville, the Supreme Court would like to have a word or two with you before they reassign you to a traffic docket. Maybe you can figure out what a parking ticket is without petulantly casting intelligence-insulting aspersions at the highest court in the land.Report

    • Tod Kelly in reply to Don Zeko says:

      @don-zeko Wow.

      Just… wow.Report

    • Kolohe in reply to Don Zeko says:

      Consistency calls for this guy to be jailed right away.Report

      • Don Zeko in reply to Kolohe says:

        Are you serious? Because it absolutely doesn’t. Consistency calls for him to be censured for his misconduct and his decision to be overturned. The only reason Kim Davis is in jail is that the judge determined there wasn’t a less drastic way to force her to comply with a court order.Report

        • Kolohe in reply to Don Zeko says:

          Why, per the article, can we wait for legislature to impeach in the judge’s case buy not in the clerk’s case, particularly when the political climate in Tennessee is even less amenable to that action than Kentucky’s is?Report

          • Don Zeko in reply to Kolohe says:

            Because this case isn’t as far along as Davis’s, and because judges are a special case. No matter how obvious the misconduct, neither I nor the constitution much like locking up judges. For the unfortunate litigants here, there is still a legal process that will correct the result. For the people trying to get married by Kim Davis’s county clerk office, they’ve gone to court and won, but Davis is defying a correct and final court order after exhausting every appeal.Report

  26. By the way, the judge that found her in contempt and ordered her jailed is a Bush fils appointee.Report

  27. Now that she’s been imprisoned, does she still have the option to get out by resigning?Report

  28. A few things I honestly don’t know:

    Can people drive to the next county for their marriage licenses, or is there some requirement that it be issued in their county of residence?

    Could a clerk from the next county come to Rowan one day a week to issue marriage licenses, or would he lack the power to issue them outside his jurisdiction?

    I think the second of those (if it’s legal), accompanied by the explanation “I’m here, at the cost to your county of $N, to do the job the person you were dumb enough to elect to a position of trust refuses to do” is a nice interim solution.Report

    • Kazzy in reply to Mike Schilling says:

      We got married in a different state so option A doesn’t seem a problem. But both establish “separate but equal” issues. Telling gays they have to drive 20 miles east or come back on Tuesday is wrong. A viable temporary solution maybe but not acceptable long term.Report

      • Mike Schilling in reply to Kazzy says:

        I wasn’t clear, I guess: part of the solution is forbidding Davis’s office from issuing any marriage licenses at all. The whole county should suffer equally for their foolishness is electing that person.Report

        • nevermoor in reply to Mike Schilling says:

          Neither part of the solution is within the court’s authority, and both parts (if implemented) don’t solve the problem.

          Not sure what else to say.Report

          • It’s not a judicial solution, it’s an administrative one. And it solves the real problem, that of people not being able to get marriage licenses. If Davis can no longer prevent that, she’s mostly harmless, and the citizens of Kentucky will no longer have to feed her, nor can her fellow miscreants make her a martyr.Report

    • Jaybird in reply to Mike Schilling says:

      One thing I heard on NPR this morning (or yesterday morning? it all blurs together) was that one of the couples yelling at her for their marriage license was from Ohio.

      The radio story didn’t mention if there were any Kentuckian couples trying to get their marriage license there. (They said something to the effect of “wanting to get a license in their home county” which, I presume, was the motivation of the Buckeyes in the office.)

      As such, I’m guessing that people can drive to whichever county they want to and request a marriage license.Report

    • DensityDuck in reply to Mike Schilling says:

      “Can people drive to the next county for their marriage licenses, or is there some requirement that it be issued in their county of residence?”

      Sure! Just like people can drive to the next cake shop over or call a different photographer. And there are perfectly good seats at the back of the bus.Report

  29. krogerfoot says:

    This is crazy. You “worry about the optics” when it’s a consequence of your own actions or words.

    If it’s the Lefties/teh gayz/the Jane Fonda-Teddy Kennedy fan club who put her in jail, then they/we should worry about the optics. But it wasn’t; it was a federal judge and Bush the younger appointee who, using his vast discretion, chose this course of action. Maybe just maybe he chose this action in order to incite Real America™ to blame SSM supporters and spark a backlash. Or maybe the judge just decided that choosing to contemn the court after rejecting a number of reasonable accommodations was something that required a swift and unambiguous response. People are jailed in contempt for less, I’d wager.

