Former Arkansas Gov. Mike Huckabee complained on ABC’s This Week that both Gavin Newsom and Kim Davis broke marriage laws but there’s a double standard. The GOP presidential hopeful put it this way: “You’ve got Democrats who ignored the law when it was the law to have traditional marriage. Gavin Newsom, in San Francisco as mayor, performed same-sex weddings even though it was illegal. Did he ever get put in jail? He most certainly did not.”
The big difference is that Newsom, now California’s lieutenant governor, knew when to stop. Thus Newsom fired back to Huckabee on Twitter this week: “Once the court ordered me to stop, I did. I was never in contempt of court — unlike Kim Davis. Get your facts right.” Newsom told me Wednesday, “We would never have defied a court order.”
Religious conservatives such as Huckabee want to see Davis’ five-night stint in jail as proof of the left’s war on Christianity. They argue that it was excessive for U.S. District Judge David L. Bunning to jail the Rowan County, Kentucky, clerk for standing up for her religious beliefs.
My first instinct was to view the jailing of Davis as excessive. Surely, I thought, the judge could have stopped Davis from preventing same-sex marriages without jailing her. But the judge released Davis on Tuesday after essentially brokering an accommodation that allows Davis to keep her office while staffers process marriage licenses. And they will be not under the clerk’s name, which she said would violate her religious beliefs, but under the county’s imprimatur. It’s an outcome that should allow all couples to wed and free Davis from participating in an exercise that violates her religious beliefs. If Davis cannot accept that generous compromise, then she has a problem that only could be solved by quitting.
As University of California, Berkeley law professor John Yoo, who served in the administration of George W. Bush, put it, people whose religion forbids same-sex marriage have a right not to be forced to participate in same-sex marriages but “don’t have a right to be a county clerk. If you’re a state officer, you have an obligation under the Constitution to carry out federal law.” You don’t have to agree with all Supreme Court rulings, Yoo added; you just have to abide by them.
There is another difference between Davis and Newsom: Newsom won. He was aware that 61 percent of Californians voted for a measure to limit marriage to one man and one woman in 2000. He didn’t like the law, so he broke it. He said, “We went in with our eyes wide-open.”
On Tuesday, Newsom admonished Davis for not adhering to the Supreme Court’s Obergefell ruling, which recognized a right to same-sex marriage, and thus violating her oath to uphold the Constitution. How quickly Newsom forgets he set a precedent for spitting at a law that offended his core beliefs.
Now Davis has a decision to make: Does she want rules that accommodate religious dissent, or does she want to be a martyr?
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