I'm blogging this because I blogged so much about Kim Davis back in 2015. Click on the Kim Davis tag to see what I said back then. I'll flag this one as the most helpful.
Showing posts with label Kim Davis. Show all posts
Showing posts with label Kim Davis. Show all posts
September 15, 2023
October 28, 2015
Justice Kennedy — substituting his idea of a "fair" question — stumbles through the problem of a government official faced with abiding by a Supreme Court decision she believes is morally wrong.
Justice Anthony Kennedy was taking questions from Harvard Law students last week, when one student asked a somewhat garbled question about whether government officials can act on their own understanding of the meaning of life. Scroll to 50:44 to begin at the student's question:
Kennedy says that he'll "refaze" the question "in a fair way," which seemed both disrespectful to the student and, like not bothering to enunciate all the letters in "rephrase," a bit lazy. But the crowd of students chuckled its support for the most powerful person in the room as he diminished their peer.
The "fair" rephrasing was:
So, basically, Kennedy plugged in a question that the student's question reminded him of and that he had a good shot at answering in a predictable, conventional way. This is a strategy that is very commonly used by law students answering exam questions, and that I always warn my students against: I'll notice and you can't get credit for that. You must face the difficulties of answering the question in the form it is asked.
But Justice Kennedy was not writing an exam; he was talking to a friendly crowd that had just warmly chuckled its approval of his rejection of the question that was asked.
Did anyone really understand the question? I've listened to it a few times, and it is pretty hard to absorb and figure out how to approach answering. Why did the student ask it that way? Was it unfair? I'd have loved to have heard a more spontaneous dialogue between Kennedy and the student that began, perhaps, with Kennedy's saying: "Here's why I think your question is unfair: You're using words like 'rational norms' as if the official is looking, scientifically, at the facts, but I think you're really talking about religious beliefs and moral compulsions imposed not by reason and facts but by God."
But Kennedy plugged in the conventional answer, phrased — fazed — in the most noncommittal way:
You know, if you're going to be mealy-mouthed, people can use you however they want.
Kennedy says that he'll "refaze" the question "in a fair way," which seemed both disrespectful to the student and, like not bothering to enunciate all the letters in "rephrase," a bit lazy. But the crowd of students chuckled its support for the most powerful person in the room as he diminished their peer.
The "fair" rephrasing was:
Uh what what what is the duty of the public official if he or she cannot, in good conscience and consistent with her own personal and religious beliefs, enforce a law that they think is morally corrupt?The student had talked about "rational norms" and "judgment of the truth of new insights" and the "truth" and never used any words that connoted religion, morality, or corruption.
So, basically, Kennedy plugged in a question that the student's question reminded him of and that he had a good shot at answering in a predictable, conventional way. This is a strategy that is very commonly used by law students answering exam questions, and that I always warn my students against: I'll notice and you can't get credit for that. You must face the difficulties of answering the question in the form it is asked.
But Justice Kennedy was not writing an exam; he was talking to a friendly crowd that had just warmly chuckled its approval of his rejection of the question that was asked.
Did anyone really understand the question? I've listened to it a few times, and it is pretty hard to absorb and figure out how to approach answering. Why did the student ask it that way? Was it unfair? I'd have loved to have heard a more spontaneous dialogue between Kennedy and the student that began, perhaps, with Kennedy's saying: "Here's why I think your question is unfair: You're using words like 'rational norms' as if the official is looking, scientifically, at the facts, but I think you're really talking about religious beliefs and moral compulsions imposed not by reason and facts but by God."
But Kennedy plugged in the conventional answer, phrased — fazed — in the most noncommittal way:
"Great respect, it seems to me, has to be given to people who resign rather than do something they think is morally wrong, in order to make a point. Uh, however, uh, the rule of law is that, as a public official in performing your legal duties, you are bound to to enforce enforce the law. Um and it's it's it's difficult sometimes to see whether or not what you're doing is transgressing your own personal philosophy. This requires considerable introspection. Um and it's it's it's a fair question that officials can and should should ask ask themselves. Um but um certainly, in an offhand comment, it would be difficult for me to say that people are free to ignore decisions of the Supreme Court. Lincoln went through this in the Dred Scott case. Um and uh these are difficult moral questions."It's the theater of thoughtfulness studded with ums and repetitions and expressions like "considerable introspection" and assertions about how "difficult" it all is, until you've either forgotten the question — not just the original question but the substituted "fair" question, even as he reminds us "it's it's it's a fair question" — or you decide he's just said what you feel he must have said — what you want him to have said — and you go off and write a little article about it:
You know, if you're going to be mealy-mouthed, people can use you however they want.
