“Liberty Does Not Mean Taking Away Others’ Rights”: Kim Davis’ Beliefs Have Not Been Criminalized; Her Actions Have
Just after Kentucky county clerk Kim Davis was released from jail, she appeared at a raucous rally to thank a throng of cheering supporters.
Her stance on same-sex marriage has attracted the high-profile attention of other ultraconservative political figures, including GOP presidential candidates Ted Cruz, who attended the rally, and Mike Huckabee, who organized it.
They seem to believe that Davis has a constitutional right to discriminate against other citizens and to violate the laws of the land. Defending her on CNN, Huckabee said, “We have the first example of the criminalization of a Christian for believing the traditional definition of marriage. It is very, very shocking, to say the least.”
Though he mentioned such luminary historical figures as Jefferson and Lincoln, Huckabee has completely misunderstood the First Amendment and its protections. Davis’ beliefs have not been criminalized; her actions have been. She has every constitutional right to oppose same-sex marriage, to attend a church that denies those marriages, to organize opposition to marriage equality.
But she has no constitutional right to hold the office of Rowan County Clerk and deny marriage licenses to same-sex couples. Succeeding her mother, who held the office for 37 years, Davis was elected just last year. Still, she has a very easy solution at hand: If her religious views are so rigid, she can resign her office. (A handful of clerks have done that rather than give licenses to same-sex couples.) As a private citizen, she may freely practice her brand of Biblical fundamentalism.
It’s important to get that distinction right.
After the U.S. Supreme Court ruled in June that the government cannot deny marriage to homosexual couples, county clerks around the country were ordered to issue licenses to all couples who wanted the legal bonds of matrimony. A few refused initially, but most came to their senses.
Davis, however, chose to defy the specific order of U.S. District Court Judge David Bunning, and she was jailed for six days for contempt. She was released only after deputies in her office started to issue marriage licenses to “all legally eligible couples,” as the judge put it. He further ordered Davis not to interfere.
If she wants to continue as clerk, she should recognize the generous compromise that she’s been offered. She can continue her bluster and Biblical traditionalism on the speaking circuit if she chooses. But, as Rowan County Clerk, she represents the government. And the government may not discriminate. The First Amendment was adopted by the Founders to ensure that the government did not legitimize any particular set of religious beliefs over another.
Think of it this way: While marriage is often a religious ceremony, it is also a civil rite. Couples get married in city halls and before justices of the peace every day. Those ceremonies may not be offered to one group of citizens — heterosexuals — and withheld from another — homosexuals.
Churches, meanwhile, are free to follow their own theological traditions, which in this country are many and varied. There are churches that endorse, bless and perform same-sex marriages, while others are abhorred by the idea. That’s one example of the nation’s vibrant religious pluralism.
After the high court’s marriage ruling, conservative preachers around the country panicked, insisting that their beliefs were under attack, that they were being persecuted, that they would be ordered to perform marriage rites for homosexuals. Not gonna happen. For centuries, clerics have chosen to perform those ceremonies — baptisms, weddings, funerals — they believed appropriate. No law has ever challenged their decisions.
But the United States is a secular democracy, not a theocracy. We are committed to protecting religious liberty, but the nation cannot allow any group’s religious ideology to strip away another group’s human rights. Sometimes, those conflicting ideals require a delicate balance, as when Catholic hospitals are allowed to refuse to perform abortions — even when doing so jeopardizes a woman’s health.
But Davis’ intransigence requires no Solomonic decision making. She has no right to be Rowan County Clerk. If she won’t do the job, she needs to step aside.
By: Cynthia Tucker Haynes, Pulitzer Prize for Commentary in 2007; The National Memo, September 12, 2015
“Born Of Same Bigotry As Segregation”: Kim Davis Is Not A Christian Martyr; The Kentucky Court Clerk Deserves To Be In The Clink
There are going to be some people who celebrate scofflaw County Clerk Kim Davis sitting behind bars. Most of them are her allies. Not even the American Civil Liberties Union lawyers wanted to send poor Kim to the pokey—likely because they wanted to deny her (and her allies) the exact image they’ve now been granted: the long-faced Davis in handcuffs, dourly professing that she loves Jesus more than she does the law.
