Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs

The Roundtable


Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.


INTERESTED IN wRITING FOR tHE rOUNDTABLE?

Zealot or Martyr? Kim Davis and Religious Freedom

9/22/2015

0 Comments

 
Picture
By Derek Willie

Derek Willie is a freshman at the University of Pennsylvania.

On September 8th, 2015, while thousands of Christians in Iraq remain in perpetual persecution, poised to die at the hands of Islamic State extremists, American conservatives coronated Kim Davis as a martyr of the movement to stop, what they allege to be, the criminalization of Christianity in the United States. Mike Huckabee, quite obviously attempting to appear as Davis’s loyal spiritual guardian and worthy presidential candidate, romantically offered to go jail in her place, arguing that Davis was persecuted for her religious opposition to same-sex marriage. [1]

Davis was not forced to marry a woman, nor was she commanded to officiate a same-sex wedding or to attend a church where same-sex marriage is not condemned as an abomination; she was simply asked, by the Supreme Court, to obey the law of the land and issue marriage licenses to same-sex couples. When she refused, she was held in contempt of court and sent to jail, the legal response to anyone defying a court order. [2] Regardless of the court’s order and the subsequent issuance of same-sex marriage licenses in Rowan County, there lies a critical legal question in Ms. Davis’s claim that her religious beliefs forbid her from executing the law through her office as county clerk. Does the first amendment’s free exercise clause protect Kim Davis from incarceration or forced resignation if issuing licenses for same-sex marriage truly does violate her religious conscience?
In order to begin analyzing Davis’s case, we must understand her official role as county clerk. One of her office’s most important responsibilities is to issue marriage licenses to couples that meet the Commonwealth of Kentucky’s requirements for marriage. Since the Obergefell decision and Kentucky Governor Steve Beshear’s order to enforce the ruling in the Commonwealth, this has included same-sex couples. [3] Six deputy clerks work alongside Davis, including her like-minded son, all of whom are authorized to issue marriage licenses. [4] Therefore, her objection was not necessarily that she was being forced to issue licenses herself, but that her deputy clerks, as agents of Davis, were issuing licenses that were legally authorized by her, holding her name. [5] Davis requested that the Commonwealth outsource the responsibility to another county clerk’s office or the Commonwealth itself; the Governor denied her request. [6]

While the Constitution grants the right to free exercise of religion, it does not grant the right to use religion to obstruct a legal process-- in this case, marriage.  Looking back to October 2008, inconsistencies in Davis’ argument become apparent. In October of that year, Davis obtained her third divorce. [7] At the time, no-fault divorce laws were in effect, despite opposition by some Christians, considering that the Bible forbids divorce except on the basis of sexual immorality. [8] If there had been a clerk who was morally averse to divorce and who could not sanction it without violating his or her religious conscience, and Davis had asked him or her for a divorce without proof of sexual immorality, by Davis’s logic, it would be within the clerk’s constitutional right to deny Davis her divorce. If we simply exhaust Davis’s line of reasoning, we find ourselves in a situation where any clerk could deny his or her constituents certain services by arguing that their provision would violate his or her religious conscience.

Jonathan Adler offers another potent analogy in The Washington Post:

Someone who objects to war due to his religious conscience has a right to be a conscientious objector and not serve in the military, even were there to be a draft. But he does not have the right to serve as a military officer, draw a paycheck from the military and then substitute his own personal views of when war is justified for that of the government. [9]

Adler implicitly proposes that Davis could quite easily avoid issuing marriage licenses if she resigned her position as clerk. And while resignation is certainly not a glamorous option for anyone in power, shouldn’t it far outweigh a violation of conscience? Still, many argue that resignation would pose a substantial burden on Davis for following her convictions. However, if her convictions render her unable to fulfill the most basic requirement of her job-- to perform public duties in accordance with Kentucky and United States law-- then she is clearly unfit to serve as Rowan County’s clerk.

However, Davis’s refusal to issue marriage licenses to same-sex couples in Rowan County has far greater implications: it demonstrates an almost theocratic encroachment on the rights of her constituents and more generally, affronts the rule of law in her jurisdiction and in her country. Columbia Law School Professor Katherine Franke argues that by denying marriage licenses to LGBT couples in Rowan County, Davis “is rendering her private religious beliefs public policy. So the same-sex couples in Kentucky are being asked to pay the price of her religious observance.” [10] Davis’s religious ideology prohibited same-sex couples in Rowan County from getting married, thereby codifying her beliefs as the dominating law in her jurisdiction. Davis did nothing short of creating an establishment of religion in Rowan County. Yes, Davis did ask Governor Beshear to find an alternative procedure that would not require her office to issue the licenses, but she has no right to use her religious dogmatism to burden the state and force an unnecessary and potentially complicated change in legal procedure. [11] It was not the Supreme Court or any federal judge who impinged on the constitutional rights of others—it was Kim Davis.



