Saturday, September 5, 2015

Kim Davis and the 1st Amendment

As the howls of protest from the religious right echo throughout the Fox wasteland, let us be perfectly clear about one thing: if anyone has violated the 1st Amendment in this case, it is Kim Davis herself. By elevating her own peculiar religious beliefs above any other as part of her public duties, Davis has, de facto, established her particular brand of Christianity as the religion of Rowen County, Kentucky. Regardless of what the Christo-fascist "Liberty Counsel" will say, Davis has not been jailed because of her beliefs. She has been held in contempt of court for refusing to perform the duties that her job, and the oath she took when accepting that job, require. She, in traditional civil contempt parlance, has 'the keys to her own cell.' All she needs to do is promise not to interfere with her clerks performing their duties, and she is out. If she cannot do that, then she must resign.

Cries of 'religious liberty' are inapt. The guarantee of religious freedom, as with all rights granted by the U.S. Constitution, is not absolute. Just as one's freedom of speech does not cover falsely crying fire in a crowded theatre, one's religious freedom ends where the rights of others begin. A public official may not establish her own beliefs as the official policy of a governmental entity, regardless of how 'sincerely held' they may be. Contrary to the dogma of the religious right, no god's law trumps the law of the United States, because only civil law has any practical effect. Those who want to follow their deity's commands are welcome to do so in their homes and private lives, and in public, in so far as they do not affect the rights of others. When equality is threatened by religious zealotry, the law must step in to put things right. Society would crumble otherwise.

Further, the Liberty Counsel lawyers have danced along the line of ethical responsibility, and with this last phase, in my mind, jumped over it. They are using Ms. Davis' actual freedom as a revenue-generator, placing their client at risk for their own pecuniary gain. Any competent attorney knew she had no chance of winning at the federal appeals level. She should have been advised to either find a different job, or complete her legal duties as required. To encourage her to continue this case, as seems abundantly clear they did, is blatantly unethical. So, Davis is in jail because of her own inability to complete her duties, and the cynical machinations of a fringe group of religious zealots.

So, while you may disagree with the Obergefell ruling, you can not cry about the 1st Amendment in Davis' case. To paraphrase our chief justice, 'religious freedom has nothing to do with it.'

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