One neat trick to dismiss Kim Davis' asshole bigotry
September 21, 2015 6:15 AM   Subscribe

For some reason my mom decided it would be a great idea to let her married, lesbian daughter know that even though she supports gay marriage, she "sees Kim Davis'" point of view and thinks she should have the right to a religious exemption, or that she should "have the right" to keep her job because "the rules of her job changed". I was shocked in the moment and don't feel like I explained the case well. Now I'm looking for one good, objective resource that will explain this situation better.

Ugh, I can't believe I have to ask this.

I was trying to explain:

- that being an elected official is not the same situation as being hired by a private employer, yes you're being paid a salary, but you are literally elected to serve the public and you take an oath to obey federal law,

- that since she was the highest ranking county clerk, she was NOT in trouble just because she wanted Ted in the next cubicle to do licenses instead of her, she was REFUSING to let any other clerk issue licenses either,

- (I also went on a tangent about how many of the same people supporting Kim Davis would lose their shit if a Muslim, or Hindu, or person of any other faith in a government position tried to do something similar "because religion" , but I think this was probably not helpful to my central case)

- I think? that part of the issue is/was also that Davis wanted her name to be removed from the licenses and there was a question of the legal validity... so it should have been/was illegal for her to demand this when her name was required to validate the license? (Basically, she COULD pursue a religious exemption, but in the meantime she can't simply refuse to serve)

I am looking for one good, objective, not too long article to send to her. I'm already the black sheep, politically, so I feel like I have one chance to get this across. My mom is not religious herself nor is she super socially conservative - she supports gay marriage, overall - but clearly seems to believe some of the "but it's discriminating against HER to not let her... discriminate against you"....

The ones I have found are either too obviously "slanty" or are too long or loaded with legal jargon.
posted by nakedmolerats to Law & Government (18 answers total) 7 users marked this as a favorite
How about this article on the oath to uphold the Constitution that Davis swore? As an elected official, she swore to uphold the Constitution, including the equal protection clause of the fourteenth amendment, which the Supreme Court has interpreted as supporting gay marriage.

The author of the article, Noah Feldman, points out that while Davis swore by God to uphold the Constitution, that does not mean that she can place her religious beliefs ahead of her promise. Rather, she swore that she would uphold the Constitution, and that God was her witness to that oath.

If she cannot in good conscience uphold her oath, her duty should be to resign: if God was her witness to the oath, then he is now witnessing her perjury.
posted by brianogilvie at 6:22 AM on September 21, 2015 [36 favorites]

I would argue the rules didn't change on her at all. We've a fairly we established set of rules on how we govern ourselves in the US. We have a system whereby laws can be challenged and upheld or overturned. We've been doing this since long before Kim Davis was alive. Presumably this will be done long after she is dead.

One aspect I've been wondering, and I've decided this is a good indicator of the country going in the right direction, is why only Kim Davis? Surely if there were so many people who believe as she does others would have held similar positions and also refused? The fact that there was only one in the entire country is amazing to me.

Personally, I wouldn't bother trying to change your mom's mind. I can't write what I actually think about Kim Davis or the comment will be deleted, but I can say the other side does have a few valid points. Like sending her to jail was counter-productive and should never have happened.

Sometimes it does suck when our personal beliefs collide with the law or our community. Having empathy for these folks costs little. I feel bad for Kim Davis. I wouldn't want to be the person reflected in her mirror.
posted by cjorgensen at 6:28 AM on September 21, 2015 [2 favorites]

The rules of Davis's job remained the same. The oath of office she took did not specify conditions under which she would be excluded from performing her job, it simply states that Ms. Davis would faithfully execute the duties of [her] office without favor, affection or partiality, so help [her] God.
posted by The 10th Regiment of Foot at 6:37 AM on September 21, 2015 [3 favorites]