    I feel a little bad for anyone who has to go to jail—jails are horrible places. But I don’t see why the gay-marriage lovin’ punchable hippies out there (hey fellas) need to worry about the optics or feel guilty about it.Report

    • You know, @krogerfoot , I hadn’t even thought about that. That’s a good point.

      ETA: That said, some of the “there is no middle ground” and “we’re right because we’re strong and in the majority” language that we see above in this does make for poor optics.

      ETA (a second time): To be clear, the second quote from my comment is a paraphrase of what I’ve seen at least one other person here say. It’s not an exact quote.Report

    • Don Zeko in reply to krogerfoot says:

      Yeah, the thing is that she doesn’t have to go to jail at all. She can comply with the court order, she can resign, or she can allow her underlings to issue marriage licenses, at which point she gets out of jail immediately. It seems to me that she and her legal representatives are basically trying to force the judge to send her to jail in order to create a martyr for their cause.Report

      • Burt Likko in reply to Don Zeko says:

        Ding ding ding ding ding ding ding ding ding!

        @don-zeko has the right diagnosis here. I’ll caveat that with an indication that we don’t know what her lawyers advised her to do — and I’d sure as fish hope that any lawyer, no matter how cause-driven, would not have advised her to intentionally disobey a court order and truthfully disclosed what the risks and consequences of disregard that advice might be. To do otherwise would violate important canons of professional ethics: we may not counsel disobedience of the law, we must advise our clients of their legal rights and responsibilities.

        After that, our clients, particularly if they are adults possessed of mental competency, get to make their own decisions. And I can see with remarkable clarity how Kim Davis might rationally have elected the path she’s on, regardless of what advice her lawyers gave her.Report

      • Michael Cain in reply to Don Zeko says:

        She can’t “allow her underlings to issue marriage licenses”. Under Kentucky statute, at some point she must sign the license, which appears to be the main point of her complaint. If the clerk’s position is vacant or the clerk is unavailable for some reason — which I assume will include being in jail — then the county judge must sign the license for it to be valid. As Will Truman has noted elsewhere, the Kentucky legislature could have anticipated this sort of problem and changed things so that the signature, or clerk’s name, isn’t required to appear at all. They didn’t do that, and unless the governor changes his mind about a special session, can’t do it until January.

        The cases in Alabama will probably proceed differently because there the statute says that county probate judges “may” issue licenses. In Kentucky, it’s a “shall”.Report

  30. Autolukos says:

    The optics look just the opposite to me. Parts of the right are fired up, of course, but even some voices normally sympathetic to this sort of thing are pointing out that she’s flagrantly in contempt, and I haven’t seen much reason to suspect that she’s a sympathetic figure to the center or left.Report

  31. Jaybird says:

    The main optics that I’m not crazy about, if any, are the whole “she was divorced prior to this incident” kinda thing.

    I understand why it’s in the story… it’s funny, it’s supposedly hypocrisy, all of that stuff. But it is showing up more and more and more. (Like, I suppose, with the whole “Shaun King’s birth certificate says that he’s white!” story. We are, of course, going to see more of this in the future and the genie is never getting back in the bottle… but journalism as social control is something that has optics that look really, really bad to me.)Report

    • DensityDuck in reply to Jaybird says:

      Yeah; saying “oh, she’s divorced” would be called slut-shaming and irrelevant if we were talking about a Democrat.Report

    • Burt Likko in reply to Jaybird says:

      Yeah, I’m a really not-big fan of mocking her for her personal life.

      I don’t know why anyone would be surprised to discover that religious people do not perfectly fulfill the ideals and teachings of their religion. Most religions preach very exacting codes of conduct, so it’s likely to be the case that very few people actually fulfill them. A religion’s moral teachings are best understood as aspirational.

      We ought to judge a person’s moral character by their actions: while it is for us to say when someone has done something that we as a society cannot tolerate, it’s not for us to say when someone else has sinned.

      If marriage is a matter between two consenting adults generally based on feelings of romantic affinity, then Kim Davis’ record of four marriages to three men indicates, at worst, an inconstant romantic affinity amongst them. It is not a public matter.

