Kentucky Clerk refuses to issue same-sex marriage license

[Lightysnake88]

Knock it off with the persecution complex. Davis could have ended this long ago by doing her job. Instead, she's proven she is unfit for it.

 

You also seem to have a tenuous grasp of how discriminatory actions and purposes work.

[OldGimletEye]

 

So, it would NOT make you happy, then?  You were just joking when you said that was the standard?  Just pulling my leg?  Just pretending?  Are your rationales just make believe?  You don't care if your rights are being violated -- you just want to crush her like a bug cause she's a homophobe?  

No my rationales are not make believe. The bottom line here  is that for purposes of the 14th Amendment the clerk is a state actor and her actions implicate the 14th Amendment, whether the state of Kentucky approves of her actions or not. Now, if you think she isn't a state actor and her actions don't implicate the 14th Amendment, by all means, link me to a legal treatise, case, or law review article which states otherwise.

[ChillyPolly]

No my rationales are not make believe. The bottom line here  is that for purposes of the 14th Amendment the clerk is a state actor and her actions implicate the 14th Amendment, whether the state of Kentucky approves of her actions or not. Now, if you think she isn't a state actor and her actions don't implicate the 14th Amendment, by all means, link me to a legal treatise, case, or law review article which states otherwise.

 

So basically you were joking when you said the standard was whether she was EMPOWERED to issue marriage licenses.  Gotcha.

[Lightysnake88]

You know, constantly attempting rhetorical traps? It doesn't mean you have a strong argument.

[OldGimletEye]

 

So basically you were joking when you said the standard was whether she was EMPOWERED to issue marriage licenses.  Gotcha.

WTF? You're killing me. The state of Kentucky has decided to empower clerks to issue marriage licenses. One of those clerks, a state actor, has decided not to issue licenses for an impermissible reason. That's why there is a 14th Amendment claim.

 

ETA:

If the suit were against a kentucky police officer for not issuing marriage licenses, the police officer or the state of Kentucky would defend by saying police officers have other duties and they gave those duties to clerks, yada, yada, yada, a rationale that a federal court would find to be a permissible reason for police officers not issuing marriage licenses.

[Lord Mord]

CP,

"YES BUT ITS HER JOB", you may howl.  But I don't care.  What her job is, is a matter between her, her employer, and the taxpayers who pay her salary.  It is they, ultimately, who will decide what her job is, and what it is not.  

I don't understand what's supposed to be at stake here. Why is it important or desirable to permit someone to refuse to do their job, when that job is fulfillment of federally recognized rights? And, a second question, a follow-up but deserving of its own answer: why, in particular, is such a thing desirable when her own statements are demonstrative of her intention to discriminate?

I like a lot about how you argue -- though the high-hat condescending routine was really nauseating -- but so far, it's difficult to empathize with, only because I have no idea what's at risk, in terms of the public good, if you should be wrong. A little help?

[Lord Mord]

Double post

[ChillyPolly]

WTF? You're killing me. The state of Kentucky has decided to empowered clerks to issue marriage licenses. One of those clerks, a state actor, has decided not to issue licenses for an impermissible reason. That's why there is a 14th Amendment claim.

 

You know what?  You may be right.  I have no idea how courts will interpret the 14th amendment.   It may well go you're way.

 

But I'm just explaining why the gay rights people don't have my sympathy in this campaign.  Nobody is hurting them.  Nobody is stopping them from getting married.  They just want to make an example of some silly rural woman who is not very sophisticated,   And when they have succeeded (and they probably will succeed) they will move on to the next target.

[ChillyPolly]

I don't understand what's supposed to be at stake here.

 

Funny.  Me neither.  

[Lord Mord]

CP,

 
Funny.  Me neither.  

Oh. I had asked a serious question, but if you're more in a mood of flippancy, I guess I'll leave you alone, then.

[ChillyPolly]

And, a second question, a follow-up but deserving of its own answer: why, in particular, is such a thing desirable when her own statements are demonstrative of her intention to discriminate?

