Une Vignette Fantastique du Kentucky

A drama in one act

DRAMATIS PERSONAE

Steve BESHEAR, Governor of the Commonwealth of Kentucky, and his political AIDE.

Kim DAVIS, County Clerk of Rowan County, Kentucky

NATHAN Davis, Deputy County Clerk of Rowan County, Kentucky

David MOORE and David ERMOLD, affianced

Matthew STAVER, President of Liberty Counsel

A CAMERAMAN and an AUDIO TECHNICIAN (non-speaking)

 

[The set consists of a sumptuous office with a large desk set at an angle to the audience, stage right, with a door set stage left. The flags of the United States and the Commonwealth of Kentucky sit behind it. A man paces the carpet in front of the desk, while another sits on a chair nearby watching him, both ignoring the two other men in the room, one holding camera and the other holding a boom mike. There is a loud KNOCK to stage left.]

AIDE

They’re here.

[The pacing man stops suddenly, and gestures to the seated man. The CAMERAMAN and AUDIO TECHNICIAN make ready the tools of their trade.]

 

BESHEAR

[Quickly walks behind the desk and sits, speaks to AIDE] Bring them in.

[The AIDE opens the door, and the remainder of the cast enters.]

 

DAVIS

[Whispers, to STAVER] Matt, what do I say?

 

STAVER

Nothing, if you can help it.

 

BESHEAR

Come in, everyone. The camera is on and so is the mic. We’re recording this and it’ll be released to the media when we are done here. Do y’all understand that?

[A moment. The cast generally nods.]

Very good. I have asked you all here, for reasons that I think you’re quite well aware of. So let’s get down to business, shall we?

 

DAVIS

[Cooly.] Governor.

 

BESHEAR

I have here three pieces of paper, and I’m hoping that I will have to sign none of them right now. Two of them are for your signature, Ms. Davis, and the third one might concern you as well.

[To MOORE and ERMOLD] Only the first concerns you two gentlemen.

MOORE

Governor, this woman refuses to do her job! She —

 

BESHEAR

Hold your horses there, young man. I’m on your side, here. Well, the law is, anyway, and I intend to see to it that the law is [looks at STAVER] faithfully executed.

 

STAVER

Governor, my client has an appeal pending before the Sixth Circuit and it has not yet been heard on its merits, and your actions today are, at best, premature.

 

BESHEAR

Mr. Staver, you don’t even know what I’m going to do yet! But, we agree, don’t we, that Ms. Davis is under court order to issue these two fine young gentlemen a marriage license, and your firm applied for a stay of that order, and just Monday, the day the order took effect, the Sixth Circuit denied that application. Am I right?

 

STAVER

That’s right, but the appeal is still pending and the matter could easily go to the U.S. Supreme Court.

 

BESHEAR

I’m sure, I’m sure. But as of today, there is no court order permitting Ms. Davis to not issue the license, and a court order requiring that she do so. And your request for that stay was denied by the U-nited States Supreme Court on August the Thirty-First, in the Year of Our Lord Two Thousand and Fifteen. Monday. So as of today, she’s apparently in contempt of court, and she has placed the Commonwealth of Kentucky in contempt of court. That hearing is set for Thursday. Tomorrow.

And I’m sure that there’s nothing you’d like better than that, eh, Mr. Staver? Controversy good for the fundraising? And if you win, the taxpayers of Kentucky will be writing you a nice, fat check for your efforts too.

 

STAVER

My client will seek all remedies she is entitled to under the law, if that’s what you mean, and as for our fundraising, you’re welcome to read our 990 forms like anyone else, they’re public documents.

 

BESHEAR

Maybe I will, Mr. Staver, but probably I won’t. Because I don’t care about your funding. I care about protecting the public money entrusted to me by the taxpayers of Kentucky. And I care about doing my job to be best of my abilities. Which is why we’re all here, you see.

 

MOORE

I’m suing the state, too, Governor, to exercise my legal rights to marry my partner. We pay this woman’s salary. We pay yours, too. He and I have been together seventeen years and we’re entitled to be married. Obergefell

 

STAVER

Obergefell means you have the right to marry your partner, Mr. Moore, but it doesn’t mean my client has to marry you.

 

ERMOLD

But she’s the County Clerk! If she won’t do it, who’s going to?