      Her refusal to discharge the functions of the governmental office which she went out of her way to obtain, on the other hand, is a public matter.Report

      • Will Truman in reply to Burt Likko says:

        When I heard about the divorces, I was (disapprovingly) curious how she reconciled her history with her alleged strict views on marriage. But then it came out that she didn’t find Jesus until after her third marriage. And that more or less answered the question and I have not especially see it as relevant since.Report

    • Kazzy in reply to Jaybird says:

      I generally agree that dredging up her romantic history is problematic. And it matters not from a legal perspective. But if we are trying to determine if this woman is a bigot or a righteous defender of marriage, her actions with regards to marriage seem relevant.Report

      • Jaybird in reply to Kazzy says:

        And why does it matter if we figure out whether this woman is a bigot or a righteous defender of marriage?

        This is a serious question.Report

        • Kazzy in reply to Jaybird says:


          Because to the extent that she has a Constitutional defense for her actions, it is predicated upon her objection being religious in nature. If it is simply a matter of hating gays — independent of any religion or faith — her entire argument fails.

          It doesn’t prove that but it opens up a discussion.Report

          • Jaybird in reply to Kazzy says:

            I’m down with mens rea for quite a few issues, actually. (See, for example, Jon Rowe’s story about his car.)

            We’re not really in a situation where a police officer might be tempted to shoot your dog before yelling “ignorance of the law is no excuse!”, though.

            This is a case of a government worker refusing to do something that she dang well knew would be required of her at this point. (Also, for what it’s worth, she didn’t only refuse to give marriage licenses to gay people. She refused to give them to *ANYBODY*. There are some straight couples who are part of the class action against her.)

            I’m down with the whole “issue of conscience” thing, I am. I’m just also aware that people can commit atrocious acts with the best of intentions.

            And also that what is atrocious today will likely have parades celebrating it tomorrow (and vice versa).Report

            • Jaybird in reply to Jaybird says:

              To clarify: if she wants to tell people “you can’t get married”, she should become a minister and tell people that in the private sector.

              Once you’re a government drone, you don’t get to have a conscience anymore.Report

            • Stillwater in reply to Jaybird says:

              Jaybird, This

              And also that what is atrocious today will likely have parades celebrating it tomorrow (and vice versa).

              is one of your big go-to claims, seems to me: that the cultural swings not only change back and forth, but that they actually reverse. And strenuously so! As many times as I’ve read this claim from you, I can’t think of a single example that isn’t alcohol related. ANd even that one doesn’t seem to fit the bill (in my view). What real-world examples do you have in mind when you express this view and which ground it as a fundamental critique of … whatever it’s critiquing? (Another question: what is it a critique of?)Report

      • greginak in reply to Kazzy says:

        She can be a righteous defender of marriage and a bigot. Deep religious feeling has never gotten in the way of people being bigots. She may take advantage of the etch a sketch route to heaven, which i can have pretty cynical views about, but it doesn’t relate to how she is wrong. Pointing out her convenient views on sin is amusing but doesn’t affect all the good arguments why she is wrong.Report

  32. Sam Wilkinson says:

    I have no idea why on earth this person’s personal life shouldn’t get mentioned every single time she opens her mouth.Report

    • Jaybird in reply to Sam Wilkinson says:

      “There are no bad tactics, only bad targets”?Report

    • Because it’s irrelevant. It’s none of our business. She hasn’t done or said anything to make it our business.

      What’s relevant is that she thinks she’s a special snowflake because she’s a member of the same religion as 70% of America, and therefore doesn’t have to do her job even though her refusal to do her job results in people she specifically targeted for denial of a fundamental civil right get, in fact, denied that fundamental civil right and notwithstanding the fact that virtually all of her co-religionist peers have found ways to reconcile their similar faith to actually doing their jobs but she doesn’t have to and she can tell other people to do things her way because of her special specialness.

      Snowflakery is more than enough for me. I don’t need to slut-shame her or call her a nepotist on top of that.Report

      • Sam in reply to Burt Likko says:

        Pointing out that she’s a moral failure by her own religion’s standards, and that she is someone who doesn’t pass her own chosen religion’s “let ye without sin cast the first stone” advice seems particularly worthwhile.

        And nobody on earth is slutshaming this woman. Claiming so is flagrantly misunderstanding the term.

        It is being pointed out at she has seemingly abused an institution she claims/lies to care so deeply about, so deeply in fact that she wants to exclude others from it. This is as worthwhile as pointing out the televangelist who visits prostitutes or the senators with secret love children. Ignoring it does nothing but embolden the hypocrite.Report

        • DensityDuck in reply to Sam says:

          Romans 3, 22-24. Nobody’s perfect, but lack of perfection doesn’t make one person less worthy than another.