 

She does not intend to discriminate.  She is forbidden by her conscience to issue marriage licenses to gays.  She is forbidden by the law to issue marriage licenses in a discriminatory fashion.  She resolves this problem by not issuing marriage licenses.  If her state and community want to continue to employ her in some other capacity (ie, in continuing to perform the OTHER clerkly duties she used to perform, while sending people who want to marry to other clerks), that is their business.

 

Her employers do NOT have to fire her just because you hate her.  They can live and let live.  Unless the courts declare that hating her because of her religious convictions, and disqualifying her from public employment in ANY capacity, is mandatory.  Which they may well do.  Our society may well be headed in that direction.

[ChillyPolly]

Oh. I had asked a serious question, but if you're more in a mood of flippancy, I guess I'll leave you alone, then.

 

I thought I already answered your question long ago.  Her employers and community have every right to fire her for refusing to do her job the way they want.  If that's what they want to do.

 

I just think that's their business and not yours.

 

So back to you.  Why is so important to you?  

[Lightysnake88]

Probably because some of us can remember when gays were discriminated against quite blatantly and don't really like someone trying to keep such a thing going for reasoning that amounts to pure sanctimony?

 

If her conscience doesn't allow her to issue marriage licenses, which again is done for a discriminatory purpose, then she should resign.

[OldGimletEye]

Everyone understands here that Ms. Davis just isn't a clerk working in the court, but the "County Clerk", which is the person responsible for the entire county court administrative staff, right? It's a position with significant responsibility.

 

Just want to make sure we're on the same page here.

[Lord Mord]

CP,

She does not intend to discriminate.  She is forbidden by her conscience to issue marriage licenses to gays.  She is forbidden by the law to issue marriage licenses in a discriminatory fashion.  She resolves this problem by not issuing marriage licenses.

Okay, this sounds plausibly not awful in theory, but isn't it true that she is selectively closing the marriage license desk? In other words, she's not permanently closing her window on marriage licenses, and some are being issued, but when gay couples show up, suddenly for the rest of the day, no one can get a license. It's true that in these hours, straights can't get then either, but if it hadn't been for the gays, then she'd be open for business. You're saying there is no legal precedent for considering this discriminatory, either in practice or intent?

If her state and community want to continue to employ her in some other capacity (ie, in continuing to perform the OTHER clerkly duties she used to perform, while sending people who want to marry to other clerks), that is their business.

The only trouble I have with this is scale. Presumably, at some point, the state choosing to employ, say, only a handful of clerks willing to marry gays, while the rest, nominally clerks and empowered by the law to issue licensed, refuse to do so, is an attempt by that state to flout federal law, yes? Or no? If yes, when, finally? How much denial of access is finally too much denial of access?

I suppose your argument is that the limit doesn't matter, because one person, one county, doesn't meet it. Still, I am interested in where you think such a limit may be and how it could be consistently applied.

Her employers do NOT have to fire her just because you hate her.

Nobody is proposing this. Instead, people are suggesting that the state has a compelling interest to enforce rights. The way they see it is that even one clerk empowered to say, "Fuck your rights, go somewhere else" is a problem, because, where does that end? The likely result, it is argued, is a patchwork of rights, that you can enjoy in some towns, districts or states, but not in others. The question gets to be: what kind of rights are those?

They can live and let live.  Unless the courts declare that hating her because of her religious convictions, and disqualifying her from public employment in ANY capacity, is mandatory.  Which they may well do.

That seems a little overblown. Firstly, and you know better than this, it is hardly going to be in the decision that hating anyone is mandatory. I'm a little surprised at you on this one.

But more importantly, nobody is saying, or few enough people anyway, are saying she should be denied ANY public employment. Just any where her religious convictions are threatened by doing her job. You would think that would be a better fit for everyone, right? No one unduly obstructed -- even a little bit -- in the exercise of their rights, and her conscience is clean. She can run for dog catcher or as a state auditor or something. Just not this one job, and what's so horrible in that?

