I was going to leave it alone. I was going to let Kim Davis’s protest of the United States Supreme Court’s gay marriage decision go without comment, figuring it would work itself out eventually. Then she ignored a court order and was held in contempt and her supporters began yelling about religious persecution.
Kim Davis, the elected Rowan County Clerk in Kentucky, has been all over the news and social media. And as a progressive Christian and a civil rights advocate, I’ve seen both sides of the argument: gay marriage advocates calling for her to issue marriage licenses to all eligible couples and religious advocates congratulating her for standing on her religious principles in the face of an oppressive government.
I didn’t want to get involved. The case would go through the courts and I would write about it if the court’s decision was relevant to me and my readers. But then, she defied a Supreme Court order.
The Rule of Law Can Be Persecution
First, to my liberal friends, many of whom are saying that applying the rule of law can never be oppressive, I would ask them to remember their history. Segregation laws were oppressive. That is why civil rights leaders led peaceful, and sometimes violent, protests against them to get them overturned. Yes, laws can be oppressive. Yes court orders can infringe on a person’s civil rights, including the right to freely express one’s religion. That said, that is not what is going on here.
Religious Freedom vs. Public Duty
What makes Kim Davis’s situation so different is that she is voluntarily employed as the Rowan County Clerk – an elected position as a public official. When she acted, and directed her deputies to act, in accordance with her religious conscience on the job, she cut off the public from its civil right to get married. Her office refused to issue marriage certificates to eligible couples – a governmental duty – based on a religious objection. This is not free exercise of one person’s religion. It imposes Kim Davis’s religion on the citizens of Rowan County, Kentucky, and establishes a religion – at least for one aspect of life in that county.
If Kim Davis has a sincerely held religious belief that runs contrary to the new duties of her office, then she should resign. If she cannot separate her public duty from her privately held religion, then she needs to be removed either by recall or impeachment (since she was elected she cannot be fired).
Civil Protest or Contempt of Court
Kim Davis was within her rights to protest the Supreme Court’s decision and the change in her duties as County Clerk. She could have gone on strike or spoken publicly about her situation or opinions. She did file a lawsuit to protect her civil right to exercise her religion. Civil protest is a constitutionally protected right, even for public officials acting independent of their offices.
But when she essentially closed her office (as far as marriage certificates go), she wasn’t protesting. She was defying a court order. Rather than allow the courts to rule on her objection, she took matters into her own hands. That is why she is in jail. Not for her religion, but for not respecting the court and its rulings. She is still entitled to appeal her lawsuit. She is not allowed to deny citizens public services while she waits for a decision.
When you choose to work for the government, you know that laws can change and that you may be asked to enforce laws you do not agree with. When that time comes you have two choices: do your job or resign. By choosing to stand between Rowan County citizens and their fundamental right to marry, Davis put herself on the wrong side of the law.
Her reasons may be religious, but that does not mean that the court’s response was a form of religious persecution. The decision to send Kim Davis to jail in contempt was not based on her religious belief. Contempt is designed to compel the offender to comply with the court order. Ms. Davis has shown that those don’t mean much to her, so the court had to find another way to provide services to citizens.
Lisa J. Schmidt is a family lawyer for Schmidt Law Services, PLLC, in Ferndale, Michigan. She helps LGBT and non-traditional families find solutions to their family law issues. If you or someone you know is facing a court challenge, contact Schmidt Law Services today for a free consultation.