          “nobody on earth is slutshaming this woman.”
          :rolleyes: right, you’re not slutshaming her, you’re just talking about how she totally sleeps around so we shouldn’t take her claims of moral virtue seriously.Report

          • greginak in reply to DensityDuck says:

            Isn’t the point of noting her divorces is that somewhere in that big book in all the hotel rooms says divorce is like really really bad and shouldn’t be done. But somehow that isn’t important but two gay people marrying is going to destroy all goodness. Seems like a double standard; my sins are cool because of the ecclesiastic etch a sketch but those for those people “no marriage license for you.”Report

            • notme in reply to greginak says:

              Is divorce a sin? I dont see it in the ten commandments like other things.Report

            • Jaybird in reply to greginak says:

              Now just because you and I know that her divorces happened prior to her religious conversion makes her even more of a hypocrite, the stupid theists (Zombie Jew Variant) think that there’s some sort of line being drawn between “BC” (Before Christianity) and “AD” (After Dumb).

              I suppose it’s good for us SSM supporters that someone who had never been divorced wasn’t denying marriage licenses because, man, we wouldn’t have a freaking leg to stand on.Report

              • greginak in reply to Jaybird says:

                Well we actually don’t know her belief history other then the brief snippet she has told about her conversion. She could have been praying up a storm for years but that is irrelevant.

                Her marriages are also irrelevant to the argument about why she is wrong. Point me towards the person who says that if she hadn’t be divorced she would be in the right because i haven’t seen that. But if that is a strawman you want to argue with have fun with it. I haven’t seen it, but it is a big Internet so it’s probably out there. I’ve seen a lot of other reasons why she is wrong that i haven’t seen refuted. Not sure why you want to argue with the weakest silliest argument instead of the substantive ones but whatever.Report

              • Jaybird in reply to greginak says:

                Oh, well then. I’m sorry to have interrupted your explanation of why her divorces were relevant to the debate.Report

              • greginak in reply to Jaybird says:

                There was your mistake, i didn’t say they were important to why she was wrong about her job duties. I was pointing out a double standard she seems to engage in. There has been plenty’o’talk about all the ways she is wrong that are all over this thread.Report

          • Sam Wilkinson in reply to DensityDuck says:

            @densityduck You think – you honestly believe – that my objection to what this woman is doing has to do with her sex life? Not with the bald hypocrisy of claiming to deeply care about the institution of marriage while herself having been divorced three times, and not while having not refused to sign the marriage certificate of a single straight couple that came through her doors, but with the sex she was having within her four marriages?Report

            • Chris in reply to Sam Wilkinson says:

              If her 3 divorced occurred before she was “born again,” would this make a difference? (I believe all three were. Her conversion occurred in ’11.)Report

              • Sam Wilkinson in reply to Chris says:

                It wouldn’t matter to me. As I asked @will-truman elsewhere, would you buy a car from a dealer known for selling lemons simply because he started going to a new church last week?Report

              • Chris in reply to Sam Wilkinson says:

                If the new church demanded that he only sell quality cars, and that he do so honestly, and if to date his post-conversion record showed he had done so.

                I don’t see hypocrisy in a change of heart. She is an anti-gay bigot. I’m sure that’s bad enough.Report

        • Gabriel Conroy in reply to Sam says:

          Pointing out that she’s a moral failure by her own religion’s standards, and that she is someone who doesn’t pass her own chosen religion’s “let ye without sin cast the first stone” advice seems particularly worthwhile.

          Therefore, if she had lived up to her own religion’s standards, then refusing to grant the licenses would be okay.Report

          • Less snarkily, though, I’ll admit that these conversations have indeed made me at least slightly less knee-jerkily hostile to all tu quoque and ad hominem arguments than I used to be. (It’s a postmodern age, after all, and I might as well join the party.)

            Even so, this particular ad hominem, and several others you have engaged in, don’t usually do the work you seem to think it does. She’s a failure by her own religion’s standards….at least after she converted to that religion (per Will’s note above). But in this case, I fail to see how the legal issue of whether the courts should imprison her for contempt or whether she should be compelled to grant the licenses hinges at all on her supposed immorality. (For the record, I do believe she should be compelled to issue the licenses, resign, or face contempt imprisonment.)

