As Christians rise up against the jailing of Kim Davis, citing it as an example of persecution against someone engaging in the constitutionally protected free exercise of religion, a common retort from the secular left has been as follows: “She’s not in jail for exercising her religion. She’s in jail for not doing her job.”
If that’s the case, she needs to be freed immediately. There is no statute in this country that makes it a criminal offense not to do your job, or to do your job poorly. If there was, Barack Obama would belong in jail – and I know some of you think he does anyway, but actually the only provision in the Constitution that could deal with his abuses of power would be impeachment and removal from office upon conviction. That’s obviously plenty serious, but it’s not a criminal offense requiring prison.
And the same is true with Kim Davis. If it’s true that she, as an elected official with a set term in office, is failing to do her job properly – there may or may not be provisions in Kentucky to remove her from office. Those could be pursued if they exist and the people with the power to execute them want to give it a shot. But she’s not in jail for her job performance. She’s in jail for “contempt of court,” stemming from her refusal to obey a court order. The distinction is important because the court order is not based on any statute passed by a state legislature or by Congress. It is based on the decision of one court (the Supreme one) to institute a nationwide right not listed in the Constitution nor established by any act of Congress, and on the decision of another court to order her to personally participate in the fulfillment of that right.
This is what happens when judges decide to make law apart from the democratic and legislative process – especially when they do so on a nationwide basis when there is nowhere near a consensus in favor of the law being made. If gay marriage is right and just, and the public supports it, then state legislatures could act to legalize it. Some already had. Most had not, but momentum seemed to be moving in the direction of more doing so. While I oppose gay marriage and always will, I recognize as a political and societal reality that the legalization of gay marriage by the people’s representatives on a state-by-state basis would have had a much greater sense of government acting with the consent of the governed.
he Supreme Court simply decided to bypass all that and order it to happen, everywhere, immediately, because in the opinion of these five Justices it was so important that it absolutely could not wait for the democratic process to play out. Such an action inevitably creates situations like this. One day there is no conflict whatsoever between being a Christian and being a county clerk. Suddenly, because of the whim of five judges, it’s an inherent conflict that will land you in jail.
I realize the secular left sees this as no problem whatsoever – in fact, it’s exactly what they want – but those who are not part of that radical agenda should recognize we’ve created many Kim Davises, and Sweet Cakes by Melissas, and Memories Pizzas, just because one segment of society decided all dissent from their agenda needed to be crushed, and the Supreme Court of the United States empowered them to make that very thing happen.
It’s also demonstrative to see people offering this argument as a defense. If you could go to jail for not doing your job correctly, the prison population would be so enormous we’d need to build Gitmos all across the globe. Far from supporting the rule of law, these people are advocating the complete abandonment of that nation in favor of a freight train that just runs down anyone still resisting the new orthodoxy. The “rule of law” is now whatever they can convince you it is, regardless of whether there’s any duly enacted statute to back them up. That’s the real problem with what’s happened to Kim Davis. She’s committed no crime at all. She’s in jail for nothing. And the people yelping about the “rule of law” think it’s fantastic.