Do many reporters get why Kim Davis is in jail? Hint: Investigate Kentucky laws

So Kim Davis is in jail, which is the only place -- under current Kentucky laws, apparently -- she can go without giving her signed consent (hold that thought) to same-sex marriages, which she believes she cannot do because of a theological conflict of interest.

So U.S. District Judge David L. Bunning has done the logical thing and locked her up, because -- under the current Kentucky laws -- there is no other way to obey five members of the U.S. Supreme Court and get marriage licenses to same-sex couples in that state.

Here is a crucial question to which I cannot find an answer: Does Kim Davis, under current Kentucky law, have to put her name on a license to make it valid? I ask because Davis is on record as supporting compromises in which gay citizens could receive marriage licenses without a signature from the local clerk or with the signature of another willing clerk appointed by a judge or the state. As I have stated in previous posts, she is willing for licenses to go out, but she refuses to give her consent. She does not want this taking place under her authority, but under the authority of someone else recognized by the state.

However, there is no law allowing that approach in Kentucky, as opposed to, let's say, North Carolina. Right? If Davis was in a different state, she would have other options. That's an important fact in this standoff.

Let's return to The Washington Post coverage, since that has where I have been following these events most closely. There is much to applaud in the story that went live last night, but there are familiar gaps -- even when compared with earlier Post coverage. Let's read and I'll add some comments:

Davis’s decision means the 49-year-old elected public servant will be kept in custody indefinitely as the legal wrangling over her case continues. It also suggests she is willing to martyr herself for her cause, which is the right of public officials to be guided by their personal religious beliefs.

"Suggests" is never a good word in hard-news coverage. Does she want to be a martyr? Or is she willing to accept a law that provides both protection for the practice of her faith and allows the state, through other channels, to move into the same-sex marriage era decreed by the U.S. Supreme Court?

An Apostolic Christian, Davis has said it would violate her faith to put her name on a marriage license for two people of the same sex.
She was sued by several gay couples and was ordered by Bunning to begin issuing the licenses this week. When Davis defied the judge’s order, the couples asked for Davis to be held in contempt and fined.
But Bunning decided to jail Davis, saying fines would not be sufficient to compel compliance because Davis’s supporters could raise money on her behalf.

Note again the "put her name on a marriage license" angle. She has a conflict of interest. She is asking the state for a legal "work-around." Governments do that with conflict of interest clashes all the time.

Here is the quote most likely to be discussed by U.S. Catholic bishops, in Philadelphia with the pope or elsewhere:

“The idea of natural law superceding this court’s authority would be a dangerous precedent indeed,” Bunning said.
“Thank you, judge,” Davis replied before being removed from the courtroom.

Now, the Post coverage does note that this drama is based, in part, on a political mess that the state legislature must eventually straighten out -- with Davis watching from jail.

Elsewhere in Kentucky, politicians scrambled in an effort to defuse the situation. Earlier in the week, Republican and Democratic leaders in Frankfort reiterated calls for a compromise that would allow gay couples to get marriage licenses in Rowan County without forcing Davis to violate her faith. In a court motion, Kentucky Senate President Robert Stivers asked Bunning not to hold Davis in contempt until the legislature could address confusion in state law resulting from the legalization of same-sex marriage.
The legislature is not slated to convene until next year, however, and Gov. Steve Beshear (D) has resisted calls to hold a special session to address the issue, especially since all but three of the state’s county clerks have complied with the Supreme Court decision legalizing same-sex marriage.

Lots going on there, but the Post team is to be commended for noting that Kentucky lawmakers have something -- still -- to do with laws in Kentucky, even at this point in our nation's history.

However, the story lacks one detail that I have been stressing in my evaluation of the coverage of this drama. Flash back a few stories in the Post coverage, as you may recall, and there was this tiny piece of information buried way down in the text, far from the vivid details of Davis and those trying to shout her down.

The situation is putting pressure on political leaders in Kentucky, where Gov. Steve Beshear (D) has resisted calls to hold a special session of the state legislature to consider changes to state law that would allow accommodations for Davis and the two other defiant clerks.
Among the accommodations that Davis has said would be acceptable is a proposal to remove county clerks’ names from marriage licenses.

Here is what I wrote at the time and I repeat it again, for journalists trying to cover the next act in the drama. 

