A new furor in the civil rights landscape has hit Kentucky with the County Clerk’s refusal to issue marriage licenses to anyone but especially to gays and lesbians. After repeated attempts to reason with Clerk Kim Davis, the matter was taken to lawyers with American Civil Liberties Union in order to seek redress. Ms. Davis was stalwart and entrenched in her position, even willing to go to jail rather than violate her religious convictions. The situation calls to mind several similar standoffs from the early days of the Civil Rights Movement.
An old concept put in a new age
Davis isn’t trying to fend off offensive overtures. Some would say she’s just being obnoxious and it appears she’s trying to gain some traction from the events she’s set in motion. I don’t think she should be rewarded for that. Given that she still has her paycheck of $80,000 while she sits in jail and the storm passes over the country, and given that she’s soliciting funds for her cause from supporters and co-workers (through county office messages), she is definitely being rewarded financially. She has essentially buffered her determination to stand her ground.
Actually (and I can’t remember which class addressed this, Ethics or Civil Procedure or maybe it was Criminal Procedure), if a lawyer has personal issues with representing a person because the lawyer’s beliefs or the crime is in apposition to the lawyer’s to the point that the lawyer cannot provide a zealous defense of the client, the lawyer is allowed to recuse theirself from taking the case. Indeed, one editorialist suggests that the best move for Davis, in light of the fact that she finds herself unable to carry out the duties of her job, is to step down from the position. That doesn’t necessarily mean quit working for the county. It simply means take a change in position so that someone who can fulfill the needs and requirements of the position can do so without undue distress and financial hardship to the constituency.
Similarly, in employment and contract law, a person is not required to do business with someone when there is a misalignment. Now when it comes to the denial becoming viral to the point of discrimination, we have another situation on our hands.
But if we have a Charles Manson or a Jim Jones (mass murders) or a known rapist who has no remorse for his crimes, how much fault could be leveled at having difficulty with bringing full and zealous defense to their case? It would take a judge’s order directing the last-straw lawyer or assistant DA to take the case and put forth their best efforts on behalf of the person.
As phrased in that quote, we see the schizophrenic nature (forgive the editorialization) of Davis’s posture. She has wed church and state by imposing her personal beliefs onto her discharging the duties of her job. And one of the founding principles of this country was based on the strong need for a separation of church and state, that is to say the church cannot rule what is done to the king’s property nor the people in it. It would be the same as having two masters and then attempting to determine which one is the more deserving of obedience. According to recent reportage, she intends to stay in jail until a compromise can be reached in the judge’s ruling compared with her stance. Embodied in that compromise is that she will not resign her position but issue licenses if her name and title were not on them. That stipulation can easily be resolved. Remove her name and change her title to something that does not encompass being a person who has authority to issue a license – of any type. Needless to say, the job description would have to match the duties that she is allowed to fulfill. Ryan Anderson, a research fellow for Heritage Foundation, suggests yet another work accommodation for a religion conscientious objector that is of a similar nature.
There was an article in Thursday’s Yahoo news about Davis’s options and it put forth something that other jurisdictions are using – have the objector step away from that part of their duties and have another take over that desk. A judge asked Davis’s six deputies whether they could put aside their personal beliefs in order to fulfill the duties of their job due to a conflict of interest or a matter of lack of competence in the ability to do the job [without prejudice]. According to one newspaper account, “After ordering her to jail, the judge told her six deputy clerks that they too faced potential fines or jail time if they similarly refuse. All but one – the clerk’s son, Nathan Davis – agreed to end her church-state standoff.”
As for Kentucky and the necessity of a clerk’s signature in order to make a marriage license valid, changes in the state’s civil code will need to be made in order to comply with the recent Supreme Court ruling, as will need to happen in all other states. (See Jailed Clerk’s Attorney wherein it is noted, “Kentucky lawmakers won’t meet until January, unless the governor calls a costly special session, and when they do, they say they will have many changes to make to adapt the state’s civil code to the Supreme Court’s ruling.”)
Another interesting perspective on this situation is whether Davis’s refusal is based on religious convictions or identity objections. If based on religion, again, discrimination based on one’s religion is a First Amendment freedom that cannot be usurped. If the objection is based on identity, we have only to look at the trend toward acceptance and inclusion to see that it will soon be part of our civil rights umbrella.
This situation calls into question the matter of interviewing and screening candidates for a sensitive position. Perhaps one of the questions should be related to whether the person can put aside their personal convictions in order to fulfill the requirements of the job. Another would be whether they fully understand what the duties entail, and then require a discussion of the interpretation of those duties. This should be done in the conversations with the hiring manager. But this type of screening should also take place with the recruiter who is chosen to do the search for qualified candidates.
This makes me wonder how candidates for the position of carrying out death penalties are chosen. It also makes me wonder about the types of values executioners have and whether gang members would actually be ideal candidates for the position of executioner, one who unquestioningly carries out orders without qualms for the consequences. Mind you, that last statement carries a lot of presumption and little to no research; it was editorial in nature.