Matt Evans: I'd Fire Kim Davis, But The Government Can't.

When you don’t do your job, the boss can fire you.

Unless you’re Kim Davis.

When you’re Kim Davis and you don’t do your job, some random judge can throw you in jail.

Kim Davis is one of the clerks in rural Kentucky who has refused to issue marriage licenses to same-sex couples.  After being ordered to do so by a federal judge, she has upped the ante by refusing to issue marriage licenses to anyone.

She has also forbidden the deputy clerks working under her from issuing licenses, because her name would have to appear on the licenses.

In her mind, issuing the licenses constitutes her literally rubber stamping her name on defamation of God.

This week, Davis was found in contempt of court by federal Judge Bunning, and is now sitting in jail.

The deputy clerks will start issuing licenses tomorrow, but it is apparently unclear what legal standing the licenses will hold.

If this were a private matter, in a libertarian society, resolving it would be straightforward.  Kim’s boss asks Kim do to something.  Kim says she cannot, and refuses to do it.  Kim’s boss fires Kim.  End of story.  Everyone wins.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]It turns out, hilariously, that Kim Davis cannot be fired, even though she is refusing to do her job.  To dispose of an elected official in Kentucky, the legislature has to impeach her.[/mks_pullquote]

But instead, we’re dealing with a government official.  Not only that – we’re dealing with an elected official.

It turns out, hilariously, that Kim Davis cannot be fired, even though she is refusing to do her job.  To dispose of an elected official in Kentucky, the legislature has to impeach her.

Of course, there are two big problems with that.  First, the Kentucky Legislature is out of session for a while.  The governor said he was unwilling to convene a special session because it was a waste of money.  So, they won’t have the opportunity to try impeaching her for months.

But the larger problem is, the KY legislature is thought to largely agree with Mrs. Davis – that is, they’d be more likely to change the law to protect Mrs. Davis than to impeach her.

The ACLU brought contempt charges against Mrs. Davis because she failed to follow the judge’s previous instructions, requiring that she resume issuing licenses.  In a civil contempt case, a judge can either assess a financial penalty or indefinitely jail someone found to be in contempt.

The ACLU was asking for fines to be levied against Mrs. Davis.  However, the judge (probably correctly) believed claims that Mrs. Davis had an army of supporters who were willing to pay the fines on her behalf, and so the judge decided on indefinite incarceration instead.

Let me repeat that: Mrs. Davis is in jail as long as the judge wants her there.  That could be “forever”.

Critics of judicial contempt hearings point out that it is very bizarre to allow a judge such tremendous power, and to deny the accused a jury.  Indeed; there is little due process of any kind in a civil contempt hearing.

Of course, it is likely that if Mrs. Davis were given a jury in her contempt hearing, she would be able to find sympathetic jurors who might not find her deserving of indefinite jail time.  In fact, they might find her not in contempt at all.

Mrs. Davis freely admitted that she had the ability to follow the judge’s order, but refused to do so.  The judge was more or less required to find her in contempt, given her admission.

Mrs. Davis, right or wrong, is in an interesting spot.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]People in Kentucky have plenty of choices available regarding who will actually marry them.  It’s just the office of government paperwork that holds a monopoly.[/mks_pullquote]

She is in a situation where the majority of the people and the officials who have the power to elect her and to impeach her probably agree with how she is doing her job.

Yet a federal judge has said to her, “until you do your job differently, I will hold you in jail.  Forever.”

The judge, in her case, is demanding a change to how she does her job that is a pretty black and white violation of her convictions.

I think it is usually inappropriate to force someone to do something that violates their convictions.  The proper role of government is to punish people who harm others.  It is not to force people to do things because it would benefit others.  (There are some policies that try to do this, but they are bad policies).

You might argue that Mrs. Davis is harming the people who want licenses and aren’t getting them.  That’s an interesting argument, but I don’t agree with it.  I would be very angry with a doctor who refused to treat me, but such a doctor isn’t harming me.

You might further argue that I can go find some other doctor, and therefore, it’s fine for a given doctor to refuse to serve me, but Mrs. Davis is the only person in her county who can issue marriage licenses.

That’s true.  And so two general solutions to this problem come to mind

  1. Don’t live in places where the majority of your neighbors don’t want you to have rights
  2. Don’t give government control over anything

People in Kentucky have plenty of choices available regarding who will actually marry them.  It’s just the office of government paperwork that holds a monopoly.  That monopoly is the entirety of the problem, and if anyone besides Mrs. Kim’s office could issue licenses, there’d be no problem at all.

Most people want to crucify Mrs. Davis.  I’d rather eliminate her monopoly on authority.

In general, I support firing Mrs. Davis.  She’s not doing her job.  But, legally, she’s protected from “firing” either until impeachment or until the next election.  As far as I’m concerned, the state government made this mess; now it can enjoy the “rewards” of dealing with it.

What is wholly unjust is to throw this woman in jail without anything like due process, and the severe sentence imposed.  For her crime of refusing to issue paperwork, she is getting a worse sentence than the majority of rapists, murderers, and child molesters.

Is that justice?

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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