Why Kim Davis’ legal defense didn’t work.

By now most of you know that Kim Davis is currently being held in jail based on a contempt of court charge, but I think it’s interesting to take a look at the arguments she and her lawyers made, why they didn’t work, and frankly why the should have known they wouldn’t work going into this legal battle. This is particularly important because people on her side are still claiming that she has been jailed for being a Christian, or for standing up for her personal beliefs, and as most of my readers will probably agree, it’s a bit more complicated than that.

So Davis and her lawyers tried to defend her refusal to issue licenses by saying that issuing said licenses conflicted with deeply held religious beliefs, arguing that “compliance is factually impossible” the reason being “because it irreparably and irreversibly violates her conscience by directing her to authorize and issue SSM licenses bearing her name and approval.”

Now, I’ll state upfront that I’m not a legal expert, but it seems that this argument rests upon some assumptions that are legally problematic. First she wants her beliefs about homosexuality and gay marriage treated as central tenants of her religion, but this a complex question from a legal perspective. If the court just accepts any claim that a religious belief conflicts with a law without applying any scrutiny to the claim then anyone could potentially get out of following all sorts of laws or court orders. However, applying scrutiny to such claims could potentially involve violating the excessive entanglement prong of the lemon test, by requiring the government to decide which beliefs should qualify for exemptions. All of this is why the courts tend to want public officials to keep their personal beliefs out of the job they do.

Second, the argument made by her and her lawyers depend on there being a clear connection between her beliefs about homosexuality and the licenses she issues. In other words we must accept that her issuing those licenses represents a tacit endorsement of gay marriage and homosexuality. The problem is, while she may feel issuing such a license does represent such an endorsement, the law has made no such connection, and is in no way asking her to endorse homosexuality or change her religious beliefs or ethical positions by asking her to issue those licenses, and for obvious reasons the court is more concerned with the letter of the law than someone’s personal feelings about whether or not they have committed a crime.

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