[1] Cannon, Catherine. "Mike Huckabee: I'd Go to Jail in Kim Davis' Place." CBSNews. September 8, 2015. Accessed September 11, 2015. http://www.cbsnews.com/news/mike-huckabee-id-go-to-jail-in-kim-davis-place/.
[2] Gutierrez, Gabe, and Jon Schuppe. "Judge Orders Kim Davis Freed from Kentucky Jail." NBC News. September 9, 2015. Accessed September 11, 2015. http://www.nbcnews.com/news/us-news/judge-orders-kim-davis-freed-kentucky-jail-n423541.
[3] Schuppe, Jon. "Kentucky Clerk Kim Davis Asks Court to Block Governor's Order." NBC News. September 7, 2015. Accessed September 11, 2015. http://www.nbcnews.com/news/us-news/jailed-kentucky-clerk-kim-davis-asks-court-block-governors-order-n422961.
[4] Cannon, Catherine. "Mike Huckabee: I'd Go to Jail in Kim Davis' Place." CBSNews. September 8, 2015. Accessed September 11, 2015. http://www.cbsnews.com/news/mike-huckabee-id-go-to-jail-in-kim-davis-place/.
[5] Gutierrez, Gabe, and Jon Schuppe. "Judge Orders Kim Davis Freed from Kentucky Jail." NBC News. September 9, 2015. Accessed September 11, 2015. http://www.nbcnews.com/news/us-news/judge-orders-kim-davis-freed-kentucky-jail-n423541.
[6] Schuppe, Jon. "Kentucky Clerk Kim Davis Asks Court to Block Governor's Order." NBC News. September 7, 2015. Accessed September 11, 2015. http://www.nbcnews.com/news/us-news/jailed-kentucky-clerk-kim-davis-asks-court-block-governors-order-n422961.
[7] De Vogue, Ariane. "Kentucky Clerk Who Won't Issue Marriage Licenses Divorced Three times - CNNPolitics.com." CNN. September 2, 2015. Accessed September 11, 2015. http://www.cnn.com/2015/09/02/politics/kentucky-same-sex-marriage-kim-davis-gay-marriage/.
[8] "Bible Gateway Passage: Matthew 19:9 - New International Version." Bible Gateway. Accessed September 11, 2015.  https://www.biblegateway.com/passage/?search=Matthew+19%3A9
[9] Adler, Jonathan. "Justice Scalia Explained Why Kim Davis Should Issue Marriage Licenses to Same-sex Couples or Find a New Job." Washington Post. September 2, 2015. Accessed September 11, 2015. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/02/justice-scalia-explains-why-kim-davis-should-issue-marriage-licenses-to-same-sex-couples-or-find-a-new-job/.
[10] "Law Professor: Davis Can't Evoke Religion To Deny Marriage Licenses." NPR. September 1, 2015. Accessed September 11, 2015. http://www.npr.org/2015/09/01/436673707/law-professor-davis-cant-evoke-religion-to-deny-marriage-licenses.
[11] Schuppe, Jon. "Kentucky Clerk Kim Davis Asks Court to Block Governor's Order." NBC News. September 7, 2015. Accessed September 11, 2015. http://www.nbcnews.com/news/us-news/jailed-kentucky-clerk-kim-davis-asks-court-block-governors-order-n422961.

Photo Credit: Flickr User Phyllis 

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.




0 Comments

Your comment will be posted after it is approved.


Leave a Reply.


    Categories

    All
    Akshita Tiwary
    Alana Bess
    Alana Mattei
    Albert Manfredi
    Alexander Saeedy
    Alexandra Aaron
    Alexandra Kanan
    Alice Giannini
    Alicia Augustin
    Alicia Kysar
    Ally Kalishman
    Ally Margolis
    Alya Abbassian
    Anika Prakash
    Anna Schwartz
    Ashley Kim
    Astha Pandey
    Audrey Pan
    Benjamin Ng'aru
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Clarissa Alvarez
    Cole Borlee
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    David Katz
    Davis Berlind
    Derek Willie
    Dhilan Lavu
    Edgar Palomino
    Edna Simbi
    Emma Davies
    Esther Lee
    Evelyn Bond
    Filzah Belal
    Frank Geng
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Habib Olapade
    Hailie Goldsmith
    Haley Son
    Harshit Rai
    Henry Lininger
    Hetal Doshi
    Iris Zhang
    Irtaza Ali
    Isabela Baghdady
    Ishita Chakrabarty
    Jack Burgess
    Jessica "Lulu" Lipman
    Joe Anderson
    Jonathan Lahdo
    Jonathan Stahl
    Joseph Squillaro
    Justin Yang
    Kaitlyn Rentala
    Kanishka Bhukya
    Katie Kaufman
    Kelly Liang
    Keshav Sharma
    Ketaki Gujar
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Lyndsey Reeve
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Margaret Lu
    Matthew Caulfield
    Michael Keshmiri
    Mina Nur Basmaci
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nayeon Kim
    Nicholas Parsons
    Nicholas Williams
    Nicole Greenstein
    Nihal Sahu
    Omar Khoury
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Pheby Liu
    Rachel Bina
    Rachel Gu
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Sajan Srivastava
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Saranya Das Sharma
    Saranya Sharma
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Serena Camici
    Shahana Banerjee
    Shannon Alvino
    Shiven Sharma
    Siddarth Sethi
    Sneha Parthasarathy
    Sneha Sharma
    Sophie Lovering
    Steven Jacobson
    Suaida Firoze
    Suprateek Neogi
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Thomas Cribbins
    Todd Costa
    Tyler Larkworthy
    Vatsal Patel
    Vikram Balasubramanian
    Vishwajeet Deshmukh
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    January 2023
    December 2022
    November 2022
    September 2022
    June 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    May 2019
    April 2019
    March 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Picture
Picture
​