Kim Davis, the Rowan County Clerk who made headlines when she refused to issue marriage licenses to same-sex couples, has been compared to Rosa Parks, the civil rights activist who famously refused to give up her seat to a white passenger in the “colored” section of a bus when the white section was filled. It didn’t take long for folks to start foaming at the mouth over such comparisons. “Kim Davis is no Rosa Parks,” fumed John Culhane of Politico Magazine. Culhane got so twisted, he tried to blame the dissenters (Roberts, Scalia, Thomas & Alito) in the Obergefell v. Hodges Supreme Court gay marriage decision for the ruckus. Of course, Culhane never supplied evidence that Davis ever read the decision, but evidence is the last thing some people need when blasting conservatives.
So, why are critics going nuts over that comparison? Culhane writes (linked above), “Kim Davis, the Kentucky county clerk sitting in jail for refusing to issue same-sex couples marriage licenses, appears content to play the martyr’s role. But contrary to her own, self-aggrandizing description, she’s no Rosa Parks. In fact, she’s the opposite: While Parks was a private citizen defying what she knew to be the law, Davis is a public official, who is charged with following the law. She’s Rosa Parks’ bus driver, denying a service to the public” (italics original). One of the problems with this objection is its fact-free content. Rosa Parks’ bus driver was following the law. The law was unjust, but he was not “denying a service to the public.” Indeed, the Montgomery City Code was quite clear:
Sec. 10. Separation of races—Required.
Every person operating a bus line in the city shall provide equal, but separate, accommodations for white people and negroes on his buses, by requiring the employees in charge thereof to assign passengers seats on the vehicles under their charge in such a manner as to separate the white people from the negroes, where there are both white and negroes on the same car; provided, however, that negro nurses having in charge white children or sick or infirm white persons, may be assigned seats among white people.
Nothing in this section shall be construed as prohibiting the operators of such bus lines from separating the races by means of separate vehicles if they see fit. (Code 1938, 603,606
Sec. 11. Same—Powers of persons in charge of vehicle; passengers to obey directions.
Any employee in charge of a bus operated in the city shall have the powers of a police officer of the city while in actual charge of any bus, for the purpose of carrying out the provisions of the preceding section, and it shall be unlawful for any passenger to refuse or fail to take a seat among those assigned to the race to which he belongs, at the request of any such employee in charge, if there is a such a seat vacant. (Code 1938, 604)
Thus, there was no obligation on the bus driver’s part to provide a service, other than to provide a ride and to enforce racial separation. The practical effect of the SCOTUS decision was to invalidate Kentucky’s traditional marriage law which means that Mrs. Davis was not following the law. Since she was not following the law, she cannot be logically compared to Mrs. Parks’ bus driver.
The fact is we have two competing rights: The free exercise of religion as guaranteed by the Constitution and the right to marry as decided by the Supreme Court. Our political opponents and even some of our allies contend that as a public servant, Mrs. Davis, while serving in her capacity as a county clerk, is obligated to issue marriage certificates regardless her religious objections. We must then ask whether any employer, the government included, may constitutionally force an employee to perform a service in violation of h/er religious beliefs. We must also ask whether businesses are obligated to accommodate all beliefs (if accommodation is required).
On the first question…there is no legal question that accommodation is required. A person’s religious convictions extend to every facet of a believer’s life and encompasses that person’s entire worldview. It isn’t something that can be left at home like a fishing rod or one’s bowling club membership. As Eugene Volokh observed, a Muslim flight attendant who didn’t want to serve alcohol, nurses who object to participating in abortions (including washing instruments used therein), pacifist postal workers with religious objections to processing draft registration forms, a Jehovah’s Witness who objected to raising a flag, an IRS employee who objected to working on tax exemption applications for organizations that promote matters contrary to that person’s religious convictions, a philosophical vegetarian who refused to hand out free hamburger coupons, and employees who object to working on Saturday have all been accommodated either through a court ruling or via a settlement of a lawsuit filed by the EEOC. Volokh continues,
Under Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an “undue hardship,” meaning more than a modest cost, on the employer. If the employees can be accommodated in a way that would let the job still get done without much burden on the employer, coworkers, and customers — for instance by switching the employee’s assignments with another employee or by otherwise slightly changing the job duties — then the employer must accommodate them. (The Muslim flight attendant I mentioned above, for instance, claims that she has always been able to work out arrangements under which the other flight attendant serves the alcohol instead of her.)
Thus, the second question is also answered. Although Volokh recognizes (without agreeing with it) the present state of the law, he then writes, “The government is barred by the Free Exercise Clause from discriminating based on religion, but the government has no constitutional duty to give religious objectors special exemptions from generally applicable rules.” He offers no justification for his re-wording of the First Amendment. The “Free Exercise Clause” says that “Congress shall make no law…prohibiting the free exercise thereof [religion]…” If Congress, and by incorporation all government, federal and state, cannot make any law prohibiting religion’s free exercise, then its “generally applicable rules” cannot do so either. In the case of competing interests between employee and employer or between citizens, a balance must be struck, as described above, so that the rights of the parties involved are accommodated as much as possible. Volokh’s column, overall, is a competent summary of the issues and is recommended for further information.
Davis became the Rowan County Clerk prior to the Supreme Courts lamentable, and every bit as mistaken as Dred Scott v. Sandford, gay marriage decision. Given the State of Kentucky’s definition of marriage, and the fact that marriage licenses, according to Kentucky law, could only be issued in Rowan County under Davis’ authority, Davis concluded that she could not in good conscience issue certificates that both violated Kentucky law and her constitutionally protected right of free exercise. With respect to the latter, we have the above-referenced conflict of rights and the necessity of striking an accommodation. Davis, while rightly questioning the legality of the marriage licenses now being issued in her county, has stated that she will not interfere and will wait until the legislature settles the question. She has been released from jail and marriage licenses are being issued to both straight and gay couples. For now, Mrs. Davis’ may continue to perform her duties without violating her religious convictions, and citizens may avail themselves of government services—precisely the kind of accommodation courts have consistently decreed.
