A Brief Word About Rowan County and Marriage Equality

The author, Matt McDaniel, is a candidate for the First District seat on the Baltimore City Council. The views expressed in this article are not made in furtherance of the campaign or about an issue related to Baltimore City or the First District. More information about Mr. McDaniel’s campaign can be found here.

Rowan County, Kentucky, Clerk Kim Davis, an elected official, was held in contempt this week by Federal Judge David Bunning for failing to issue marriage licenses to same-sex couples. This issue was settled, nationally, by the case Obergefell v. Hodges in June of this year, when the Supreme Court of the United States declared that persons of the same-sex had the fundamental right to marry.

Ms. Davis claims that her Apostolic Christian faith prevents her from complying with the Court’s Opinion. Ms. Davis directed her staff not to issue marriage licenses to persons of the same sex. When the Supreme Court denied Ms. Davis’ application for an emergency stay of an Order directing her to comply with the law, she continued to defy the Courts, and declined to issue marriage licenses. Consequently, she was found in contempt and incarcerated.

The first thing that becomes immediately clear in this matter is that, contrary to the debates on cable news, this is not a case about the free exercise of religion. Ms. Davis is an elected official tasked with the oversight of clerical operations in her county. It is wholly improper for Ms. Davis to impose her subjective views on the state action that she is performing. There are a host of comparisons to make, but making them only muddies the water on the fact that Ms. Davis is completely in the wrong, regardless of her faith tradition.

This leads to the point that Judge Bunning’s jailing Ms. Davis has nothing to do with her faith and everything to do with her publicly challenging the rule of law by engaging in targeted discrimination against same-sex couples. As a state actor, Ms. Davis’ behavior, and apparent bigotry, is magnified beyond her beliefs. Her discriminatory behavior is being done under the guise of the State of Kentucky, not just simple citizen Kim Davis. Judge Bunning would have made the same ruling if Ms. Davis were Jewish, Muslim, or an Atheist. Using the power of the state to enforce subjective views of morality, regardless of what those views are, is patently unconstitutional.

“But, why can’t gays and lesbians just go someplace else?” Comes the refrain from Ms. Davis’ supporters. They should not need to. Ms. Davis is an elected official who must obey the law. Any person, regardless of their sexual orientation or any other characteristic, should not have to “go somewhere else” because a state actor refuses to follow the law.

“But what about her religious freedom?” Is another concern. There is nothing that is preventing Ms. Davis from being a Christian, or being part of any other faith community. She is not a Rabbi who refused to serve pork at an event. She is not a Priest who refused to marry a couple who weren’t Catholics. Rather, she is an elected official who consciously decided not to follow the law and fell back on her religion as the reason.

“So, Kim Davis is just like Thomas More… or Rosa Parks?” No. Both analogies are incorrect. St. Thomas More resigned as the Chancellor of England when it became clear he could not do his duty and remain faithful to his religion. More was then hounded in his private life to violate his conscience and sign the Succession to the Crown Act of 1534. When he refused, More was arrested and the Crown brought charges against him involving alleged bribery and treason. More was executed. If Ms. Davis had resigned, and then the FBI had forced her to sign a pledge denying the truth of her religion, then the More parallel could work. That’s not the case here. As to the Rosa Parks analogy that seems to have permeated the internet, such an analogy is misplaced. Rosa Parks did not want to prevent white passengers from riding buses, nor was Ms. Parks a public official doing her public duty. Rather, Ms. Parks was engaging in civil disobedience to promote equality.

A distressing development in this case, and my reason for writing, came when Presidential candidates decided to weigh in on the issue. From a legal perspective, the “case” is fairly clear cut: Ms. Davis was discriminating against a group of people and flagrantly defying the Supreme Court. Using this as an attempted flashpoint for a claim that religious liberty is under attack is completely disingenuous and is meant as an attempt to use a situation for political gain. There is no attack on religious liberty or free expression in this matter. Conflating some controversy where none exists only further polarizes the country.

Failure to accept and promote the rights of gays and lesbians has been a huge failing of the Republican Party for decades. History will record who stood on the side of equality and who did not.

Matt McDaniel

Attorney and Political Commentator

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