October 2, 2015
September 30, 2015
The Pope told Kim Davis to "stay strong."
When he was in Washington, D.C.:
During Ms. Davis’s visit to the Vatican Embassy, “the pope came to her and held out his hand,” [Davis's lawyer] said. Ms. Davis asked the pope to pray for her, which he said he would, and then the pope asked Ms. Davis to pray for him, Mr. Staver said. They spoke in English, he said, and the pope gave the Davises two rosaries. Ms. Davis gave the rosaries to her mother and father, who are Catholics.... “He thanked her for her courage and told her, ‘Stay strong,’ ” Mr. Staver said.Also: "While in Washington, Francis also made an unscheduled stop to see the Little Sisters of the Poor, an order of nuns that is suing the federal government over the Affordable Care Act’s contraception mandate."
September 28, 2015
Pope Francis supports the right of government officials like Kim Davis to refuse, for religious reasons, to issue marriage licenses to same-sex couples.
Responding to a question from an ABC reporter, he said:
"I can’t have in mind all cases that can exist about conscience objection... but, yes, I can say the conscientious objection is a right that is a part of every human right. It is a right. And if a person does not allow others to be a conscientious objector, he denies a right.... Conscientious objection must enter into every juridical structure because it is a right, a human right... Otherwise we would end up in a situation where we select what is a right, saying ‘this right that has merit, this one does not.’ It is a human right.”
When asked specifically if he was including government workers in his response, Pope Francis responded: "It is a human right and if a government official is a human person, he has that right. It is a human right."
September 25, 2015
September 16, 2015
Watch the big GOP debate with me.
I don't know if I can pull off some good old-fashioned live-blogging. I see my son John is set up to live-blog, and I'm sure he'll do good work. I'll just update this post, making a numbered list if any insights strike me, and I invite you to participate in the comments. I'm not rooting for anyone, not playing any drinking games, not obsessed with Trump, not anything in particular... just open to the moment.
1. As they take their place behind the lectern, Jeb and Ben are jotting down notes and Trump, between them, is standing, swiveling, and displaying his game face. Carly's in royal blue, matching the large airplane that is stretched out behind them. Now, Jake Tapper is explaining the ground rules, introducing Hugh Hewitt and Dana Bash. Rubio wipes sweat from his brow.
2. Very short intros. Rand Paul is an eye surgeon who defends the Constitution, Huckabee says hi, Marco Rubio makes a joke about drinking water, Ted Cruz is a husband to his best friend, Ben Carson stresses the pediatric part of his career because he's here for the children, Trump wrote "The Art of the Deal" and made billions and billions of dollars, Jeb looks forward to talking about fixing Washington, Scott Walker emulates Ronald Reagan, Carly started out as a secretary, Kasich is ready to lift us up, and Christie is gonna give back what Obama stole from us.
3. Carly gets the first question and she won't answer it: Is she comfortable with Trump's finger on the nuclear button? She just calls him an "entertainer." Trump gets to respond: He's a businessman, and his temperament is "very good, very calm." Rand Paul got sideswiped by Trump, so he gets to respond, and he says that a guy that would sideswipe like that shouldn't have his finger on the button. Trump: "I never attacked him on his looks, and believe me, there's plenty of subject matter there."
4. Scott Walker breaks in without waiting to be asked a question or to get a turn triggered by an attack from someone else. It was Jeb who was asked a question, and Jeb triggered a Trump response opportunity. Walker just butted in.
5. Tapper wanted to ask another question, and Kasich started talking, so now he's been given an opportunity. Kasich is copying Walker, creating more chaos, and ironically, the point he wants to make is that the show is going to be too chaotic for the folks watching at home.
6. Christie offers to be our "vessel." Jeb is asked if he's "a puppet" for his donors. Jeb says Trump offered him money in exchange for getting gambling in Florida, and Trump said that didn't happen, because if it had, he would have gotten it. Jeb tries to break in, and Trump gives mock approval: "More energy tonight, I like it."
7. The candidates are all sweating like mad. How can they run the government if they can't even run a room in the Reagan Library?
8. "There's just something missing from our President. He doesn't have courage." Says Trump (talking about Syria).
9. Kasich breaks in ferociously. He's yelling and looking swollen and red. He's seething. This is interfering with my sense of him as everybody's dad.
10. Huckabee is complaining about the Supreme Court "redefining marriage" and championing Kim Davis. Jeb agrees with him, but in a much milder, mellower way.