I think the one area you have something of a point is where you seem to reference states' rights, and when you refer to the fact there are other duties she can perform. I guess it just comes down to, for me, I don't think it's a good use of everybody's time to parse out where individual liberty is finally trumped by public concern -- if it's a public job, you are required to meet every one of the office's assigned duties to the utmost, within the resources of your office. Quashes any need for such a discussion, and, from a strictly pragmatic point of view, only makes sense anyway.

You asked another before if the state removing the issuing of marriage licenses from the clerk's job description would make him or her happy. Speaking only for myself, while it wouldn't make me happy, I think everybody would have to shut up about it, at least.

[Lord Mord]

CP,

I thought I already answered your question long ago.  Her employers and community have every right to fire her for refusing to do her job the way they want.  If that's what they want to do.
 
I just think that's their business and not yours.
 
So back to you.  Why is so important to you?  

I'm not completely sure that it is. But I am interested. I have sympathy for any people who wish that their government and its representatives, would treat then respectfully. I'm sympathetic to the idea that the public should not be held hostage, even in just the one district, to an employee tantrum. And yet I also want us who have the right to keep in the right, and you raise my sympathy, too, at the idea that this clerk is at the mercy of a public who mean to do their worst to her in their unthinking, even baited outrage.

While our course should be measured, it seems to me that if, as a public employee, she is obstructing the public welfare even a small amount without due cause, she has at least something coming to her. But I'm not an expert, and I can let myself be carried away like anyone, so I ask questions to see if I'm really being fair, or in case I'm inadvertently trading away some essential liberty in my chosen course. If your contention is she's being unfairly treated -- with regards to the writs and possible contempt citations -- or that essential liberties are at stake here, I'm not yet convinced, but I'd like to exhaust the possibility that I could be.

[ChillyPolly]

Okay, this sounds plausibly not awful in theory, but isn't it true that she is selectively closing the marriage license desk?

News to me. If you can demonstrate that this is the case, then you will certainly have shown illegal discrimination under the Supreme Court's decision. But my understanding is that her office has simply stopped issuing marriage licenses. Period.

The only trouble I have with this is scale. Presumably, at some point, the state choosing to employ, say, only a handful of clerks willing to marry gays, while the rest, nominally clerks and empowered by the law to issue licensed, refuse to do so, is an attempt by that state to flout federal law, yes? Or no? If yes, when, finally? How much denial of access is finally too much denial of access?

I don't know what you're saying. Any clerks who issue marriage licenses at all will have to issue them on a non-discriminatory basis. They cannot inconvenience gays without equally inconveniencing heteros.

I suppose you're asking: when does such equal inconvenience itself become illegal? Dunno. Maybe never? IIRC, there is some question whether the State has any obligation to issue marriage licenses at all. There might be something in the Obergfell decision; I'll have to reread it. The only thing I am sure of is that if they DO issue marriage licenses, they must do so on a non-discriminatory basis.
The "fundamental right to marry" is not necessarily the same thing as the "fundamental right to receive a state marriage license". Marriage licenses are a relatively modern invention - there is hardly anything "fundamental" about them - whereas people have been getting married since time immemorial.

I suppose your argument is that the limit doesn't matter, because one person, one county, doesn't meet it.

Well ... yes.

Still, I am interested in where you think such a limit may be and how it could be consistently applied.

Frankly, I think all you need do is to enforce non-discrimination and the problem will take care of itself. Heteros need to get married. The State must (at least) let them do this, and the S.C. decision means that when they do, the State must also let gays marry on the same terms.

Nobody is proposing this. Instead, people are suggesting that the state has a compelling interest to enforce rights. The way they see it is that even one clerk empowered to say, "Fuck your rights, go somewhere else" is a problem, because, where does that end? The likely result, it is argued, is a patchwork of rights, that you can enjoy in some towns, districts or states, but not in others. The question gets to be: what kind of rights are those?

I don't know what you are saying. All clerks must be non-discriminatory, if they issue licenses at all. So if you want to get married, find out which clerks are issuing licenses and go to that clerk. If he refuses to issue a license when he sees a gay couple coming, you have a Federal case against the State of Kentucky.

But more importantly, nobody is saying, or few enough people anyway, are saying she should be denied ANY public employment.

