Kim Davis, County Clerk, is Not a Person

Here’s how we might solve the standoff opposition between left and right over the Kim Davis issue. Let’s send America back to Civics class!

Citizens need a refresher on the differences in meaning between a “legal person” and a flesh-and-blood one. And we need to do a better job of it than Mitt Romney did when he said, “corporations are people, my friend.”

They’re not, in fact, although they are “legal persons.” But not all “persons” are the same.

Some are sheer legal fictions, for instance, such as corporations, universities, and trusts.  Another salient legal fiction includes the use of the personal name that gets attached by signature to an official state document. I think we need to be clear that these legal fiction persons are not identical to the real people bearing the same names.

Simply, “Kim Davis, County Clerk” does not mean the same as “Kim Davis, herself, or as daughter, wife, mother, sister, and so on.” They may point to the same human body, but they don’t mean the same thing.

Once Kim Davis, County Clerk clocks out, she is Kim Davis, part of the “people. She can’t, for example, “permit” her husband to add on an unpermitted addition to their house, just to keep peace in the home. That Kim Davis stays in her office, literally. She doesn’t own her job in the way she owns her body. A civic office is not Kim’s private property. This is the United States of America, not some place where police extort bribes because they feel they own their offices, like franchises, or “turf,” onto which you have been unlucky enough to have trespassed. Public offices are not like the “businesses” Tony Soprano “owns,” the use for which you have to pay what he demands on top of the cost of service. Tony’s “businesses” are very personal things, part of himself. And, thinking this way about public offices is precisely what defines “corruption” means.

Flip the coin, and just as Kim Davis does not own the County clerkship, despite her mother having served in it before her, Kim’s private property, say, her body, does not belong to the state.

The temptation is great for a real person to identify with their legal person—as the irritating media practice of calling former office holders by their legal personal names, encourages. So, no matter how long it has been since Newt Gingrich, Colin Powell, Michelle Bachman or Jimmy Carter separated from being Speaker of the House, General, Congresswoman, President, they still remain “Speaker Gingrich”, General Powell,” and so on, replete with all the unctuous deference laid on them, as if they still held those offices.

I do not advocate disrespect, but perpetuating identities they no longer hold smacks of feudalism. Is this how democracies end and class societies began, with a person’s civic role identity attached indelibly to his or her moral person?

No need to worry about an Eichmann scenario of claiming freedom of moral responsibility because one was just doing one’s job. Both as a legal fiction and as a real person, Eichmann identified with a job that was itself immoral and unjust. Giving out marriage licenses is not in itself evil.

Yet, while Kim Davis is still required to sign the name of her moral person to official documents, she still fears implicating her moral person in — what, to her, are — immoral acts.

In this case, the problem that Ms. Davis had in signing the marriage licenses because they transgressed her conscience could be obviated by calling attention to the fact that it was not Kim Davis in person with a conscience and religious beliefs that had the name “Kimberly Davis” signed to the document. It was another “person” — the legal fiction, County Clerk Kim Davis, who did. That “Kim Davis” has no conscience, no beliefs, celebrates no birthdays, does not marry, etc.

When I go abroad, I am still me in all senses of personhood—except those now constructed for me according to that other nation’s legal system. Kim’s in the same situation. If one reads carefully under Kim Davis’ signature, the clue to the existence of her name as a legal fictional person is there, namely, “County Clerk,” I believe.

So, perhaps an easy way out of this is simply for Ms. Davis to take use another name as her legal fiction identity as County Clerk—like an actor with a stage name.

I’m sure there are people on both the left and right of this controversy who would have suggestions.

And now, how about those civics classes?

 

 

 

 

 

  • Jim Reed

    I think the civics lesson should be the judge has to decide. So she was jailed until she quits. Then another judge let her out, on the condition that she not interfere with what the office is now doing to give the licenses. Next step, she can interfere anyway because it is her religious belief. Then it will be back to a judge for the next ruling.