11. Cruz calls Planned Parenthood "an ongoing criminal enterprise."
12. Tapper tells Carly Fiorina to respond to Trump's statement a few days ago that when he said "look at that face," he wasn't talking about her looks but her "persona." She's asked to talk about Trump's persona. She could have had a prepared remark for this, but she's thinking on her feet and uses a line that Trump just used against Jeb Bush: people heard very clearly what he said. She said that, then absolutely shuts up, and the crowd cheers. Trump smirks, then leans forward and says: "I think she's got a beautiful face and she's a beautiful woman." I think that was a prepared remark (and a lie) and Carly utterly refrains from giving an appreciative smile. She's got her game face.
13. Jeb is annoyed that Trump once said that Jeb may have a "soft spot" for Mexicans because his wife is Mexican. Trump babbles about what a lovely woman Jeb's wife is, but resists Jeb's demands for an apology. There's the wife out in the audience, come on, apologize to her. Trump won't do it. He's done nothing wrong, he says.
14. Speak English! Assimilate! Says Trump. Jeb says he is speaking English, but if someone asks him a question in Spanish, he's going to answer in Spanish. That's an opening for Rubio to break in and talk about his immigrant grandfather taught him that he was blessed to live in America... and he taught him that in Spanish. And he wants people who speak Spanish to hear from the President in Spanish, not from some translator on Spanish TV.
15. "We're the only ones dumb enough, stupid enough" to have birthright citizenship, says Trump. And he's not buying that it's in the Constitution.
16. Fiorina thinks the Constitution would have to be amended, which isn't likely. She concentrates on blaming the Democrats for not reforming immigration back when they had control of the Senate. They don't want to solve the problem. They want the issue to remain live.
17. Trump is turning beet red fighting with Carly over who's the better businessperson. He impugns her business career and she impugns him. Christie breaks in to say the person watching at home could "care less" about this back-and-forth about their careers. You 2 are both successful, what about the people out there who are not successful? Christie blusters.
18. "A track record" is important, Carly responds, without losing her cool at all. If we're going to talk about Christie's record in government, we should talk about the business record of the candidates who are coming to the race from business.
19. Aw, Rand Paul's reduced to playing with his pencils.
20. Hugh Hewitt wants to talk about who can win in the general election and who's going to attack Hillary Clinton? Kasich isn't ready to do that yet. But "at the end of the day..." (That was one of my drinking game cues, by the way. And Ben Carson has already proclaimed something "ridiculous!")
21. Trump effuses about Hugh Hewitt's declaring Trump "the best interview in America" and the camera shows Hewitt grinning responsively. What a bromance!
22. "Finally!" I say, and the crowd gives a big cheer, when Jeb says "Let me say one thing about my brother: He kept us safe."
23. Trump tried to high-five Carson and Carson received it in a way that moved it around into a regular handshake. Don't slap the neurosurgeon's gifted hands! The cause for Trump's move was Carson's statement that he'd advised George W. Bush in 2003 not to go to war in Iraq. (Trump had previously stated that he's the only one on the stage who opposed the Iraq war at the time.)
24. Do you think the questions are being evenly distributed? My sense of it is that they keep coming back to Jeb Bush.
25. Cruz thinks Bush I should have appointed Edith Jones instead of David Souter and Bush II should have appointed Michael Luttig instead of John Roberts to the Supreme Court. Jones and Luttig were both "rock-ribbed conservatives." The Presidents Bush both took the easier route and didn't want to fight for conservative Justices. Cruz's appointees will "not act like philosopher kings."
26. How long is this darned thing? I thought 2 hours. Then I thought 2 and a half. Now, I'm thinking it's going to go on for 3 hours. This is madness! (And I watched some of the other debate, the one with Santorum and... I forget who... Lindsey Graham... Pataki. One other. I have to ask Meade: Jindal.)
27. Oh, good: marijuana. I could use some marijuana at this point. The question goes to Paul, who thinks the laws hurt the poor and racial minorities. Bush confesses to smoking marijuana 40 years ago.
28. Paul is dominating for a long time on the marijuana question. He calls attention to Christie's willingness to enforce the federal criminal law against people in Colorado, who may think that their state has legalized marijuana, so — as Paul puts it — Christie doesn't believe in the 10th Amendment and "states' rights."
