This Is NOT About Kim Davis

It’s not my job, my place, or my intention to sit in judgment of Kim Davis.  Is it hypocritical for someone who got pregnant during an extra-marital affair with her soon to be next ex-husband to be such a fanatical defender of the sanctity of marriage?  That’s not for me to say.  Is it true that her extra-conjugal visits with soul-mate number two took place behind a dumpster at the county courthouse while he was an inmate in the county jail, and she was supposed to be at work in the county clerk’s office?  I don’t know for sure.  I wasn’t there at the time.  Do I have an opinion about who should be cast to play her in the movie version of her life; Bride and Prejudice: The Kim Davis Story?  Not really. Although I assume, like everybody else, that it will be either Kathy Bates or Melissa McCarthy depending on their availability and whether Martin Scorsese or the Cohen brothers sign on to direct.  If someone asked me to make up a song about Kim Davis that could be sung to the tune of the theme from the Beverly Hillbillies, could I do it?  Well – yeah:

Come and listen to my story, ‘bout a clerk named Kim,
Who won’t let couples marry if they ain’t a “her” and “him”
Then one day, while ignorin’ her responsibility
A judge locked her up and he throwed away the key.
Jail that is.  The black hole.  Cell block C.

Well, the next thing you know Kim’s back in old Morehead,
Reviled and revered ‘cause she refused to let gays wed.
She swore to support the Constitution of these United States,
But not, so help her God, any part she really hates.
“Religious Right” tool?  Media star!

But wait - hold the banjos!  That’s not the point, and this is not about Kim Davis.  This is about how people who think like Kim Davis and people who don’t like Kim Davis alike fail to understand or appreciate the vital role of an independent judiciary in our system of government.

The late Judge John Heyburn wrote the opinion in Love v. Beshear which struck down Kentucky’s “sanctity of marriage” law, and which was later affirmed by the United State Supreme Court in the Obergefell v. Hodges decision requiring states to recognize same sex marriages.  He, a life-long Republican, was appointed to the federal bench by conservative Republican President George H.W. Bush.  He was also a long-time political ally and close personal friend of conservative Republican Senator Mitch McConnell.  Judge David Bunning ordered that Kim Davis be jailed for her failure to comply with his Order directing her to comply with the holding in Obergefell.  He too is a life-long Republican.  He was appointed by conservative Republican President George W. Bush and is the son of conservative Republican Senator Jim Bunning. 

If you think that a judge’s political pedigree is what matters when it comes enforcing the rule of law, then you are not alone.  You’re wrong, but you’re not alone.  Enforcing the rule of law is what judges do.  But when these judges did, people seemed genuinely surprised.  It’s as though they never considered the possibility that a person they considered to be “one of them,” or “one of them,” would turn out to be one of us (i.e., judges) instead.

Judge Heyburn gave the best explanation I’ve ever heard for the role of judges in our system and in our society.  It was at a post-Love Opinion program styled as a “debate” over the issues surrounding same-sex marriage.  As we listened to the sanctity of marriage invitee criticize activist judges who were unaccountable to the people when acting in blatant disregard of the will of the majority, it became apparent that the speaker’s grievance was not only with Judge Heyburn’s decision, but with the fact that the decision was his to make.  Judge Heyburn patiently explained that the founding fathers thoughtfully and purposefully created a system of government that promotes majority rule while protecting minority rights, and that they recognized such a system could not exist but for an independent judiciary.  But for those “activist” judges, he went on to say, black children and white children would still be going to separate but unequal schools.  An institution which most certainly represented the will of the majority at that time. 

I understand that there are people who do not like how our system works.  But I worry that those people do not understand that that is how our system works, and how it was intended to work. It is, moreover, why our system works.  Under our system of government, as Judge Heyburn stated so eloquently, “even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been outvoted.”  Because judges understand that, no one should be shocked or even surprised when a judge does the job (s)he swore to do.  This is not about Kim Davis, but if it was, this would be the part where I would suggest that if she can’t do the job she swore to do, then she should go do something else.

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SIDEBAR

KIM DAVIS

Kim Davis was the elected County Clerk in Rowan County, Kentucky when in 2015 she decided that her opposition to same-sex marriage relieved her of the obligation to issue marriage certificates to same-sex couples.  A federal injunction and attendant media $#!+storm ensued.  She was jailed, briefly, by Judge Bunning for her refusal to abide by the law and the court order making it clear that government officials can’t just decide to deny someone his or her (or in this case “his and his” or “her and her”) constitutional rights because they don’t think that particular someone should have those rights. 

She subsequently managed to stand her moral high ground, and avoid going back to jail, by issuing marriage licenses to everyone, but not deigning to sign them personally for anyone who, as the song goes, “ain’t a 'her' and 'him'."  The good people of Rowan County voted her out of office in 2018. In 2022 Judge Bunning, as part of a civil lawsuit filed against her in federal court, found that she willfully violated the constitutional rights of the same-sex couples who she had refused to issue a marriage license.  That lawsuit, which includes the potential for both actual and punitive damages against her and Rowan County, is still pending.   

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