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The Kentucky Licence discussion II


Stubby

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CP,

 


Stubby, you're entire argument is that since I object to throwing Kim Davis in jail, I must be opposed to Miranda rights.  I have already clarified that I support Miranda rights.  What more needs to be said. 

 

No, that is not my argument at all.

 

My argument is that Miranda was a decision of the Supreme Court that affected rights, just as Obergefell is.  Those affected by the Miranda decision are not free to disregard the legal requirements of the decision due to their personal beliefs.  In the same way, neither is Ms Davis.

 

I applied what I perceived to be your position to the rights situation in Miranda and came to the conclusion that said position would have lead to a different practical outcome following Miranda.  It would make the Miranda decision nugatory.  For that reason, (what I perceived to be) your position was clearly fallacious.

 

You said my interpretation of your position was incorrect.  When i have asked you to elaborate, all you have given me is the "entire thing".

 

If you want me to reconsider your position in light of my comparison of the decisions please clarify it for me. 

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Please do not presume speak for me.  It is very rude.

 

My position was that if Kentucky were to issue no marriage licenses at all, that would not be discriminating against gays, because heteros would receive similar treatment.

 

It might however, violate the "fundamental right to marriage", since there is a right to marriage, regardless of discrimination.

 

In that context, I expressed no opinion about precisely how many clerks would be sufficient.  I never said a single clerk would be sufficient.  I merely took the position that providing sufficient clerks should be a problem for Kentucky to solve, and should not lie on the shoulders of an individual employee faced with a dilemma of conscience.

 

Forgive me if I'm incorrect, as my field of expertise lies well outside of definition and interpretation of the law, but shouldn't Davis be considered an appointee rather than an employee? She's a representative of seven thousand people who are obliged to vote for one person in good faith that they will fulfill the tasks required by her office to the best of her abilities in accordance with the law and to the benefit of the people who voted her into said office.

 

Isn't Davis' refusal to do her job effectively treasonous as she's violating an oath sworn to the state? She doesn't have a boss to fire her like I do, rather it takes a concerted effort from a governing body that is not at all times readily available to determine that she has been negligent and outright harmful in her duties to remove her from office. It is not within the power of the citizens of Kentucky to remove her from office once appointed without strong demonstrations of discontent with her actions.

 

A lawsuit by the affected parties, combined with a social backlash, seems like the most appropriate route to expression of public discontent with her (for lack of a better word) Tyrannical decision to retroactively decide which of her sworn duties she wants to perform as a supposed public official. Again, I'm not a lawyer, nor am I a particularly insightful or knowledgeable person, but do Davis' actions not reflect a blatant disregard for both the overriding rule of law in her country as well as the consideration of the citizens who's care she has been charged with? Public officials are not held to the same standards as the rest of us, and for good reason. It is not healthy for a state or union for an official representative to willfully decide she is not required to meet all criteria delegated to her position because of personal beliefs. If she truly feels she cannot in good conscience perform those duties, the proper course of action is continued legal challenges to the disputed ruling or abdication of the office. Civil disobedience is a natural and necessary part of an adaptive and enduring nation. But Davis is no longer just a citizen, she has been tasked with (and accepted) upholding the laws of the land regardless of her personal desires.

 

To be a public servant is not a reward or gift. It is a duty, hence the term 'servant'. Davis swore, presumably on the bible she claims gives her guidance, to uphold the laws of the United States and Kentucky to the best of her abilities in difference to the people who depend on her. She is not a victim for the backlash she has recieved. Nor is she a hero who's defending her personal beliefs. She surrendered her right to her own personal beliefs in opposition to the will of the greater public the moment she put her name on the ballet and took the oath of her office.

 

I look forward to your reply and corrections to anything I may have interpreted or considered wrongly.

 

Also, and I separated this from my main post purposely because I am attempting to have a civil disagreement, I found your response to Ser Pounce (and to the LGBT community in general) to be both unnecessarily disrespectful and incredibly, disturbingly, dismissive. That is my own opinion, and I think you owe him an apology for that. If you disagree that is your own prerogative, but I just couldn't hit 'post' without making that known.

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http://news.yahoo.com/kentucky-clerk-appeals-her-jailing-over-gay-marriage-083453434.html

 

She has now appealed:

 

 

 

Charla Bansley, communications director for Liberty Counsel, said Davis could be released from jail immediately if the motion were granted by the U.S. Court of Appeals for the Sixth Circuit ordering Beshear to issue Davis an "accommodation" — allowing her to remove her name and title from official marriage certificates issued in Rowan County.