Best answer: The economist blog Democracy in America penned this short and sweet post that, IMO, gets to the heart of the issue.
Ms Davis compares the requirement of issuing same-sex marriage licences to laws forcing “a person who religiously objects to wartime combat…to shoulder a rifle regardless of their conscience or be refused citizenship”. But Kentucky is not requiring Ms Davis to march a gay couple down the aisle or to dance at their wedding. It is only, in Judge Bunning’s words, asking her to apply the law: “the act of issuing a marriage licence to a same-sex couple merely signifies that the couple has met the legal requirements to marry. It is not a sign of moral or religious approval."
posted by muddgirl at 6:49 AM on September 21, 2015 [13 favorites]

If I wanted to probe her belief and at least understand if she's consistent, I would ask if she thought that an election official working when the 19th amendment was passed would have been justified denying women in their district the right to vote for the remainder of their career. In that case the "rules" also changed mid-tenure (though I agree with the point above that the rule actually in play is to faithfully execute the laws, not faithfully execute the laws as in effect on a particular date you agree with).

But I think it's important to note that you may not *want* to know - the result of digging further may be to make explicit that her reasons are essentially "because gay people are icky" and that may not be something you want to make clear to yourself.
posted by range at 6:50 AM on September 21, 2015 [2 favorites]

I feel bad for Kim Davis, but people's jobs change ALL THE TIME and we just get on with it, or we move on to other jobs. If my company changed my work such that I was working on something that was legal but which I found morally repugnant, it would suck and I would miss the money and the coworkers who I like, but I would have to quit my job.

Kim Davis didn't want to give up her cushy $80K a year job.

(And I think she also wanted to make a big stink about things, but I don't think that's as useful an argument.)
posted by mskyle at 6:51 AM on September 21, 2015 [2 favorites]

I was shocked in the moment and don't feel like I explained the case well.

Shocked because she didn't agree with you? Or shocked because she misunderstood you?

That the rules of the game changed is a well-developed position on the right, but that's not really the issue. As Pat Buchanan explains (in the article I linked to) "Some conservatives say that Kim Davis as a public official has to carry out court orders, even those she believes to be immoral, or quit. Yet the course she took has undeniably advanced her cause in our unending culture war."

In other words, it shouldn't be hard to convince your mom that Kim Davis had an obligation to perform the duties of her job - you can win that round - but you'll push her up against the ropes of Davis' refusal being an admirable act of civil disobedience and do you really want to go there?

Let it go.
posted by three blind mice at 7:01 AM on September 21, 2015 [1 favorite]

I absolutely think Kim Davis had/has an obligation to perform her job here, but I will also note that people commonly believe other people have the right to do things they disagree with or find morally repugnant, without having secret feelings that those people are right. Think, for example, of people (maybe not you, but certainly there are people out there!) who would defend the Westborough Baptist Church's right to exist/have really offensive protests, and the solution is that other people have louder protests back at them, not that their speech becomes illegal. Very few of these defenders actually agree with anything Westborough is saying -- it's just that they believe really strongly in a right to free expression, even when the person or group is expressing something seriously terrible. Given everything else you say about your mom, it seems quite possible that she has a really strong interpretation of religious freedom -- that is, she disagrees with Kim Davis's actions/beliefs, but still thinks there ought to be some sort of exemption.

When I get into this type of heated/emotional argument with someone, something I like to turn to is basically saying -- look, I get that there is a principle here (religious freedom), and that we disagree as to how that principle should play out in the real world. BUT, this is really real for me in a non-academic, non-theoretical way, and I need to feel like you have my back as my mom rather than defending a principle to the death.

Because ultimately, even with all the information in the world, she might still feel like -- however much she supports gay marriage -- her belief in religious freedom means there should be some sort of exemption for Davis (and maybe even Muslim clerks or whomever else has some religious objection). But she can still have your back and understand how you feel the more personal implications of this whereas for her it's more of an academic point. And that probably means shutting up about this and having the academic discussion with people who are not-you and that won't feel hurt about it.
posted by rainbowbrite at 7:38 AM on September 21, 2015 [3 favorites]

You bake cakes in the form of hearts for weddings.