  • cranefly

    You say “giving out marriage licenses is not in itself evil.” Duh, the problem is that she thinks it is. I gather from your proposed solution that were this an issue of civil disobedience against real injustice, you wouldn’t change your song and grant her any sympathy. If that’s the case, then fine, erase the responsibility of human beings towards participation with evil and uphold the mighty Law as a principle unto itself. I don’t share that state religion. I don’t believe in fictional people. My problem with Kim Davis is not that she’s made herself incongruent with the law, but that she thinks the law is her bat to swing for oppression towards the marginalized if her conscience demands that she oppress. My problem with her is that she shares your state religion, but demands dictatorial control over it in her corner of the world. She is not being punished for exercising freedom; she is being punished as a usurper. But yet again, if a scene of attempted usurpation were her tool to raise protest against real injustice, maybe I would admire her. I won’t deny it.

  • Some bullets
    – if Kim thinks handing out marriage licenses is evil, how can she give out any at all? the problem is her insinuation of personal ownership of her civic office, in her refusal to abide by the law. Those laws and that office belong to the citizens and state of Kentucky, not to any individual. What if Kim tacked on a “personal service fee” — an “offer you can’t refuse — whenever she chose to provide one of the services her office dispenses? How happy would you be for, essentially, bribing her to do her job? Flip the coin, and you see the point of my article.
    – Who is the “she” here who thinks giving out marriage licenses is evil. is it anything like the Muslim airline stewardess for ExpressJet who refused to serve alcohol to a flyer because of her Muslim scruples? Where does this end, please tell us?

  • Judges cannot make law out of whole cloth. There is a statute here, remember. Legislatures are in charge, within limits set by the various constitutions. Penalities, on the other hand, may vary, apparently in this case, as per judicial discretion.

  • Jim Reed

    The judge removed her for not following the law. Now that she is out of jail,, Huckabee and Cruz are egging her on to do it again. Huckabee even volunteered to go to jail for her, although he was probably only saying that to make a point. The point is Christians need to stick together now that the rest of the world is calling them out on their shit.

  • Glad she’s out. We all need to take a deep breath about such matters. And, don’t forget those civics lessons!

  • Julianne Legge

    More simply put, Ms. Davis is a bureaucratic official charged with checking off the boxes on a list to confirm that applicant couples meet state eligibility requirements for marriage.
    She does not have the authority to write the list.
    She has committed malfeasance. It’s that plain. I don’t know what the controversy is.

  • Rmj

    Actually the judge jailed her for violating a court order. Now that the office is in compliance with that order (taking us back to the article above), she no longer needs to be in jail.

    Criminal contempt (going to jail for contempt) cannot be an open ended sentence, a la “The Man In the Iron Mask.” And that’s why. No one can be jailed indefinitely (setting aside the de fact problem of “debtor’s prisons,” but this is why those aren’t legal, either) in the United States, and any contracted jail time must be served following a criminal trial in a court of competent jurisdiction based on a criminal law that was in existence at the time of the crime (no ex post facto convictions; that’s banned by the Constitution, too).

    So criminal contempt can’t run for years, or even months. The Constitution simply doesn’t allow it. Kim Davis was in jail because of the office she holds not because of her personal beliefs (again, the point of the article above). She is out because the office complied with the court order; the contempt has ended. If she forces the office into contempt again, she goes back to jail.

    Short of getting the KY Legislature to impeach her and remove her from office (about as likely as Obama being impeached and removed from the White House), there’s nothing more the courts, or even Christians, can do about her.

  • cranefly

    I’m sure you know civics better than I do. But presumably she was not doing a job that a machine could do; she was an elected official. Obviously it violates our democratic system to have every elected official writing their own constitution, that’s why Kim Davis is not in office any longer. Good. All the more good because she is standing up for bigotry, and this time the law opposes bigotry.

    My concern is that liberals are disingenuously trying to frame their distaste for Kim Davis as objectivity by making these alarming legalistic cases that principle should never outweigh legal duty, and any responsibility for evil would clearly be mitigated if only the religious nuts could understand government. It sounds fine when you don’t believe that anything evil is actually taking place. It’s a different story if you do. I don’t believe you really have trouble imagining a scenario in which an elected official’s job duties could change from morally neutral to legitimately reprehensible. You mention one, and your response to it is “but marriage licenses aren’t evil.” Kim Davis believes she has been required to do something evil. If she truly WERE, would you still support her use of these disembodied civics to keep doing the job?

  • Jim Reed

    So she is good to go for a few more cycles of being the example Christian who the Republican candidates can go see for a boost to their ratings. The country seems to be in a state of decay without Jon Stewart to lead us.

