Guest Host: Susan Page

Rowan County Clerk of Courts Kim Davis holds her hands in the air Sep. 8 with her attorney Mat Staver (R) and Republican presidential candidate Mike Huckabee in front of the Carter County Detention Center on September 8, 2015 in Grayson, Kentucky.

Rowan County Clerk of Courts Kim Davis holds her hands in the air Sep. 8 with her attorney Mat Staver (R) and Republican presidential candidate Mike Huckabee in front of the Carter County Detention Center on September 8, 2015 in Grayson, Kentucky.

In June, the Supreme Court legalized same-sex marriage nationwide. The day after that ruling, Kim Davis, a clerk for Rowan County, Kentucky, began refusing to issue marriage licenses to same-sex couples, citing her religious beliefs as an Apostolic Christian. Last week, Davis was held in contempt of court and spent Labor Day weekend in jail. This week, she’s been set free; her lawyers say she’ll return to work on Monday. What will happen when she gets there? Supporters of Davis say she should not be forced to comply with a law that violates her religion. Critics say the rule of law requires that she issue the licenses or resign. We look at Davis’ case and the cultural divide over same-sex marriage.

Guests

  • Evan Wolfson Founder and president, Freedom to Marry
  • Perry Bacon Senior political reporter, NBC News; former national political reporter, Time and The Washington Post
  • Brian Brown President, National Organization For Marriage

Transcript

  • 10:06:54

    MS. SUSAN PAGEThanks for joining us. I'm Susan Page of USA Today sitting in for Diane Rehm. She's recovering from a voice treatment. Presidential candidates and protestors greeted Kim Davis when she was released from jail this week. The Rowan County Kentucky clerk had spent five nights there for refusing to issue marriage licenses to same-sex couples. She expected back at work on Monday.

  • 10:07:19

    MS. SUSAN PAGEAnd joining me in the studio to talk about Kim Davis, the religious liberty movement and the cultural divide over same-sex marriage, Perry Bacon of NBC News and Brian Brown of the National Organization For Marriage. Welcome to "The Diane Rehm Show."

  • 10:07:33

    MR. PERRY BACONThanks for having me.

  • 10:07:33

    MR. BRIAN BROWNThank you.

  • 10:07:34

    PAGEAnd joining us from the NPR bureau in New York City, Evan Wolfson of Freedom To Marry. Thanks for being with us.

  • 10:07:42

    MR. EVAN WOLFSONGood to be with you.

  • 10:07:42

    PAGEWe invite our listeners to join our conversation later in this hour. You can call our toll-free number. It's 1-800-433-8850. Send us an email to drshow@wamu.org or find us on Facebook or Twitter. Well, Perry, it's hard to imagine that there's any listener who hasn't -- isn't aware of this controversy in Rowan County Kentucky, not generally the center of media attention around the world.

  • 10:08:09

    PAGEKim Davis is now out of jail. Her lawyers say she'll be back at work on Monday. What happens then?

  • 10:08:16

    BACONYeah, that's the big question is, like, so she's released from jail on Tuesday and the deputy clerk there has said he's issuing licenses to same-sex couples and he's going to do that as the court has ordered. But the question is, like, when she gets -- Kim Davis gets back to work on Monday, what does she do? 'Cause she runs that office, her name is on the licenses and that's the question. It's like what does she -- she has said this violates her religious liberty and that's the key question.

  • 10:08:41

    BACONHow does she behave on Monday and then where does the -- or how is the legal situation from there escalate or not escalate and so on?

  • 10:08:47

    PAGEBrian Brown, you were down at that rally when she came out of jail. She sounded like she was in a state of defiance. It is -- she didn't sound like somebody who was gonna step back and let these marriage license go forward with her deputies. What's your view on that? Do you think -- what do you think she's going to do?

  • 10:09:06

    BROWNI actually don't know what's going to happen next. I don't know what will happen on Monday. I don't know what decisions have been made. What I do know is that being there and being at the rally and seeing how many people showed up from all over the country, I think it was a very key moment and I think it's going to have profound effects beyond just Kentucky.