29. "Autism has become an epidemic," says Trump when he's asked whether he'll stop saying that vaccines are linked to autism. Carson is asked to comment and he says, "He's an okay doctor"... which is a quote of something Trump once said about Carson, so some pretty good humor from Carson, even if it's not enough pushback. Trump's point is that all he's saying is that vaccinations are too "bunched up" — too much is pumped all at once into a "beautiful little baby" and parents ought to have some discretion to space out the vaccines the way he did with his babies. Carson agrees with that point, and Trump reaches over to pat Carson on the elbow.
30. Uh-oh, lighthearted questions. First, what woman should be on the $10 bill. Huckabee says his own wife. Blechh. Cruz wants the $20 bill, not the $10 bill changed, and he'd put Rosa Parks (as would Rubio). Carson wants his own mother on the bill. Trump wants Ivanka or Rosa Parks. Jeb wants Margaret Thatcher. Walker wants Clara Barton! Carly wouldn't change the bills, and we should recognize that "women are not a special interest group." Kasich wants "Mother Theresa, a lady I had a chance to meet." Christie provoked laughs nationwide, I suspect, by saying "I think the Addams Family has been shorted in the currency business," causing a million people to quip "Morticia?!" (He meant Abigail Adams.)
31. What Secret Service nickname should you have? Carly Fiorina says "Secretariat," because, you know, she started out as a secretary, but I'm sure a million Americans just made a "horse-faced" joke. Bush wants to be "Ever Ready" — trying to establish that he's not low energy. Walker wants to be Harley (for his motorcycle). Trump says "Humble." Rubio wants to be "Gator."
32. What was up with that "Defeat Bloomberg" ad?
33. They're all boringly predicting what the world will be like after their presidency. The blabby question from Tapper was framed to invite them to connect that to Ronald Reagan... as if there hadn't been enough opportunities in all these many hours for the candidates to liken themselves to Ronald Reagan.
34. Who most improved his case? I asked the question out loud and immediately thought: Rand Paul. Meade answered: Rand Paul. But he's got a long way to go. Did anyone hurt his case significantly? I don't think so. It's more: Who needed to make some real progress here and didn't? Maybe Walker.
35. After the debate, in an interview, Trump says what he learned is that he can stand for 3 hours. Yeah, that was a severe challenge — having to stand there for 3 hours. It was hard enough to sit through!
36. John opines that Carly Fiorina won.
1. As they take their place behind the lectern, Jeb and Ben are jotting down notes and Trump, between them, is standing, swiveling, and displaying his game face. Carly's in royal blue, matching the large airplane that is stretched out behind them. Now, Jake Tapper is explaining the ground rules, introducing Hugh Hewitt and Dana Bash. Rubio wipes sweat from his brow.
2. Very short intros. Rand Paul is an eye surgeon who defends the Constitution, Huckabee says hi, Marco Rubio makes a joke about drinking water, Ted Cruz is a husband to his best friend, Ben Carson stresses the pediatric part of his career because he's here for the children, Trump wrote "The Art of the Deal" and made billions and billions of dollars, Jeb looks forward to talking about fixing Washington, Scott Walker emulates Ronald Reagan, Carly started out as a secretary, Kasich is ready to lift us up, and Christie is gonna give back what Obama stole from us.
3. Carly gets the first question and she won't answer it: Is she comfortable with Trump's finger on the nuclear button? She just calls him an "entertainer." Trump gets to respond: He's a businessman, and his temperament is "very good, very calm." Rand Paul got sideswiped by Trump, so he gets to respond, and he says that a guy that would sideswipe like that shouldn't have his finger on the button. Trump: "I never attacked him on his looks, and believe me, there's plenty of subject matter there."
4. Scott Walker breaks in without waiting to be asked a question or to get a turn triggered by an attack from someone else. It was Jeb who was asked a question, and Jeb triggered a Trump response opportunity. Walker just butted in.
5. Tapper wanted to ask another question, and Kasich started talking, so now he's been given an opportunity. Kasich is copying Walker, creating more chaos, and ironically, the point he wants to make is that the show is going to be too chaotic for the folks watching at home.
6. Christie offers to be our "vessel." Jeb is asked if he's "a puppet" for his donors. Jeb says Trump offered him money in exchange for getting gambling in Florida, and Trump said that didn't happen, because if it had, he would have gotten it. Jeb tries to break in, and Trump gives mock approval: "More energy tonight, I like it."
7. The candidates are all sweating like mad. How can they run the government if they can't even run a room in the Reagan Library?
8. "There's just something missing from our President. He doesn't have courage." Says Trump (talking about Syria).