“Civil disobedience” is fine—but they don’t call it being a “civil servant” because the county courthouse is run by Christian Grey. She’s supposed to do her job, not decide what it is. But Davis, temperamentally, is obviously more of a top, anyway, and probably should have sought a job in line with her personality. Maybe at the DMV.
The only thing louder than Davis’s protestations is the jingle of the coins being dropped in all the various collection boxes that lay claim to some similar cause. In our curious hate-donating economy, Davis will undoubtedly receive some monetary reward for showmanship—whether it comes via GoFundMe or a book contract—but it will be a fraction of what’s raised by the political ambulance-chasers dutifully filing in behind her.
Already many of the GOP presidential candidates have weighed in, creating the curious spectacle of lawmakers pre-emptively breaking their oaths of office: How can you promise to “uphold the Constitution” if you have already admitted that it has a loophole big enough for Davis to fit through?
The judge who ordered Davis to be held in contempt, and the deputy clerks who started issuing marriage licenses, may be the only Republican left who realizes that Davis’s stunt is something besides a fundraising appeal. Or, rather, he seems to understand that Davis offers only the literal fundraising appeal to end all fundraising appeals. Follow her logic to its fiery end—the Bible as the ultimate legal authority—and there would be no political offices left to run for, just law enforcement positions.
There are regimes like that in the world; we’re fighting wars with a few of them.
Others have pointed out that Davis’s brand of Christianity is itself not too far removed from the sort of blinkered false-purity doctrine that rules radical Islam: the prohibition on makeup or clothes that come in anything besides a hazmat-suit cut. But if you want to understand just how antithetical to democracy Davis’s ideas are, don’t think about what her church doesn’t allow. Instead, imagine what kind of world would make Kim Davis happy.
Davis, after all, was not merely registering an objection to same-sex marriage, she is objecting to the notion of civil society, to “liberalism” not as a policy position but a modern ideal. In my understanding of liberal democracy, a Christian county clerk signing the marriage licenses of gay couples is to be celebrated—for the exact same reasons we celebrate the right of non-Muslims to draw Mohammed: The idea that any one person’s individual religious preference should end the instant it imposes on the rights of another. The true test of religious liberty isn’t whether or not you can practice your own, but if your society has room for yours and a few others.
To judge by her written statements, I am not not much over-worried that Davis’s turn in a jail cell will produce anything besides more vague boilerplate religious freedom stew. In response to questions from Think Progress, fellow members of her denomination couldn’t even identify the precise theological dogma they were sure she was trying to defend: Apostolic Christianity, a lay leader explained, “does not have lengthy, codified statements on marriage, divorce, or homosexuality. Instead, he said, members usually look to one document for answers…The King James Bible.”
The sect’s aversion to reasoned argument means we will probably not be treated to Davis’s own “Letter from an Ashland Jail,” which is just as well, since neither she nor her movement would benefit from a direct comparison to Martin Luther King’s pointed yet lyrical rejoinder to the clergymen who objected to his civil disobedience, both as a tactic and with its target.
King justified the Birmingham business boycott that led to his imprisonment (he and others defied a court injunction against the protest) with a list of humiliations suffered by black men and women in the South—and it does not include anything remotely like “being forced to sign a piece of paper.”
Rather, it includes the kind of bodily harms—and quotidian insults—that reverberate for both people of color and those in the LGBT community today. Indeed, King presciently articulates exactly why obtaining the same marriage license granted to opposite-sex couples matters, because without the complete protection of equality under the law, those discriminated against are “living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments.” They are, King writes, “forever fighting a degenerating sense of ‘nobodiness.’”
One of the members of the couple to whom Davis denied a marriage license put it in only slightly less poetic terms: “When you’re gay and you grow up in Kentucky, you kind of get used to hiding who you are, accommodating other people and making them feel comfortable. You don’t realize how much of your own dignity you’ve given away. It catches up to you.”
King pleaded with the other men of faith to come around to his cause: “Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.” Davis, it must be noted, is in jail precisely because she believes in monologue. Her belief that she should not be forced to interact with those she disagrees with is born of the same bigotry as segregation—even if on the surface it looks like the most banal interactions: paperwork.
That she could interpret the presence of her signature on a marriage certificate as evidence of her own sin isn’t a testament to the strength of her convictions, but to the height of her arrogance.