You write their names on the cakes.

That's your job.

Somebody comes in and wants you to bake a cake in the shape of a penis. You can refuse to do that since it's not your normal job. Your job is to make cakes in the form of hearts for weddings and write the couple's names on the heart cake.

Now if somebody comes in and asks for a heart cake and for their names to be put on the cake and you suddenly have a problem with it because of whose name is on the cake then you're not doing your job.

Or maybe use an example of a Jewish guy getting a job teaching Saturday school and then claiming that he can't do his job because he can't work on Saturdays for religious reasons even though that's the job he applied for.
posted by I-baLL at 8:27 AM on September 21, 2015 [1 favorite]

If Kim were a pastor or judge, being forced to perform a Biblical marriage on an unbelieving couple, then she would have every right to fuss and moan. Biblical marriage is the union of one man and one woman until death (with a few extreme exceptions). But, she is just an elected official, who is supposed to write out public licenses. Big whoop. Unless she believed that every single marriage license that she has ever written was being written for biblical marriages then she doesn't have a leg to stand on. The truth of the matter is that once someone is saved, they accept different rules than those of the unsaved. It is not an easy road all of the time. Sometimes it means quitting a job that you like because it forces you to do something that makes you uncomfortable. She could have resigned in protest.
posted by myselfasme at 9:02 AM on September 21, 2015 [3 favorites]

I wrote this on Facebook a few weeks back. Several friends have shared it and have told me it helped them clarify the situation to people who just didn't get what Kim Davis was doing wrong:
Hi everyone, I'm going to be taking over the USDA this week. Bad news though: Because I'm Jewish, there will be no more inspection of pork products and shellfish in the US. This means you won't be able to buy bacon, shrimp, lobster, etc. any longer. Sorry about that, but I just can't sign my name to anything that goes against my faith. Nevermind that I don't keep kosher. I just can't have my conscience violated like that.
posted by yellowcandy at 9:08 AM on September 21, 2015 [13 favorites]

It might be useful for you to take the marriage aspect out of it. Would she still see Davis' point of view if she were Muslim and refused to give alcohol licenses because drinking isn't permitted by the Quran? Or if she were Hindu and refused to sign hunting licenses?

On preview, yellowcandy beat me to it.
posted by Tamanna at 9:14 AM on September 21, 2015 [2 favorites]

You don't make generals out of conscientious objectors.
posted by entropone at 9:32 AM on September 21, 2015 [1 favorite]

Best answer: The best brief summary I've seen was a comment in the New York Times, which I cannot find so I can't credit the author:

"The marriage license was legally valid because the Country Clerk issued it, not because Kim Davis issued it. She could resign and issue licenses all day long from her home, but that wouldn't make them legal. Kim Davis has no legal authority other than when acting as Clerk, and, when she is acting as County Clerk she is not acting on her own behalf.

"As this is the case, her personal religious views are utterly immaterial. The County itself does not hold religious views. State and religion are separate entities. If Ms. Davis is under the impression the County Clerk should have religious beliefs, she is mistaken. The County Clerk is an office, not a person."
posted by Short Attention Sp at 9:46 AM on September 21, 2015 [13 favorites]

Response by poster:
It might be useful for you to take the marriage aspect out of it. Would she still see Davis' point of view if she were Muslim and refused to give alcohol licenses because drinking isn't permitted by the Quran? Or if she were Hindu and refused to sign hunting licenses?

Some of her references were actually about how Muslim cashiers can refuse to handle pork, or Muslim cab drivers can refuse someone with alcohol. But AFAIK in the cases of pork, the private companies (Target etc) decided to shift their job duties to accommodate them of their own accord -they weren't legally ordered to. And I don't know what ever happened with the cab driver cases, but IIRC the initial legal fight did not go their way. (at some point there was a ruling that it posed an undue burden on the customers, in markets where most cab drivers are Muslims).

