9/6/2015—I agree that Kim Davis, the Kentucky clerk who was jailed by a federal judge for refusing to issue gay marriage licenses, should not be in jail. But the reason is that now the licenses are being issued. All she should have to promise the court is not to interfere. What difference does it make who issues the license as long as it is issued?
I used to belong to a group that promoted gay marriage and robust religious exemptions—to protect the florist and caterer who did not want to be associated with gay marriage. That was a matter of religious conscience. Davis has nothing to do with that.
Instead, Davis wants to use the monopoly power of the State to deny gay people the right to marry. She is not Henry David Thoreau, but Caesar.
Davis’ husband said in an interview that gay people are trying to force others to accept their position. No. They are just trying to marry. The question was never Davis and her conscience. Davis could always have personally have stayed out of it. The question was the actions of the government. The government has to issue licenses to marry.
Supporters of Davis yesterday raised the legitimacy of judicial review as part of her defense. But, actually, Davis’ situation is not much affected by what branch of government decides to issue marriage licenses to gay people. There are Christian clerks in states in which the legislature has enacted gay marriage as well. Their offices still have to issue the licenses.
Anyway, it’s a pretty big argument between gay marriage and the end of judicial review. We’ve had that power of courts to find legislation unconstitutional since the Constitution was adopted. Probably a good thing. Who wants to experiment now? Remember, it was the courts that protected religious conscience in the Hobby Lobby litigation.