9. Kasich breaks in ferociously. He's yelling and looking swollen and red. He's seething. This is interfering with my sense of him as everybody's dad.
10. Huckabee is complaining about the Supreme Court "redefining marriage" and championing Kim Davis. Jeb agrees with him, but in a much milder, mellower way.
11. Cruz calls Planned Parenthood "an ongoing criminal enterprise."
12. Tapper tells Carly Fiorina to respond to Trump's statement a few days ago that when he said "look at that face," he wasn't talking about her looks but her "persona." She's asked to talk about Trump's persona. She could have had a prepared remark for this, but she's thinking on her feet and uses a line that Trump just used against Jeb Bush: people heard very clearly what he said. She said that, then absolutely shuts up, and the crowd cheers. Trump smirks, then leans forward and says: "I think she's got a beautiful face and she's a beautiful woman." I think that was a prepared remark (and a lie) and Carly utterly refrains from giving an appreciative smile. She's got her game face.
13. Jeb is annoyed that Trump once said that Jeb may have a "soft spot" for Mexicans because his wife is Mexican. Trump babbles about what a lovely woman Jeb's wife is, but resists Jeb's demands for an apology. There's the wife out in the audience, come on, apologize to her. Trump won't do it. He's done nothing wrong, he says.
14. Speak English! Assimilate! Says Trump. Jeb says he is speaking English, but if someone asks him a question in Spanish, he's going to answer in Spanish. That's an opening for Rubio to break in and talk about his immigrant grandfather taught him that he was blessed to live in America... and he taught him that in Spanish. And he wants people who speak Spanish to hear from the President in Spanish, not from some translator on Spanish TV.
15. "We're the only ones dumb enough, stupid enough" to have birthright citizenship, says Trump. And he's not buying that it's in the Constitution.
16. Fiorina thinks the Constitution would have to be amended, which isn't likely. She concentrates on blaming the Democrats for not reforming immigration back when they had control of the Senate. They don't want to solve the problem. They want the issue to remain live.
17. Trump is turning beet red fighting with Carly over who's the better businessperson. He impugns her business career and she impugns him. Christie breaks in to say the person watching at home could "care less" about this back-and-forth about their careers. You 2 are both successful, what about the people out there who are not successful? Christie blusters.
18. "A track record" is important, Carly responds, without losing her cool at all. If we're going to talk about Christie's record in government, we should talk about the business record of the candidates who are coming to the race from business.
19. Aw, Rand Paul's reduced to playing with his pencils.
20. Hugh Hewitt wants to talk about who can win in the general election and who's going to attack Hillary Clinton? Kasich isn't ready to do that yet. But "at the end of the day..." (That was one of my drinking game cues, by the way. And Ben Carson has already proclaimed something "ridiculous!")
21. Trump effuses about Hugh Hewitt's declaring Trump "the best interview in America" and the camera shows Hewitt grinning responsively. What a bromance!
22. "Finally!" I say, and the crowd gives a big cheer, when Jeb says "Let me say one thing about my brother: He kept us safe."
23. Trump tried to high-five Carson and Carson received it in a way that moved it around into a regular handshake. Don't slap the neurosurgeon's gifted hands! The cause for Trump's move was Carson's statement that he'd advised George W. Bush in 2003 not to go to war in Iraq. (Trump had previously stated that he's the only one on the stage who opposed the Iraq war at the time.)
24. Do you think the questions are being evenly distributed? My sense of it is that they keep coming back to Jeb Bush.
25. Cruz thinks Bush I should have appointed Edith Jones instead of David Souter and Bush II should have appointed Michael Luttig instead of John Roberts to the Supreme Court. Jones and Luttig were both "rock-ribbed conservatives." The Presidents Bush both took the easier route and didn't want to fight for conservative Justices. Cruz's appointees will "not act like philosopher kings."
26. How long is this darned thing? I thought 2 hours. Then I thought 2 and a half. Now, I'm thinking it's going to go on for 3 hours. This is madness! (And I watched some of the other debate, the one with Santorum and... I forget who... Lindsey Graham... Pataki. One other. I have to ask Meade: Jindal.)
27. Oh, good: marijuana. I could use some marijuana at this point. The question goes to Paul, who thinks the laws hurt the poor and racial minorities. Bush confesses to smoking marijuana 40 years ago.
28. Paul is dominating for a long time on the marijuana question. He calls attention to Christie's willingness to enforce the federal criminal law against people in Colorado, who may think that their state has legalized marijuana, so — as Paul puts it — Christie doesn't believe in the 10th Amendment and "states' rights."