  • Jim Reed

    She needs to somehow get back into jail so that she can do a more credible job of endorsing Republican candidates.

  • Don

    My sister also tells me she had plenty of warning and therefore plenty of time to get her affairs in order and find a new job if she felt so strongly about gay marriages. I’m not so sure I like the argument that people have to “just do their jobs.” That argument’s been used a lot, and in some sense we really *do* have to own our jobs, believe in them, even. If I’m just a functionary, shoot me now and get it over with.

  • Well_Read

    as a govt elected official, she is not a person. she fills a govt position, and whoever fills that position (as written in the law) has a written legislated list of responsibilities to carry out. it doesn’t matter if that person is religious or not the law, by law, is secular as our constitution is. The person elected to that position, while acting in that position, cannot be seen to prefer one religion over another, or religion over irreligion. It’s how SCOTUS interpreted the establishment clause of the first amendment and therefore the law of the land.

  • Well_Read

    As a govt elected official, she is not a person. she fills a govt position, and whoever fills that position (as written in the law) has a written legislated list of responsibilities to carry out. it doesn’t matter if that person is religious or not the law, by law, is secular as our constitution is. The person elected to that position, while acting in that position, cannot be seen to prefer one religion over another, or religion over irreligion. It’s how SCOTUS interpreted the establishment clause of the first amendment and therefore the law of the land.

  • Thanks to for such a thoughtful comment.

    You do raise an important point but in the case you mention one simply resigns. If one knows for example that armies kill people and one as a moral reservation against doing so, one declares oneself a conscientious object or from the start. But Kim’s situation is something like someone who joined the Army knowing full well what it does then refused an order.

    The main point I really wanted to bring out, was how wrong it was for someone like him to consider the public office her own private property. When you think about what we mean by corruption, think about turning up in say Mexico with two apologies, and having to pay and bribe your way through the day because public officials there in places need extra money and treat their public offices like some type of private property that you have to pay to cross. It is that appropriation of the public domain by private citizens I find wrong.

  • That cannot be avoided in our system of justice. It is the place where interpretation as the upper hand over statute.

  • You are obviously someone with the find education

  • DKeane123

    What a smear piece. This obviously just a result of years of repression forced upon the south by the north.

    No wait, I have a much better apologetic approach. She isn’t a real Christian because other Christians don’t agree with her theology and therefore we can discount her actions as not being religiously based….yeah that is the one that I like the most.

  • Jim Reed

    I think you copied that approach from other denominations.

  • Abide

    This case isn’t as cut and dried as liberals believe it is. Stan Fish wrote a piece for Huffington Post detailing the legal quagmire going on here. In Employment Division v. Smith, Justice Antonin Scalia’s reasoning would apply here to suggest the woman is not a person, but an agent of the state and the courts have ruled what the state must do, over the authority of any legislative or executive statutes or actions.

    However, in other cases like Sherbert v. Verner, the Supreme Court upheld a Seventh Day Adventist’s efforts to get benefits denied her because she refused to work on Saturdays. As Fish contends, the Supreme Court reversed the lower court’s ruling in favor of the employer, holding that no one should be forced to
    choose between “abandoning one of the precepts of her religion” and
    securing a job; the burden on free exercise is just too great.

    “From the perspective of Smith, Judge Bunning got it right; from the perspective of Sherbert,
    the state should find a way to accommodate Davis’s deeply held beliefs
    and not exact as the price for adhering to them her employment and her
    physical freedom.”

  • She is a “person” — but a “legal person,” not a moral one. “Person,” etymologically, I think, comes from the Latin “per-sona” –meaning a kind of mask, megaphone actors wore to increase the volume their voices while acting in the open Greek/Roman theaters. The implication is that we have, or can have different “personae,” depending upon the parts we play in the drama of life.

    RD editors were just having a bit of fun with the headline. Kim is “person,” but actually several ones. and, one of them is the “legal person,” called “County Clerk, Kim Davis”. She is still moral person too, but that should not be confused with her Legal Person as County Clerk, even though the same physical body is in play. Actors know all about this. And, don’t we say that political officers are “acting” as mayors, governors, senators, even county clerks? Would Kim refuse to “kill” Duncan on moral grounds, were she playing MacBeth?

