Kim Davis is refusing to do her job, but she’s far from the only Kentuckian shirking responsibility. More troubling is that the governor and state legislature are refusing to act. How voters respond will be an important statement about the future of LGBT rights and the rule of law.
Davis is the Rowan County clerk who has refused to issue marriage licenses to same-sex couples, arguing that affixing her name violates her religious beliefs. A federal judge jailed her over the weekend for disobeying his order (and the Supreme Court decision) to issue licenses. Because her deputies were issuing the licenses, she was released Tuesday with instructions not to get in the way. Problem solved?
Probably not. The licenses are being issued without Davis’ signature, which is just fine according to the County attorney and governor. Davis’ attorney disagrees and might find a way to challenge the licenses. Further, Davis could at any time decide to stop her deputies from issuing licenses, at which point she presumably returns to jail. The situation needs a more permanent fix than temporary incarcerations and questionable licenses.
Davis was elected, so she can’t be fired. She may also have the right to an accommodation of her religious beliefs under Kentucky’s Religious Freedom Restoration Act. (Click here for a review of the legalities: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/?postshare=8051441474960305) Impeaching Davis or creating an accommodation is a job for the Kentucky General Assembly, but Gov. Steve Beshear has refused to do his job and call them into session.
Beshear claims his inaction is based on frugality, seeing “no need to spend hundreds of thousands of dollars of taxpayer’s money calling a special session of the General Assembly when 117 of 120 county clerks are doing their jobs.” More likely is that Beshear, a Democrat in a conservative state, thinks the issue is a loser – an especially lame excuse as he can’t run again. A special session no doubt would be well worth the cost if 0.025 percent of officials instituted new gun control regulations on their own.
The best defense of Beshear’s inaction it is that there is no reason to think that the legislature will act. The Republican dominated Senate is unlikely to do anything that could be considered “pro-gay” for fear of a conservative primary challenge. That might be smart politics, but it is also blatant hypocrisy from a party whose rhetorical panacea for issues from immigration to gun control is “enforce current laws.” In the case of marijuana legalization, that includes using federal law to trump state law.
In the end, much will depend on how voters do their job. Davis will not be on the ballot in 2016 (unless she is impeached and runs again), but expect local legislators in Kentucky and other conservative states to take firm positions on same-sex marriage and espoused religious freedom. If voters reward candidates who will obey the Supreme Court decision, even if they disagree with it, 2016 might be the last year where obstructionism is a viable position. If voters reward candidates who stand athwart history yelling “Stop”, the battle over marriage equality, and other LGBT rights, will likely rage for elections to come.
