Kim Davis Should Resign

            I have a lot of respect for people who have the courage of their convictions.  Gandhi and Martin Luther King, Jr. are personal heroes, as are a number of ancient Jewish sages who were tortured and executed for refusing Roman commands not to teach the Torah.  In all of these cases, my heroes preferred incarceration, torture or death rather than to comply with commands in violation of deeply held ethical or religious beliefs.

            But I have no patience for people like Kim Davis, the Rowan County, Kentucky clerk who has refused to issue marriage licenses to same-sex couples.  She has insisted that requiring her to issue the license would violate her faith as an Apostolic Christian.  Davis thinks that her faith gives her the right to refuse to perform the parts of her job she finds distasteful, despite the rulings of the Supreme Court and the U.S. District Court.

            U.S. District Judge David L. Bunning was having none of it.  Not only did he hold Davis in contempt of his order to follow the Supreme Court’s ruling on same-sex marriage, but instead of imposing a fine, he sent her to jail.  In opting for jail time instead of a fine, Bunning noted that Davis’s supporters could easily raise the funds to pay whatever fine he imposed, thwarting the will of the court.

            According ABC News, Davis’s supporters were “stunned by this development.”  Said Mat Staver, head of the organization that has taken on Davis’s defense, “Kim Davis is being treated as a criminal because she cannot violate her conscience."

            No, she isn't.

            I draw a sharp distinction between Davis and King.  King acted as a private individual and not as a government official.   Though he considered the laws he violated to be unjust, he acknowledged the power of the state to punish him for his refusal to comply.  He did not complain about being taken off to jail.

            But Davis is complaining.  Unlike King, she doesn’t acknowledge the power of the government in this matter. 

            Davis is arguing that she is not obliged to carry out the official obligations of her office because of private scruples.  But that argument, in effect, converts her elected office into private property.  According to Stayer “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.”  Her argument really is that having been elected, the office belongs to her, and that it is up to her to decide whether and to what extent she will follow the law.

            This is a remarkable assertion reminiscent of the Confederacy’s theory that states had the power to “nullify” federal laws they found to be objectionable.  Whatever the merits of that argument were in 1860, it was settled conclusively by the Civil War.  The Constitution, as interpreted by the Supreme Court is the supreme law of the land and no one, most particularly a public official, has the right to ignore it for any reason.

            Bobby Jindal, governor of Louisiana, Mike Huckabee, former governor of Arkansas, and Senator Ted Cruz (R. TX), all of whom are candidates for the Republican presidential nomination, have sided with Davis.  For Jindal, nobody “should be forced to choose between following their conscience and religious beliefs and giving up their job and facing financial sanctions.” For Huckabee, Bunning’s order amounts to a “criminalization of Christianity.”  For Cruz, Bunning’s ruling was “judicial lawlessness” that “crossed into judicial tyranny.”  He condemned the ruling for being “the first time ever, [that] the government arrested a Christian woman for living according to her faith. This is wrong.  This is not America.”    

            These three candidates should be ashamed of themselves.  And that goes double for Ted Cruz who once served as a clerk for former Chief Justice William H. Rehnquist and should know better.  They are pandering to the same demographic of aggrieved "real Americans” that Donald Trump has all but won.

            Though Trump has come out against Davis, he ought to beware of the monster he’s effectively awakened from its slumber.  When it realizes that Trump is not the true nativist for which they’ve been searching, it will turn on him.

            The issue isn’t freedom of religion or freedom of conscience.  It is, instead, the rule of law, a favorite conservative theme.   As conservatives are fond of pointing out with respect to President Obama, we simply cannot have a government in which its officials get to pick and choose which laws they will follow.  Allowing Ms. Davis and her deputies to “opt out” of complying with a clear ruling of both the Supreme Court and a direct order by the federal district court makes a mockery of our constitutional rights and a sham of American democracy.

            Workers in this country are paid to do certain jobs, and if they have reasons for not wanting to do the jobs they have been hired to perform, they should not have been hired in the first place.  Though employers must make reasonable accommodations for their employees religious beliefs, we don’t expect employers to stop offering certain services simply because one or more of their employees object to delivering them.

            Ms. Davis is a public official, though, and cannot be fired.  As the Boston Globe notes, she can only be removed from office through impeachment or indictment, both of which are not likely in this conservative state.

            The correct and honorable thing for Davis to do is to accept that the Supreme Court has declared that same-sex couples are constitutionally entitled to marry, and that as county clerk, it is her responsibility to issue marriage licenses to them in accordance with state law.  If she believes that it would violate her faith to permit documents bearing her name to be issued to same-sex couples seeking to marry, she should simply admit to herself that her job is inconsistent with her faith and resign.  She retains full rights to believe what she wants and to seek to overturn the Supreme Court's ruling through the Constitutional amendment process--as a private citizen.

            Davis is not a civil rights icon.  She is not a martyr.  She is not entitled to admiration.  She is simply exhibiting a lazy ethnic entitlement mentality that has become inappropriate in the context of America’s diversity.  She wants to have it both ways.  For that, she is entitled to scorn.