  • ObscurelyAgnostic

    Sorry but I’m not one of those who gets off on all the rocket science required to decide whether Sister Kim has a right to her conscience? … After all if Jesus is truly LORD then He will also order the moral lives of all those other Kims you described?

  • ObscurelyAgnostic

    Jesus, gotta love Brother Stanley but he has got the gift of intellectual gab …

  • ObscurelyAgnostic

    WTF??

  • OK, just tell us: is her office as County Clerk her private property, like her body, for instance? Her mother was CC before her, so maybe Kim thinks she “inherited” it, like she did her mom’s gene pool. And, is the North oppressing the South, when that Muslim ExpressJet stewardess, the other day in Alabama, refused to serve a passenger a beer in flight, because drinking alcohol is against her conscience? See where this goes?

  • DKeane123

    Yep and we are in complete agreement. My post was 100% pure uncut sarcasm.

    I was basically pointing out the hypocrisy of how different religions are treated on this website. Christianity can often get a bad rap (rightfully so), but horrible things done in the name of Islam are somehow due to anything else but religious texts/dogma.

  • went right over my head. you’ve been watching too much Colbert

  • Well_Read

    there are legal differences between a legal ‘citizen’, or legal person. both of those require you be born, not pre-born. what they are talking about is the person who fills that jobs, whoever it is, had duties to fulfill legally that go with that job. that job holder is a generic person. when we say freedom of conscience they meant freedom to believe something in their minds in their private lives, but not to affect other people with it while on the job.

  • Well_Read

    There are legal differences between a legal ‘citizen’, or legal person. Both of those require you be born, (not pre-born). What they are talking about is the person who fills that jobs, whoever it is, had duties to fulfill legally that go with that job.That job holder is a generic person. When we say freedom of conscience they meant freedom to believe something in their minds in their private lives, but not to affect other people with it while on the job.

  • Burnt Orange

    Your first sentence negates the entire piece. This is NOT a battle between left and right. It is just the reaction to some misinformed clerk following her misguided conscience. Almost NO ONE but very far right individuals think she is correct in not following the law on this matter.
    It is the reaction on the left that deserves some attention. You would think this was the end of civilization. The Courts will resolve this matter of the nexus between public policy and the exercise of ones’ conscience. Courts have made accommodations regarding serving in the military for “people of conscience.” Many on the left would like to see Ms Davis thrown in jail or executed on the spot. All in the name of protecting civil rights.
    Every reasonable person agrees she has overstepped her authority. The reaction on both sides has gone beyond reason and become an emotional overwrought excuse for venting hatred and extreme solutions to a simple problem. Kim Davis is just a surrogate being used by the left to allow them to rant and rave against ALL Christians. She is a symbol used by the far right to illustrate how government can and does oppress individuals at every turn. Both sides are using this as a political football to further some other end. There are over 3,000 counties in the U.S. but Kim Davis in some backwater county is national news as an oppressor of gay rights. Within a short period of time the Courts stepped in and corrected this “problem.” But not before both sides squeezed the lemon for all it was worth.

  • Burnt Orange

    The law in Ky does not allow her to issue licenses to same sex couples. The S.C. decision probably negates that law BUT the state law makers or some other authority must weigh in and give her direct instructions regarding the issue. Otherwise every county clerk would be allowed to interpret Federal Court cases at every level to their own understanding. Most are NOT equipped or educated to do that.
    If then Ms Davis continued her actions in violation of the orders of the State of Ky she could be impeached since she is elected. The entire matter is a tempest in a teacup and would have been resolved without the entire nation being put on “red alert” as if civilization itself were at stake. Just another excuse for each side to spit at the other while the media sells soap.

  • Well_Read

    Ky law was immediately unenforceable when the scotus decision was made. the 20 or so other states that forbid gay marriage didn’t have to make new state laws, they understand the supremacy clause.

  • Burnt Orange

    All this esoteric discussion and you expect some clerk in a backwater of Ky to have an understanding of her role in the larger picture? Kim Davis and her role in the national issue of gay rights is not even a blip on the screen. She will be and is being swept aside by the rapidly rising tide of public opinion and formal law.
    This circus is just a distraction created by the media to sell advertising while giving the left an excuse to bash EVERY person who disagrees with their recently discovered civil rights.
    Within a short period of time people will be wondering what all the argument was about. Within a generation people will have forgotten how much change happened in a short period and think life was always fair and equal for all types of people. Movies and history books will be viewed with an eye to “can you believe how crazy those people were” in the old days. Like watching an old movie with slaves. There are no arguments or defenders of that bygone time. It almost seems society was insane and slave owners mentally ill.
    As Dylan said “The Times They are A Changing!”

