We had not intended to post anything about Kim Davis, the Kentucky County Clerk now in jail for defying a court order to issue marriage licenses to same-sex couples. Earlier, Ms. Davis had declined an offer of release on a condition of non-interference with her Deputy Clerks, but licenses are now being issued by her Deputies without her sanction. Although Lyle Denniston, a respected commentator for Scotusblog, has noted that the validity of such licenses could be questioned, we doubt that they will be successfully challenged. In the meantime, The New York Times reported on Friday that Davis was continuing to stand her ground, and that Kentucky politicians were pondering possible legislative solutions. One way or another, it is inevitable that, at some point, the embarrassing controversy will be resolved with same-sex couples continuing to be issued licenses, and the matter will mercifully disappear from the front pages.
Nevertheless, the positions of various Republican presidential candidates should probably not pass without comment. Some of that group have eagerly sprung to Ms. Davis’s defense, while others have sympathized with Ms. Davis, but stressed the importance of respecting the rule of law. Still others have sought refuge in murky ambiguity. We do not know whether defenses of Ms. Davis represent sincere conviction, honest confusion as to the law, attempts to please the party’s dreaded base or, perhaps, a combination of all three. In any case, we find the reactions of the Republican candidates, to be, on the whole, somewhat disappointing.
Leading the parade of misplaced outrage is Mike Huckabee, who plans to visit Ms. Davis in jail before initiating a national rally in her support. In a stunning burst of rhetorical excess, Huckabee exclaimed that, “Having Kim Davis in federal custody removes all doubt of the criminalization of Christianity in our country.” Following close behind Huckabee is Senator Cruz, who struck a similar note, “Those who are persecuting Kim Davis believe that Christians should not serve in public office. That is the consequence of their position. Or, if Christians do serve in pubic office, they must disregard their religious faith — or be sent to jail.” In purporting to speak for all Christians, Huckabee and Cruz display ignorance as well as arrogance. According to a poll by Pew Research, roughly six-in-ten Catholics and white mainline Protestants now approve same-sex marriage with support lagging only among black Protestants and white evangelical Protestants.
Governor Bobby Jindal also supported Davis in somewhat less apocalyptic terms than Huckabee and Cruz: “I don’t think anyone should have to choose between following their conscience and religious beliefs and giving up their job and facing financial sanctions.” Senator Rand Paul suggested that state and local governments discontinue the practice of issuing marriage licenses. While urging a compromise, he lauded Davis, “I think people who do stand up and are making a stand to say that they believe in something is (sic) an important part of the American way.” Similarly, Senator Rick Santorum opined that “what Kim Davis did was heroic.” As Carly Fiorina observed, however, there was a more appropriate way for Davis to “make a stand.” While expressing disagreement with the decision of the Supreme Court on same-sex marriage, Fiorina pointed out that:
[T]his woman now needs to make a decision that’s [about] conscience: Is she prepared to continue to work for the government, be paid for by the government, in which case she needs to execute the government’s will, or does she feel so strongly about this that she wants to sever her employment with the government and go seek employment elsewhere where her religious liberties would be paramount over her duties as a government employee?
Senator Lindsey Graham expressed a view similar to Fiorina’s, “I support traditional marriage, but she’s accepted a job where she has to apply the law to everyone. And that’s her choice.” Donald Trump expressed a preference for accommodation, such as issuance of licenses by others in the office, but acknowledged the Supreme Court’s ruling controlled: “You have to go with it. The decision’s been made, and that is the law of the land.”
Governor John Kasich addressed the subject as tersely as possible, but implicitly came down in favor of upholding the rule of law. The Washington Post reported Kasich’s answers when he was asked about the Davis controversy in an interview with the Post:
“I’ve taken my position on it,” he said….
Afterward, a spokesman said that Kasich was referring to his reaction to Obergefell v. Hodges. After saying that the decision “disappointed” him, Kasich ruled out any discussion of countermeasures. “We’ll honor what the Supreme Court does,” he said. “It’s the law of the land. It’s the way that America functions.”
Governor Scott Walker and Senator Marco Rubio both called for a “balance” between the rule of law and allowing people to express their religious convictions, but failed to indicate how the balance should be struck in this case. In the same vein, Governor Chris Christie observed that “we have to protect religious liberty and people’s ability to be able to practice their religion freely and openly, and of course we have to enforce the law too.” Jeb Bush also called for balance, or “common ground,” but was more specific. Bush suggested that someone else in the Clerk’s office issue the licenses. Unfortunately, however, that “compromise” had, as previously noted, already been rejected by Ms. Davis.
For our part, we think that only Senator Graham, Carly Fiorina, less expressly Governor Kasich, and even Donald Trump, got it right. Admittedly, we have less sympathy for Ms. Davis’s underlying point of view than do any of the Republican candidates. As regular readers of RINOcracy.com will be aware, we have seen no valid objection, theological or otherwise, to same-sex marriages. That bias on our part, however, is irrelevant here. The essential point was made by The Wall Street Journal, which tends to be as conservative on social issues as it is on economic ones: “Judge Bunning’s principle—that Americans, and especially government officials, do not get to pick which laws and orders they will follow—is certainly right.” Quite so.