By: Ana Marie Cox, The Daily Beast, September 4, 2015
“It’s Time To Leave Home”: There Is Nowhere You Can Go And Only Be With People Who Are Like You; It’s Over, Give It Up
When I think about the problem of big money in politics and the challenges we face to citizen engagement, I am reminded of a prophetic speech Bernice Johnson Reagon (founder of “Sweet Honey in the Rock” – featured below) gave in 1981 titled: Coalition Politics: Turning the Century. She begins by summarizing the impact technology has had on our social constructs:
We’ve pretty much come to the end of a time when you can have a space that is “yours only”—just for the people you want to be there…To a large extent it’s because we have just finished with that kind of isolating. There is no hiding place. There is nowhere you can go and only be with people who are like you. It’s over. Give it up.
David Simon captured how the re-election of Barack Obama sealed this change when he talked about the death of normal.
America will soon belong to the men and women — white and black and Latino and Asian, Christian and Jew and Muslim and atheist, gay and straight — who can walk into a room and accept with real comfort the sensation that they are in a world of certain difference, that there are no real majorities, only pluralities and coalitions. The America in which it was otherwise is dying…
What makes Reagon’s words so prophetic is that she talked about what our reaction would likely be to this reality. We are seeing it play out today in the tension between the supporters of Bernie Sanders and the Black Lives Matter movement. She warned that it would lead us to retreat to spaces she called “home.”
Now every once in awhile there is a need for people to try to clean out corners and bar the doors and check everybody who comes in the door, and check what they carry in and say, “Humph, inside this place the only thing we are going to deal with is X or Y or Z.” And so only the X’s or Y’s or Z’s get to come in…
But that space while it lasts should be a nurturing space where you sift out what people are saying about you and decide who you really are. And you take the time to try to construct within yourself and within your community who you would be if you were running society. In fact, in that little barred room where you check everybody at the door, you act out community. You pretend that your room is a world.
She said that there are dangers associated with pretending “that your room is a world.”
I mean it’s nurturing, but it is also nationalism. At a certain stage nationalism is crucial to a people if you are going to ever impact as a group in your own interest. Nationalism at another point becomes reactionary because it is totally inadequate for surviving in the world with many peoples.
In order to survive in this world with many peoples, we have to learn how to build coalitions.
Coalition work is not work done in your home. Coalition work has to be done in the streets. And it is some of the most dangerous work you can do. And you shouldn’t look for comfort. Some people will come to a coalition and they rate the success of the coalition on whether or not they feel good when they get there. They’re not looking for a coalition; they’re looking for a home! They’re looking for a bottle with some milk in it and a nipple, which does not happen in a coalition. You don’t get a lot of food in a coalition. You don’t get fed a lot in a coalition. In a coalition you have to give, and it is different from your home. You can’t stay there all the time. You go to the coalition for a few hours and then you go back and take your bottle wherever it is, and then you go back and coalesce some more.
It is very important not to confuse them—home and coalition.
She says that forming coalitions is a matter of life and death.
It must become necessary for all of us to feel that this is our world…And watch that “ours’ make it as big as you can—it ain’t got nothing to do with that barred room. The “our” must include everybody you have to include in order for you to survive. You must be sure you understand that you ain’t gonna be able to have an “our” that don’t include Bernice Johnson Reagon, cause I don’t plan to go nowhere! That’s why we have to have coalitions. Cause I ain’t gonna let you live unless you let me live. Now there’s danger in that, but there’s also the possibility that we can both live—if you can stand it.
The tensions we’re currently seeing in our politics are a direct result of people looking for a home and being fearful of a coalition. Too many of us are simply seeking out the comfort of those who are like us and/or agree with us. As a weigh station to nurture ourselves, there is value in that. But in the end, we have to leave home and face the world as it really is.
This is exactly the message President Obama gave to the young graduates of Morehouse in 2013.
As Morehouse Men, many of you know what it’s like to be an outsider; know what it’s like to be marginalized; know what it’s like to feel the sting of discrimination. And that’s an experience that a lot of Americans share…
So it’s up to you to widen your circle of concern — to care about justice for everybody, white, black and brown. Everybody. Not just in your own community, but also across this country and around the world. To make sure everyone has a voice, and everybody gets a seat at the table…
President Obama’s rhetoric about this is often uplifting and visionary. That is as it should be. But Reagon got down to the nitty gritty in her speech about what this actually means for all of us. Anyone thinking it’s about some kind of kumbaya moment is very mistaken.