            Even on the “optics” question–which, I guess I’ll concede, is perhaps a little relevant to how this’ll play out in the ‘net-o-‘sphere or whatever the kids are calling it these days–it’s not clear to me how much is answered by the accusation (if true) that she doesn’t live by her religion’s standards. In particular that particular religion, which has a built-in mechanism for recognizing that everyone will fall short of the standards from time to time.Report

            • greginak in reply to Gabriel Conroy says:

              Has anybody been arguing that its only because of her divorces she is wrong about this issue? There has been extensive discussion about her duty as a public official and the imperative to treat all citizens equally. We have talked about following the law of the land which she needs to do and how she can’t force her religion on others. We’ve also talked about the rights of gay people to get married. Pointing out her past behavior isn’t in any way necessary to finding her wrong on this matter. -1 point to everybody for being catty and not completely laser focused on the many good arguments why she is wrong.Report

              • Other than the person whose comment I was responding to, I don’t think anyone here has done that, and then only by implication.

                I do agree with your point here:

                -1 point to everybody for being catty and not completely laser focused on the many good arguments why she is wrong.


              • Sam Wilkinson in reply to greginak says:

                Nobody has been arguing that @greginak, although this claim is routinely made of my position that hypocrites shouldn’t be taken seriously when making arguments specifically related to their hypocrisy, not because of the arguments themselves, but because they’re not being honest about what they believe.

                But because that runs of afoul of a set of argumentative rules that I never agreed it (in this particular case, the Tu Quoque Fallacy), it must then automatically be the case that my unwillingness to hear a hypocrite out means x, when in fact I’ve been exceedingly clear that it means y.Report

              • But because that runs of afoul of a set of argumentative rules that I never agreed it (in this particular case, the Tu Quoque Fallacy),

                But it’s worth considering why that rule is there in the first place and how others will interpret your argument in light of that rule. It’s also worth pointing out that you’re conceding some legitimacy to that rule when you say, below, that “I’d like to challenge you to find the place where I wrote that her refusal to grant licenses would pass muster if only she hadn’t been divorced four times. Because I’ve never said that.”*

                And yeah, I guess when judging others’ souls or propensity to hypocrisy or whatever, what they do and what their sincerity is and how all that measures up against their beliefs are relevant. It’s also relevant to sifting whose arguments you’re willing to listen to and hear out, and if that’s all you’re doing, then I at least see your point, although I still don’t believe it’s right to judge others’ inner selves. (But as I note below, that claim on my part is moving the goal posts a bit.)

                *Of course, once I “note” that, I’m making an implicit tu quoque argument about your own practice and I suppose, if I were so inclined, I could use that to point out your lack of sincerity on the issue.Report

          • Sam Wilkinson in reply to Gabriel Conroy says:

            @gabriel-conroy I’d like to challenge you to find the place where I wrote that her refusal to grant licenses would pass muster if only she hadn’t been divorced four times. Because I’ve never said that. Not in this in thread. Not in any other broader thread. I’ve said that I’m not interested in hearing her reasons about why the sanctity of marriage is so important to be defended, because I don’t think that she’s being genuine about her concern for the institution, and as evidence, I’m using her entire life story. That’s why her three divorces are important here – because they’re evidence that she’s being dishonest when she claims that this is a religious issue.

            But if she hadn’t been divorced? I wouldn’t cower in the corner away from that conversation, but it is one that would be worth having on very different terms, one in which I might at least be able to trust that I’m dealing with an honest opponent, as opposed to one whose concern for the sanctity of the institution seems remarkably fluid when it’s her life, and remarkably static when it isn’t.

            Another way to think about this is question all of the other marriage licenses she has willingly attached her name to. According to most of the stories that have delved into this woman’s life, it has never been the case that she has refused to sign one, just so long as the participants are straight. Her religious beliefs seem to begin and then immediately end – quite curiously – at gay people. I’m sure that’s just a weird coincidence though.Report

            • Jaybird in reply to Sam Wilkinson says:

              For the record, she’s been denying marriage licenses to *EVERYBODY*.

              Not just same-sex couples. Different-sex couples too.Report

              • Sam Wilkinson in reply to Jaybird says:

                @jaybird Because she has a religious objection to straight marriages? This woman’s beliefs keep getting curiouser and curiouser. Oh, no, wait a minute, it’s because she wanted to punish gays and figured her only hope of getting away with it was by punishing everybody else too. (Which, again, isn’t her decision to make, nor should it be.)Report

              • Jaybird in reply to Sam Wilkinson says:

                To the extent that accuracy matters, it might be worth it to point out that she’s being sued by six couples, two of whom are differently-sexed.