 

By doing that, Davis would not be sanctioning any same-sex unions and her conscience would be satisfied, they say.

 

 

Why didn't she just suggest that in the first place?  I feel like she could've garnered at least a little sympathy by trying to make compromises.  Part of me understands not wanting to immediately resign from an $80k/year job, but when you get into politics, your job description is always subject to change.  One *should* go into it knowing that the need to resign for moral reasons is a possibility.

 

This just makes me feel like she's getting tired of being a martyr and just wants out of jail.  Or maybe whoever was paying her to be a martyr decided the fires were stoked enough for the time being and let her off the hook.

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PQJ,

Not "treasonous" as that has a specific US Constitutional definition. But it is a violation of her express stautory duties as the Clerk of Rowan County Kentucky. She's refusing to issue marriage licenses which is her statutory duty.

She can resign, which she's refused to do, she can issue the licenses, which she has refused to do, or she can sit in jail. She can walk out of that cell any time she wants to avail herself of the first two options.

As for modifying forms that would take an action by the Kentucky State legislature to make happen. The Governor of Kentucky has declined to call a special session of the legislature because he claims it will cost too much. As such Mrs. Davis will have to wait until January to see if the State will change its forms to accommodate her religious beliefs.
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Why is there any need to modify the form? As far as I'm aware, nothing about the current form suggests in any way, shape or form that the signatory personally approves of the marriage in any way. That's not what the clerk's job is. Clerks do not approve of marriages: they register them. The job is purely bureaucratic. Moral judgement doesn't play any part. Ms Davis has signed off on many, many marriages; it would be ludicrous to suggest that she personally approved of any one of them. How could she? These people are largely strangers to her! It's equally ludicrous, therefore, to suggest that her signing a marriage certificate for two men indicates personal approval of gay marriage. It does not. Modifying the form is just pandering to her erroneous notions about what her job actually entails.

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Mormont,

Their job is perfectly "Ministerial". I'm not saying there is a need to modify the form. The direction some are pushing the debate generally is to force the State to make an "accommodation" for those, who like Mrs. Davis, have specific religous objections to homosexual marriage. I believe it is being likened to accommodate Muslim flight attendants who do not want to serve alcohol despite it being part of the job description.

We will see. My point is not to say this is a valid way out of the impass Mrs. Davis has created but to point out that the impass can only be fixed by the Kentucky State Legislature and until that time Mrs. Davis has only two options resign or comply with the Court's order.
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Forgive me if I'm incorrect, as my field of expertise lies well outside of definition and interpretation of the law, but shouldn't Davis be considered an appointee rather than an employee? She's a representative of seven thousand people who are obliged to vote for one person in good faith that they will fulfill the tasks required by her office to the best of her abilities in accordance with the law and to the benefit of the people who voted her into said office.
 
Isn't Davis' refusal to do her job effectively treasonous as she's violating an oath sworn to the state? She doesn't have a boss to fire her like I do, rather it takes a concerted effort from a governing body that is not at all times readily available to determine that she has been negligent and outright harmful in her duties to remove her from office. It is not within the power of the citizens of Kentucky to remove her from office once appointed without strong demonstrations of discontent with her actions.
 
A lawsuit by the affected parties, combined with a social backlash, seems like the most appropriate route to expression of public discontent with her (for lack of a better word) Tyrannical decision to retroactively decide which of her sworn duties she wants to perform as a supposed public official. Again, I'm not a lawyer, nor am I a particularly insightful or knowledgeable person, but do Davis' actions not reflect a blatant disregard for both the overriding rule of law in her country as well as the consideration of the citizens who's care she has been charged with? Public officials are not held to the same standards as the rest of us, and for good reason. It is not healthy for a state or union for an official representative to willfully decide she is not required to meet all criteria delegated to her position because of personal beliefs. If she truly feels she cannot in good conscience perform those duties, the proper course of action is continued legal challenges to the disputed ruling or abdication of the office. Civil disobedience is a natural and necessary part of an adaptive and enduring nation. But Davis is no longer just a citizen, she has been tasked with (and accepted) upholding the laws of the land regardless of her personal desires.
 
