A perspective from Oregon’s mid-Willamette Valley

What happened to tolerance?

Written September 8th, 2015 by Hasso Hering
The Rowan County Courthouse as shown on the county's website.

The Rowan County Courthouse as shown on the county’s website.

In the controversy over Kim Davis, the suddenly notorious clerk of Rowan County, Kentucky, there’s enough hypocrisy to choke even the most open-minded observer. (That would be me.)

Booked for following her conscience instead of orders.

Booked for following her conscience instead of orders.

Davis was jailed for contempt of court when she refused to obey a federal court’s order to issue marriage licenses to same-sex couples or else. We’ve suffered a blizzard of comments repeating the old saw that we’re a government of laws, not of men. Baloney, as everyone who follows court rulings knows.

Laws and the words of the Constitution mean only what the justices of our highest courts say they mean. And sometimes the opinion of a single justice makes the decisive difference, as the Supreme Court’s 5-4 ruling in the gay-marriage case shows.

If we were a government of laws and not of men, Oregon Gov. John Kitzhaber would have been hounded from office well before his resignation over his decision to obstruct the law on capital punishment. And how come President Obama is allowed to rule by issuing edicts on immigration law and the timing of health care provisions, among other things?

Kim Davis’s problem is that she’s not a powerful politician but the elected clerk in a tiny Kentucky county, population 23,527. Her conscience, based on her claimed Christian faith, doesn’t allow her to license same-sex marriages. But unlike the conscience of a governor opposed to the death penalty, and unlike the conscience of a president who considers our immigration laws unjust, her conscience doesn’t count.

Her many critics demand that if she can’t perform her duties, she must resign. She’s 49, and jobs are not easy to come by in that northeast corner of Kentucky, so resigning may not be an option for her. Besides that, she could do the job when she was elected only last November, with 3,909 votes over her Republican opponent, who had 3,444. It was only a Supreme Court opinion, overturning two thousand years of well-grounded custom in the western world, that caused her grief with one part of her job.

Tolerant citizens would cut her some slack. But in 2015, tolerance is no longer allowed. If somebody fails to conform, the mob descends, yelling about a government of laws.

Davis was put in jail not in her own town but in neighboring Grayson, the seat of Carter County. It’s little more than 20 miles down Interstate 64, and if gay couples in Rowan County had wanted to show tolerance, they could easily have obtained their licenses there. Evidently they were interested less in getting married than in making a point. (hh)

31 responses to “What happened to tolerance?”

  1. Lisa Farnam says:

    Let’s draw an analogy with another recent news case of the flight attendant who converted to Islam and felt that that prohibited her from handling alcohol. She and her coworkers came to the perfectly reasonable (I think) accommodation that they would serve the alcohol. Ms. Davis could refuse to issue the licenses, but allow her deputies to do so. Problem solved–people can get married, as is their right, and her religion is accommodated. Not allowing her deputies to issue a license is saying, “Nobody on this airplane gets alcohol because my religion does not allow it.” Disallowing all marriage licenses is akin to the flight attendant declaring, “Nobody on this plane gets anything to drink, because some of you might want alcohol.” The fact is, Ms. Davis is trying to impose her religious beliefs on the people of her county, without even trying to come to a reasonable accommodation. People constantly do things that clash with my religious beliefs, but I don’t try to impose my beliefs on them. All of us have to make constant accommodations for others in our daily life. It’s how we all get along.

    • Gordon L. Shadle says:

      It appears she is trying to reach a reasonable accomodation as she sits in an isolated jail cell.

      According to the Washington Post, she has stated through her attorney that she is willing to issue licenses if her name and title were not on them.

  2. Shawn Dawson says:

    We don’t need to look all the way in Kentucky. In Portland, Sweet Cakes is fined $135,000 dollars for refusing to make a cake, the only intent of such a fine is to punish them so severely they lose their business and make an example of them for other cake makers and photographers. This one seemed to me more tragic than what is happening in Kentucky.

    In Portland, the couple could very easily go to another cake maker. In Kentucky, however, if one county clerk refuses to issue a lawful license, then could not another one in the next county just as easily?

    My current understanding is that, as an elected official, she can not be ‘fired’, but must resign. Since she can’t be fired, then jail or fines are the options. If she had stepped aside and had delegated another person in the county office to issue gay marriage licenses, then I would agree that tolerance would be in order.

    But from the news reports (correct me if I”m mistaken here) she seemed to set herself up as a road block to gay marriage licenses in the county, rather than refusing based on her Christian beliefs, but allowing someone else to issue the license. This does seem more akin to the county clerks who set themselves up as road blocks to black voters registering to vote in the 1950’s.


  3. Gordon L. Shadle says:

    You are are spot on.

    I’m fine with criticizing Davis for not following the law. But as uncomfortable as it is for some to recognize, there is such a thing as legitimate disobedience.