 

BESHEAR

Sir, you and your partner are going to walk out of this office married, one way or the other, today. Maybe y’all didn’t plan for it to happen like this. But that’s what’s going to happen, if you want it. If you refuse a license, well, I suspect that’s going to give the state a defense against your lawsuit. But first, I’m going to give this woman a choice about the public office she holds.

 

DAVIS

I’m not going to sin, Governor.

 

BESHEAR

Sin? Sin is a matter between you and your maker, Ms. Davis. That’s a little bit above my pay grade. My job is to see to it that the laws are faithfully executed, and you are under a court order to do a lawful act, so I need that license signed.

So here’s that first piece of paper. It’s the marriage license for Mr. Moore and Mr. Ermold here. You can do the job you were elected to do. The job you are charged by state law to do. Your first, and best, option is to sign it.

 

DAVIS

I have discretion! I’m not discriminating against these boys, I’m not marrying anyone!

 

BESHEAR

And you don’t have to. But the Clerk of Rowan County does. It’s the county clerk’s job to marry people who aren’t related by blood or presently married to others, and who pay the fee and fill out the form. Now, Ms. Davis, if you’d have just found someone else in your office willing to sign the paperwork for these gentlemen, I’d have been perfectly willing to overlook your not personally involving yourself in issuing a marriage license.

[To NATHAN, who raises his hand to speak.] That’s where you’re going to come into the picture, young man. No, don’t say anything just yet. You’re gonna want to hear me out first. And Ms. Davis hasn’t made her decision yet.

 

STAVER

You also don’t have authority to make this woman act contrary to her religious faith, Governor.

 

BESHEAR

I’m not going to force her to sign this paper, Mr. Staver. I’m giving her one last chance to choose to do so. It…  appears she does not want to.

 

STAVER

No, sir, she wishes to exercise her rights as a Christian and as an American citizen.

 

BESHEAR

She’s free to. I’m interested in whether she’s going to discharge her duties as a public official. As she swore an oath to do. If she won’t do that, then she’s free to resign and she can go be a Christian citizen on her own terms with my blessing. That’s this here second piece of paper, a resignation form for her signature.

 

STAVER

Oh, now you’ve done it, Governor! Now you’ve qualified the holding of public office on an act that’s inconsistent with this woman’s Christian faith. You’ve imposed a religious test on public office. That’s a violation of the Constitution!

 

BESHEAR

I don’t think so. I think the Constitution requires that we make reasonable accommodations for people of religious faith to do their jobs. It does not require that we relieve them of their duties completely. So if she will not do her duty, I request that she resign. Here’s the resignation form.

 

STAVER

You’re making her choose between her faith and her job. That’s not fair. it’s not right, and it’s not legal.

 

BESHEAR

One hundred and eighteen other county clerks in Kentucky are Christians, I expect, and they’ve all found a way to reconcile themselves to Obergefell, Mr. Staver. I’m not convinced she has to choose between anything.

 

STAVER

Doesn’t matter. This woman’s faith is what it is. She didn’t choose her faith and she can’t be responsible for how another Christian lives out his faith, only her own. …Besides, she’s an independently elected official, Governor.

 

BESHEAR

And I can’t be responsible for letting this state get sued, again, and losing, again, without at least trying to prevent it. These gentlemen have already filed a lawsuit. And the U.S. Supreme Court has sent a very clear signal — a signal that the District Court and the Sixth Circuit, neither of which seem to be particularly happy about it — that these young men are going to prevail. And you and your client seem hell-bent on me making these young men wait for their rights, and on making their lawyers rich, while you wind up getting nothing. What are you thinking?

 

STAVER

It’s the right thing for a Christian lawyer to do, and it’s the right thing for this Christian woman to do.

 

BESHEAR

The right thing for this public official to do is her job, or to resign and allow the job to be done. Will you sign the marriage license, ma’am?

 

DAVIS

I will not.

 

BESHEAR

Will you sign the resignation, then?

 

DAVIS

No, Governor, I will not.

 

BESHEAR

Then I see that I am going to have to sign at that third piece of paper. This is an executive order, which has two sections.

First, by the power vested in me by the Constitution of the Commonwealth of Kentucky, Kim Davis, I relieve you of your duties as County Clerk of Rowan County.