So I think/hope part of it was that she THOUGHT these cases had resulted in some federal ruling that those types of religious objections had to be accommodated (and yeah, there is definitely some anti-Muslim stuff going on there too) - so "why shouldn't she get one if those people did".

But I think the key I had a hard part addressing was that this isn't "just a job" , it is an elected office where she SWORE to uphold the Constitution.

(She did agree that it was wrong when I told her that part of the issue was that Davis ordered OTHER people not to issue licenses either. So I guess there's that).
posted by nakedmolerats at 9:49 AM on September 21, 2015 [1 favorite]

Pretty sure that some of those did result in accommodations being required under the Civil Rights Act. This doesn't matter here because the employment protections of the Civil Rights Act don't apply to elected officials and immediate personal/policy-level appointees, and Davis was elected.

The thought I've mostly seen bandied about is that she might have a claim against the Commonwealth of Kentucky based on its state-level RFRA. RFRAs, or "religious freedom restoration acts," mostly act to make governments treat individuals' claims for an exception from a law more or less like Americans seem to think the Constitution requires, even though they are wrong about that. In this case, she might have a claim that the state should either allow her to use nonstandard marriage license forms that don't specifically identify her, since there's really no particular requirement that the license do so; they would serve just fine if they read "Commonwealth of Kentucky" at the top and had a spot for the official actually physically issuing the license to sign and print their name and/or title.

This hasn't happened because the federal judge she's been dealing with can't do it. The federal judge can say "The Constitution requires you(r office) to issue licenses to everyone who is legally entitled to one without discrimination," but can't say "This Kentucky law (their RFRA) entitles you to an exception from this other Kentucky law or regulation (whatever sets out the requirements for marriage licenses)." She'd need a Kentucky state judge for that.
posted by ROU_Xenophobe at 10:31 AM on September 21, 2015

Best answer: 1) Absolutely the separation of church and state issue related to elected officials. This is the number one issue at play. She took an oath to upload the law. (Ironically, a group called "
"Oath Keepers" is supporting her and called for her release from prison. I wish I was joking.)

2) Your Target cashier example is off a bit. Likely that person said, "I would like religions accommodation" and they found a spot for them to work. If it were the Davis situation, it's more like a cashier manager decided they couldn't handle pork so they shut down ALL the registers so no one could by anything, regardless of if they were buying pork, to not discriminate against pork.

3) My biggest point is related to sin. I was raised Christian (am atheist) and the most frustrating thing was why homosexuality is such a bigger "sin" that people have to protest against more-so than any other "sins." Especially since the bible defines all sins as equal AND that people are not the ones who should be judging others AND that we are all sinners.

So, if she is really against giving marriage licences to those that she defines as sinners in her religion (and remember that the bible says all sins are equal AND that we are ALL sinners "for all have sinned and fall short of the glory of God" Romans 23) then she has already given marriage licenses to sinners. She had no strong enough objection giving marriage licences prior to this one "sin" even though we are all sinners and she has most likely already given licences to those that: take the lord's name in vain, work on sunday, lust, have envy, are bisexual, beat their spouse, have premarital sex, have a child out of wedlock, have had a divorce, have had an affair, etc.

So I think a good question for your mother is, "Why is it okay to discriminate and use your religion against THIS specific sin when she's granted licences to other sinners?"

Again, of course the biggest legal issues are church and state and law related, but I think many people find the moral obligations the biggest problem in their thought process, not the legal aspect.

I have many strong feelings about this, and these are many of the reasons I have a problem with religion and am annoyed at all the things I had to see growing up religious.
posted by Crystalinne at 12:30 PM on September 21, 2015 [5 favorites]

One point here is that Kim Davis is not being asked to approve of same sex marriages or officiate them. She's just acknowledging that the appropriate legal hoops were jumped through. I think this is an important distinction.
posted by It's Never Lurgi at 12:58 PM on September 21, 2015 [3 favorites]

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