A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.
First, a summary of the situation as of mid-afternoon today. Then, some questions.
Out of jail, but perhaps not for long. Kim Davis, the elected county clerk in Kentucky who refuses to issue marriage licenses to same sex couples — she says her religion forbids it — is out of jail, at least temporarily. Federal Judge David Bunning released her and gave her an order (PDF):
Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples. If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered.
She’s apparently learned nothing from her stay in the quod. According to Talking Points Memo:
A CNN journalist at the jail reported that according to her attorneys, Davis “has not changed her mind” and intends to bring the licensing process to a halt all over again when she’s back on the job.
That, as the New York Times reports, could get her tossed back in the slammer right quick.
She’s an elected official, so she can’t be fired. Only through impeachment by the legislature can she be removed from office. Even if Kentucky’s governor called Kentucky’s legislature into session to impeach her, that might not happen. In fact, that legislature’s so far right that it might give her a medal for defying a federal court.
This could go on for a while.
I recommend Marty Lederman’s expert legal analysis at the Balkinization blog, Michael Dorf’s analysis at Dorf on Law, and Josh Marshall’s essay at Talking Points Memo.
Could this happen in Montana? I don’t know, but I suspect it could. Marriage licenses are issued by the county clerks of court (MCA 40-1-202). As far as I know, Montana’s clerks of court are issuing licenses to same sex couples. But were a clerk not to issue a license to same sex couples, citing religious objections to same sex marriage, it seems to me that the situation could devolve into a Kentucky-like farce rather quickly.
In fact, that almost happened in Yellowstone County last year, although the circumstances were not similar to Davis's predicament. In Yellowstone, the issue was whether state and federal law required the clerk of court to make accommodations for employees of the clerk who cited religious objections to issuing marriage licenses for same sex couples.
These pleas of “God told me not to do these things, so I’m not required to do my job — in fact, if you force me to do my job, you’re depriving me of my religious rights,” are special pleadings that assert a right to exempt oneself from civil law on the basis of personal religious beliefs. If honored, those pleas dissolve the glue of law that holds together civil society.
When elected policy makers — legislators — refuse to discharge their duties (almost never), or discharge their duties incompetently, the government usually still functions (the exception is when zealots refuse to fund the government). But when elected administrators refuse to discharge their duties, citizens are deprived of their rights. That’s what distinguishes Kim Davis’ case from a legislator’s refusal to vote on legislation or show up for work.
Elected officials are not easily removed from office, and rightly so. The will of the voters must be honored in all but the most exceptional cases. Throwing the bums out at the next election is the best way of dealing with legislators who refuse to work. Otherwise, extraordinary, and extraordinarily difficult, remedies such as impeachment and conviction must be employed. One rogue legislator, however, usually does little harm.
But one rogue elected administrator can do great harm. That’s why I favor hiring instead of electing non-policy making administrators. Hired administrators can be selected for their professional qualifications, and fired when their job performance becomes unacceptable.
If Kim Davis had been hired instead of elected, most likely neither she nor Kentucky would be in the news right now. And if she would pray a little harder, she might hear God telling to obey Judge Bunning’s order.