  • fiona64

    ^^ Exactly.

  • fiona64

    Someone needs to revisit high school civics class …

  • Burnt Orange

    She has written Ky law that controls her actions. The S.C. decision is NOT hers to interpret and enforce in violation of Ky statues. What direction did she get from the State government? If every clerk started interpreting every federal Court decision there would be chaos. The State’s Attorney was the one who should be stepping in and dealing with Kim Davis. But the attention of the national media now makes some federal judge the enforcer of a matter that the governor and his administration should have dealt with as soon as the S.C. decision was published. Maybe the governor should have been brought to the dock to explain why Davis was not given direction regarding this matter. If every local jurisdiction were left to its’ own devices the Federal Courts would be swamped with cases and gridlock would be the order of the day. Common sense usually prevails but the letter of Ky law is still ON THE BOOKS until it is negated by the appropriate authority. Most clerks don’t care and just “go along” with a general understanding of what laws are negated by a decision by the S.C. Will ALL Surrogates Courts in America have their inheritance statutes changed and reinterpreted as the individual counties see fit?? How about custody battles involving children. Who is the “mother” in a same sex marriage?
    Issuing a marriage license to a same sex couple. The S.C. decision SEEMS to do that but that is NOT Kim Davis’ call.

  • Burnt Orange

    Her list does NOT include same sex marriages. She has no authority to interpret a S.C. decision to negate Ky written law.

  • Burnt Orange

    Jim, her endorsement is the kiss of death. Almost no Republican candidates support her violation of “law.”
    Your understanding of Republican’s is severely colored by your cartoonish view of the ideas of a few.
    Pres. Obama before his first election held the same view as Kim Davis. At least she has the conviction of her views. He seems to blow with the wind. He was for gay marriage before he needed the votes in 2007. Then he turned against it. Now he is for it. And you think Kim Davis is somehow a bad person. Wrong, YES but consistent. BTW You can keep your doctor under ACA — Pres. Obama.
    Kim davis ever lie that you know of????

  • Well_Read

    as soon as the supreme ct made that decision ALL states had to abide by it immediately. any state law that says otherwise was made invalid and unenforceable immediately.

  • Burnt Orange

    When she was elected to office same sex marriage was against Ky law. The S.C. decision was NOT hers to interpret but the States Attorney or some other competent authority. She may well have to resign her office but that must play out within the Court system NOT the media and amateur Constitutional lawyers.
    This entire matter has been cast as some type of morality play with Davis as the evil agent of intolerance. The media sells advertising while the far left gets to bash ALL religion as if Davis were some representative of Christianity. She is a clerk in a backwater county of Ky and represents only herself. Political leeches latch on to her at their own peril.
    She seems a catalyst for a conversation that has moved on and is no longer relevant. The culture and mores of some county in Ky really don’t deserve this type of extended attention as if they were some touchstone of American thinking on this subject. It is like arguing about the need for revolution against King George III 25 years after the founding of America.
    This issue is over and settled. Davis is a small mop up operation like some Japanese holdout emerging from the jungle in 1950 thinking the war was still ongoing.

  • Burnt Orange

    Some would you have the mob decide. If so, given the location and the culture, maybe they would side with her. Then the larger mob could settle the dispute. Maybe we could have a red states vs blue states contest. Oh thats right we tried that and after 600,000 dead we determined that the Courts were a better solution.
    Your way seems best. Good lesson.

  • Jim Reed

    Plus we had Republican presidential candidates standing with her when she was released, praising her, and even volunteering to go to jail for her, and above all else wanting to be associated with her to increase their popularity.

    They also wanted their pictures taken with her and her husband.

  • Possibly. But, I think you are getting off too easily. We are talking here about public office, not transactions in the market. Fish gets a lot of things wrong out of a habit of trying to be the “bad boy” by getting under the skin of liberals. No such things as free speech, etc. Check out his plan as Dean of UI-Chi to insure that only people who are “true representatives” of a certain religious faith should teach the religions to which they belong. When I asked him how he could decide who was “true representative,” he retreated to shuffling his papers.

