Is Kim Davis a Martyr or a Malefactor?

Previously, I wrote about Kim Davis, the Rowan County clerk who has refused to issue marriage licenses of any kind since the June Supreme Court ruling on same-sex marriage. Yesterday, I asked the question of whether Davis was a hero or a hypocrite, since she herself has been married four times.

Since I wrote that article, Kim Davis has been put in jail for contempt of court, and now her deputies are issuing marriage licenses in her name. What does all this mean? Is Kim Davis a martyr? Or is she nothing more than a malefactor—a law-breaker who has gotten what she deserves.

This is possibly one of the more polarizing things to have happened in this country since the very Supreme Court ruling that precipitated it.

On one side of the argument, homosexuals, leftists, and obedient citizens are saying that Kim Davis broke the law, plain and simple, and therefore deserves to go to jail. End of story.

On the other side of the argument, hardline conservatives and Christians are saying that Davis’ imprisonment is the beginning of the civil government’s persecution of Christians for their sincerely held beliefs.

There has basically been no middle ground on this issue.

As you might expect, both of these perspectives require some unpacking. First, the legal side of this issue is less clear than leftists are making it. Kim Davis broke no real law. Because there is no law to break. The Supreme Court is not a legislative institution. It said that state laws and amendments prohibiting same-sex marriage were unconstitutional, but whether or not the Supreme Court had the constitutional authority or right to make such a pronouncement is very much in question. Sure, Supremacy Clause, blah blah blah. I hear you. That Clause clearly applies to international and inter-state relations, not internal statewide affairs that are already being addressed by statewide legislation. The Supreme Court overstepped its constitutional boundaries. The Tenth Amendment is clear:

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.

The power to define marriage or to issue marriage licenses has not been delegated to the federal government of the United States. It is squarely in the hands of the States. Did Kentucky already have laws concerning marriage? Yes. And Kim Davis was attempting to abide by those laws. The Kentucky Marriage Amendment, approved in 2004 by 75% of Kentucky voters, is clear:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

kim davisSo, given this amendment, why didn’t Kim Davis at least deliver marriage licenses to heterosexual couples? That decision also had legal reasoning behind it. Davis was attempting to follow the equal protection laws of her state, which had become muddled by federal involvement. The fact is that the Supreme Court’s intrusion into state affairs has created an impossible legal situation for many state officials who desire to actually enforce their own laws in the face of federal over-reach. Davis’ calculated civil disobedience highlights that impossible situation. Given Kentucky’s legal marriage amendment, and the clear language of the Tenth Amendment, Kim Davis and her lawyers can successfully argue that she in fact did abide by the law.

In other words, the argument of “Kim Davis broke the law. Therefore she’s in jail. The end.” is not correct unless the only law you’re willing to uphold or defend is federal law, and such exclusivity is, ironically, in contradiction to federal law. It is neither constitutional nor consistent. These same activists were all about state laws when only certain states were issuing same-sex licenses before Obergefell.

Further, the federal government and leftists are not at all consistent about the consequences for “breaking federal law.” What about marijuana dispensaries? They’re all breaking federal law and following only state laws. And what about border enforcement and deporting illegal immigrants? Many deputies, the Attorney General, and Obama himself have made it clear that they will not obey the law, since it would affect the generally decent lives of millions of people on American soil. In other words, this “Follow federal law or be jailed” rhetoric is not consistently enforced. Nor should it be. Because if it were, most every state official would probably be in jail. The federal government needs to get its nose out of internal state affairs and allow the people to voice their opinions and shape the laws in the places where they live together without interference.

And that was precisely the point of Kim Davis’ actions from a legal standpoint. She was essentially saying, “I can start issuing licenses again, just as soon as the federal government gets out of the marriage license business. Because marriage is none of the federal government’s business.” A valid point. But what of the claim that Davis broke her oath of office?

The judge who sent Kim Davis to jail, U.S. District Court Judge David Bunning, indicated that this imprisonment had to do with oaths of office rather than religious beliefs:

“Her good-faith belief is simply not a viable defense,” said Bunning, who said he also has deeply held religious beliefs. “Oaths mean things.”

Right. But what was her oath of office? Section 228 of the Kentucky Constitution contains the oath Davis took:

I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of ——————— according to law . . .

So if the Constitution of the United States (as dubiously interpreted by the Supreme Court) is in conflict with the Constitution of Kentucky, where does this oath indicate Davis’ loyalty should lie? Kentucky. She is to be “faithful and true” to Kentucky. That’s her first loyalty.

On the legal side of this issue, Bunning and all of his cheerleaders are dead wrong. They are right about one thing though. They can’t just let Davis keep doing what she’s doing. Because for any totalitarian regime, law enforcement only works if there are no exceptions. You make examples of the exceptions in order to keep everyone else in line. Davis is that example.

christianspersecutedBut is Kim Davis the first martyr in the federal government’s war on Christians? Yes and no. Mostly no. The main reason I say no: Kim Davis is not the first to be persecuted over this issue, and I think she was jailed more because of totalitarianism than religious persecution. That being said, totalitarianism and true religion have never been able to get along, since both make equally absolute (and usually mutually exclusive) claims on the lives of those who submit to them.

Many have claimed that Davis made herself a victim, since she could have avoided jail time by stepping down from her position. But being essentially forced out of your position would still be persecution, would it not? It would just be more silent persecution—the kind of persecution that has saturated the edges of the same-sex marriage debate for years.

And let’s not forget that Kim Davis is an elected official. Would stepping down from her position be upholding the will of the people who elected her and the Constitution of Kentucky under attack by federal and judicial tyranny? No. Like many people before her, she stood in her position in protest to the unjust laws being thrust upon her.

I think that’s the main issue here. The federal government wants to have unilateral and absolute sway over the states and the people. I think that is more central to this issue than Davis’s Christianity. It may have been her Christianity that put her in the position of having to stand up to federal tyranny, but I don’t believe that her Christianity was the main reason the federal government endorsed her imprisonment.

All that said, the social, cultural, and political war on Christianity is alive and well. If you don’t believe that, just read some comments on any of the Kim Davis stories. The gloating, scorn, and triumphant viciousness of the comments concerning her imprisonment will make you shudder. In other words, Kim Davis is only one of the first to be jailed because of the totali-tolerance of the leftist regime. She won’t be the last.


from Last Resistance

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by

About the author

Michael Minkoff

Michael Minkoff writes, edits, and typesets from his office in Powder Springs, Georgia. He honestly does not prefer writing about politics, but he sincerely hopes you enjoy reading about it. He also wonders why he is typing this in the third person.

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