                Well, I presume they’re differently sexed. They claim to be.Report

              • Sam Wilkinson in reply to Jaybird says:

                As an odd footnote, there is this story that quietly emerged: She did approve the marriage of a transgender man to his pansexual wife, ostensibly because they looked like what a couple is apparently supposed to look like, per her god.Report

              • Ostensibly, they looked like (and presumably presented themselves as) a couple that could legally be married at that time.

                Had they presented themselves as the same gender, they likely would have been rejected (in accordance with the law).

                I’m not sure what this is supposed to demonstrate?

                It’s possible that Davis screwed up by not checking the documentation thoroughly, but it’s not clear what documentation was used.Report

              • Badtux in reply to Will Truman says:

                Kentucky law requires birth certificates (for proof of age) be presented to the county clerk, which also contain gender as of birth on them. I.e., the documentation was in front of her, she just didn’t check it carefully. That said, the whole point of having county clerks signing marriage licenses in the first place was to keep underage people from being shotgun-married (i.e., to insure that it was two consenting adults being married) by forcing them to appear before the clerk with their birth certificates and without pesky shotgun-totin’ relatives in tow. Likely checking the gender of the two people being married was not something anybody was thinking about when they defined the procedures for issuing a marriage license because whoever heard of them kinds of people existing in Kentucky anyhow? (Sarcasm intended).Report

              • Will Truman in reply to Badtux says:

                I looked up the requirements for Kentucky. Birth certificate was only mentioned as a possible form of identification (along with drivers license or social security card, or passport.)Report

              • Jaybird in reply to Will Truman says:

                It’s in the service of demonstrating more hypocrisy.

                If she was *REALLY* principled, she’d be anti-trans.

                But she’s *NOT*!

                With the implication being that if the clerk hadn’t ever been divorced and was also anti-trans, us pro-SSM crowd would just be here speechlessly opening and closing our mouths like a bunch of carp! “If only she had been divorced! Then we’d have a position to argue against!”, is the implication, there.Report

              • Will Truman in reply to Jaybird says:

                Seems the overwhelming likelihood is that all of the provided documentation presented the groom as being male, the clerk didn’t look closely enough at documentation that said otherwise, or she was supposed to approve it regardless the trans man is legally male.

                None of these scenarios strike me as revealing, and for the most part seems consistent with what someone on either side of the gay marriage question might reasonably do.Report

              • veronica d in reply to Will Truman says:

                I don’t know KY law, but I know how FL law. There, your birth certificate determines your eligibility.

                Which actually, it was kinda cool, pre legal gay marriage days, if you were a trans gal marrying a cis gal. If your BC said make, they had to do it.Report

            • greginak in reply to Sam Wilkinson says:

              @sam-wilkinson I think pointing out she is convenient with her beliefs is not unreasonable but hardly unique among religious folk. Her sins were washed away and she is, like many sinners and converts, is self-righteous and pushy. It’s all about her and her road to heaven.

              But her history is irrelevant to how wrong she is. Focusing on her story just fuels the kind of bizarre pointless diversion that Jay likes. Most of us here support marriage equality yet we are on this rabbit trail discussing her history and whether it matters. This is all off the point of the responsibility of government officials and equal treatment for all. It’s creating heat but no light. It is keeping the debate about Davis and not the rights of the people who want to get married.Report

            • I said you said so by implication, and to me that is what you’re saying. Still, you say you’re not arguing that, and therefore I guess I’ll just have to take your word for it.

              As for this:

              and as evidence, I’m using her entire life story.

              No, you’re not. You’re using a portion of her life story. It’s impossible to know one’s complete life story. (And you seem to be eliding the point about her conversion coming after at least some of her divorces, and the point about her faith accounting for and assuming as a given its adherents’ imperfection, assuming her faith runs along the lines I’m familiar with). [ETA: but even if you’re not eliding, or if those points don’t obtain, it’s still impossible to know one’s entire life story.]

              By saying the above, I’m moving the goal posts from our original argument, and it’s probably there that my principal disagreement lies. I’m willing, as I said above, to concede some legitimacy to it. I can judge others’ actions, and frankly, I do all the time what you are advocating for. I conduct an intellectual triage of deciding who I take seriously and basing that triage in part on what I perceive to be their sincerity, based on their actions. I do that pretty much unapologetically, though perhaps with the realization that I’m no great shakes myself when it comes to living up to my own ethical/moral standards and with an awareness there’s something I’m missing. If that’s truly what you’re arguing for, I guess I agree with you more than our conversations suggest.

