Tuesday, September 08, 2015

Intuiting the Kim Davis Case

I have to wonder: just how many of those supporting Kentucky clerk Kim Davis’s refusal to issue marriage licenses based on her religious objection to same-sex couples marrying would support a Quaker government official who refused to issue them gun permits based on a religious commitment to pacifism?—Lambda Legal Legal Director Jon Davidson
Davidson's hypothetical works if your objective is to show supporters of Kim Davis how her act looks from the standpoint of those critical of it, although it should include "and refuses to resign," since lots of people, probably including lots of those supporting Kim Davis, would approve of a Quaker who resigned rather than taking an action inconsistent with her religious views. For the reverse project, showing opponents of Kim Davis how the situation looks to supporters:
You are the only trash collector for your town. A recent change in state law has classified homeless people as trash and instructed all local trash collectors to kill homeless people and dispose of their bodies. You were  appointed by an elected official who opposes the new law, so cannot easily be removed. Should you obey the new law, resign your position, or hold the position as long as you can while refusing to kill anyone?

16 Comments:

At 12:54 PM, September 08, 2015, Blogger Steve said...

"You are the only trash collector for your town. A recent change in state law has classified homeless people as trash and instructed all local trash collectors to kill homeless people and dispose of their bodies."

But that's obviously not how it looks at all. Her supporters don't regularly denounce all county clerks who sign gay marriage certificates as horrific people. In the reverse circumstances, I'd support the Kim Davis of not killing the destitute, and I'd oppose every garbage collector who wasn't out there Kim Davising.

 
At 12:58 PM, September 08, 2015, Blogger John said...

Analogies aside, if she really thought about it, she could issue marriage licences to gay couples without violating any religious principles. First, a government marriage certificate is not a religious document, it's merely legal. The status of a legal marriage confers no standing in the eyes of god (unless she believes god is under the jurisdiction of the US gov't). Second, what she really thinks is wrong - gay sex or cohabitation - cannot be prevented or encouraged by any of her actions, unless she thinks that gay people are waiting for legally sanctioned marriage before consummating their physical relationships (does she? maybe, but perhaps someone should inform her otherwise). What she really needs to understand is that what she's obligated to do legally is very unrelated to what she disapproves of.

 
At 1:20 PM, September 08, 2015, Blogger D. Nik Andjam said...

false assumption argument, there are in excess of a hundred clerks around Kentucky

 
At 1:25 PM, September 08, 2015, Blogger Jay Maynard said...

Nik, why should the citizens of Rowan County be penalized by having to go elsewhere to get something to which they are entitled by law?

 
At 2:06 PM, September 08, 2015, Blogger Martin Epstein said...

I agree with both intuition pumps and I'm not especially mad at any parties involved. However, it's baffling to me that there's no way to fire a county clerk other than pleading with them to resign and jailing them if they refuse. Is this arrangement somehow better for democracy than the alternative?

 
At 2:12 PM, September 08, 2015, Blogger David Friedman said...

Martin: Firing her seems the obvious solution. I haven't looked into the situation, but my assumption from what I have read is that the position is appointed, the appointment is by an elected official, and the elected official supports Kim's position. Consider, for a rough analogy, how difficult it is to "fire" the President of the U.S.

 
At 2:16 PM, September 08, 2015, Anonymous Daublin said...

It's a great question, Martin, and it is at the heart of why many people prefer private solutions to problems whenever possible. There aren't any great solutions to getting the right staff into government positions. Popular elections can prevent the most extreme acts of fraud and abuse, but they do a worse job of selecting people that are qualified, because the voters don't really know how to evaluate the nominees for the position. I confess I have no idea what a county clerk is, so for sure I wouldn't be able to pick a good one.

It's a debacle all around. As is often the case, Washington's role in American society has been to take an issue that was coming along fine and then polarize it into something half the country is angry about. I really wish they would have some sort of discussion group, and that we'd put elders into it that we felt good about, and they'd hash out some sort of compromise that makes the bulk of the country happy. It seems like a government could work that way.

 
At 2:16 PM, September 08, 2015, Blogger David Friedman said...

The whole controversy reminds me a little of a G.K.Chesterton story, whose point is that it is easy to be tolerant of things other people disapprove of and you don't.

https://ebooks.adelaide.edu.au/c/chesterton/gk/c52fb/chapter41.html

 
At 3:28 PM, September 08, 2015, Blogger David Lubkin said...

David, you don't have to reach to a far-fetched analogy. We have already had many examples of elected local officials faced with then-lawful orders to do something that wasn't part of the job when they ran for it, that they may find heinous: to round up ethnically Japanese citizens in WW2, to enforce segregation, to return escaped slaves, etc.

 
At 4:19 PM, September 08, 2015, Blogger John T. Kennedy said...

It seems to me the best defense for Davis is not an objection on religious grounds but rather that the federal government has no constitutional authority to regulate marriage in Kentucky, and she's sworn to uphold the constitution - so she is "doing her job" But I think that the constitutional case for Obergfell is so weak that her weaker argument may be reasonably sufficient.

 
At 4:49 PM, September 08, 2015, Anonymous Doctor Mist said...

"my assumption from what I have read is that the position is appointed"

Nope, it's trickier. She was elected, and thus can be fired only be impeaching/recalling her. And, while I am less sure of this point, it seems that her public isn't exactly on fire to do that, possibly because a majority doesn't really disagree with her position.

 
At 6:18 PM, September 09, 2015, Blogger Tom Courtney said...

One of the things that I find interesting about this, is that folks who favor civil disobedience in causes they favor, seem to think it morally reprehensible of Davis. People who consider Snowden a hero, seem to think it's reprehensible for Davis to hold onto her position to effect her protest - somehow, if she has the courage of her convictions, she's supposed to resign. Compare that to the amount of flak Obama did not get for directing the Justice Dept. to not prosecute marijuana cases in states that had legalized it. (I gather there's now a federal law allowing medical marijuana that was quietly passed.) Other than a couple of Republicans looking to make political hay, I don't know that anyone was seriously calling for Obama to resign if he wouldn't enforce the existing laws at the time.

 
At 9:29 PM, September 09, 2015, Blogger Martin Epstein said...

David and Daublin: Thanks for your replies. Looking at the case as a local vs. federal power struggle clarifies things a bit for me.

- Maybe we don't want a federal branch to have the power to fire local branch employees.
- Maybe we don't want midterm jail time to mean automatic firing.
- Maybe we don't want failure to perform duties to mean automatic firing.

I don't hold any of those positions, but I've been convinced of weirder things.

 
At 9:50 PM, September 09, 2015, Blogger Roger said...

I doubt that the Quaker would be put in jail.

 
At 10:26 PM, September 15, 2015, Blogger George Haley said...

"You are the only trash collector for your town. A recent change in state law has classified homeless people as trash and instructed all local trash collectors to kill homeless people and dispose of their bodies. You were appointed by an elected official who opposes the new law, so cannot easily be removed. Should you obey the new law, resign your position, or hold the position as long as you can while refusing to kill anyone?"

Clearly we should demunicipalise the garbage service.

 
At 10:27 PM, September 15, 2015, Blogger George Haley said...

"You are the only trash collector for your town. A recent change in state law has classified homeless people as trash and instructed all local trash collectors to kill homeless people and dispose of their bodies. You were appointed by an elected official who opposes the new law, so cannot easily be removed. Should you obey the new law, resign your position, or hold the position as long as you can while refusing to kill anyone?"

Clearly we should demunicipalise the garbage service.

 

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