BY JAMES PERON
Until a judge ordered her release this Tuesday, Kim Davis was in jail. That seems to be what both she and her attorneys wanted. Under Kentucky law, Davis, as a public official, is obligated to fulfill all duties of her position. She refused. In addition, she actively prevented other employees from doing their jobs as well—all because she claims it violates her religious beliefs.
Not only has Davis refused to perform the duties of her post, she also used her position to force assistant clerks to do the same. There are clerks in her office willing to issue marriage licenses to same-sex couples. Davis ordered them to refuse service to gay clients because her religion is anti-gay. Davis isn’t just demanding the right to drag her religious beliefs into her profession. She is also demanding that county employees abide by her religious beliefs, as well as local residents, even those in same-sex relationships.
Her attorneys, who are from an anti-gay organization designated as a hate group by the Southern Poverty Law Center, have steered her wrongly in terms of the law. They are more interested in creating a martyr for their fund appeals than in giving good legal advice. One of her attorneys, Roger Gannam, claims:
Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman. And she’s been ordered to stay there until she’s willing to change her mind, until she’s willing to change her conscience about what belief is.
That is a lie. Kim Davis is in jail for contempt of court—not for her beliefs. Her attorney knows this, but her supporters do not. Gannam’s statement might not be legally accurate, but it is good publicity for Liberty Counsel’s fund appeal letters and e-mails.
Not only has Davis refused to perform the duties of her post, she also used her position to force assistant clerks to do the same.
Davis nailed herself onto the cross and is now the martyr she sought to be—but what she never understood was she was never working on her behalf behalf as country clerk. Davis is a public official doing the work of the government, an entity that should treat all citizens fairly. (It doesn’t, but it should.) She didn’t give out marriage licenses—the county did.
The marriage license was legally valid because the Country Clerk issued it, not because Kim Davis issued it. She could resign and issue licenses all day long from her home, but that wouldn’t make them legal. Kim Davis has no legal authority other than when acting as clerk. As this is the case, her personal religious views are utterly irrelevant. The County itself does not hold religious views, as religion and the state are separate entities. The county clerk is an office, not a person.
What Kim Davis is doing in issuing a license is merely saying two people are legally qualified to enter a marriage. She is not sanctioning the marriage. She is not saying she approves or disapproves of their choices. She is merely affirming they are legally qualified, nothing more. If she can’t execute the job she signed on for, then she shouldn’t have taken it to begin with.
Davis has only held her position for a few months. When she took office, it was already widely known that the Supreme Court would issue a ruling on marriage equality, with many expecting the verdict to be favorable, given the almost unanimous lower court rulings.
So, the “hazard“ of having to issue same-sex marriage licenses was one Kim Davis knew was a very real possibility when she took the position. Davis went into this with eyes wide open.
The County itself does not hold religious views, as religion and the state are separate entities. The county clerk is an office, not a person.
If Davis refuses to do the job she was elected to do, she should be impeached, which is the function of the Kentucky legislature. That the Republican-dominated legislature refuses to do so is a disservice to Davis and to constitutional government. Local officials don’t have the right to impose their religious beliefs on others.
Davis took this to court by her own actions. She lost. She appealed. She lost again. She appealed again. She still lost. Every step of the way the courts have told her she has no right to refuse to fulfill her governmental duty. She is now in contempt of court—and that is why she had to go to jail. It is her actions, not her beliefs, that landed her there.
James Peron is the president of the Moorfield Storey Institute, an independent think tank dedicated to equality of rights before the law, social tolerance, and civil liberties. He has written for numerous publications including the Wall Street Journal, Reason, and the Johannesburg Star. He is the author of Zimbabwe: Death of a Dream, as well as the novel City Limits and is currently working on a new book, The State Against Gays.
An earlier version of this article was featured on Huffington Post Gay Voices and reposted with permission.
Illustration by Max Fleishman