To be a public servant is not a reward or gift. It is a duty, hence the term 'servant'. Davis swore, presumably on the bible she claims gives her guidance, to uphold the laws of the United States and Kentucky to the best of her abilities in difference to the people who depend on her. She is not a victim for the backlash she has recieved. Nor is she a hero who's defending her personal beliefs. She surrendered her right to her own personal beliefs in opposition to the will of the greater public the moment she put her name on the ballet and took the oath of her office.
 
I look forward to your reply and corrections to anything I may have interpreted or considered wrongly.
 
Also, and I separated this from my main post purposely because I am attempting to have a civil disagreement, I found your response to Ser Pounce (and to the LGBT community in general) to be both unnecessarily disrespectful and incredibly, disturbingly, dismissive. That is my own opinion, and I think you owe him an apology for that. If you disagree that is your own prerogative, but I just couldn't hit 'post' without making that known.


Sadly, I think Chilly is not arguing genuinely, but rather for the lulz.

His/her tactic is to obfuscate the violation of rights to merely an inconvenience.

I wonder if Chilly thinks it's okay for Kim Davis to withhold marriage licenses to convicted murderer ex-cons based on religious grounds?
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We will see. My point is not to say this is a valid way out of the impass Mrs. Davis has created but to point out that the impass can only be fixed by the Kentucky State Legislature and until that time Mrs. Davis has only two options resign or comply with the Court's order.


This is almost definitionally not an impasse.

What exactly are you proposing? That Kentucky change its law to excuse Davis from signing the certificates but render them valid if her subordinate does? What if none of them want to? Does Davis have a hand in the hiring process for them?

There just isn't room in this process for a person to exercise this kind of discretion. The local government is required to provide this service, and citizens have a right to expect that they will meet their obligations. An agent of that government can't selectively refuse to do so -- it opens up too many possible situations for citizens to get fucked.
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Inigima,

I'm not saying there is. That said I've seen some discussion of "self executing" licenses that require no official signature. Some have claimed this would address the religious concers because they would issue from the clerk's office automatically without the license needed to be issued by "clerk X". That said it wouldn't shock me if they would find another reason to object.

My position with regard to Davis is the same it has been she needs to comply with the Court order or resign.
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I agree. They're interested in making a huge fuss so that Davis can be a martyr, and maybe write a book or land herself some cushy spokesperson job later on.

She's Joe the Plumber come again. Another right-wing media darling. A kind of spacegoat - which is like a scapegoat, only more spaced out and more goaty.

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Inigima,

I'm not saying there is. That said I've seen some discussion of "self executing" licenses that require no official signature. Some have claimed this would address the religious concers because they would issue from the clerk's office automatically without the license needed to be issued by "clerk X". That said it wouldn't shock me if they would find another reason to object.

My position with regard to Davis is the same it has been she needs to comply with the Court order or resign.

 

I'm sure you read the link that Swordfish posted in the last iteration of the thread from Eugene Volokh taking a look at the idea of reasonable accommodations for religious beliefs made under Title VII and potentially applying them to Kentucky's Religious Freedom Restoration Act. Given the type of things employers have been required to accommodate for employees on religious grounds under Title VII, and taking at face value the possibility that Kentucky's RFRA in some ways might provide a basis for more substantial accommodations for religiously-motivated objections, my question for you is - why shouldn't Kim Davis be entitled to a full evidentiary hearing in State Court to address whether her employer is obligated to make some limited accommodation regarding the technicalities of how marriage licenses are issued that could potentially obviate her objection? Why should she have to resign her job, or violate her faith, if Kentucky's RFRA gives her a legally cognizable claim for accommodation? 

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I don't think she is free yet. I believe she has to agree not to interfere with her office issuing marriage certificates to anyone who is eligible. If she doesn't do that, I think she remains in jail.

 

She was Ordered to be released (the Order was issued today - whether or not she has physically been processed out of jail I do not know) and she was not required to agree, in advance, to anything. The Order includes (at least based on the NYTimes write up I linked to) a prohibition against her interference with the issuance of marriage licenses by her office. Presumably, if she does actually interfere, she will be arrested again for contempt. 

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Nestor, isn't the problem that Davis isn't an employee?

 

That's a problem vis-a-vis someone taking adverse employment actions against her for failure do her job. But I have not read anything that would lead me to believe that her status as an elected official would necessarily prevent her from seeking an accommodation under Kentucky's Religious Freedom law. 

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