              But until someone makes me god, there are certain areas of others’ lives, their inner being, etc., that I’m not entitled to judge. And neither is she, by the way.Report

  33. Kazzy says:


    In the OP you referred to this as a “gift” to the anti-SSM crowd and that this was the reason why this creates poor optics. But I’m trying to figure out how exactly this really benefits them. Sure, it gives those already entrenched on that side something to yell and commiserate about. But then what? Are any politicians going to win election who wouldn’t have by running on a campaign opposing her jailing? Presuming they can even run a coherent campaign on that given how relatively few people are actually positioned to change things around this issue? Is anyone’s mind going to be changed about SSM because of this?

    I mean, if your argument is that during the NEXT battle for expanding rights, folks will be able to say, “Remember that lady who got thrown in jail because she wouldn’t issue marriage licenses to gays? That is why we can’t let trans folks use their preferred bathroom”? Even there, I’m not particularly moved because any honest assessment of the situation will reveal what really happened here and anyone not willing to engage in an honest assessment would have found some other “example” to point to.

    And, oh yea, gay people get to get married in this county in Kentucky.

    So, again, I reiterate my stance that this is actually hugely amazing and that clutching our pearls over how some might twist the story is allowing ourselves to be held hostage by folks with zero interest to honest engagement.Report

  34. Michael Cain says:

    I know it’s the internet and all, and the comment threads on this OtC post have been most entertaining, but I am struck by the number of people here (and in the media generally, it must be said) that make all sorts of claims about the law but have obviously not read the Kentucky statutes. My time as a legislative staffer certainly instilled in me the attitude that if you don’t go read the statute itself — and many times the case law that follows — you’re going to say things that are simply wrong.Report

  35. Lurker says:

    This is no different than jailing a county clerk who refuses to issue marriage certificates to interracial couples because of her religious beliefs (very common historically, and somewhat today). The optics are a win for horrid racists who claim to be victims. But who cares.

    Her jailing is an optics win from the point of view of disgusting homophobes. But disgusting homophobes who want to oppress others need to see that there are consequences to their actions affecting the rights of others. This is justice. That they claim victim status when justice is done is inevitable because their point of view is that justice is an oppression of them.Report

  36. Lurker says:

    Put more simply: to the unjust, justice being done will always allow them to say “Oh, we are victims!” So justice was done and the unjust are claiming victim status. This is inevitable for lovers of justice.Report

  37. Burt Likko says:

    Now, on the other hand, this happened in Kentucky just recently too. So let’s not rush to judgment about the place.Report

  38. Alan Scott says:

    A thought that came to me today:

    Kennedy sent uniformed military officers after George Wallace in ’63.

    Was that “terrible optics”? If it wasn’t why not?Report

  39. El Muneco says:

    Is divorce a sin?I dont see it in the ten commandments like other things.

    Actually, there is a New Testament quote (apparently 1 Corinthians 7:39) I saw in reference to this kerfluffle that, if taken literally (i.e. interpreted), says that a divorced woman (yes, it’s sex-specific in the original) cannot legally remarry while the original husband is still alive. Her current marriage being invalid, Davis would be in the process of committing adultery, which last time I checked, is violating a commandment.

    Of course, Paul was no big friend of autonomy for women, so when you first see it you’re like “yeah, but /Paul/”, but he’s apparently in line with Jesus on this one.Report

  40. Badtux says:

    This judge is a conservative Bush appointee with a reputation as a law-and-order judge. The irony is that Chairwoman Kim probably would have gotten lighter treatment from a left-wing judge. But I will tell you one thing that is 100% truth: You go into any courtroom in this country and tell the judge “I don’t have to obey your orders because I only have to obey God”, and you’re going to get slapped with contempt until you agree that there is only one god in a courtroom, and He is addressed as “Your Honor”. Do that in a law-and-order conservative judge’s court, and expect double the punishment.Report

  41. Kazzy says:

    Just out of curiosity… if Davis got a “rough ride” to the jail house or if the Marshalls dropped 14 bullets into her when she paused to make the sign of the cross, would conservatives argue that that’s just what happens when you can’t obey the law?Report