My View: Kim Davis’ Duty to Carry Out the Law



The rhetoric in the Kim Davis matter has exploded. In case you missed it, Kim Davis is the Kentucky county clerk who was jailed for contempt of court for defying a federal court order to issue licenses to same-sex couples.

She compounded this problem by rejecting a proposal that would allow her deputies to process same-sex marriage licenses that could have prompted her release, the New York Times reported on Thursday.

The reaction has been fantastical, to perhaps understate it slightly. The National Review called her a “rightful prisoner of conscience.” Her attorney, Mat Staver of the Liberty Counsel, compared Ms. Davis to Jews under the Nazis.

“Does that mean that if you’re Christian, don’t apply here; if you’re a Jew, you gotta get — what happened in Nazi Germany, what happened there first, they removed the Jews from government public employment, then they stopped patronizing them in their private businesses, then they continued to stigmatize them, then they were the ‘problems,’ then they killed them,” Staver said. “The fact of the matter is, she has a right to this employment and you don’t lose your constitutional liberties just because you are employed by the government.”

That is exactly true – as a government employee and an elected official, she is sworn to carry out her duties under the Constitution.

On the one hand, the optics here are bad. Throwing an elected official in jail for refusing to issue marriage licenses seems over the top and heavy-handed. It plays into the rhetoric of a Nazi state that the right has been employing.

On the other hand, she didn’t exactly leave them a lot of choice.

Yesterday I engaged in a brief exchange with a more conservative friend of mine. I asked whether he believed a warden should be able to refuse to execute a person they believe is innocent.

My friend suggested that a warden should be accommodated and the state carry out the execution with someone willing to do so. Makes sense. The problem is that appears to be exactly the deal that Ms. Davis refused, that would have kept her out of jail – allowing one of her deputies in her office to carry out the issuing of the marriage licenses to same-sex couples.

On August 12, U.S. District Judge David Bunning ruled that plaintiffs in this case must be able to obtain marriage licenses in Rowan County. Ms. Davis appealed that decision. The US Supreme Court, on August 31, denied without dissent her request for a stay on an order from the 6th U.S. Circuit Court of Appeals that required her to issue marriage licenses immediately to couples in the case of Miller v. Davis.

That means that Ms. Davis no longer has legal grounds to continue to deny the district court’s order.

She has cited religious beliefs as her rationale, but, as the ACLU points out, “But Davis’s duty as a public official is to enforce civil law, not her own personal religious views…. Davis is entitled to her religious beliefs on same-sex marriage, but she can’t shirk her official duties because of them.”

The best legal analysis I have seen here is Cornell Law Professor Michael Dorf’s commentary in Verdict. He notes that Kentucky Governor Steve Beshear, following the Obergefell v. Hodges decision, “informed county clerks throughout the state that they have a duty to grant marriage licenses to same-sex couples, and that if they felt that they could not do so, they ought to resign.”

However, Ms. Davis did not choose to resign and instead, “she adopted her own personal policy for the county. She would not grant any marriage licenses, and she would not allow any of her deputy clerks to do so either, even though at least one of them was willing to.”

Ms. Davis, Mr. Dorf writes, attempted many legal maneuverings including requiring couples to get marriage licenses from neighboring counties and invoking her federal constitutional right to free exercise of religion.

Mr. Dorf writes that “that argument failed because the obligation to provide marriage licenses to same-sex (and opposite-sex) couples applies to anyone occupying the office of county clerk. Davis was not being singled out because of her religion, and the federal free exercise case law makes clear that it has no application where the burden on religion arises out of a general obligation not targeting religion.”

Ms. Davis, he wrote, relied on the Kentucky Religious Freedom Restoration Act (RFRA), “arguing that state law—insofar as it prevented the state from allowing the judge/executive to provide marriage licenses or to permit a deputy to issue a license that does not bear her name on it—burdened her freedom of religion in violation of the state RFRA.”

However, “The district judge rejected the state RFRA defense on the ground that state law imposes only a ‘slight’ burden on her religious freedom because issuing marriage licenses does not ‘condone same-sex unions on moral or religious grounds, nor’ does it prevent ‘her from engaging in a variety of religious activities’ such as church attendance, Bible study, and the maintenance of her belief in the immorality of same-sex marriage.”

In the end, while I am uncomfortable with using the jailing of an elected official for contempt, she didn’t exactly leave the court much option. She rejected a compromise to allow her deputy to issue the licenses – the very remedy my conservative friend suggested.

