Wednesday, September 9, 2015

Conscience and the Clerk

The curious case of Kim Davis, the Rowan County, Kentucky clerk who refused to issue marriage licenses to gay couples raises the issue of how we should view people who claim something about their religion should trump some obligations of their jobs. 

Ms. Davis, who reportedly has been married four times, apparently hears the voice of God telling her gay marriage is BAD. Presumably, God has said nothing to her about divorce or serial marriages being BAD, but gay marriage is BAD. One might conclude Ms. Davis is awfully fond of marriage, given her frequent embrace of it, but some marriages just go too far for her.

  She was elected County Clerk, so she cannot be fired, but she can be jailed for contempt of court. Contempt of court, as I understand it, does not actually mean you disrespect a judge or have acted contemptuously; it means you have thwarted the will and function of a judge thereby preventing justice from being done. I'm not sure if the clerk thwarted the Supreme Court or some lower court, but off she went to jail.  It is not clear whether she was handcuffed, but there are photos of handcuffed wrists attached to newspaper stories about her. 

So, two issues:  1. How should government respond when someone refuses to carry out the responsibilities of a job which her bosses or the public expects her to execute?  2. Why are individuals who are clearly neither flight risks nor dangerous handcuffed? Was she strip searched in jail to be sure she was not hiding a dangerous weapon in her vagina with which she might harm her jailers or other prisoners?

With respect to the appropriate response to willful refusal to do some part of the job:  If a pharmacist who is a corporate employee says he will not sell Plan B to a woman because his religion tells him abortion is murder,  and he believes Plan B to be an abortafacient, we may agree that he might justifiably be fired for failing to fulfill his responsibilities and duties, and if the corporation does not fire him, we might agree action might  be taken against the corporation for allowing him to impose his beliefs on others.  But suppose the corporation simply does not stock Plan B?  Should we consider the reasons for this decision? Suppose the corporation says it is simply not in its financial interest, its business plan or its corporate mission to sell this drug and it reserves the right to make this judgment just as it did when it decided to not stock tobacco products?  Suppose the corporation says it decided not not stock Plan B because it considers abortion murder?

The Supreme Court has said the owners of a restaurant chain do not have to pay for health insurance which includes abortion or birth control coverage because they have said this would violate their religious beliefs. So one might conclude, the Supreme Court would allow the corporation to not stock Plan B and the corporation and the pharmacist are simply exercising their first amendment rights.

But a county clerk is a public official. If she is allowed to say she won't issue marriage licenses because it violates her religious beliefs, what about the Lester Maddox redux who says it violates his religious beliefs to allow black children to go to school with white children, to allow blacks to use the same toilets, swimming pools or hotel beds as whites?  

If the clerk is an elected official, she may claim she is defending not just her personal beliefs but she is defending the beliefs of the electorate and if they disagree, well then they can vote to remove/impeach. 

NPR carried a story today about a group suing a Massachusetts  government agency which regulates adoptions and has forbidden prospective parents from adopting if they answer affirmatively  the question: "Do you believe corporal punishment is appropriate to discipline children?"  These parents assert the Bible endorses corporal punishment for the disciplining of children and this regulation violates their civil rights to be free from government regulating religion. 
Not knowing much about the Bible, I Googled and learned, there is something in the Bible for everyone and everything:

Prov 13.24: "He that spareth his rod hate his son: but he tha loveth him chasteneth him betimes diligently."

And here I thought I had lovethed my sons. All of which goes to show, when you hear the word of God, it is a fine and mysterious thing and maybe that's why we need a Constitution.

Doctors have long been able to refuse to learn how to perform abortions , but in that case, there is no requirement for knowing how to do an abortion to be licensed to practice medicine. Oddly, there are state laws which require that all doctors who graduate medical school need to have learned how to deliver a baby--no matter if you are going into dermatology or psychiatry--unless you have  delivered 7 babies you cannot be awarded a MD degree in some states.  (That made for some eleventh hour dashes to the delivery rooms for some medical students.)

So far, the courts have said you can resign your job, but if you stand in the way of a court order, you are in contempt. 

Of course, what the citizenry will say is something else again.

There are times when we applaud an individual for refusing to execute the responsibilities of his office/job. When a soldier refuses to shoot down defenseless civilians at Mai Lai we applaud.  When a soldier simply follows orders and shoots down defenseless civilians or gases them in a concentration camp, we insist he ought to have followed a higher authority.

Am I comparing Ms. Davis to the virtuous concentration camp guard who refused to simply go along and just follow orders?  There are many differences, but there are some intriguing similarities. 


  1. Mad Dog,
    You are quite right-Ms. Kim Davis is a very curious case would seem one would need to look far and wide to find a worse spokesperson for the sanctity of marriage than Ms. Davis, given her checkered marital history. Additionally, when you take a good look at Ms. Davis, for example on stage at her release rally, arms outstretched to heaven, one can't help but think there's a woman with a few bats loose in the belfry. But heroics are in the eye of the beholder-to her screaming, cross waving fans she's a latter day Joan of Arc..Mike Huckabee even going so far as to offer to go to the pokey for her-granted that was probably more a cheap campaign publicity stunt..Yes the concentration camp guard who went against orders and did not do what was morally reprehensible was a hero-but as Ms Davis so aptly demonstrates, simply saying no does not a hero make...but I can see your point that standing up for one's moral convictions is often a courageous act and that although the similarity is slim, there still is a commonality between the conscience driven concentration guard, the Mai Lai soldier who refused to shoot and Ms. Davis..

    As for the handcuffing, if indeed Ms. Davis was handcuffed, I would agree it would have been am unnecessary use of force. However, a good bet would be Ms. Davis rather enjoyed it-it would have played into her vision of herself as a religious martyr taking one for the team..

  2. Maud,

    Well, this might present a business opportunity. As we discussed after my visit to the site where Joan of Arc was lashed to the stake, the potential for sales of memento stakes, such as they have for the Eiffel Tower seemed an odd oversight. All we need to do is to get down to Kentucky with our memento handcuffs and and we might be off and running as the next entrepreneurs to rival Donald Trump.

    Mad Doig