A Clerk, But Just A Clerk

In concurring in the denial of cert., Justice Clarence Thomas, joined by Sam Alito, seized upon the opportunity to present his views on the conflict between religious liberty, a right expressly protected under the First Amendment, and the “right to same-sex marriage,” which he describes as “read into the Fourteenth Amendment” in Obergefell v. Hodges.

Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs.

Granted, a “statement” in a cert denial is a free opportunity to get one’s jollies out, much like a dissent in a 7-2 decision. It changes nothing substantive, but it’s one of the few opportunities for a justice to spew as to his pet peeves. While Thomas isn’t entirely wrong to express concerns about where the line should be drawn when conflicts arise between an enumerated right and an unenumerated right, his characterization of Obergefell misses the point of the decision which wasn’t to endorse same-sex marriage, but condemn the denial of equal protection. That’s very much an enumerated right, even if it’s a very broad one.

And Thomas isn’t wrong that this determination would have been far, far better made through the legislative process than lawfare, where it’s an all-or-nothing proposition, leaving society to hash out the myriad clashes of rights without a clue which right prevails over the other.

But Kim Davis was the former county clerk for Rowan County, Kentucky, who decided that she wasn’t going to comply with the law and issue marriage licenses for same-sex couples. She’s nobody’s religious liberty hero here, and this was not the case to raise Thomas’ concerns.

The county clerk is a ministerial official. She’s the manager in a dollar store, making sure the shelves are stocked and the cashier isn’t dipping in the till. She doesn’t get to decide what to charge because it’s a friggin’ dollar store. It’s a job that needs to get done, but at the same time, it’s not a job where a great deal of discretion is demanded. What it is not is a job about Kim Davis. If it were Angela Davis, the job duties would be the same.

But what if Kim Davis thought they were charging too much, or too little, for a 24-pack of gummy bears? So what? Nobody hired her to price the items in the dollar store. That’s for the store owner, in this case the legislature, to decide. Take the dollar and say “have a nice day,” or in the case of a county clerk, be surly because it’s not as if anyone can go to the county clerk store across the street.

The point is that Kim Davis’ religious beliefs, assuming they were entirely sincere, deep and beyond reproach, never had a thing to do with her duties as county clerk. If she wanted the job of legislator, she could have done what anyone else would do: suck up to a party chair to get a nomination, pander to a constituency and hope they elect you. Instead, she chose to go for county clerk, knowing full well that the job was filing forms and making change.

Public officials have duties, which is why the position exists. Who fills the position matters when the duties involve discretion, the ability to decide whether to turn left or right, to say yes to things you approve of and no if you don’t. But many jobs are ministerial, meaning that they are a warm body filling a position that needs to be done but can effectively be done by anyone with the marginal competence to perform the duties. Davis may need the ability to make change to run the cash register, but what money she takes in and change she hands back aren’t up to her.

Sure, a county clerk has some occasional discretionary authority. What if a form is filled out but a space is left blank? Should she take it for filing? Should she tell the person filing how to circumvent the rules to get the form filed rather than rejected? Should she just let it go and take the form anyway, because she’s a nice person or the person filing wasn’t a jerk? Yes, there is room to move, but it can also devolve into shenanigans, where a clerk does favors for some but not others, and a scandal properly ensues.

And that’s where Justice Thomas went off the rails.

Kim Davis, a former county clerk in the Commonwealth of Kentucky, was responsible for authorizing marriage licenses. Davis is also a devout Christian. When she began her tenure as clerk, Davis’ sincerely held religious beliefs—that marriage exists between one man and one woman—corresponded with the definition of marriage under Kentucky law.

Was her job to “authorize” marriage licenses? Was it up to Kim Davis to take a look at the lovely couple and give her personal thumbs up or down?

“Hey, she’s a 10 and you’re barely a three,” Clerk Davis tells the lovebirds. “This will never last, so I’m just gonna say ‘no’ to this one because it’s sure to end in divorce, which is against God’s will. Next!”

To the extent the word “authorize” applies, it was to make sure all the empty spaces were filled and the right fee was paid. It’s true that if the bride were named “Sally, the goat,” she might exercise her authority under law by denying the marriage license, even though it was Kentucky, but that’s only because there existed a law requiring her to do so. It wasn’t because she has anything for, or against, goats.

There are far too many clashes of constitutional rights arising out of the bludgeon of lawfare as a tool of expanding the rights of individuals when legislative inertia and paralysis, or cowardice as some prefer to call it, make it the only path available. But just as troubling as it is when rights clash and we’re left to battle it out between ourselves as to whose rights prevail, manufactured clashes that don’t really exist aren’t cause for justices of the Supreme Court to broadcast their personal, and activist, feelings about which rights they value more than others. That’s not their job at the dollar store, either.

8 thoughts on “A Clerk, But Just A Clerk

  1. SamS

    If government would get out of the marriage business there would be no clash of rights. Government should not be deciding who gets to cohabit with whom.

    1. SHG Post author

      That’s a big and involved point, but it’s also not the point of this post, so let’s not open that can of worms here.

    1. Anonymous Coward

      It seems that Justice Thomas omitted to mention that by applying her religious views to her government function Kim Davis was pretty clearly violating the First Amendment. While wedding cakes can be bought from many sources, marriage licenses are a government monopoly.

  2. Jardinero1

    Alternately, Justice Thomas might view the facts, surrounding the Kim Davis episode the same way, as our host. Perhaps Thomas viewed the case as an opportunity to set some boundaries around ministerial officials who exceed their authority and/or violate the civil rights of those over whom they have authority. You got to start somewhere.

    1. SHG Post author

      Since this statement was a concurrence in the denial of cert, and certainly nothing in the statements suggests it, I’m not seeing this.

  3. John Barleycorn

    Rowan County only has twenty three thousand people esteemed one and with the Ohio River to the north and the Appalachian Mountains to the east what would you expect her to do, if the county party chair persons suck-ups list were already on a waiting list rotation? Cross the state lines and go record a Clerks Get the Blues Too tune in Nashville?

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