  • 10:09:31

    BROWNAnd that's already happening with presidential candidates having to weigh in and I think it really is starting a discussion that's critical that we have on what the nature of religious liberty is in this country, what the implications of the Supreme Court decision is and, you know, I'm very happy to see folks like Mike Huckabee and Ted Cruz and many others standing up and defending Kim Davis' rights.

  • 10:09:56

    PAGEEvan Wilson (sic), when the Supreme Court ruled that there was a Constitutional right to marry, for same-sex couples to marry, did you think that debate was pretty much settled? Are you surprised that now it's been revived in this way?

  • 10:10:10

    WOLFSONI don't really think it's been revived. I think this is the last gasps, an isolated effort on the part of some grandstanders, like Mike Huckabee and some anti-gay groups to try to boost this into something that it really ultimately isn't. I mean, the vast majority -- and by vast, I mean, 99.999999999 percent of clerks and public officials across the country are following the law. Thousands and thousands of couples have gotten legally married in states all across the country.

  • 10:10:41

    WOLFSONThe American people support this. They continue to support this. The polls show that the American people reject the grandstanding and defiance and flouting of the law by this clerk who is, again, an isolated example. And, look, it's a big country. I'm not surprised that there is an instance here or there and there are certainly people, like Mike Huckabee, who want to stoke it, but it's not sailing, it's not flying and it doesn't reflect what's really happening in the country, which is that the country has moved forward.

  • 10:11:09

    PAGEPerry Bacon, is this, in fact, a single incident or have we seen other similar things happen elsewhere in the country?

  • 10:11:14

    BACONNow, this is the only incident I know of where we've a clerk directly who's been confronted with couples who wanted to get married and said, no. So the New York Times had a piece a couple of days ago that said 11 of the 67 counties, so 11 counties in Alabama, the clerks or people there have said they would not issue same-sex licenses. They have not been challenged in court about that yet.

  • 10:11:35

    BACONYou've also -- there are also -- my NBC colleagues that two other counties in Kentucky so three of the 120 counties in Kentucky if you add Rowan County and there are two other counties in the eastern part of the state where the clerks suggested there they also would not issue same-sex licenses. But we haven't seen any confrontations in those other two counties in Kentucky yet, but there are some indications that some other clerks and people like that would be opposed to issuing same-sex licenses.

  • 10:11:58

    BACONSo there may be -- Kim Davis is the first person who's kind of leading this fight. There may be other examples of this, but we don't know that yet.

  • 10:12:05

    PAGEAnd in the other case -- I'm sorry, Evan, go ahead.

  • 10:12:06

    WOLFSONWell, Susan, yeah, just a couple corrections. First of all, there is no such thing as same-sex licenses. These are marriage licenses, the same as any other marriage licenses. And what this clerk did and what a handful of clerks, as Perry said, in a few counties in Alabama have done is refuse to issue marriage licenses to anyone. They have denied the people they serve, the taxpayers they serve, non-gay couples and gay couples, the service that those taxpayers are funding.

  • 10:12:35

    WOLFSONThat's what makes it so particularly egregious. They're simply refusing to do their job because of their personal anti-gay views.

  • 10:12:43

    PAGESo Brian Brown, what do you think about that? If a clerk won't do the job that -- the job description that exists for a county clerk, should she resign?

  • 10:12:54

    BROWNWell, number one, the whole notion that the large portion of America that disagrees with the redefinition of marriage disagrees with same-sex marriage is somehow anti-gay in Evan's view is just patently false. It's absurd to claim that and smear people as being anti-gay because they understand marriage, as it always was in this country and is for -- throughout human civilization understood as based upon the reality of the union of one man and one woman, that there's something special and unique about that union.

  • 10:13:28

    BROWNSo I think that it's false to say that that somehow is inspired by being anti-gay. The other reality is that in a number of states, including North Carolina, even though the governor originally vetoed the bill, legislation was passed that allowed clerks and magistrates and others that solemnize marriages to opt out, to not issue same-sex marriage licenses. So in North Carolina, for example, you can't say, well, hey, there's not been this confrontation. Other states have allowed for religious liberty and clerks, magistrates don't have to issue same-sex marriage licenses. Now...

