Well, maybe not.
Davis, through her Liberty Counsel lawyer, says the licenses issued in her absence are invalid.
"They are not being issued under the authority of the Rowan County clerk's office. They are not worth the paper that they are written on," said attorney Mat Staver after meeting with Davis in the Carter County jail in Grayson.He claims that only Davis has the authority to issue a marriage license. The Rowan County Attorney, Cecil Watkins, has said that deputy clerks don't need their boss' approval to issue a marriage license.
I suspect we won't know who's right until somebody files suit and the Kentucky Supreme Court eventually rules one way or the other.
This prompts a bigger question, though: exactly how does Davis suggest that Kentucky resolve the tension between her beliefs and settled law?
Frankly, I don't see how we can accommodate the unbelievably stringent notion of what I call "transitive sin" with human law, period.
Davis objects to standard legislative accommodations of objecting religious believers. She won't allow her deputies to do the physical work of issuing documents because they still require her signature, and even if the signature were imprinted by a machine it would, in her eyes, still reflect her endorsement of a sinful act. This level of belief can't be satisfied by legalistic fig leaves that exempt the believer from physically participating in the act: it considers standing aside and letting the action take place to be tantamount to complicity. (Last year I mentioned a piece about the Little Sisters of the Poor, who have a similarly strict view of what constitutes "participation" in a sinful act.) Since the sinfulness can't be avoided by permitting an intermediary to do the dirty work, I call this view of sin and action as "transitive".
This is a pretty expansive idea of moral responsibility. Moreover, the lengths to which she has gone to satisfy her beliefs call into question her sincerity on a different matter.
Davis claims she has no problem if same-sex couples seek their license in another county. Yet how does this absolve Davis in her own eyes?
The obvious answer is, Davis' legal authority doesn't extend to a different county. But how much does Davis respect legal authority? Not much, as far as a federal judge's order is concerned. Why does she respect the legality of county boundaries but not a judge's order aimed specifically at her? Why should one carry weight with her but not the other?
Then there's the spiritual aspect of the matter. If she is so concerned with not enabling sin, how can she be okay telling same-sex couples they can get a marriage license in the next county? How are her hands clean in that case? She enabled them to commit the sin of same-sex marriage!
If you sincerely believe that the least little contact makes you complicit in a sin, I don't see how you can be virtuous in the modern world. I also don't see how you can believe in freedom of belief for anyone else if you're inclined to constrain what other people can do if their actions impinge on your "web" of possible complicity.
The legal rule of thumb for how far any given "freedom" can extend is, it has to be reined in when it impinges on someone else. In other words, "Your freedom to stretch ends at my nose". How can Davis' expansive version of "religious freedom" fit that legal rule of thumb?
I don't think it can.
The claimed injury to Davis' freedom of worship is so vaguely expansive, the "penumbra" of what might impinge on her religious belief can't be defined in the law. Common-sense, reasonable accommodations for religious belief have not sufficed for her. I doubt any accommodation is possible.
When your "personal" belief extends so far that you won't let others do your work, you've crossed a line. We can't and shouldn't accommodate you, because you are imposing your belief on others.
By the way, the strength of her belief in this particular sin strongly suggests that what really motivates her is a deep animus toward homosexuals. That, too, can be "protected" under the rubric of religious belief, but it's a much less trendy sentiment.
Oh, and those like the tiresome Mike Huckabee who are crying "Religious intolerance!" and "Christian persecution!" to the rafters are simply trying to raise money. Davis was jailed because she refused to do her job. You jokers are amplifying hostility toward yourselves and your coreligionists by being too goddamned greedy to secure power for yourselves. Worried about a more secular world? If that happens, you will bear much responsibility because you will have discredited genuine spiritualism with your whining and bigotry. So I'm actually doing you a favor by telling you to fuck off.