Rosa Parks disobeyed the type of law that was affirmed by, yes, you guessed it, the Supreme Court in Plessy v. Ferguson. Although segregation in schools was overturned in Brown v. Board of Education, general segregation was not ended until the Civil Rights Act of 1964. Mrs. Parks rightly decided that she would not comply with the law, but her case was also one of conflicting rights. She would not give up her seat to a white passenger who also had a “right” under the law to a seat on the bus (he could have sat in the same row, but that would have violated the segregation ordinance). The bus driver, per the above-cited ordinance, held police powers to enforce segregation, so he was legally entitled to order Rosa Parks to relinquish her seat. As we all know, Mrs. Parks did not yield and was willing to go to jail to protest the injustice of segregation. In that regard, what is the difference between Kim Davis and Rosa Parks? If one strictly examines the assertion of rights (the right to the free exercise of religion and the right of equal access to government services) against laws that impinge on those rights, there is no substantive difference. Critics’ objections are thus rooted in a disagreement over the reason for the assertion, not the assertion itself. Leftists went berserk because they hate Mrs. Davis’ beliefs about homosexuality and are going full-tilt to marginalize those beliefs in the same manner that homosexuality was marginalized until very recently.
Against this, some of our opponents have argued that Davis is being disingenuous because processing marriage applications has nothing to do with approving those relationships, but given our religious accommodation precedents, that argument falters. Besides, what makes these critics the arbiters of “correct” religious convictions? They don’t get to decide how believers should live their lives; they can only prevent “undue hardship” on an employer while recognizing religious liberty.
Still, many of them fume about accommodation itself. It isn’t Davis’ beliefs that they object to, they insist, for she is free to practice them privately; she should rather be prevented from imposing those beliefs on others, especially since she is responsible for providing government services. However, since Rowan County citizens are able to access those services without her approval, as noted above, that objection is now moot.
Moreover, how can the extirpation of religion from government guarantee religious liberty when liberals argue that the non-licensing of gay marriage oppresses liberty? Not one state prohibited gays from getting married, living together or creating legal mechanisms for the distribution of property. That’s not good enough! Full equality means government approval and celebration, but religion has to sit in the back of the bus—or better yet, ride in another vehicle! So, the liberty to live one’s private life as a married gay person is oppressive because government doesn’t license it, but preventing the religious from public expression (at school, school sporting events, graduation ceremonies, Winter Holiday (Christmas) celebrations, etc.) isn’t oppressive because they are free to practice their beliefs privately. That has a nice Orwellian ring to it, doesn’t it? How, exactly, is this supposed to be justified? “Well,” say the freedom fascists, “the Constitution decrees the separation of church and state, whereas marriage equality is guaranteed by the Fourteenth Amendment.” Nice try, but the Constitution nowhere mentions the separation of church and state and nowhere guarantees “marriage equality” for homosexuals. Since several states had established churches when the Constitution was ratified, the Establishment Clause clearly prohibits a national church; it has nothing to do with prayer, forcing government to be neutral in terms of faith in God or hiring chaplains whose duty is to promote faith in God. Moreover, every state that ratified the Fourteenth Amendment defined marriage traditionally. There is not the slightest scintilla of doubt that had they been told they were sanctioning gay marriage, they would have laughed and questioned the sanity of anybody making such a foolish allegation. Even in our age, thirty-one states banned legal recognition of same-sex unions. What do our Newspeak constitutional “experts” think the country would have done about it in the 1860s? Such is the depraved state of interpretation that passes for legal theory among the fascists who supplant the rule of law with their political goals.
Oh, and the rule of law? That’s only a pretext for liberal suppression of dissent. They have shown time and again their disdain for the rule of law when the law conflicts with their beliefs. Are liberals really upset because Davis defied the law over same-sex marriage? What about when then-San Francisco Mayor Gavin Newsom directed city clerks to issue marriage licenses to same-sex couples in violation of California law? His argument that he was challenging a law rather than defying a court order is a distinction without substance. If a court order has legal force, so does a duly enacted law issued by the legislature. Since when has a court order taken precedence over a legislative act? Where were the liberals when Judge Richard Niess refused to comply with a Supreme Court order to dismiss a lawsuit against voter ID? Niess withdrew from the case, and another judge dismissed the suit, but since voter ID laws are “racist,” it’s okay to disregard a court order, right? What about sanctuary cities in defiance of immigration laws? What about Colorado’s and Washington’s votes to legalize marijuana when said substance is still listed as a Schedule One drug under the federal Controlled Substances Act? State officials are implementing a policy that defies federal law, but that’s A-OK. What about laws relating to the handling of classified national security information, Mrs. William Jefferson Blythe Clinton (and the majority of Democrats who support her)? The blizzard of criticism directed at Kim Davis for her disrespect for the rule of law might carry greater credibility if her detractors showed some respect for it themselves.
Yes, the comparison between Rosa Parks and Kim Davis is valid and, yes, liberals have a long history of flouting the law. To be sure, there may be liberals in the media who oppose some of what their allies have done by way of civil disobedience, but one can’t be certain because their mumbling isn’t very audible, especially since they’ve done all they can to subvert, ignore or pervert the Constitution. You cannot reason with dishonest people; you can only appeal to those for whom truth matters. Hopefully, they still comprise the majority of our citizens.