  • 10:14:04

    PAGESo before we go on, in North Carolina, under that law, if a clerk doesn't want to issue marriage licenses to same-sex couples, what happens?

  • 10:14:12

    BROWNWell, they actually have to stop issuing licenses period for a period of six months if they decide not to issue a license. And then, someone else in the office who is willing to do so can issue it. In Kentucky, it's unique because the clerk's name is affixed to every license that's issued. So Kim Davis' name was affixed to every single license so her position was, I do not want my name affixed to license. I cannot do this in good conscience.

  • 10:14:40

    BROWNThis goes against everything I know about the truth of marriage so therefore, she wouldn't issue licenses. In other states, it's different. So it's not as though there's a one-size-fits-all situation in every state. There are different people issuing licenses. In some cases, it's magistrates, some judges, clerks. And in some places, you've had executive orders. Bobby Jindal issued an executive order in Louisiana. In Kentucky, you have this unique position in which the clerk's name is affixed to the license and the governor refuses to call a special session to pass any legislation that would make clear that Kim Davis and others religious liberty rights are affirmed.

  • 10:15:24

    BROWNThe other reality is that many folks just step down. I talked to a number of even judges in North Carolina that once the decision was issued, they decided they were going to step down from their positions. So it isn't as though a great amount of conflict hasn't occurred. It's just this type of conflict in which one clerk is standing up and saying, no, I will not comply, has not in this way.

  • 10:15:47

    PAGEEvan, I wonder what you think of the position that the judge in the Kentucky case has taken, which is basically let the deputies issue the marriage licenses. You stand back, that way you're not issuing them yourself, although I realize your name appears on the marriage licenses, as the elected clerk. Is that an acceptable policy to you?

  • 10:16:09

    WOLFSONWell, if I were a taxpayer in Rowan County paying this clerk $80,000 a year to serve the public and she was refusing to serve the public and do her job, I would not be pretty -- I would not be happy with her. And ultimately, I don't think it's a very workable system to be starting to say that we put people in public office. We pay them a salary to do a job. They choose not to do the job, but they still keep the salary and sit in the office and have to find somebody else.

  • 10:16:37

    WOLFSONNot to mention the indignity that it imposes on members of the public who come into the office expecting to be served and have to scrounge about hoping there will be somebody in that hour who can serve them during regular business hours. So no, I don't think that's the right way for our country to proceed. I think it's an unworkable can of worms. And, you know, a number of people have pointed out, we really see Mike Huckabee rushing down to stand by the side of let's say a Quaker clerk who said she didn't want to issue gun licenses or a Muslim clerk, for example, who said he or she didn't want to issues driver's licenses to women.

  • 10:17:13

    WOLFSONI mean, is that really where these people are or is this actually just a pretext for the last gasps of discrimination in defiance of the rule of law? And I really believe that in the United States we can disagree over things, we're all entitled to our beliefs. Brian Brown is entitled to say whatever he wants so is Kim Davis. But when it comes to the rule of law, we all should follow the law.

  • 10:17:37

    PAGEWe're gonna take a short break. And when we come back, we're gonna talk about what this dispute in Kentucky might tell us about the cultural divide that remains over gay marriage, even at a time public attitudes toward gay marriage have undergone some significant shifts. And we'll take your calls. Our phone lines are open. 1-800-433-8850. Give us a call. Stay tuned.

  • 10:20:02

    PAGEWelcome back. I'm Susan Page of USA Today sitting in for Diane Rehm. And we're joined this hour by Evan Wolfson, calling -- who's in the NPR bureau in New York City. He is the founder and president of the group, Freedom to Marry. And with me here in the studio, Brian Brown. He's president of the National Organization for Marriage. And Perry Bacon, he's a senior political reporter for NBC News. Perry, what does this dispute in your home state -- you're from Kentucky -- what does it tell us in a larger sense about what's going on in the debate over gay marriage?

  • 10:20:35

    BACONI don't think it's -- that hasn't been a big surprise, I mean, to be honest with you. I mean, I assumed there would be some amount of wind. We've -- conservatives talked for a long time that they're going to move from the idea of opposing same-sex marriage, what they're still doing in some cases, to this idea of religious liberty. So that's what Kim Davis is talking about, her religious rights being violated. So that was kind of a -- because we had already started hearing, even before the ruling in June, that that was where the next -- that was where they would kind of move to.