My friend referred me to Rod Dreher of The American Conservative, who seems to have a pretty reasonable belief which, while they’re “making a martyr,” acknowledges that she doesn’t have a single legal argument to stand on, and that “she’s just defying the law, including the highest court in the land. Again and again, I think Obergefell was wrongly decided, and was little more than a majority of the US Supreme Court putting flimsy dressing on its policy preferences. But there is nothing in our public order that gives people the right to defy the law without consequence.”

And I agree with him – making her a martyr, at least in conservatives circles with a heavy-handed response, is probably less than productive, but at the end of the day, they gave her an out and she refused to take it.

Years ago I admired the courage of Yolo County Clerk Freddie Oakley who would, on a yearly basis, protest prohibitions against same-sex marriage by issuing Certificates of Inequality.  But that is a little different because she wasn’t refusing to carry out her duties, she was simply protesting – granted, during official hours – her inability to carry out the will of her conscience. Kim Davis should figure out a way to protest her convictions while carrying out the duties of her office.  And if she cannot, she ought to resign.

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

Related posts

42 thoughts on “My View: Kim Davis’ Duty to Carry Out the Law”

  1. Miwok

    The best legal analysis I have seen here is Cornell Law Professor Michael Dorf’s commentary in Verdict. He notes that Kentucky Governor Steve Beshear, following the Obergefell v. Hodges decision, “informed county clerks throughout the state that they have a duty to grant marriage licenses to same-sex couples, and that if they felt that they could not do so, they ought to resign.”

    Analysis? Take it or leave it is not much of an analysis, more like an ultimatum. Politicians who ignore the law after they take an oath sound like, well, most of them in Congress or the State Legislature.

    Listening to her conscience, when other cultures are accused of “being radicalized” by their imam, why aren’t the stories including the church she attends, and the pastor/priest/whatever she has been influenced by? Has anyone been investigating that? She sure comes across as a “radicalized Christian” to me. Growing up in the Bible Belt, we had plenty like her. Nowadays I see them and have worked with some, it is a terrifying experience. They think rules don’t apply to them especially if they are elected to Office. They think we elected them because we agree to their views.

    1. TrueBlueDevil

      It’s not just the religious Right, it’s also the Left that believes laws don’t apply. Illegal aliens in their mind should be able to walk across the boarder, avail themselves of numerous welfare benefits, break numerous laws, and then when they commit a felony not even face mandatory jail time. Drug laws are also arbitrary is their world.

      1. Miwok

        Well put, TBD. I am a Liberal where I grew up, and considered a Conservative here. Both labels make me squirm. They both will not let you alone to be what you want.

  2. Anon

    Let me preface my comments by saying I am relatively conservative, and was not particularly enthusiastic about legalizing gay marriage.  But it is the law of the land, and I accept that.  Ms. Davis is an elected county clerk.  Part of the county clerk’s job description is to issue marriage licenses.  SCOTUS has ruled that gays have the right to obtain a marriage license.  Ms. Davis, because of her conservative religious beliefs, has apparently decided she can independently make up the law as she goes along, and not issue marriage licenses based on her view of what is acceptable sexual orientation.  She refuses to resign her elected position, but insists on continuing to discriminate as a gov’t official on the basis of sexual orientation when issuing marriage licenses.  As draconian as it may seem, the judge had no other choice than to jail Ms. Davis for contempt of the court’s orders if she refused to resign her office or have other clerk’s within the county clerk’s office issue marriage licenses to any couple qualified to obtain one.

    This situation very much reminds me of the Chief Judge who refused to remove the Ten Commandments Monument at the courthouse where he worked when ordered to do so by court order.  He was removed from office as Chief Judge.  A statement made by the court  in regard to the Chief Judge’s defiant attitude seems particularly apropos to Ms. Davis’s situation: “In closing arguments, the Assistant Attorney General said Moore’s defiance, left unchecked, “undercuts the entire workings of the judicial system…. What message does that send to the public, to other litigants? The message it sends is: If you don’t like a court order, you don’t have to follow it.”  

    As an elected gov’t official, you don’t get to pick and choose which duties you will carry out, depending on your particular religious convictions.  Just as Ms. Davis must issue marriage licenses to interracial couples, or inter-religous couples, so must she issue marriage licenses to gay couples, whether she personally agrees with it or not.  If she feels she cannot carry out the duties of the office, then she doesn’t belong there and should resign or delegate those duties to other clerks.  I have no problem with her sitting in jail for her unconscionable stance in refusing to obey court orders or refusing to resign or refusing to compromise by allowing other clerks in the office to issue marriage licenses.  Without laws, and the mechanisms in place to ensure the laws are obeyed, only chaos and anarchy will reign supreme.