And second, I refer you to the legislature of the Commonwealth for impeachment and formal removal from your office. For dereliction of duty, lawless conduct in office, and reckless endangerment of state funds. I’m sure Mr. Staver can provide you with good counsel. You are excused.

 

DAVIS

You can’t do that, Governor! I’m an elected official! Er, with all due respect.

 

MOORE

[Arm-pumps in victory. High-fives ERMOLD.]

 

BESHEAR

I have done that. Both you and Mr. Staver have been spoiling for a lawsuit, and now I’ve obliged you. Now, Mr. Nathan Davis, you’re the second in command at the county clerk’s office. I’m prepared to appoint you Acting County Clerk until such time as Ms. Davis’ impeachment proceedings are disposed of and a new permanent clerk is appointed. As Acting Clerk, will you sign the license?

 

DAVIS

Nathan–

 

NATHAN

I like Ms. Davis a lot and I admire what she’s doing as a Christian woman. I won’t defy her.

 

BESHEAR

Are you going to sign the form, son?

 

NATHAN

[Looks at DAVIS, then STAVER.]

 

STAVER

We’ll protect you, Nathan.

 

NATHAN

[To BESHEAR] No, sir. I won’t sign that license, either. Nor will none of the other five deputy clerks. We’re all with Amy. And with God.

 

BESHEAR

In that case, it appears to me that the entire office of the County Clerk in Rowan County is unlawfully refusing to discharge its lawful duty. I therefore annex its functions until such time as personnel willing to actually do their jobs can be found. Y’all are on administrative leave, effective immediately. That’s paid leave for now, but we will be looking to change that. Fair notice.

 

STAVER

This is wholly unconstitutional. This is against the laws of the Commonwealth.

 

BESHEAR

The microphone is over there, Mr. Staver. [Points.] You should repeat that closer to it so posterity can hear you. Maybe you’ll persuade someone who isn’t me.

 

STAVER

And it’s against democracy. The voters chose her, Governor Beshear.

 

BESHEAR

In our Republic, sir, sometimes democracy isn’t the last word. The law is what ultimately matters. I swore an oath — the same oath your client swore and is refusing to honor, by the way — to uphold the law. [Signs executive order.] That’s what I’m doing now. [Hands signed executive order to AIDE.] Since the Rowan County Clerk’s office has abdicated its duty, I will personally exercise [looks pointedly at STAVER] my inherent power as chief executive to see to it that the laws are fully and faithfully executed.

Now. Mr. Moore. Which one of you two is Mr. Moore, again?

 

MOORE

I am, sir.

 

BESHEAR

Quick questions. Are you presently married to anyone else?

 

MOORE

[Smiles] Not yet, sir.

 

BESHEAR

Are you related to this man by blood?

 

MOORE

No, sir.

 

BESHEAR

Have you tendered the required paperwork and fee for a marriage license in the Commonwealth of Kentucky?

 

MOORE

[Turns to ERMOLD; they clasp hands.] Yes, sir, I have.

 

BESHEAR

And do you voluntarily take this man to be your lawfully wedded husband? For richer, for poorer, in sickness and in health, until death do you part?

 

MOORE

Yes, sir, very much I do, sir.

 

BESHEAR

And you, Mr. Ermold?

 

ERMOLD

Yes, I do, sir!

 

BESHEAR

Hang on! You’re not married to anyone else, are you?

 

ERMOLD

No, sir. Just to him, in my heart.

 

BESHEAR

And do you take this man to be your lawfully wedded husband? Until death do you part?

 

EMOLD

[Looks at Moore, smiles.] You bet I do.

 

BESHEAR

Then by my signature on this marriage license I pronounce you gentlemen to be legally married. Now, go on!

[EMOLD and MOORE kiss. DAVIS, NATHAN, and STAVER turn away. AIDE applauds.]

 

BESHEAR

Well, that’ll make quite a story for your grandkids.

 

EMOLD

Oh, I don’t know if we’re going to have children, Governor.

 

BESHEAR

You never know! Life happens whether you plan for it or not, Mr. Emold. Now, you two gentlemen have asked for a marriage license and your Governor has personally granted it to you. I do hope you’ll have a forthright and honest conversation with your lawyer about “mootness.”

That’s all I have for you, folks.

 

STAVER

But that’s not all I have for you, Governor.