29. "Autism has become an epidemic," says Trump when he's asked whether he'll stop saying that vaccines are linked to autism. Carson is asked to comment and he says, "He's an okay doctor"... which is a quote of something Trump once said about Carson, so some pretty good humor from Carson, even if it's not enough pushback. Trump's point is that all he's saying is that vaccinations are too "bunched up" — too much is pumped all at once into a "beautiful little baby" and parents ought to have some discretion to space out the vaccines the way he did with his babies. Carson agrees with that point, and Trump reaches over to pat Carson on the elbow.
30. Uh-oh, lighthearted questions. First, what woman should be on the $10 bill. Huckabee says his own wife. Blechh. Cruz wants the $20 bill, not the $10 bill changed, and he'd put Rosa Parks (as would Rubio). Carson wants his own mother on the bill. Trump wants Ivanka or Rosa Parks. Jeb wants Margaret Thatcher. Walker wants Clara Barton! Carly wouldn't change the bills, and we should recognize that "women are not a special interest group." Kasich wants "Mother Theresa, a lady I had a chance to meet." Christie provoked laughs nationwide, I suspect, by saying "I think the Addams Family has been shorted in the currency business," causing a million people to quip "Morticia?!" (He meant Abigail Adams.)
31. What Secret Service nickname should you have? Carly Fiorina says "Secretariat," because, you know, she started out as a secretary, but I'm sure a million Americans just made a "horse-faced" joke. Bush wants to be "Ever Ready" — trying to establish that he's not low energy. Walker wants to be Harley (for his motorcycle). Trump says "Humble." Rubio wants to be "Gator."
32. What was up with that "Defeat Bloomberg" ad?
33. They're all boringly predicting what the world will be like after their presidency. The blabby question from Tapper was framed to invite them to connect that to Ronald Reagan... as if there hadn't been enough opportunities in all these many hours for the candidates to liken themselves to Ronald Reagan.
34. Who most improved his case? I asked the question out loud and immediately thought: Rand Paul. Meade answered: Rand Paul. But he's got a long way to go. Did anyone hurt his case significantly? I don't think so. It's more: Who needed to make some real progress here and didn't? Maybe Walker.
35. After the debate, in an interview, Trump says what he learned is that he can stand for 3 hours. Yeah, that was a severe challenge — having to stand there for 3 hours. It was hard enough to sit through!
36. John opines that Carly Fiorina won.
September 15, 2015
"What caught [lawprof Noah] Feldman's attention was [Kim Davis's] claim that her oath of office, which ends with 'so help me God,' entitles her to invoke a higher law when necessary."
"Feldman thinks she's mistaken. I wish she were; I fear she's not," writes lawprof Stephen L. Carter.
Feldman finds this claim not so much unpersuasive as wrongheaded -- a misunderstanding of the nature of the oath. Davis’s argument, he writes, “implies that obedience to divine law is somehow baked in to one’s constitutional duties and obligations.”...
Like much scholarly writing today about oaths, it seeks to impose a post-modern outlook on a pre-modern practice.... Davis’s argument for relying on her oath of office as justification for disregarding the law of the land is well grounded in history. It’s also dangerous. The nation will not long survive open defiance of court orders by elected officials....
September 14, 2015
"If any of [the deputy clerks] feels that they must issue an unauthorized license to avoid being thrown in jail, I understand their tough choice..."
"... and I will take no action against them.... However, any unauthorized license they issue will not have my name, my title or my authority on it... Instead, the license will state that they are issued pursuant to a federal court order."
Kim Davis, back at work, in her official position, casting aspersions on marriages citizens have a right to obtain.
Kim Davis, back at work, in her official position, casting aspersions on marriages citizens have a right to obtain.
September 8, 2015
"A federal judge ruled Tuesday that a Kentucky clerk who has refused to issue marriage licenses to same-sex couples may leave prison..."
"... as long as she doesn't interfere with the licenses that her deputies have been granting since her incarceration last week."
But will she follow that condition?
ADDED: Video from the NYT...
... where there are over 1800 comments already. Highest ranking comment:
But will she follow that condition?
Davis' attorney, Mat Staver, told NBC News that accommodation was unlikely to suffice. "We're back to Square One," Staver said. "She's been released, but there's been no resolution."No solution, but some of the leverage of empathy for Davis is lost.
ADDED: Video from the NYT...