  • 10:21:00

    BACONSo that -- and we know that there are -- so there's higher opposition to same-sex marriage among conservatives and among people who are very devout and very religious -- so we knew that going in -- and among older people as well. So the fact that...

  • 10:21:11

    PAGEAnd in the South, strongest reasons.

  • 10:21:12

    BACONAnd in the South, the South is very Republican. So and so it goes with that. So that's still -- the fact that it happened in a place like Rowan County in Kentucky in sort of a state that's very opposed to Obama, for example, those things are not surprising to me. I mean, in some ways I've been surprised at actually, if you look at the 17 Republican candidates, you've seen -- Ted Cruz and Mick Huckabee did go there and were -- and been very supportive of Kim Davis. The other candidates have been very reluctant to speak about this and have been much more cautious.

  • 10:21:39

    BACONAnd even Carly Fiorina kind of came out and said that, you know, you have a government job. Your job is to follow government policy. This is government policy, the issue, licenses to all couples. And so she actually was pretty much with -- against Kim Davis. So, as you see, so the politics have been kind of aligned along the way I thought they would be, which is the Cruz and Huckabee are the -- or Huckabee was a pastor, Cruz' father was a pastor. He -- they were the candidates most aligned with evangelical conservatives. They're looking to win the Iowa caucus. So I think they're in the place I expected and the other candidates are not in that same place.

  • 10:22:08

    BACONBobby Jindal is in that same place where Huckabee and Santorum are -- Huckabee and Cruz are as well. But it's -- the politics have aligned to what I thought they would be. And we're actually, like Evan said, the movement against same-sex marriage is actually pretty small. Most people in the country have kind of accepted the ruling in a lot of ways.

  • 10:22:24

    PAGEWe've seen, Brian Brown, a big change in public opinion in the space of a decade or so, when it comes to the issue of same-sex marriage. And now a majority of Americans support the idea. The numbers get much larger when you talk to people under 30, younger Americans, the rising generation, where support is even stronger. So how do you respond to that? I mean, this is a tide that has taken place in this country.

  • 10:22:47

    BROWNWell, I think -- number one, I think that the analysis is wrong. Look, after a passage of Roe -- well, after the Supreme Court issued the Roe v. Wade opinion, support for abortion from '73 to '76 actually went up. People respected, at the time, they -- there was some respect for the Supreme Court's decision. And what you saw were people saying, yeah, we accept it. That, in fact, has not occurred with Obergefell. If you look at the polls after Obergefell, there's actually higher opposition...

  • 10:23:18

    PAGEThat would be the Supreme Court decision that recognized the right to same-sex marriage.

  • 10:23:20

    BROWNAfter the Supreme Court created this supposed right to same-sex marriage out of thin air, actually opposition to same-sex marriage went up. So it's wrong to say that somehow there's this dwindling group of hold-outs opposing same-sex marriage. There's a very significant portion of America that opposes same-sex marriage. I would say it's a majority. It depends on how you ask the question. It depends on the polls. But it definitely -- opposition when up, not down, in the wake of the decision.

  • 10:23:46

    BROWNThe religious liberty fight is not some secondary fight, some separate fight. It's directly connected. And to understand it, you have to understand our view of what the decision is. We don't subscribe to this notion of judicial supremacy, that whatever the Supreme Court says is the law of the land. The Supreme Court has made profoundly, profoundly wrong decisions. It did so in Dredd Scott. It did so in Buck v. Bell, when Oliver Wendell Holmes said three generations of imbeciles are enough and therefore we're going to have forced sterilization. And it did so in the Obergefell decision. This was a profoundly wrong decision. The Supreme Court had no right to do as it did. And it was illegitimate.

