Kim Davis, Ron Swanson, bureaucratic discretion, and civil disobedience

I think the cynical bits of the world predicting that Kim Davis will do just fine cashing in on her jail time are probably right, but I still think it’s unfortunate that she is in jail. One point of clarification is simply that she is in jail not because of her refusal to issue the licenses to same-sex couples, but because she refused to do so after a judge ordered her to. The actual charge is contempt of court. She isn’t in “Jail for Christians.” She’s in jail because she refused to do what a judge told her to. I couldn’t figure out whether she is appointed or elected.

As a result, she exists in a strange situation for those of us who study government-y things. . As either an appointed or elected clerk, she is not strictly a professional bureaucrat, but many of her functions concern the day-to-day legal transactions of local, state, and federal codes. The breadth of the duties of an average county clerk, particularly in a place like Rowan County, can be pretty large. This is one reason why the sitnexttoKimDavis on Twitter is very funny: it takes the pathos of Parks and Rec–the decidedly tedious aspects of public administration–and laughs at it under the national gaze of Kim Davis’ actions:

Sitnexto Kim Davis nexttokimdavis Twitter

The Parks and Rec reference has a point: there’s Ron Swanson, great champion of small government, and he’s….yeah.

That whipsaw between what one believes is right and what one does for a job or a role comes into play all the time within organizations and communities, and it always brings back Hirschmann’s Exit, Voice, and Loyalty or questions about individuals should do when vis-a-vis orders to do something they personally think is wrong.

Normally, what I’d prefer to see in cases like Ms. Davis’ is to simply find some reasonable accommodation around it. Think about this way: if the federal government had outsourced document issuance to a private employer, and Ms. Davis were employed by MegaDocuCorp, it would be reasonable, if she has a religious objection to issuing licenses to same-sex couples, that perhaps she just takes some other role at the counter. Or something that wouldn’t involve forcing the issue when her faith stands in conflict with her job role. MegaDocuCorp cannot take the position that it’s not going to issue those licenses, but as long as they have somebody at that counter doing the job, there is no reason why Ms. Davis would have to be the person to do it.

But we can’t really do that here. She has a very specific public role and is a public official, and she doesn’t have discretion on the legal code because she was superseded by a judge. Now, the issue is not necessarily settled forever; Plessy v. Ferguson stood for nearly 100 years and was finally overturned. I think there’s a snowball’s chance of that happening here, but it’s not outside the realm of possibility that in the future, the court will reverse recent decisions. But right now, the essence of her role is to check IDs and issue public documents, and those public documents now include licenses to same-sex couples. Even if she refused to hand somebody a license, as county clerk, the license goes out under her stamp. She can’t abide that, and thus, refuses to have the licenses issued at all.

Discretion is always contested terrain because bureaucrats;, judges, and everybody else who has it in a legal context are human beings interpreting their jobs. And while it would be nice if the Law were the Law and utterly objective, it’s not. It’s always, always subject to interpretation. Only in her case, she’s got a ruling.

As to the conservative gloat floating about how “liberals”/progressives love civil disobedience until a conservative does it, well, ok, but there’s shoes for other feet there, too: I remember lots of conservative hissy fits during Occupy for vague reasons that, when pressed, boiled down to ” I’m mad those people are getting attention and have iPhones.” The bottom line is that conservatives disagreed with Occupy, and so they didn’t respect the protests, and now liberals don’t respect Ms. Davis’ position and don’t respect her civil disobedience, either. Pointing out hypocrisy is one of the easiest sports in politics, both sides do it, and it’s never convincing because of both those reasons and the impossibility of having a perfectly coherent set of positions on every issue that arises.

Ultimately, I’m less bothered by recent court decisions than most people seem to be. I thought the Hobby Lobby decision was fine, and while I am sorry Ms. Davis is jail and can’t just be moved to another role, she’s refused to do her sworn duty. She wants to use the power granted her a public official to enforce her own religious beliefs, and I’m sorry, Christians of the world, but many, many of us who are happy to share a political community with you, draw the line at letting you rule by the standards of a faith we do not share. That’s not required of religious toleration by any measure.