    Using a legalistic, proceduralist argument (“do your job and if you refuse you have to quit because you took an oath”) is weak in the face of a moral dilemma .

    The argument assumes that an oath creates a duty to perform, even in immoral conditions. But an oath ceases to be binding when it requires a person to engage in what that person considers an immoral act.

    Ask any military person if they are legally bound to follow an immoral order from a superior officer.

    There must be room for accomodation when legitimate disobedience is exercised. Sending armed people to arrest and put a non-violent person in jail indefinitely for acting on their conscience is not an accomodation.

    • Bob Woods says:

      “Sending armed people to arrest and put a non-violent person in jail indefinitely for acting on their conscience is not an accommodation.”

      Except in this case no one “sent armed people to arrest” her. That’s a complete mischaracterization of what occurred, and another in your ongoing attempts to paint a false picture.

      She appeared in court to address her refusal to follow a lawful court order.

      It is established legal procedure for judges to issue contempt of court orders. The well known penalties include a reaffirmation of the requirement, a fine, jail time, or any combination that the judge deems to be the most likely way to have things brought into compliance with the court order. The judge chose to jail her because he had testimony that large amounts of funds were being made available to cover any fine, which meant that monetary sanctions would not likely to have had any effect. She had already publicly stated that she would not follow the court order, so a simple reaffirmation would not help. So the judge chose jail time and the bailiff took her into custody.

      Now the judge has let her out and it seems as if a “accommodation” may have been forged: She doesn’t sign any marriage licenses, but her clerks still issue them.

      We’ll see what sticks.

      • James Carrick says:

        These inconsitencies in law MUST be addressed or anarchy will result if it hasn’t already. Gordon is correct is positing that “some consciences are more equal than others when it comes to violating the law.”

        All seems to be dependent on who sits in the White House at any given m oment in time, doesn’t it?

        That’s NOT what our founders had in mind in 1789 now, is it?

        • Bob Woods says:

          “All seems to be dependent on who sits in the White House at any given m oment in time, doesn’t it?”

          Not to me. Never has and never will. The rule of law is the fundamental tenet of the Constitution. THAT is what the founders clearly enunciated. No individual has the right to proclaim what the law is or isn’t and to deny others their rights.

          The point where the determination of what is legal or not, is in the courts. For constitutionality, it’s the Supreme Court – Marbury v Madison. It’s been that way for OVER 200 years.

          Liberals have stood by that and, when some decide to engage in civil disobedience, they know they will have to pay a price.

          It’s was conservative Oath Keepers who showed up in Ferguson a couple of months ago with assault rifles and hand guns in an attempt to intimidate folks. It was the conservative Oath Keepers, the White Mountain Militia and the Praetorian Guard militias who showed up at Cliven Bundy’s, weapons drawn, and who clearly stated they would shoot any federal official or law enforcement officer that tried to enforce the Judges order. These groups, and the supporters of Ms. Davis including her husband, deny the legality of the Federal courts in adjudicating federal law.

        • Bob Woods says:

          Inconsistencies are to be addressed through the courts, or through new legislation.

          In this case there aren’t any inconsistencies, except 1 persons desire to place her personal religious beliefs above the Constitution of the United States.

          She deserves no support for attempting to overturn our system of law.

  4. Bob Woods says:

    People who work in government can find all sorts of laws or regulations that they don’t personally agree with. The requirement of their job, however, is to faithfully execute the laws as they exist and as they change.

    For elected officials, they must publically swear to do this. Think about that: That swearing-in ceremony is a public affirmation designed to show that a special level of trust and faithfulness is required above and beyond what is expected of other citizens or employees.

    Ms. Davis clearly sought to enforce her personal religious beliefs by using the powers of her office to thwart the rights of people she did not personally agree with. That is an abuse of power.

    Ms. Davis did not launch a campaign for a constitutional amendment to change the law as it now stands. Ms. Davis did not allow any accommodation by deputy clerks in her office, and has stated that any licenses issued by her deputies are invalid.

    This is exactly the kind of action and abuse of power that liberals, conservatives and moderates can easily come to agreement on. Don’t swing the hammer of elective office to impose your personal will, work to change the law by the democratic process.

    • Gordon L. Shadle says:

      In 1996 the Illegal Immigration Reform and Immigrant Responsibility Act was passed. The law requires local governments to cooperate with ICE.

      San Francisco, Portland and Ashland intentionally defy this law by declaring themselves to be “sanctuary” cities, meaning city employees have been instructed to not notify or cooperate with ICE when illegal aliens are identified.

      The elected city officials took an oath to uphold this nation’s laws. Are they abusing their power? Why haven’t the Mayors been arrested? Where is that “special level of trust and faithfulness” that you say exists?

      It appears some consciences are more equal than others when it comes to violating the law.

      • Bob Woods says:

        So file a complaint with the authorities. Work it through the law.

        Of course your track record in that regard is abysmal. You accused the city council of violating the law in print, but were too afraid to file a complaint.