 

BESHEAR

You know where the Commonwealth’s agent for service of process is located already, Mr. Staver. I’ll look forward to receiving your next volley. Take your best shot; I’m on the side of the angels and more importantly, I’m on the side of the law.

 

STAVER

No, you’re not. Not even close.

 

BESHEAR

See you in court, Mr. Staver. [Waits a beat, no one moves.] What, you’re still here? We’re done! Go!

[AIDE ushers the cast out of the stage right door. CAMERAMAN and AUDIO TECHNICIAN lower their equipment.]

 

AIDE

Are you sure that was the right choice, Governor? Doing nothing and just letting them fight it out amongst each other might have been a whole lot more politically defensible.

 

BESHEAR

You know, that Staver fella is just itching for a reason to fight me in court. That’s what it is to be a Democrat running a red state. So let’s have the fight be on the grounds I choose — a fight about how much power a state Governor has over a state official — instead of on those religious freedom grounds that he wanted.

Besides, I swore an oath to faithfully execute and uphold the laws of the Commonwealth and the United States of America. The law is, those boys have every right to be married. Was that the right choice? I don’t think I had any choice.

 

FIN

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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48 thoughts on “Une Vignette Fantastique du Kentucky

  1. Out of curiosity Counciler, have you ever seen the movie Absence of Malice?

    This reminds me of the final scene in that fine film.

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  2. I am seeing Ermold and Moore being played by Kirk Cameron and that youngest Baldwin brother.

    Directed by John Waters, with lots of gratuitous and close up kissing.

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  3. I imagine reading the story that inspired this farce in 2050 and I am struck dumb by how it’s incomprehensible that someone would think that this is an appropriate position to take to the point where I can see children wondering if we’re pulling their leg when we share it with them.

    I imagine reading the story that inspired this farce in 1950 and I am struck dumb by how it’s incomprehensible that someone would think that this story has half as much verisimilitude as it requires for the audience to suspend disbelief.

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  4. Excellent! Some questions about reality, as opposed to drama, though.

    I believe Kim Davis was elected running as a Democrat. “Red state” is usually used to mean Republican rather than a more non-partisan conservative. Perhaps the governor should be saying something about a big tent not being an excuse to fail to do your job.

    The Kentucky constitution appears to me to make counties creatures of the legislature. I suspect that Mr. Shaver is correct in the sense that when the Governor’s action here reaches the Kentucky supreme court, the court would reject the notion that the governor can take over the functions of the county clerk’s office (eg, he appears to have claimed that he, or a designated person from his office, is now the chair of the Rowan County election board, which must meet at least monthly).

    Mr. Moore and Mr. Ermold and their attorneys clearly understand “mootness”. They could have gotten a license and been married weeks ago by simply driving to an adjacent county and getting a license, with no question about the legality. Now they have a license of perhaps questionable legality (I certainly think there’s room for doubt) and have failed in their goal of forcing the elected Rowan County Clerk to issue a marriage license. I would think they would be unhappy with this outcome.

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    • Last I heard this was heading to the Civil Service, with the relevant “you’re not doing your job” tag attached.

      The governor doesn’t get to fire people, but the executive does have procedures for people completely derelict of duty.

      Which she very, very clearly is.

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    • Beshear is a Democrat.

      I don’t know precisely how the state-level constitutional power split would break down, in Kentucky at least. Seems to me from a cursory survey of the state constitution and an overview of the statutes that decent enough arguments could be cobbled together on either side about whether the Governor has, or does not have, the power to do this.

      The hypothetical Governor Beshear in my scenario does what he does (as I have him explain at the very end) not so much to clear the air on SSM, but to shift the focus of the fight to something dryer, something less publicly interesting, something more legally obscure and ambiguous, something that will distract attention away from SSM for a time while it gains a degree of cultural purchase. It won’t be a permanent distraction, but it will give SSM some time to settle in place and gain greater general acceptance.

      You’re likely right that the same-sex couples in these counties are spoiling for a fight against the local officials like Ms. Davis, whom the LGBTQ folks there perceive as bigoted. It’s fair to assume that a couple that could easily avoid a controversy but gets one anyway is seeking that controversy. It also seems a near certainty to me that Ms. Davis and the lawyers coaching her behind the scenes are spoiling for a chance to undertake a rear-guard resistance against Obergefell. Someone stepping in and shifting the focus of that fight to a different legal area would make the whole thing a lot less fun for everyone involved. Which, as I noted in the previous paragraph, is precisely the political objective of a maneuver like this, whether the maneuver would be legally vindicated or not at the end of the day.

