Wednesday, September 9, 2015


I have been favored by several emails comparing Kim Davis to Saint Thomas More, Joan of Arc, Martin Luther King, and Rosa Parks, and while I admire the Chutzpah being shown by the Rowan County clerk, I have to say that she is waiving the wrong flag.

It is certainly true that same sex marriage offends the religious beliefs of a great many Americans, and it may well be true that statutes defining marriage as a union of one male and one female are adopted by legislatures and supported by voters in large part because of moral standards endorsed and taught by their churches.

But when those beliefs have been duly adopted as public laws, they are no longer mere sectarian discipline; they are public law, and entitled to the respect and dignity due to the laws adopted democratically by free men and women in a free republic.

Kim Davis should be remembered not a Christian who stood against a court decision which violated her religious faith; but as an American who stood against a court decision which violated the right of the people of the Commonwealth of Kentucky to legislate on the subject of marriage.

More than half a century ago, John F. Kennedy addressed the Greater Houston Ministerial Conference. His speech ought to be heard by every boy and girl in every high school in America. And it wouldn’t hurt if the rest of us tuned in as well to:

Here is what JFK had to say about the relationship of conscience and public duty:

But if the time should ever come--and I do not concede any conflict to be even remotely possible--when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.

The sad fact is that the strategy Ms. Davis has thus far pursued is not only legally unsustainable, it is politically inept. Any lawyer worthy of the name will tell you that religious, conscientious objection is no excuse for refusing to perform the duties of a public office.

Redefining the duties of the County Clerk is a cockamamie way to solve the problem. It doesn’t challenge the Obergefell decision. It doesn’t protest the dictatorial judicial assault on traditional American culture and values.

The Kentucky Resolution of 1799, drafted by Thomas Jefferson, asserted that the Commonwealth has the inherent power to oppose and even nullify unconstitutional acts by the federal government.

Nullification can be accomplished in several ways. Merely to declare an act of the national government to be void and of no effect is unlikely to accomplish anything. Public demonstrations, however massive, simply lead to confrontation and violence.

The better approach is that made famous by Martin Luther King; civil disobedience. King wisely stated that protesting unjust laws, while willingly accepting the legal consequences, is the highest expression of respect for the law.

It is in this spirit that Ms. Davis should simply refuse to issue same sex marriage licenses unless and until specifically ordered to do so in each case by the federal judge. She should then issue a license which specifies that it was issued in violation of Kentucky law by order of the United States District Court.

That course of action allows her to continue protesting same sex marriage. It gives evidence to the usurpation of State sovereignty by the federal courts. I have no doubt that couples receiving licenses with that disclaimer prominently noted will not be happy. They will, no doubt, run to the federal courthouse seeking relief from the form of the marriage license.

This will bring about a new lawsuit, one which could very well go all the way to the Supreme Court. One can only imagine the convoluted logic that eminent tribunal will have to concoct in order to prohibit Kentucky clerks from telling the truth about the licenses they issue under duress. 

Thomas Jefferson would be proud.

No comments:

Post a Comment