  • 10:24:27

    BROWNAnd understanding that those of us who understand marriage is what it was before the Supreme Court decision, marriage remains the union of a man and a woman. That's what it is intrinsically. We have just put a lie into the law. That helps you understand why people like Kim Davis -- why others, who've simply left their positions -- why others have passed laws. In fact, the North Carolina law that allowed for clerks to opt-out was actually vetoed by a Republican governor. And then that was overridden. So there is great support for the idea that people should not be punished and marginalized by the state because they stand up for marriages, the union of a man and a woman.

  • 10:25:06

    BROWNAnd it's inflection points like this, when someone stands up and takes this risk, is thrown in jail, where people start to rally around her. And that was the most impressive thing, was how many people I saw from all over the country gathering together and saying, enough is enough. This can't be allowed to occur.

  • 10:25:25

    PAGEBrian, I understand that people have deeply held views on marriage, including opposition to same-sex marriage. But it does seem pretty well established in this country that when the Supreme Court recognizes something as a constitutional right, that that is the law of the land -- that that settles the legal debate, even as the cultural and the moral debate goes on. You're not recognizing that.

  • 10:25:45

    BROWNNo. I'm not recognizing that at all. I'm in the same line as Lincoln when he responded to Dredd Scott. Lincoln didn’t say, this is the law of the land. Lincoln said, once we cede our right to our votes being respected, once we cede our right to democratic government to this eminent tribunal, as if they decide all important questions, we no longer have self government.

  • 10:26:07

    PAGESo -- so you don't recognize the Supreme Court decision as legitimate. What do you do about that? Do you just battle it on a case-by-case basis for religious liberty? Or do you just do something more fundamental, if you think it's a illegitimate decision?

  • 10:26:21

    BROWNWell, number one, we have to make clear and continue to make clear that -- in any way we can, why the decision is illegitimate, why what the court did was wrong. Number two, we have a presidential pledge, a number of candidates have signed it, in which they vow to work to overturn the decision. How do we do that? Well, there are two primary ways. One, it was a 5-4 decision. Depending on who is now nominated and goes to the Supreme Court, this decision doesn't need to stand. Secondly, of course we support a Constitutional Amendment. That's a long-term goal. It was a long-term goal for the life movement.

  • 10:26:57

    BROWNBut, again, before you proclaim that somehow the movement to restore our marriage law to the truth is over, look at the pro-life movement. These same claims were made after Roe. This was all going to go away. Once the Supreme Court decided, it was done. And now we're at a point where, especially young people, are -- but even not young people are coming around to the position that human life is human life, regardless of what the Supreme Court rules. So it's both a long-term and short-term battle.

  • 10:27:28

    BROWNBut the presidential election is going to be quite important. And I do think folks like Carly Fiorina and even Donald Trump, who've been quite weak on the marriage issue and have been very weak in not supporting Kim Davis, I think that -- I think they're going to have a tough time in the primary.

  • 10:27:43

    PAGEEvan Wolfson, some people do make a comparison with Roe v. Wade and that they make -- this line of argument would go that the Supreme Court got ahead of public opinion. They acted too soon on same-sex marriage and that it helps the opponents of same-sex marriage to have done that. What do you think about that?

  • 10:28:01

    WOLFSONWell, actually, it's simply not true here. The Supreme Court was actually following and catching up with public opinion. Every poll that's been taken before, and certainly in the couple of years leading up to the Supreme Court decision, and then even subsequently, has shown that the American people support the freedom to marry and support treating gay couples with respect by more than 60 percent. Most of them are in the 63-percent range. What Mr. Brown said about the polls is simply not true.

  • 10:28:27

    WOLFSONAnd, in fact, in the right-of-center poll, the Rasmussen Poll that was taken, I believe it was yesterday, on how people felt about this hyped-up situation in Kentucky, 66 percent of the American people disagreed with the clerk's defiance of the law and believe she should either resign or that the judge had no choice but to enforce the rule of law. So what Mr. Brown said is simply not true.

  • 10:28:50

    WOLFSONBut what I do agree with is that, while the law of the land is clear and while the constitution is clear and ought to be respected by all of us, contrary to what Mr. Brown and Mr. Huckabee have said, which is calling for people to disobey the law and flout the constitution -- but what I do agree is that we're not done with the conversation. We absolutely need to keep making the case and need to keep persuading people. But I'm very confident that the American people will continue to move even more and more and more in support of the freedom to marry.

