Friday, September 4, 2015

Latest in religious liberty martyr. Even Scalia says she should issue the licenses or resign the job.

 U. S. District Court Judge David Bunning sentenced County Clerk Kim Davis to indefinite detention in jail for refusing multiple orders to carry out her duties to issue marriage licenses to same-sex couples.    His original August 12 order applied only to those couples who had sued Davis.   Yesterday, Judge Bunning extended the order to cover "other individuals who are legally eligible to marry in Kentucky."
                                                                                                                              Photo by Associated Press
Saying that "The court cannot condone the willful disobedience of its lawfully issued order," Judge Bunning pointed out that Ms. Davis took an oath. . . .  I myself have genuinely held religious beliefs . . . but I took an oath" to uphold the law, he said.

In the same court hearing on Thursday morning, Bunning -- a George W. Bush appointee -- also polled the six deputy clerks.   Except for one who is Ms. Davis' son, the other five said they are willing to issue the licenses.  However, Ms. Davis made a statement through her lawyer that she would not allow the licenses to be issued under her authority.

The political furor over this case has already started.  Rand Paul called it “absurd to put someone in jail for exercising their religious liberties.”  Mike Huckabee said Davis' jailing “removes all doubt of the criminalization of Christianity in our country.”

One of Davis' lawyers, Roger Gannam, said “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 that belief is. . . .  This is unprecedented in American law.”

Despite the hysteria and demagoguery, let's remember that the court is not trying to force her to change her "belief of conscience."   It is demanding that she obey a court order -- or get out of the way so others can carry out the order.   That's all.

Supreme Court Justice Antonin Scalia has not publicly commented on the Davis case.    But he wrote this in 2002 about what a judge who believes the death penalty to be immoral should do:
[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty” and if that fails, lead a revolution. But rewrite the laws he cannot do.
The principle seems the same, true;  but the example, for me, really strains the application.   Is he talking about a trial judge?   How often, anyway, is it the judge who decides on the death penalty and not the jury?   Or is he talking about a panel of appeals court judges or even SCOTUS?

Frankly, I think Scalia is a bit off base here.  But that's another argument for another time.   For now, I'm just going to take his reasoning as an argument that Ms. Davis should either comply or resign.


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