        When you did file a complaint with the Secretary of State ALL your point were rejected as being unsupportable.

        Your record of truthfulness stinks.

  5. Gothic Albany says:

    By your logic we should bring back slavery, and racial discrimination. After all those were also well grounded customs for thousands of years in western civilization.

    • Hasso Hering says:

      Gothic Albany’s comment makes sense only if you think there is anything remotely comparable between owning, selling, raping or beating to death human beings on the one hand and, on the other, asking free citizens to please get their marriage licenses in the county next door. (hh)

      • Gothic Albany says:

        Of course! The south should have just asked black people to get their voting rights in the county or state next door! I mean slavery was never a problem in the US, they could have just fled to the North right? The stain of bigotry and true intolerance is still alive and well Albany sad to say.

  6. Warren Beeson says:

    The predominant argument here seems to be that an elected official has to obey the law, resign, or be punished. Why then is Obama still in office? Why is Hillary Clinton still not in prison? And, as Hasso posits, why was Kitzhaber not thrown out of office for not enforcing lawful capital punishment? Indeed, why is our current governor also defying the capital punishment law with no apparent consequences?

  7. tom cordier says:

    The issue here is process. As the former Gov of Kentucky stated–SCOUS does not make law. They give opinions. Current Kentucky law prohibits same sex marriage so as a State official Kim should not violate State law. When the Kentucky Constitution is changed by the Legislature that will be a change in the law. We are a nation of laws passed by legislative actions. Jefferson warned of tyranny by 9 unelected judges. When SCOUS ruled schools were racially biased–State legislatures submitted plans to desegregate which the Court found acceptable. The homosexual folks who want tolerance/acceptance have always refused to offer the same. They should just let the process work.

    • James Carrick says:

      Tom raises an interesting point here, especially in light of the 10th Amendment to the US Constitution.

      Most people automatically assume Federal law trumps state law…and often that IS true. But the 10th Amendment says, quite clearly and unequivocally: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” And as such, the SCOTUS of the USA has not always held the conventional thinking. See Printz vs. US. Just google it.

      Now, pay attention here folks……the US Constitution does NOT speak to marriage in any way, let alone gender of the participants. As such, It can be argued that under the US Constitution, because it is not a SPECIFIED, enumerated, federal right…the right of marriage falls to the states (or the people) individually in the adjudication of marriage in the legal sense.

      What might this mean? Well, the next question that must be asked is what laws are county clerk Kim Davis tasked with enforcement of…..per her own oath of office? She is not tasked with enforcement of a federal mandate, best I can see as a layman.

      A similar question came up with Sheriff Mueller’s letter to VP Joe Biden regarding proposed federal gun control laws under consideration as proposed by the Obama administration after the Newtown CT. shootings by Lanza. As I had posited then, the 10th amendment was the proper grounds to use in refusing to “enforce” any proposed change in federal law related to gum laws enacted at the federal level.

      The same argument can be made here, and the question is: WHICH laws are Kim Davis sworn to uphold here? KY state law, (which is yet to catch up with the recent SCOTUS decision re: gay marriage) or Federal law which the 10th Amendment, verified by the Printz vs. US ruling that suggests Kim Davis cannot be compelled to enforce a federal mandate.

      This case is NOT cut and dried…and could well end up before the SCOTUS.

      Meanwhile, the continued imprisonment of Kim Davis is absurd beyond belief. Free Kin Davis now!

      • Hasso Hering says:

        She’s free already.

        • James Carrick says:

          That I hadn’t heard today. Thanks.

          • James Carrick says:

            That’s all well and good, and I’m happy to hear it. However, the MUCH larger questions in my post are still in question, and in play here.

          • Bob Woods says:

            Now pay some attention to the 14th amendment ADOPTED BY THE PEOPLE OF THE UNITED STATES:

            “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

            It always amazes me how conservatives run and hide from the constitution where it guarantees all people residing within the US, not just “citizens”, EQUAL PROTECTION UNDER THE LAW.

          • James Carrick says:

            Well Bob, It would appear that two amendments contradict each other in fundamental ways. I stand by my stance. And I don’t give a flying leap at a rolling donut what you think anyway.

            The 10th was “just as adopted” as the fourteenth despite your attempt to make it appear “more” important with your capitalization meant to obfuscate the relative importance of the two amendments. I’ll grant you that the 10th has been all but ignored, but not for the betterment of this nation we both love.

      • Ray Kopczynski says:

        “As I had posited then, the 10th amendment was the proper grounds to use in refusing to “enforce” any proposed change in federal law related to gum laws enacted at the federal level.”

        As an individual, if you wish to excercise your “conscience,” knowing full well there possibly will be consequences, go for it. To me, both Davis (and Mueller) crossed the line by saying their conscientious objection bound their employees to the same course of action. Davis has had multiple opportunities to get out of the way – chose not do do so. I don’t shed any tears for the result.


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