  • 10:29:20

    WOLFSONAnd if I could just point out one other thing. Mr. Brown's position is completely inconsistent. Because, on the one hand, he claims this is about religious liberty but what he's really talking about is defying the law when he doesn't agree with the Supreme Court, and calling upon people to disobey the law. He's not defending, for example, a Quaker clerk who would refuse to issue gun licenses. He's saying that when we don't agree with the law, when we don't agree with the court, we should disobey it and then call that religious liberty. That's not religious liberty. That's defiance of the law.

  • 10:29:53

    PAGEPerry Bacon, how big an issue do you think this will be in the 2016 presidential race?

  • 10:30:00

    BACONI don't think a very big one. And to be honest with you, I mean, what you're seeing so far in this primary is, I would argue, not very surprising. The most -- the conservative of the candidates most aligned with religious conservatives are taking this -- the vision what the conservatives want. And the other candidates are trying to move away from the issues. The Jeb Bushes -- if you wind up -- if you look at the chart of the candidates, you'd say Jeb Bush, Marco Rubio, Scott Walker -- Jeb Bush, Marco Rubio, John Kasich, have tried to be the more quote, unquote "moderate" candidates, Ted Cruz and Mike Huckabee appealing to the more conservative vote.

  • 10:30:31

    BACONSo the original issue of mirror their views on every other issue in a lot of ways, so that's not surprising. What I would look forward to is, right now, you have 17 Republican candidates. In all of them, if you look at their positions, they say something to the effect of, I believe marriage is between a man and a woman or I believe in traditional marriage. You have all the Republican nominees, very likely the person who says, I believe in marriage between a man and a woman.

  • 10:30:52

    BACONAnd my question is, the polling, I would argue, suggests that support for same-sex marriage and acceptance of that is growing in the country, particularly among younger people. I'm curious, can you be elected president in 2016 and be opposed to same-sex marriage? And I think the answer to that is not clear. I think the trend line has been really fast here. I don't think this issue is that analogous to abortion. We'll find out later. But I don't think this issue is very analogous. And I do think Republicans spent a lot of time last year talking about, we want to appeal to more younger voters. This could be a barrier to that.

  • 10:31:22

    PAGEBut the problem for Republicans, it seems to me, is that while the national trend has been remarkable in terms of increasing support for same-sex marriage, in the Republican primary electorate, there are a lot of evangelical Christian conservative voters to whom this is important, the kind of people who would support Brian's organization. So that means this issue could bedevil Republicans in a way, because it's important in one way in the primaries and important in a very different way in the general election.

  • 10:31:47

    BACONBut you've seen what Jeb Bush did and some other candidates have done, which says, I'm for traditional marriage or I'm for marriage between a man and a woman, but I think Kim Davis should follow the law because she's a government official. I think that's going to be sort of the mainstream Republican view. You're hearing that from members of Congress too. I think that's where the party is right now.

  • 10:32:03

    PAGEEvan, do you think...

  • 10:32:03

    WOLFSONAnd to be clear, Susan...

  • 10:32:04

    PAGEYes, go ahead.

  • 10:32:05

    WOLFSON...a majority of Republicans under age 50 support the freedom to marry. A majority of evangelicals under age 30 support the freedom to marry. While it's true that evangelicals and Republicans and conservatives lag behind where the majority of the country is, even amongst those segments, the support is growing and growing and growing and will continue to grow.

  • 10:32:28

    PAGEI'm Susan Page and you're listening to "The Diane Rehm Show." We're taking your calls, 1-800-433-8850. Let's go to a caller. Tom is calling us from Baltimore. Tom, hi, you're on the air.

  • 10:32:40

    TOMHi. How's it going? I'm a long-time listener. Thanks for taking my call.

  • 10:32:44

    PAGEYou bet.

  • 10:32:45

    TOMSo, I just wanted the panelists to comment on, perhaps rhetoric aside, I'd say I disagree with Kim Davis' point of view, but I fully support her following her conscience toward, you know, what she feels is right. And then the law can take effect at that point. The, you know, any nonviolent form of protest is what got us to the point of even discussing same-sex marriage and legalization. But what I, you know, what you typically hear is criticism of her point of view as opposed of how she expresses her point of view. And, you know, I don't agree with government officials, like, being allowed to just do whatever they want. But the law should take effect and she should be able to follow her conscience. Anybody should be able to follow their conscience.

