As followers of the story will know, Rowan County Clerk Kim Davis continues to refuse to grant marriage licenses to same-sex couples. Davis is joined in this refusal by her son, Nathan, one of her deputy clerks.
At least one other of her deputy clerks, Brian Mason, is issuing them. She claims that licenses issued without her certification are not valid.
Let's suppose Davis is wrong about this, and the licenses others in her office sign off on are valid. That does not settle the fundamental issue this case raises; letting things stand as they are for a moment longer is completely unacceptable.
It's unacceptable because county clerks are not just employees of the state — they are agents of the state. This distinction is crucial. When an agent of the state acts in an official capacity, the state acts. When Davis, or any sitting county clerk, refuses to grant a license to a legally qualified individual or group of individuals, the state itself refuses. There is just no getting around this.
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The fact that state action is embodied in the official actions of its agents creates two enormous problems.
First is the problem of inconsistency. If issuing licenses to qualified persons is an essential part of the job and some do this and some refuse to do it, the state itself is inconsistent.
Second is the problem of the kind of inconsistency here; namely, that the state itself treats citizens unequally. In this case, the state itself violates the commitment to equal treatment that is now the law of the land.
In allowing state agents to retain and function in official positions while clearly withholding a legally guaranteed benefit to previously excluded minorities, the state refuses to protect the interest of those minorities.
The state itself must rectify this and do so without delay. So, if the state through another of its agents (at this point, Judge David Bunning) overlooks Davis' ongoing refusal by allowing her to continue in her job, Bunning himself becomes part of the problem of state discrimination against sexual minorities.
Davis remains in violation of an order by the court to perform her duties as an officer of the state. Conscientious objection is no defense to this. I'd be the first to argue that the moral right to refuse to do something for profoundly held moral reasons must be recognized. But that right attaches to private persons, not to agents of the state.
Davis and others in similar positions have no right to continue to function in positions of state authority.
As I understand it, since she is elected and there is no citizen-recall mechanism in Kentucky, this removal will have to be accomplished through impeachment by the legislature, which doesn't meet until 2016.
In the meantime, Bunning needs to issue contempt orders and firmly stand by them. Davis, and any other refusing clerk or deputy clerk, should be sent to jail until resignation or impeachment. Such persons should also be fined the equivalent of their daily compensation.
If monetary contributions from others who want to see discrimination protected by law end up covering this, so be it. At this point, Davis has cost the state a good bit of money. It needs to be paid back. Bunning needs to have the courage to follow through on his own court order.
Justice delayed is justice denied.
In 2013, I married in Massachusetts my same-sex partner of 27 years. In sheltering Davis, the state continues to tell us and people like us that we are not equal citizens after all.
We raised a son under those conditions. It wasn't easy for us, and it wasn't easy for him. We have a first grandchild now. He needs to grow up knowing that all his grandparents are equally respected by the state.
Finally, this case and how it is handled is really very important nationally, because of its implications for many other potential cases of using religious objections to embed in law and legal practices continuing discrimination against sexual and gender minorities.