There is an offensive movement that started in this country in the 60’s that is continuing. The reason we are stumbling is that we are at the point where in order to take the next step we’ve got to do it with some folk we don’t care too much about. And we got to vomit over that for a little while. We must just keep going.
In other words, its time to leave home, vomit for a little while about that, and get busy dealing with the world as it is rather than as we want it to be. In the end, its about survival…”Cause I ain’t gonna let you live unless you let me live. Now there’s danger in that, but there’s also the possibility that we can both live—if you can stand it.”
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, August 16, 2015
“A Cinder In The Public Eye”: Clarence Thomas Says Black NBA Players Give SCOTUS A Reason To Gut Anti-Discrimination Law
On Thursday, the Supreme Court saved a key interpretation of the Fair Housing Act—a historic 1968 law that prevents discrimination in the housing market—by ruling in a 5-4 decision that a complaint does not have to prove a policy was overtly or intentionally discriminatory to be valid. It upheld the “disparate impact” standard, which allows complainants to show a policy led to unequal results, no matter the original intention.
Conservative Justice Clarence Thomas dissented from the decision, penned by Justice Anthony Kennedy. He argued that “disparate-impact doctrine defies not only the statutory text, but reality itself.” To make his case, Thomas pointed out that minorities sometimes do quite well. His examples: The Jews in Poland and, in America, the success of black professional basketball players.
Racial imbalances do not always disfavor minorities. At various times in history, “racial or ethnic minorities . . . have owned or directed more than half of whole industries in particular nations.” These minorities “have included the Chinese in Malaysia, the Lebanese in West Africa, Greeks in the Ottoman Empire, Britons in Argentina, Belgians in Russia, Jews in Poland, and Spaniards in Chile—among many others.” “In the seventeenth century Ottoman Empire,” this phenomenon was seen in the palace itself, where the “medical staff consisted of 41 Jews and 21 Muslims.” And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black. To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence.” [Legal citations omitted].
Thomas continues:
And if that “racial balancing” is achieved through disparate-impact claims limited to only some groups—if, for instance, white basketball players cannot bring disparate-impact suits— then we as a Court have constructed a scheme that parcels out legal privileges to individuals on the basis of skin color.”
Sports was a popular example for the dissenting justices. Justice Sam Alito, who wrote a separate dissent, cited the NFL to make a slightly different point:
Of the 32 college players selected by National Football League (NFL) teams in the first round of the 2015 draft, it appears that the overwhelming majority were members of racial minorities […] Teams presumably chose the players they think are most likely to help them win games. Would anyone say the NFL teams made draft slots unavailable to white players “because of ” their race?
This is the same court that crippled civil rights legislation two years ago by striking down a key provision of the Voting Rights Act.
By: Rebecca Leber, The New Republic, June 25, 2015
“It Isn’t Rhetorical Or Hypothetical Anymore”: North Carolina’s Magistrates Now Can Legally Ignore Marriage Laws
Sometimes, in the course of writing columns about “religious freedom” laws like the one Gov. Mike Pence tried to pass in Indiana, I’ve mused about what would have happened if such laws had been in effect in 1967, back when the Supreme Court decided Loving v. Virginia. It was in Loving—decided 48 years ago today—that the court ruled it unconstitutional for states to prevent mixed-race marriages. I asked my question rhetorically, hypothetically, to try to highlight the absurdity of states where same-sex marriage is the law also passing laws to permit certain citizens to flout that law.
In North Carolina, it isn’t rhetorical or hypothetical anymore.
On Thursday, the state’s general assembly overrode an earlier gubernatorial veto of Senate Bill 2, meaning that civil magistrates can now refuse to perform not only same-sex marriages if they say that doing so violates their religious beliefs, but any union of which they disapprove on religious grounds.