  • phatkhat

    It is no different than the law on the books here in Arkansas that says only Christians can hold elected office. The SCOTUS negated laws such as these, and it is unenforceable, whether or not the legislature (a bunch of fundie teabags unlikely to do so) rescinds it. [In fact, you can’t get elected here if you aren’t a religious whack, but that is not due to the law.]

  • phatkhat

    If you think that there are no arguments or defenders of the slavery era, you are, sadly, mistaken. You evidently don’t live in the South. Lucky you.

  • phatkhat

    There are plenty of Christians who are lefties, you know. The “left” isn’t some monolithic bloc of atheist extremists. And I think most of those wanting her martyred are on the right. Lefties don’t want nutbags like her turned into martyrs. That’s why the plaintiffs did NOT want her to go to jail. The frightwing fringe, however, LOVE them some Xtian martyrs.

  • phatkhat

    Where else is she going to make 80K a year for basically being a high school educated pencil pusher? I guarantee you she isn’t worth that. Our county clerk would love to be so lucky, LOL.

  • phatkhat

    The governor DID tell her to do her job, or let her deputies do it. She refused.

  • phatkhat

    You should have listened to the Diane Rehm show today. They had some dude on there from NOM, and I assure you, they do NOT think the issue is settled at all. And the Kim Davises of the US do claim to represent all Christians. They don’t, but they sure want to.

  • cranefly

    We certainly agree that she should have resigned. It was entirely within her principles to choose NOT to go to jail, but she made a scene and became a martyr on purpose, over her objection to civil rights and other people’s private lives. And by insisting on keeping the power of her office despite her objection to the responsibilities of that office, she is not a martyr for freedom, she’s a martyr for her right to be a little dictator. That’s gross.

  • Lots of fun, agreed. But, also deliberately mischievous. In another encounter at a public lecture I attended, he dared anyone who disagreed with a proposition he was advancing (I forget what it was) to step up and take him down physically. Yes. Of course, with his audience of wishy-washy academic liberals, no one stirred. I was about to take him up on the challenge, except that I was then interviewing for a job at the same college! Regrets have haunted me ever since. The little pischika! Ha!

  • Julianne Legge

    It doesn’t have to. SCOTUS has ruled that she cannot deny a marriage on the basis of same sex. This does not require a positively stated law to be drawn by Kentucky.

  • Julianne Legge

    Why, thank you.
    I had some fine teachers.

  • Julianne Legge

    Well, Burnt Orange, I’m afraid Ms. Davis has let you down, and so have at least two Republican candidates…

  • J_May

    Thanks for being so kind.

  • J_May

    Tell that to my state, Washington, that somehow made marijuana legal and is engaging in the act of selling it to raise revenue even though federally it is still illegal.

  • J_May

    Everything you are saying is likely to happen, in my opinion. But only as long as we remain inordinately prosperous. The mutations and shifts in our concept of marriage are not about equality in a moral sense. It’s generally about equal acceptance of, and opportunity to, consume however we would like to. Marriage has become about fulfillment and not practical life support. It’s much more about lifestyle and less about family, in any sense. The gay marriage movement uses rhetoric about family but in reality the LGBT conception of marriage is very different in content than what traditional marriage had been in a bygone era. 50% of gay marriages in San Fran or non-monogamous, for instance. But, as startlingly different as this is from traditional marriage, it really is just an extension of how heterosexual couples have been transforming and mutating marriage since the advent of industrial consumerism. Hence, the root of the extraordinary divorce rate is part and parcel with the LGBT conception of marriage.

    But all of this is predicated upon our affluent way of life. Economic collapse, scarcity of natural resources, or any number of factors could drive us back towards an agrarian or simpler way of life. At that point, traditional marriage will once again be desirable and our mutated concepts of marriage will be a thing of the past – only memorialized in stories people would tell each other. They may say, “Can you believe how crazy those people were?”

  • J_May

    This piece is basically saying, “Don’t have strong convictions.” It leads me to ask: anytime a person is arrested for protesting, was it their real self or their legal-fiction self that got arrested? And shouldn’t their real self realize they have a convenient alter-self that would allow them to cope with the thing at hand which violates their conviction so they don’t have to be inconvenienced or a public annoyance?