Kim Davis and clerical nullification

By Jim Downard

The punditry lines have quickly and inevitably drawn on the case of Kim Davis, the elected Kentucky state clerk who stopped issuing marriage licenses to avoid giving any to same-sex couples, on the grounds that to do so violated her religious convictions. Secularists and liberals and constitutionally savvy conservatives have coalesced on one side, Kulturkampf conservative religious advocates gathering on the other. Her actions have earned her a contempt citation by a Federal judge (appointed by President Bush) and a visit to jail after she refused to budge.

Who cannot give her a nod for steadfastness of conviction?

Unfortunately, there are fundamental questions swirling around this affair that should be most troubling for anyone favoring the rule of constitutional law in a pluralist society. To what extent is an elected official obliged to carry out the law, regardless of their personal convictions (religious or secular)? If they feel in good conscience unable to do so, what legal or moral recourse should they have, and what consequences should they face if they flout their responsibilities?

When confronted with a job or law one cannot perform in good conscience, an obvious option is to resign. William Jennings Bryan did that as Secretary of State 100 years ago, when he could no longer hold to President Wilson’s increasingly bellicose policy with Germany.

But forgoing the paycheck seems not on Davis’ option list. She wanted to remain in her post but do none of the work, preempting obligations and duties based on her ideals, even after SCOTUS pulled the legal rug from under the feet.

So who all gets to play this game of clerical nullification? Are only people with religious faith granted this lofty privilege to write their own rules and regulation on the fly, or can secular folk refuse to issue licenses to people they think shouldn’t be tying the knot (some of the Duggar clan comes to mind)?

Even if only religious believers are permitted this ability — and what could possibly go wrong on that (cue the 17th century religious wars the Founding Fathers were so anxious to avoid) — I suspect Davis has not thought much about the implications of her actions as precedent, spiraling possibly around an ideology where only her convictions matter.

Would she agree that, if what she wants to be allowed to do is held OK, a religious person of other persuasion could just as easily refuse to grant marriage licenses to divorced people (the Bible having some things to say on that, after all)?

Many examples come to hand here: Ronald Reagan going after that second spouse Nancy Davis after jettisoning Jane Wyman. Or another Davis, Kim herself, currently on marriage number four (though that last did arise before her more recent religious conversion).

There are also people, I imagine, who still haven’t quite got over the idea of interracial couples, too (which was likewise forbidden in many states into the 1960s until struck down as unconstitutional by those pesky courts). Or don’t they get to play?

Hypocrisy and chutzpa often compete for priority as eye motes.

Maybe we should just stick with the idea that, once the dust has settled and judicial rulings come down on matters of controversial law and their application, we have a thing called Rule of Law, the means by which we have built (not without struggle and travail) a society that strives for all to live by their own conscience, but which does not include the ability to superimpose your own personal conscience on others just because you have hold of the notary stamp.