  • 10:33:36

    PAGEYeah. All right. Thanks very much for your call.

  • 10:33:39

    TOMSure.

  • 10:33:39

    PAGEAny comments from the panel?

  • 10:33:40

    BROWNYeah. I mean, Evan continues to say that I would oppose reasonable religious accommodations for all sorts of other issues. He's actually flat wrong. I was raised a Quaker and I understand the history of the conscientious objector movement. If folks like the five Mennonite boys who ended up going to jail because they said they couldn't go fight a war because of their conscience hadn't have done what they had done, we wouldn't have the same conscientious objector rights that we currently have.

  • 10:34:07

    BROWNThe history of religious freedom in this country is a very broad history. It's a history of broad freedom. It's a history of making a reasonable accommodation whenever possible. That is why Amish kids do not have to go to public schools. That was very early-on litigated. That is why we have conscientious objector laws. In this case, as I said, a number of states have tried to figure out a method in which someone like Kim Davis can abide by her conscience and continue to have her position. And it's flat-out wrong to say somehow, well, it's her job. When she was elected, there was no idea of same-sex marriage in Kentucky.

  • 10:34:43

    BROWNThe voters of Kentucky, apart from this false understanding of the polling, voted by 75 percent to pass a marriage amendment. North Carolina passed their amendment in 2012. The polls have been absolutely wrong time and time again. In Proposition 8, we were told that only 36 percent of California voters would support amending the constitution to protect marriage. Instead, it was 53 percent. So if you want to look at the actual polls that count, that has been the votes of the American people. And they've overwhelmingly been to protect marriage as the union of a man and a woman and that was true in Kentucky.

  • 10:35:18

    BROWNThe law didn't change in Kentucky. What changed was that we had five out of nine Supreme Court justices say, we are going to throw your votes in a dust-bin. That is wrong. And it is wrong to say that somehow Kim Davis should be coerced against her conscience to do -- to say that something is true, which is not true, and that is that the union of two men or two women is the same as the union of a man and woman.

  • 10:35:42

    WOLFSONThere's a big difference between a religious accommodation for people who are, for example, being drafted into the Army, on the one hand, and giving permission to every individual to say, I don't want to do my job. When the answer to the caller's question is, Kim Davis is of course free to speak her mind. She's of course free to believe what she wants to believe. But what she's not free to do is to deny services to the public that she took an $80,000-a-year job to do, based on her own personal views. Because where would that end? It would become completely unworkable...

  • 10:36:14

    BROWNWhich never included same-sex marriage.

  • 10:36:15

    WOLFSON...not to mention an insult to the public. So that the right answer for that is, if she wants to feel that she cannot do her job consistent with her conscience, her honorable choice is, as Mr. Brown indicated earlier, to resign.

  • 10:36:28

    PAGEHere's an emailer, Allison from New York, who asks us, why can't Kim Davis be fired. She's not fulfilling her job duties of issuing marriage licenses. Perry, why can't she be fired?

  • 10:36:38

    BACONWell, she's an elected official, so she can't be -- so the only way she can be removed from that job, my understanding is, that she could be impeached and removed by the legislature in Kentucky. So you've now heard -- had a little bit of dispute about this where there's a discussion about whether the legislators add a session now. And there's been discussion about whether the governor should call them back into session and then we could talk about what laws should be made in Kentucky, along with -- it's more or less, Kentucky's legislature has a Democratic House and a Republican Senate. So the question is -- and it's not clear what the (word?) would be, but, that said, the legislature could be called back.

  • 10:37:13

    BACONAnd then they could also discuss maybe laws passed to make it easier for Ms. Davis to do what she's doing now, which is what Brian's laying out. So there's a big call right now from conservatives that the legislature come back. And the governor, so far, has said he won't do that.

  • 10:37:25

    PAGEWe're going to take a short break. When we come back, we'll go back to the phones and we'll take your calls, 1-800-433-8850. Stay with us.