Then, I'm not sure where it ends. She's publicly employed right now and I'm perfectly happy to leave her where she is. If her conduct is a problem (as long as it is not discriminatory), it is a problem for the people of Kentucky to solve.

Just any where her religious convictions are [not?] threatened by doing her job. You would think that would be a better fit for everyone, right? No one unduly obstructed -- even a little bit -- in the exercise of their rights, and her conscience is clean. She can run for dog catcher or as a state auditor or something. Just not this one job, and what's so horrible in that?

Again, her employer (the State and/or the Taxpayers) have EVERY right to fire her for not doing her job. I have said so again and again.

But, in the end, it is her employer who decides what her job is. No outsider has the right to decide this. And if her employer decides to keep paying her for duties that do not include issuing marriage licenses, then that is what her job is now. The parties to the contract have revised their contract and come to a new agreement.

The problem here is that people don't want to leave it to her employer to define what her job is. They think her employer's hand should be forced by the federal government.

You say it would be okay if she were just a dog-catcher. But that in effect is essentially what has happened. She used to be a "dog catcher" who issues marriage licenses, and now she's just a "dog catcher". (I'm speaking loosely - "dog catcher" just represents her other duties). Her employers (State and Taxpayers) have every right to be upset by her unilaterally re-writing her employment terms. They have every right to refuse to accept the situation. But why is it anyone else's business? If I want to keep paying my elderly gardener, even though he only does half the work required in his employment contract, then that's up to me, surely?

I guess it just comes down to, for me, I don't think it's a good use of everybody's time to parse out where individual liberty is finally trumped by public concern -- if it's a public job, you are required to meet every one of the office's assigned duties to the utmost, within the resources of your office.

That's all very well. And if you were a citizen of Kentucky and especially of that county, and could howl "MY TAXES PAY YOUR SALARY", you would have a valid complaint. But all I am saying is that if you are NOT such a local citizen, you have no standing to complain.

Nobody here seems to want to leave this decision to the local public or the State for fear that the local public and State will make the "wrong" decision. They want to make it a Federal issue. It's like some busybody of an outsider telling me I have to fire my elderly gardener. If there were actual discrimination, I would understand.

You asked another before if the state removing the issuing of marriage licenses from the clerk's job description would make him or her happy. Speaking only for myself, while it wouldn't make me happy, I think everybody would have to shut up about it, at least.

I'm glad to hear it. But I don't think you'll get much agreement from others here.

[Ser Scot A Ellison]

Chilly,

 
Irrelevant.  Every state employee does not have to grant you a marriage license.  

You are correct not every State employee has to give out Marriage Licenses. The difference here is that Mrs. Davis as an elected clerk of court does have a stautory duty to do so. She is a State agent with that specific duty and is refusing to carry it out. As such, the State within her jurisidiction, is failing to perform its statutory duty with regard to a substantive due process right (the right to marry) and must offer a compelling reason why it is not performing its statutory duty.

It doesn't matter that couples can drive to another county to get a marriage license and that other State agents are doing their duty. This State agent is not and her failure is a violation of substantive due process under color of State law. Therefore, a 1983 case is proper.

If her state and community want to continue to employ her in some other capacity (ie, in continuing to perform the OTHER clerkly duties she used to perform, while sending people who want to marry to other clerks), that is their business.

That will not satisy Mrs. Davis. She doesn't have to personally issue all Marriage Licenses. She could, and has in the past, delegated that duty to her subordinates. She objects to homosexuals having a Marriage License with her name on it and on that basis shut down the Marriage License desk in her office. She contends her personal religious beliefs trump the right of people in her county to marry.

One other thought. You keep saying that her actions don't rise to the level of a Consitutional violation because she is one clerk and people can travel to other counties to get married. You seem to espouse the idea that any State Consitutional violation must stem from a systematic Statewide plan to discriminate, that a mere individual agent acting as Mrs. Davis is cannot be a violation of 14th Amendment due process, is that correct?

[lessthanluke]

Just stop replying Scot. Please

[Greywolf2375]

Nobody is stopping them from getting married.

I'm not sure how you can even say that - she quite literally is stopping them from getting married.