L'Affaire Davis

I'm late, once again, in commenting on an item in the news – a highly contentious issue. In reality I had not intended to write about it at all, but it came up in conversation over dinner with friends a few nights ago. I didn't say anything then because I make it a point never to argue with people who disagree with me. There's no point. They're wrong, but in all likelihood I won't be able to convince them to see things correctly. And they certainly won't convert me to their distorted viewpoint.

The particular dispute to which I refer regards the actions surrounding Kim Davis. From my perspective, the main issue involves her rights, and it is not primarily a consideration of anyone's views regarding same-sex marriage. For the record, although it ain't my thing (actually I don't really care), I have no particular argument against that kind of union except for the use of the word “marriage” which has a particular meaning and specific connotations in our culture. I'd be much happier if another word were formulated that indicated this particular form of union. But my concern is more a matter of language than law, since I have a greater regard for the former than the latter. (That should antagonize the lawyers.) This is especially true in an instance like this, in which I think her rights were violated by those charged with interpreting the law.

The argument was made that she was an elected official who refused to do her job. And both of those claims are true. But it ought not be overlooked that this was not her job at the time she sought and won elective office. During her term the Supreme Court decided that same-sex unions should be legalized. Whether or not that was a proper decision – whether it was within their province to make such a decision – is not the issue, for us or for her. The reality is that this was their position and we have come to accept the views of the Justices as the law – irrespective of the actual content of the Constitution. So during her term as an elected official the job was changed to include something to which she had a strong religious objection. It wasn't what she signed on for, but it's what the judiciary decided she should do.

As I understand the Constitution, it specifically forbids any religious test for office, and prohibits the government from any involvement in religious practices. Obviously a decision about what is a religious issue is open to argument, but there were enough objections from religious organizations that it is difficult to dismiss out of hand the perspective that the concept of same-sex unions has theological implications. In such a circumstance it seems to me that it is a rather severe remedy to jail someone who will not participate in an act she feels to be contrary to her beliefs. If robbery were called legal by the courts I hope we would not fault a public official who refused to participate in it irrespective of the law and his or her beliefs. (That's actually a bad example since the public assumes that politicians are deeply involved in robbery already. But you get the point.) However we might feel about such an analogy, for Kim Davis this is equivalent.

In the Jewish morning service there is a prayer expressing the wish that we speak the truth, and that we always be in awe of G-d. “At all times let a man fear G-d as well in private as in public, acknowledge the truth and speak the truth ...” While that “truth” differs from one religion to the next, the underlying principle, one common to all, is that we remain true to our beliefs, and express them openly. Interestingly, the Bill of Rights to our Constitution says the same thing. The first right protected, in its very first sentence, is that of religious freedom. Further on, in the same Amendment, the right to speak freely is declared. Jailing Ms. Davis, and prohibiting her from expressing her wishes to others in her department, seems to violate both of these principles. Yet there is no mention in the Constitution of marriage, and certainly not of same-sex unions. We often claim that our system forbids the imposition of the will of the majority on a minority, and we surely proscribe any tyranny of the minority over the majority. In this case the Supreme Court and U.S. District Judge David Bunning (a minority) are imposing their will over an individual (another minority). I doubt that was the original intent.

Reasonable accommodations to religious needs of those in private employ are required by government, but that doesn't seem to be the case in high profile cases – as defined by public interest and passion – like that of Kim Davis. Removing her name from the licenses (as they have removed “bride” and “groom”) and having others issue those licenses would have been a far more sensible method for dealing with the situation than jailing her, although the courts and the public would not have the opportunity to make a (politically correct) statement and, more important, to get their pound of flesh that way. We seem to have different rules for governmental cases that are in the public eye from those patterns we require of private enterprise. We require more of the private sector than of the government.

What is the solution to the problem? Should we follow the Constitution, change it, or ignore it? Right now we're playing it by ear. In some cases the courts seem to follow popular opinion while in others they appear to be writing the law as they think it should be. The President avoids Constitutional requirements by fiat – by an Executive Order or by calling a treaty an “agreement” in order to avoid the need for senatorial confirmation. The Senate, itself, is stymied by a minority, and the will of the public is ignored.

I don't know the answer. I do know, however, that finding a scapegoat will not solve the problem, though it may distract public attention in the direction of the current fashions rather than long-term needs. Whatever the solution – if there is one – we probably won't find it in a blog like this. But if we agree that the First Amendment is something we respect, and if we follow the prohibition against ex post facto laws, we must find a way to protect citizens from judicial overreach and, while we're at it, to protect our Constitution, from those who see themselves as above the law.