    1. Jim Frame

      She refuses to resign her elected position, but insists on continuing to discriminate as a gov’t official on the basis of sexual orientation when issuing marriage licenses.


      My understanding is that she is refusing to issue marriage licenses to anyone, gay or straight, so technically she isn’t discriminating against gays.  I think the contempt ruling is for refusing to issue marriage licenses in accordance with the law after being ordered to do so by the court.  Her motivation would thus be irrelevant to the ruling, though certainly part of the social context.

      1. Anon

        If she is refusing to issue marriage licenses altogether, then she is failing to carry out her duties altogether, she is still in contempt of court.  However, her refusing to issue marriage licenses altogether is just a sham, since other clerks in her office were willing to issue marriage licenses to gays.  The judge wasn’t fooled.

  3. Frankly

    Liberals celebrate civil disobedience that supports their belief system.  And they support sanctuary cities breaking federal law because of what they believe in.  So I reject the argument from any liberal that the jailing of Kim Davis is righteous.  Their opinion on this is only political.

          1. Don Shor

            She has a right to challenge it in court, because religious freedom issues sometimes need to be resolved in court. She did. She lost. End of story. Now she has chosen to go to jail.
            Two tired conservative clichés that always seem to come into play whenever the issue is as clear and simple as this one: false equivalences, and “liberals are hypocrites.”
            We aren’t talking about sanctuary cities here, but suddenly they’re the issue? I guess we can call this deflection?
            The notion that her signature causes her to “participate” in the marriage is particularly bizarre. Timothy Geithner’s signature is on my twenty-dollar bill, but that doesn’t mean he’s participating when I spend it. She seems incapable of separating her self from her office.

        1. Frankly

          Ordered by who or whom?  So if Trump is elected and orders leaders of all the liberal sanctuary cities to comply with federal immigration laws and jails them if they refuse, you wold be supportive of that?

          1. Don Shor

            Ordered by who or whom?

            Ordered by a court in response to a challenge. You do know how our legal system works, right? The president does not have specific authority to “order leaders of all the liberal sanctuary cities” to comply. The president does not “jail” people. Somebody would need to file a suit or a federal attorney would need to find some reasonable basis for filing charges against those mayors.
            Lotsa gotcha questions going here. It’s that tired “hypocrite” thing again. Deflection, deflection, deflection. You’ve got a woman sanctimoniously withholding civil rights from individuals, and somehow you’re trying to turn this into a debate about immigration law.

        2. TrueBlueDevil

          Great point. What happens to the one couple that has to go to another clerk, or another town, to get a marriage license? A minor inconvenience.

          What happens to the 3,000, 4,000, 5,000 people who are killed every year by illegal immigrants? They have lost their life. Yet the sanctuary cities don’t enforce the laws due to their open borders mentality.

          I think this is one huge positives of the Trump candidacy. These topics were strictly verboten, the facts were buried, and we were all kept in the dark. Then liberals would say asinine things like “If we send them home, who will pick our lettuce?”

          (UC Davis Professor Norman Matloff, who has analyzed and studied the H1B Visa issue for years, recently complimented Donald Trump for his defense of the American blue collar worker. Matloff has noted that this used to be a territory covered by Democrats, but now Trump is siding with American minority and white trades people.)

          He also writes weekly columns on his blog which I don’t have at hand. If anyone is interested, I can post it later.

    1. Don Shor

      You are amazing. The president has the authority to issue executive orders. If Congress doesn’t like it, they can sue and the Supreme Court can adjudicate it. When the Supreme Court decides, that is the law. When a federal judge decides the county clerk’s appeal, that is the law. When the Supreme Court declines to hear her attorney’s appeal, that law stands.
      So she has to obey the law at that point, or go to jail.
      You are not just deflecting at this point, you are being intellectually dishonest about this topic.

      1. hpierce

        “You are amazing…”   “When the Supreme Court decides, that is the law.”  Re-read the Constitution.  The Judiciary ONLY has the constitutional right to INTERPRET the law.  All “laws” have to originate in the LEGISLATIVE branch.  [Federal law has only minor provisions for anything resembling the ‘initiative process’]. I accept that “gay marriage” is not illegal.

        That being said, the Clerk was dealing with a “ministerial” [pun unintended] issue.  No discretion, except as provided by law.  She was in the wrong.

        The “applicants” that fomented this (from some sources, but cannot cite, so I may be wrong) were not even County residents. I smell a “game” (on several levels, including the VG) in this instance.

