Rowan County, Kentucky, Clerk of Court Kim Davis is again free, released from the confinement to which she was ordered after violating an order by a federal judge to begin issuing marriage licenses to same-sex couples.
The case has polarized the nation. Some argue that Davis is simply exercising the right to religious freedom guaranteed her by the First and 14th Amendments to the Constitution since, as a Christian, she believes same-sex marriage to be a violation of laws made by a higher power.
Others argue she is supposed to set her personal views aside, that she is obliged, as an officer of the court and an elected official, to serve those she represents equally and fairly without exception or exemption.
GALLERY: [Editorial Cartoons on Gay Marriage]
She’s out because the pressure being applied to the system from both sides was so severe that the status quo could not survive. The resolution, such that it is, allows her to be freed from jail, to resume her post, and to not be required to issue marriage licenses to same-sex couples as long as she does not interfere with her subordinates when they do.
So far, so good — except nothing of real import is resolved. Do Davis’ actions qualify as civil disobedience? Do people have the right, constitutionally, to resist court orders if they are willing to suffer the consequences of that resistance? Can the federal government really tell states what to do when the desired outcome is, as in the case of Kentucky, in direct conflict with the state constitution?
These are just some of the questions that have been left unanswered. Make no mistake — there are people on both sides of each argument who are certain they have been answered, but they are just not listening. The arguments for and against, while grounded in principle, are not as black and white as some people like to believe they are — which is further proof that the Supreme Court’s ruling in Obergefell v. Hodges leaves much to be desired. “Love wins” may be a convenient slogan but it is not constitutional doctrine.
Davis has a right to her religious beliefs and to the free exercise thereof. It’s in the Constitution as a right guaranteed to citizens of the United States and, because of the 14th Amendment, to the people of the states individually. Her beliefs, however, are in conflict with what the highest court in the land apparently said in the Obergefell decision. What then is she to do? Resist? Resign? Or subvert her beliefs to the law and the interests of the community as a whole?
READ: [Kim Davis and the Fraught History of Conservative Civil Disobedience]
It is easy to say she must follow the law; again, that she is obligated to as a matter of her oath of office. Remember though, the federal court decision is in direct conflict with the black letter law that is the constitution of the commonwealth. To whom does Davis owe her fealty when there is a conflict? Obviously the federal government, the exponents of federal power, the federal judiciary — and in this particular case the media — would say without reservation it is to the Supreme Court and its decision.
That’s fine as far as it goes but what does that mean for the next Dred Scott decision or Plessy vs. Ferguson — which made “separate but equal” a constitutional guarantee?
As Hannah Arendt and others have written extensively, it is the “banality of evil” among the ordinary people, those who make a habit of following orders from above, that allows horrific events to occur. America is built on concepts like freedom of thought and liberty of action, not blind obedience. None of this is to say that Davis was right and it was wrong of the judge to order her held in contempt; regular rules of order are necessary for society to function. However it is not so easy to say that Davis was wrong, at least not as easy as some people seem to suggest it is. The questions her incarceration raised deserve further exploration.
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Kim Davis Is Out of Jail, But the Gay Marriage Debate Isn’t Over originally appeared on usnews.com
