Actually, there were occasional penalties (like being put on unpaid administrative leave) for those who performed same-sex marriages before they were declared legal in all US jurisdictions—they just didn’t end up with the media circus this case has become.
I don’t see any reason to grandfather her in to any election. First of all, she took office in January of 2015, not January of 1960. Anyone could have foreseen that seven months later she might have to start issuing licenses to same sex couples.
Secondly, government employees, as a normal part of their job, have to be willing to cope with changes in laws.
I’ve seen reports of this, but the reports didn’t make it clear whether performing marriages was a normal part of those judges’ jobs. I thought that judges normally could pick and choose which ceremonies they wanted to perform. For example, Notorious RBG recently officiated at a couple of same-sex weddings, but that doesn’t mean that anyone who wanted her to officiate at their wedding would get their wish.
If it’s a normal part of their job, then of course they should do it or face legal sanctions.
Judges refusing to perform marriages is distinguishable from the county clerk refusing to issue licenses. Arguably the performing of the marriage is some sort of personal service but issuing the license is an impersonal and bureaucratic checking - the - box that the parties are eligible under the law to get married. She mistakes her signature as County Clerk for an endorsement of the ensuing marriage. Does she imagine that the clerks who signed her four licenses were endorsing her nuptials?
That is not a good description of the controversy.
In 2004, Mayor Gavin Newsom decided that the equal protection clause of the California Constitution authorized the city of San Francisco to issue marriage licenses to same sex couples, and so the city began issuing licenses. There were various court cases, but about a month later, the California Supreme Court instructed San Francisco to stop issuing the licenses. And they did. Nobody defied a court order.
I have some iota of sympathy for somebody who has religious objections to job requirements when that happens because of a change in the law, but not too much. Unless it’s pretty minor, and can easily be accommodated, then I think their remedy is to resign. To me, the closest analogy would be somebody who had this same job when the Supreme Court ruled that interracial marriages could no longer be prohibited. Even if that person had a genuine religious objection to the mixing of the races, I wouldn’t support allowing them to continue to resist the change in the law in any way. In terms of the law, this current case is no different (indeed, there more be MORE public support for this change than there was for some of the race-based civil rights rulings).
Fang: Mayors don’t have the authority to unilaterally change state law. He was violating the law too.
I think that all public officials need to uphold the law, to not pick and choose which laws to uphold and which they don’t like.
The Oregon judge is ‘being investigated’ by the bar of Oregon for his stand. I don’t think marrying is a part of a judges duty either. Some judges will only marry friends and family as a favor. If he wants to stop performing marriages he should be able to do that.
H and I decided to get married in 1983 despite living in Memphis, TN, where many people believed inter-racial marriage was wrong, a sin against nature and God himself (“who separated the races, after all!”). On the day we were scheduled to go to the county courthouse to be issued our marriage license, I was pretty nervous even while knowing it was perfectly within my Constitutional rights to marry the man I loved. I was afraid we would be met by a Kim Davis who would give us the stink eye, or worse, refuse to issue the license.
Thankfully, the clerk was perfectly cheerful and courteous. She didn’t so much as blink when we stated our reason for coming, but filed our paperwork expidiciously, and smiled while handing us a swag bag full of household and personal care product samples saying, “Congratulations, on behave of the City of Memphis, and the State of Tennessee.” I can’t tell you what that woman’s actions meant to me that day. To have been treated with courtesy and respect, like every other couple entitiled to a marriage license was something I knew could not be taken for granted in that day and time. That’s why I know how terribly it must hurt gay couples when their worst fears are realized and they encounter someone like Davis, someone who would literally break the law in order to be mean and spiteful. She probably doesn’t yet realize how staining her legacy will be in the history books, but my guess is her descendants won’t be proud.
The thing is that Ms. Davis can’t be fired and has chosen not to quit. The judge has decided not to keep her in jail. Therefore and thus, the only thing that can realistically be done is to have someone else issue the licenses and keep it moving. If the judge sends her back to jail, well those are the consequences of her actions. I wonder when a special election will be called because this chaos is just too much.
My theory is that her lawyers, and the organization they represent, will be delighted if she is sent back to jail. Whether she realizes this is unclear.
I have had that same theory, Hunt. She is what I like to call the perfect foil. If she didn’t exist, someone would have to invent her as a hypothetical.
How about this guy? A judge who is refusing to grant divorces because he claims the Supreme Court now needs to clarify what is NOT a marriage:
“In other words, if a state can’t even deny gay couples the right to marry anymore, then what’s the point of being in the marriage business anyways. Let the feds handle it.”
Kentucky has an RFRA statute. Having someone else in her office issue the licenses and having their name appear on the licenses instead of hers is the simplest way to accommodate her “religious” views and the rights of citizens. But that, of course, is not what she asked for. Moreover, I am fairly sure that this has to be granted by a state court, not the federal court.
Achieving a sensible and simple accommodation was clearly not part of her agenda.
Some cases when the law felt perfectly free to trample on the religious beliefs of ministers of MY denomination:
http://www.nytimes.com/aponline/2015/05/18/us/ap-us-gay-wedding-minister-arrested.html
I know of a town clerk who resigned when gay marriage became the law in my state. While I didn’t agree with her point of view, I respected her response. She knew that she couldn’t fulfill the requirements of the job because of her views, and had no expectation of being accommodated.
VMT: she probably wasn’t pulling down $80K per year in a place where the median household income is less than half that.
Not sure your statement she did not ask for that is correct.
Of course, once her name was omitted from the licenses issued by the clerks, Davis insisted they weren’t valid despite the AG and county attorney saying they were valid. So she got her cake then refused to eat it.
Even funnier is her lawyer saying the governor could change the law to not require names on the certificates, then saying to the governor, “do your job” with absolutely no trace of irony given he’s defending a client for refusing to do her job.
She mentioned to the federal court that she objected to her name being on the licenses, but she never sought an accommodation where she would agree that her office would issue the licenses provided her name wasn’t on them. Rather, the accommodation she sought was that no county clerks would issue any marriage license to any same sex couple.
If she had wanted to get her name removed from marriage licenses, she should have gone to the state, not the feds, because it’s the state’s RFRA that would authorize that kind of accommodation. The federal courts, in most cases, can’t order the state government to do something. But she didn’t try to get any reasonable accommodation. (Evidently) what she really wanted to do was make sure gay people couldn’t get married because gay marriage is icky.
I believe a justice of the peace in my state resigned after the Supreme Court decision came down. That’s the reasonable thing to do if you just can’t handle the job.
I didn’t realize until today that Davis had only been elected this year. That makes me even less sympathetic to her.
BTW, she doesn’t have three ex-husbands living. Her fourth husband was also her second husband. So she “only” has two ex-husbands living.