Note these words "among the accommodations" -- plural -- that Davis would accept. ... Now, what are those other options, in Kentucky and elsewhere, and where are the journalistic efforts to describe them, while clarifying what Ms. Davis is actually saying and doing? Also, might there even be additional options that Davis would not accept, but other pro-religious liberty experts would? The liberals and conservatives who are pushing to protect religious liberty in these cases are not carbon copies of each other. There are interesting differences in strategy there, especially among those who support gay marriage AND the free exercise of religious convictions.

You can see that the situation on the ground is quite complex in this following passage in a Louisville Courier-Journal story reacting to yesterday's events.

Note the party affiliations in this discussion and the fact that the goal, for some, is to clarify state laws in a way that accepts same-sex marriage, as well as protects the rights of believers.

Republican attorney general candidate Whitney Westerfield -- who is running against the governor's son, Andy Beshear, in a race to succeed Conway -- was among the first public officials to react to Davis' jailing.

"All Kentuckians of all faiths should be alarmed by what this means for our safety to express and hold fast to our beliefs," Westerfield, a state senator from Hopkinsville, said via Twitter.

"Jailed. For her beliefs," Westerfield said. "And the sound of silence from those in power to intervene for BOTH rights is just stunning."

He also implored the governor to reconsider calling the General Assembly back for a special session, which Beshear said he would not do. ...

House Speaker Greg Stumbo, D-Prestonsburg, once again urged the governor to hold a special session to change Kentucky laws to comply with the U.S. Supreme Court's ruling requiring states to allow and recognize same-sex marriage, including divorce laws that now refer only to “husband” and “wife.”

He said it would be an “easy fix” for state lawmakers to accommodate the religious beliefs of clerks.

“Whether you agree with them or not, we are all entitled to our religious beliefs," he said.

But Stumbo said, “it’s the governor’s call.”

And there is one other legal complication, at the state level. You are not seeing this fact in the national-level coverage, either.

Martin Cothran, an analyst for the Family Foundation of Kentucky, criticized Beshear for not issuing an executive order or calling a special session to accommodate the religious beliefs of Davis and other clerks.

“Kim Davis is going to jail because Gov. Beshear will not do his job,” Cothran said.

He also criticized Bunning for failing to comply with the state Religious Freedom Restoration Law, which requires the government to pursue the least restrictive option when curtailing religious rights.

So what would be, under state law, the "least restrictive" solution to protect the rights of the state's citizens on both sides of this dispute?

Alas, so much of the national coverage continues to focus on what I have called the "two armies" template. You know, the same old left vs. right political narrative.

But what if there are people -- liberals and conservatives -- in the middle trying to find ways to obey the five justices on the U.S. Supreme Court, while also protecting religious liberty? When you read news accounts of these events, are you being allowed to read about what is actually happening at the state level to to try to protect the rights of people on both sides? Again, there are old-school liberals who want to defend same-sex marriage AND religious liberty.

So back to the national coverage. What are other papers of record doing? Let it be noted that the current New York Times story has massive holes in it, if the goal is to talk about the actual legal issues affecting Davis and other people in Kentucky who are trying to find a solution that honors convictions on both sides.

This passage is dramatic, but does almost nothing to address the substance of the case. Light the fireworks and cheer, folks! Legal bloodshed has arrived!

Judge Bunning’s ruling also drew sharp condemnation from one of Ms. Davis’s lawyers, Roger Gannam.
“Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman, and she’s been ordered to stay there until she’s willing to change her mind, until she’s willing to change her conscience about what that belief is,” he said. “This is unprecedented in American law.”
But a lawyer for the couples who sued, William Sharp, said the ruling signaled that “religious liberty is not a sword with which government, through its employees, may impose particular religious views on others.”

Note, again, that this quote ignores the fact that Davis herself has endorsed efforts that would smooth the way to same-sex marriages in the state of Kentucky, as well as in Rowan County. Then again, in the age of Kellerism, the Times team has no journalistic responsibility to accurately report the views of people on both sides of this drama, or the people in the middle seeking compromise.

Treat all of these citizens with respect? Forget about it.

Sad, but true. News consumers interested in legal efforts to grant same-sex marriage, while honoring the views of millions of traditional Christians, Orthodox Jews, Muslims and others will want to keep their eyes on the Kentucky legislatures and others that get caught in this vise. Meanwhile, it appears Davis will wait in jail, pending developments in the state legislature.

Please respect our Commenting Policy