The vote happened first thing in the morning. “They gaveled us right to order, and they didn’t allow any time for debate,” says assembly member Mary Price “Pricey” Harrison, Democrat of Greensboro. In North Carolina, an override is achieved with three-fifths of present and voting members. SB2 had originally passed the assembly by 67-43, which is 61 percent. Thursday’s vote was 69-4, or 62.7 percent. Harrison told me that some Republicans who might have voted against the bill weren’t present, and that a few members were off at their children’s high-school graduations.
Here’s the background. The state started out with a broad religious-freedom restoration bill of the sort becoming law in more conservative states. There was an outcry; after some wrangling, legislators settled on this bill, limited to magistrates. So this is a “compromise” bill. Remember that North Carolina’s legislature and its governor, Pat McCrory, are about as right-wing as any in the country—all those “Moral Monday” protests have come in response to radical actions the governor and legislature have taken on education, voting rights, the environment, and other matters.
So when legislators walked away from the broader religious-freedom act, they settled on SB2. Some compromise. “The legislation is in some ways even worse than Indiana’s,” Christopher Sgro, the executive director of Equality North Carolina, told me. “These are taxpayer-funded government employees.”
The law is really aimed at same-sexers, but of course legislators knew that they couldn’t single gay people out by name or category, because that would have been too obviously discriminatory. The only way to get around this was to write it more broadly, so the law says: “Every magistrate has the right to recuse from performing all lawful marriages under this Chapter based on sincerely held religious objection.”
Read that again. Recuse from “lawful marriages.” In other words, disobey the law. So, magistrates who still think the races shouldn’t mix can now take that brave stand with the weight of the law behind them. What about a Southern Baptist marrying a Jew? OK, it’s probably a stretch to think anyone would object to that. But what about a Southern Baptist marrying a Muslim? A Muslim marrying an atheist? A citizen marrying a non-citizen in what appears to the magistrate to be mostly a matter of helping the noncitizen gain permanent resident status? As a practical matter, experts think recusals will likely be limited to same-sex marriages, not that that makes this any better, but we’re about to find out what’s theoretical and what’s not.
This is shocking stuff. It’s pretty much at the level of George Wallace defying integration, albeit without the pulse-quickening, schoolhouse-door histrionics. Except this is arguably more extreme because here, North Carolina isn’t defying Washington, but itself. The state passed a ban on same-sex marriage back in 1996 and amended the state constitution in 2011 to emphasize the point. But then, a mostly religious coalition of North Carolinians brought suit, and last year a federal judge seated in North Carolina ruled the state’s ban unconstitutional. The governor, extremist though he is, knew enough law not to fight it, and indeed knew enough law to veto the magistrates’ bill when it came before him.
But now the legislature has spoken, or re-spoken, and overridden him. “It’s unconstitutional, and we all know it’s unconstitutional, and a court is going to throw it out,” Pricey Harrison told me. “It’s a heck of a way to run a legislature.”
The point needs making: Laws like this magistrates’ law and those Pence-style religious-freedom laws have turned the original intention of the federal Religious Freedom Restoration Act of 1993 completely on its head. That law was meant to protect the religious rights of minorities. It emanated from a lawsuit brought by two Native American men who took peyote, they claimed, as a religious rite. The Supreme Court backed them, and then President Clinton signed the RFRA. Protecting minorities from the tyranny of the majority has a long history in this country, back to the famous Federalist No. 10, and in fact the concept goes back to ancient Greece. But now, the majority (or near-majority, depending on which poll you believe) in North Carolina that opposes same-sex marriage can bully the minority.
Now, imagine if these religious-conscience laws had existed in 1967. How long would it have taken for interracial marriage to become the accepted norm in the South? As it happens, we have a partial answer to this question in the form of a story that emanates, again, from North Carolina. In 1976, Carol Ann and Thomas Person, she white and he black, walked into their local courthouse to get their marriage license. As she recently told the story in a column in the Raleigh News & Observer, the magistrate said no. A second magistrate on duty said the same thing, and one of them “took out a Bible and began to lecture us about their religious views and why Thomas and I should not be together.” This was nearly a full decade after Loving.
A court ruled against those two magistrates, and the Persons were soon married. Presumably, a court will toss this magistrates’ law, too. But who’ll be denied a license in the meantime? And what constitutes religious freedom, and what is simply bigotry?
By: Michael Tomasky, The Daily Beast, June 12, 2015
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