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  5. Relevant. Prof. Adler does not overtly address the religious test issue raised by Davis’ legal claims, but his reference to the pacifist considering (conscripted?) military service in wartime seems to assume that such a claim is meritless: you needn’t be of any particular religion to be eligible for public office or to be sworn in to it, but once you hold that office you need to be able to somehow discharge the duties thereof.

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  6. Personally, I think we need to fire this government employee, confiscate her pension, and make sure that she never gets a job in the public sector ever again.

    Let’s make an example of her.

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    • I’m almost universally opposed to firing people for their beliefs, but in this case, were she to be fired (or, since she’s an elected official, removed from office), wouldn’t it be because she’s not doing the job she was elected to do, and which she is legally compelled to do? In which case, isn’t that what we have procedures for removing people from office for? I have no problem with it.

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    • The following is not defending Davis per se, but rather defending following state procedure.

      All of those things may well happen, but Kentucky has procedures for elected officials. The legislature could impeach her [1], but seems disinclined to do so. The remarks I’ve seen from legislative leaders suggest that they would like to have a special session for the purpose of modifying statute to reach some accommodation [2], but not impeachment. The governor has declined to allow that. The county attorney has referred a charge of official misconduct to the state attorney general. In Kentucky, official misconduct is a misdemeanor, which might cost her the office (the legislative staff’s summaries on county officials aren’t clear on that, and I’ve already spent too much time skimming Kentucky statutes this AM), but probably not her pension [3]. A felony conviction would cost her both, but Kentucky statute seems to require that elected officials mishandle money for misconduct to reach felony level.

      [1] Based on my time hanging around legislators, they tend to be very, very protective of their privileges about removing elected officials. The governor is probably out of the loop entirely, and Kentucky is not a recall state. Nor is it clear that even if it were put to a vote by the people of Rowan County, Kentucky, Davis would be recalled.

      [2] With my former legislative staff hat on, Davis’s problem appears to be that she is required to put her personal signature on the documents — no one else’s signature will do (well, the county judge/executive, but only if the clerk’s position is vacant). One alternative might be the use of an anonymous official “Seal of the County Clerk’s Office” but that requires a statutory change.

      [3] She has pension credit accumulated over 27 years as an employee before she was elected to office. Taking her pension away over something that Kentucky state law treats as a misdemeanor — a level of criminal act that wouldn’t cost anyone else their pension — strikes me as improperly savage, and probably wouldn’t stand up in court.

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  7. Pingback: In Which My Brain Ends Up At NewsRadio | Ordinary Times

  8. Long long ago in a call center far away, we had an employee who had an attendance problem. This is a serious thing, as being there when you are scheduled means success or failure for a call center. We also had a very specific series of steps we went thru with folks who had attendance problems. First, we had an informal discussion, making sure they had an thorough understanding of the importance of attendance. This happened after the fourth infraction. Then we had a more formal, yet still verbal discussion about attendance and the consequences of not adhering to policy. This happened after the fifth occurence. Then we had a formal, written and signed discussion of the same. This happened after the sixth occurence. Then the agent would be placed on a Performance Improvement Plan (PIP) that formally said that the next occurence would lead to “disciplinary action, up to and including termination”. This was given and signed by the agent after the seventh occurence.

    It came to pass that we had an agent that was on a PIP, who had the great misfortune to have her house burn down. She missed work. When she returned, we gave her her Termination paperwork.

    “You’re firing me because I missed work because my HOUSE BURNED DOWN???” she exclamed.

    “No, we are firing you for all the other infractions you had. If this had been the first, second or third, we wouldn’t even be having a conversation, except to commiserate over the loss of your home.” we said.

    I’ve told his long story because I see a lot of similarities to this situation. She isn’t being fired for her religious beliefs, she’s being fired for not doing her job. The reasons for her lack of performance is immaterial, and is only being raised to try and get her the sympathy vote.

    kes

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  9. Just saw a quote. which I will paraphrase here, that wonders how many of Kim Davis supporters would be OK with a Quaker refusing to issue gun/carry permits?

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