        IMO, you are “married” when you commit yourself to another, BIG TIME.  Even the Catholic Church, in the Sacrament of Marriage, acknowledges that the couple CREATE the marriage, and the Church is present to witness to, and bless the commitment.

        Key word, to me, is commitment.











  4. Anon

    Frankly: “She should be jailed and so should the mayors and city councils and other governmetn employees supporting sanctuary cities.

    Spot on!  The gov’t needs to apply its laws consistently, and without favoritism or politicism.

    1. Don Shor

      The sanctuary city movement goes back at least two decades. To my knowledge no Justice Department under any of the presidents — Reagan, Bush, Clinton, Bush, or Obama — has ever accused any employee or official of those cities of specific wrongdoing. If they did, and if a judge ordered the mayor or police chief to comply with a specific law and that official refused, that would result in a court order. If that official then defied that court order, that official should then go to jail.
      But I seriously doubt that anyone like Gavin Newsom would defy a federal judge’s order. That’s what the clerk has done. So this is a completely false “equivalence” that Frankly and others are using to try to minimize the behavior of the county clerk.
      She has specifically denied civil rights to citizens. There are clear plaintiffs and their rights have been upheld. If you know of any example where sanctuary city mayors or officials have done something comparable, please let us know. Otherwise, this is just a false comparison.

  5. ryankelly

    She’s in jail because she not only refused to follow the law, but she also prevented others from following it.  Now that she is out of the way, the employees are issuing licences.   Eventually, she will be let out of jail and she should be watched to make sure she doesn’t retaliate against these employees or try to stop the filing of the certificates after people have their weddings.   I’m sure she will try, because there is likely something in the bible that she will interpret in a way that would make it OK for her to do so – in the name of God, of course.  Never mind that she took an oath of office.


  6. tribeUSA

    I’m a bit naive as to how these elected county positions work; but is there not a provision that an executive county officer (don’t know which one specifically) has the authority to remove from office or demote a elected county official who is not performing thier duties as required? Maybe it’s a bit different in every state. I would have preferred to see her demoted or fired rather than jailed, on the basis that she refused to perform her job duties (or authorize her subordinates to do them). How are elected county officials handled when they refuse to perform their job duties?–seems to me some sort of arbitration arrangement could be appropriate, overseen by an executive county official, in which the noncomplying official might be removed from office. Surely this is a preferable option to jailing? Now that she is in jail; who is taking over her position?

    1. Jim Frame

      A quick Google search indicates that impeachment is the only avenue available in this case.

      On a personal note, of the two officials who have been impeached and convicted in Kentucky, the first one was a county surveyor, in 1803.

  7. TrueBlueDevil

    According to the Sunday morning TV political shows, all she wants now is her name and signature taken off of the marriage licenses. No one seems to be reporting that, she gave them an “out”. She apparently doesn’t want her name on these documents which stand in direct opposition to her beliefs.


  8. Frankly

    The left in desparation of their clear hypocrisy over reponses to Kim Davis and Sanctuary Cities have gone to their typical legal mumbo jumbo (as demonstrated by Don Shor)… they dance on a head of a pin with so much sanctimonious nuance that they should at least be applauded for their failing to run themselves through… yet.

    They do whatever they want in the name of leftist righteousnous and then find mind-bending academic-encrusted arguments to defend their absurd positions.

    Pull back all that legal mumbo jumbo and we have a clear and simple to understand demonstration of the great two-face-nest of the left.

    Public officials refusing to obey the law of the land because of their personal convictions.

    Now we have…

    – One for reasons that the left supports and they applaud.

    – One for reasons that the left opposes and they demand execution of the non-compliant.

    But then simplicity and common sense were never the stroung suit of lefist cursaders.

    The rest of us will just file this as yet another bit of eveidence that the left is unfit to lead.  The opportunity to demonstrate capable leadership was there all along… for the left to celebrate Kim Davis’s civil disobedience and freedoms just as they have Gavin Newsom’s to instruct SF police to ignore federal immigration law.  But instead we see the truth… that it is only politics.  And so we will just play politics and beat the left back to their rightful place in American political influence… which is and has been not much for very good reasons.

    1. TrueBlueDevil

      I think it was Newsom who celebrated Hugo Chavez, but then edits to his Wikipedia page are quickly changed to remove his support of the aforementioned. He did a good job with Care not Cash for the “homeless”, but his personal life was a disaster, stabbing his right-hand-man in the back (he slept with the guys wife).