... where there are over 1800 comments already. Highest ranking comment:
I am deeply afraid for my religious freedom. I am an atheist. When an elected official can impose her/his religion on all citizens through their legal position, the first amendment is violated. "The congress shall make no law respecting the establishment of religion." Kim Davis' opposition to gay marriage is a religious belief and should not be imposed on others through her state position.
"Voters Show Little Sympathy for Jailed Clerk in Gay Marriage Spat."
A Rasmussen poll shows "just 26% of Likely U.S. Voters think an elected official should be able to a ignore a federal court ruling that he or she disagrees with for religious reasons.... 66% think the official should carry out the law as the federal court has interpreted it."
ADDED: Rasmussen's headline — "Gay Marriage Spat" — seems rather disrespectful. It will amuse some people, but I don't think a pollster should telegraph its opinion. And the poll doesn't — I don't think — establish that there's "little sympathy" or that it's just a "spat." The poll is about which position should prevail in a conflict. I agree with the majority here and would have polled with the 66%, but I'm not without sympathy for Kim Davis and I don't think it's a trivial dispute.
ADDED: Rasmussen's headline — "Gay Marriage Spat" — seems rather disrespectful. It will amuse some people, but I don't think a pollster should telegraph its opinion. And the poll doesn't — I don't think — establish that there's "little sympathy" or that it's just a "spat." The poll is about which position should prevail in a conflict. I agree with the majority here and would have polled with the 66%, but I'm not without sympathy for Kim Davis and I don't think it's a trivial dispute.
"Why isn’t undermining one’s job from the inside, in the service of a larger moral goal, an acceptable form of revolution?"
Asks Sasha Volokh, in the context of the Kim Davis controversy.
"Acceptable" is a weak word. It's not going to be acceptable to a court that has decided what the law is and ordered you to follow it, and Volokh isn't trying to say that it is. He's really only asking us to look at the Kim Davis problem from the perspective of those who think that the acceptance — there's that word again — of gay marriage is an evil on the scale of slavery or Nazi Germany.
I'm using my tag "civil disobedience," even though Sasha Volokh eschews the adjective and speaks only of "disobedience." I think "civil" is inappropriate because Davis is not a citizen resisting the government. She's a government official. "Civil" denotes a connection to ordinary citizens. There's something much fishier about someone working within the government, not following the rules.
Should we accept (there's that word again) IRS agents resisting tax-exemption applications from groups that represent politics they think are evil? Think of resistance from the inside by police officers, teachers, judges, social workers, prison wardens, and the rest of the immense cast of characters that make up the government and against whom we, the citizens, assert our civil rights.
ADDED: For what it's worth, here's the (unlinkable) OED entry for "civil disobedience":
"Acceptable" is a weak word. It's not going to be acceptable to a court that has decided what the law is and ordered you to follow it, and Volokh isn't trying to say that it is. He's really only asking us to look at the Kim Davis problem from the perspective of those who think that the acceptance — there's that word again — of gay marriage is an evil on the scale of slavery or Nazi Germany.
Not that we have to agree with that view, but the question is whether the (possibly oath-based) proceduralist argument (“do your job or engage in revolution, but if you do that you have to quit, because OMG the oath”) should carry any logical weight with adherents of that view. While I think acceptable resistance against Nazis differs from acceptable resistance against liberal democratic governments, the reason I think that has nothing to do with oaths, and it’s not clear to me how an oath-based theory would successfully distinguish between the two situations.Also at Volokh Conspiracy and getting much more attention (ranking high on WaPo's most-read list), is Eugene Volokh's "When does your religion legally excuse you from doing part of your job?," which focuses on law as it is, as opposed to morality, revolution, and disobedience.
Bottom line: I’m fine continuing to criticize Davis on substantive moral grounds. And I’m fine showing why Davis’s actions are illegal under the positive law; but once you get to the point where you’re making the illegality serve a normative goal, you have to confront issues of legitimate disobedience, and I’m not sure that a purely procedural (“quit or do your job”) argument will work to exclude Davis’s “keep your job but follow your ideals” strategy of disobedience.
I'm using my tag "civil disobedience," even though Sasha Volokh eschews the adjective and speaks only of "disobedience." I think "civil" is inappropriate because Davis is not a citizen resisting the government. She's a government official. "Civil" denotes a connection to ordinary citizens. There's something much fishier about someone working within the government, not following the rules.
Should we accept (there's that word again) IRS agents resisting tax-exemption applications from groups that represent politics they think are evil? Think of resistance from the inside by police officers, teachers, judges, social workers, prison wardens, and the rest of the immense cast of characters that make up the government and against whom we, the citizens, assert our civil rights.