      1. Frankly

        I recently found out that Gavin Newsom is married to Fox News legal commentator Kimberly Guilfoyle… a solid conservative.  Interesting how that is kept out of the main media.  Conservatives would generally not give a crap… maybe actually be more impressed with her… that Guilfoyle is married to a SF liberal and keeps up her conservative views.  But Newsom would certainly lose liberal impression points knowing that he is married to a Fox News legal talent (and a very attractive one to boot).

        1. Miwok

          Since you brought it up:

          In January 2005, they jointly filed for divorce, citing “difficulties due to their careers on opposite coasts.”

          In January 2007, it was revealed that Newsom had had a romantic relationship in mid-2005 with Ruby Rippey-Tourk, the wife of his former deputy chief of staff and then campaign manager, Alex Tourk. Tourk filed for divorce shortly after the revelation and left Newsom’s campaign and administration. Newsom’s affair with Rippey-Tourk[79] impacted his popularity with male voters, who viewed his indiscretions as a betrayal of a close friend and ally.[80]

          In September 2006, Newsom began dating actress Jennifer Siebel after being set up for a blind date by a mutual friend, Kathy Wilsey.[82] In December 2007 their engagement was announced,[83][84] and they were married in Stevensville, Montana, in July 2008.

        2. tribeUSA

          Miwok–yes, the affair with the wife of his good friend and chief of staff certainly influnced my opinion of Newsom–I would never consider voting for this pretty-boy betrayer.

  9. Frankly

    And maybe Don Shor can find another nuanced legal argument to justify the left’s cheers in 2004 when clerks and mayors issued marriage licences to gay couples in definance of state laws.

      1. Frankly

        Is that a new moderator rule?

        I would have used your pseudonym if you used one.  But since you used your name I assumed you did not have a problem having it referred to… especially for opinions you post using your name.

        You are the one that came out strongly in opinion against what I wrote.  Are you not willing to stand by it now?


        1. Don Shor

          Is that a new moderator rule?

          No. When I am acting as moderator I do this:
          [moderator] text here

          I would have used your pseudonym if you used one. But since you used your name I assumed you did not have a problem having it referred to… especially for opinions you post using your name.

          I don’t have a pseudonym on the Vanguard. I’m not afraid to post under my own name.

          Are you not willing to stand by it now?

          So much nonsense to dispense with. Ok.
          I don’t support Gavin Newsom. I have never voted for him.
          I don’t support the sanctuary city movement, except I have no problem with city councils passing symbolic resolutions if they so choose. It is a FACT that cities and states are not obliged to enforce federal laws. The federal government enforces federal laws.
          I believe that individuals and organizations should work within the law to assist individuals who are seeking asylum in this country, as I did when I sponsored a young man from Guatemala in the 1980’s. He had fled the repressive government that the Reagan administration supported. So I hired him and provided the paperwork to document his income, and assisted him in his appeal. His citizenship was ultimately granted. That is, in my opinion, the best way to proceed. If there are instances where state and local officials have violated the federal immigration law, of course they should be pursued in court.
          The local officials who issued marriage licenses did so in full awareness that their status was in legal limbo, in some instances, or that they were not valid. Just as Kim Davis has a right to make her case in court, so did those officials. Once decided in court, once reasonable appeals are exhausted, the law stands.
          I support the immigration reform bill that passed the Senate in 2013 as a reasonable compromise that acknowledges the reality and humanity of the 11 – 12 million undocumented immigrants who are here, provides funding for border security, and provides a path to citizenship. It is a reasonable compromise. I don’t believe in open borders.
          I don’t think that conservatives really want the federal government to start ordering state and local officials to act as agents of the federal government.
          Likewise, I would hope that conservatives don’t want locally elected officials to start imposing their religious views as superceding their job duties, laws, or court rulings. That would be a very harmful precedent. It is part of the dominionist philosophy embraced by some conservatives and some religious groups, and Kim Davis is an Apostolic Christian — one of the groups known for holding ‘God’s law’ (by their interpretation) over the laws of the state or federal government.
          This is most certainly not dancing on the head of a pin. This is a foundational principle of America. No elected official can do what Kim Davis is doing. That should be so obvious that, honestly, you and various GOP candidates would have done much better to just say nothing about it. Not try to make some false equivalence. Not try to get in digs against liberals. Not try to pretend this is politics. This is a core American principle of governance, and it is a fundamentally conservative principle.
          You often seem to be arguing with phantom leftists of your own conjuring. It should be pretty obvious to anybody who reads the Vanguard regularly that I am not a “leftist” (whatever that is) or a traditional liberal.

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
Sign up for