ADDED: For what it's worth, here's the (unlinkable) OED entry for "civil disobedience":
civil disobedience n. rebellion of the populace against a governing power; (in later use) spec. refusal to obey the laws, commands, etc., of a government or authority as part of an organized, non-violent political protest or campaign.
September 4, 2015
What's happening in the anti-Kim-Davis comic genre?
Well, this is happening on Twitter:
It's funny... up to a point, but it leans on stereotyping non-affluent southern white women. And given the prominent photograph of an actual woman who sits next to Kim Davis, there's a problem of appropriating her identity and reputation. Yes, you have to be a fool to believe that's the person writing the Twitter feed, but it is still using her.
ADDED: Here's another use of that woman's image, from a collection at Queerty titled "The Best Kim Davis Memes (So Far)":
It's funny... up to a point, but it leans on stereotyping non-affluent southern white women. And given the prominent photograph of an actual woman who sits next to Kim Davis, there's a problem of appropriating her identity and reputation. Yes, you have to be a fool to believe that's the person writing the Twitter feed, but it is still using her.
ADDED: Here's another use of that woman's image, from a collection at Queerty titled "The Best Kim Davis Memes (So Far)":
September 3, 2015
"The court cannot condone the willful disobedience of its lawfully issued order."
"If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems," said the federal district judge David L. Bunning, sending Rowan county clerk Kim Davis to jail for contempt for refusing to issue marriage licenses to same-sex couples.
Ms. Davis tearfully testified that she had not hesitated to stand by her religious views and defy the courts. “I didn’t have to think about it,” she said. “There was no choice there....A high-rated comment at the link (which goes to the NYT):
“Marriage is between one man and one woman,” she replied, before a lawyer asked her whether she had “the ability to believe marriage is anything else.” Ms. Davis offered a terse response: “No.”...
Judge Bunning... said Ms. Davis’s explanation for disobeying his order was “simply insufficient." “It’s not physically impossible for her to issue the licenses,” he said. “She’s choosing not to.”
I am an Orthodox Jew. I can't eat milk and meat together as per my own personal beliefs. But if I were a county clerk, and someone wanted to open up a cheeseburger joint, I'd have absolutely zero right as a government official to deny that person his permit on the grounds of the rules of my religion.The answer to that, in the terms that Judge Bunning found "simply insufficient," would be that the Orthodox Jewish county clerk would not lack the mental capacity to conceive of a cheeseburger joint as a business requiring a permit. It would just be a business he would not patronize and perhaps disapprove of. Davis was arguing a lack of an "ability to believe" that marriage is anything other than the union of a man and a woman. I do agree with the judge that the argument is insufficient. As a government official, she's obligated to treat same-sex marriages the same as opposite as marriages, whether she privately thinks of them as marriages or not. No one is requiring her to believe something she doesn't believe. She's simply required, as a government official, not to violate the rights of citizens.
September 2, 2015
"The Kentucky county clerk facing potentially stiff penalties for refusing to issue same-sex marriage licenses has been married 4 times..."
"... raising questions of hypocrisy and selective application of the Bible to her life," U.S. News reports.
In any case, Christians tend to believe that they are forgiven for their sins and to try to go forward without committing new sins, so is this evidence of the "selective application of the Bible to her life"?
It does make Davis a more ridiculous or contemptible person, for those who are inclined to think of her that way. To my mind, it's better simply to see her as someone who cannot hold onto the government job she wants unless she's willing to deal with the public in a manner consistent with our rights.
She gave birth to twins five months after divorcing her first husband. They were fathered by her third husband but adopted by her second. [Kim] Davis worked at the clerk's office at the time of each divorce and has since remarried.That's very interesting, but, from a legal standpoint, the scope of Davis's entitlement to relief from substantial burdens on her religion depends on her sincere belief in the religion not on whether she has committed sins within the terms of her religion or whether we think her beliefs are coherent.
Davis has described her desire to strictly adhere to the Bible in stark terms and thus far has shown no sign of bending to court orders on same-sex marriage. She said Tuesday she fears going to hell for violating "a central teaching" of the Bible if she complies with the orders.
In any case, Christians tend to believe that they are forgiven for their sins and to try to go forward without committing new sins, so is this evidence of the "selective application of the Bible to her life"?
It does make Davis a more ridiculous or contemptible person, for those who are inclined to think of her that way. To my mind, it's better simply to see her as someone who cannot hold onto the government job she wants unless she's willing to deal with the public in a manner consistent with our rights.
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