  • 10:40:01

    PAGEWelcome back. I'm Susan Page of USA Today, sitting in for Diane Rehm. We're talking about that defiant county clerk in Kentucky who went to jail rather than issue same-sex marriage licenses. With me in the studio to discuss it is Perry Bacon from NBC and Brian Brown from the National Organization For Marriage. And joining us from New York is Evan Wolfson of the Freedom to Marry group.

  • 10:40:22

    PAGEYou know, we've gotten an email from a listener who says, I've been mispronouncing the name of the county in Kentucky. I said Rowan, it's Rowan. I'm sorry for that error. And we also have a tweet from Brandon, who says, let's not lose sight that this clerk is an elected Democrat, so this isn't purely a Republican-versus-Democratic issue. I actually didn't know that, Perry. I didn't know that she was a Democrat.

  • 10:40:44

    BACONI did know. Kentucky is one of these quirky states that is not politically aligned the way most states are. So Kentucky's governor is a Democrat. His name is Steve Beshear. He's become in famous in part because he's one of the most pro-Obamacare governors in the country. Its senators, of course, are Rand Paul and Mitch McConnell, two of the leaders of the Republican Party in the Senate. And then the House, like I said, is Democratic, but the Senate is Republican.

  • 10:41:04

    BACONSo Kentucky is a weird state in that way, where the politics are not predictable. So you have a lot of people there, I think Obama, there's 120 counties in Kentucky. Obama won four of them. So he's not very popular there. But you still have a lot of, like, the county officials in a lot of these state -- in a lot of Kentucky are Democrats. They tend to be Democrats who are more conservative, particularly on issues like abortion, issues like marriage. So you're -- I'm not surprised that Davis is a Democrat because I suspect, we haven't -- I haven't seen a lot of polls about this, I suspect there's a fair amount of Democrats in Kentucky who maybe are opposed to same-sex marriage, opposed to abortion rights and probably voted for Mitt Romney.

  • 10:41:42

    BACONSo that sort of tells you, being a Democrat in Kentucky isn't the same thing as being a Democrat in New York or D.C.

  • 10:41:46

    PAGELet's go to Plano, Texas...

  • 10:41:47

    WOLFSONAnd to be clear, Susan...

  • 10:41:47

    PAGEYes, Evan, go ahead.

  • 10:41:48

    WOLFSONIf I could just make one quick point, the judge in the case, who upheld the law and is defending the rule of law here is a conservative Republican nominated and appointed by President George W. Bush.

  • 10:41:59

    PAGEAnd Evan, is it clear what the judge will do if Kim Davis goes back on the job on Monday and takes steps to prevent her deputies from issuing marriage licenses?

  • 10:42:10

    WOLFSONWell, of course I don't know the answer to that, but I would suspect that the judge will uphold the law and will take action to prevent Kim Davis from interfering with the -- what is now the smooth operation and normal operation of the clerk's office. He actually kind of cut her a break by letting her out despite her intentional defiance but made clear that she may not interfere with the other clerks who are issuing licenses and serving the public.

  • 10:42:36

    PAGEWell, what could he do, though? He can fine her or put her in jail. He can't make her issue licenses, can he?

  • 10:42:43

    WOLFSONCorrect. He can fine her. He can put her back in jail because of her contempt of the court and the rule of law. And to be clear, she wasn't put in jail because of her views, because of her position. She's put in jail because she defied a court order, a court order that she tested all the way up to the United States Supreme Court, which refused to intervene.

  • 10:43:02

    PAGEYou know, there...

  • 10:43:02

    WOLFSONAnd, you know, at the end of the day, all of us can have our views and have our arguments, but we have a country that is based on the rule of law and following court orders that are lawful.

  • 10:43:10

    PAGEYou know, there was an interesting piece in The Atlantic yesterday written by Emma Green that is headlined, Kim Davis is Winning. And it talks about kind of the optics of having this clearly sincere middle-age woman being sent to jail espousing religious views, her religious views. Now I understand that you think she doesn't have a -- this is not the way in which she can legally do that, but do you worry at all about kind of how it looks? Does it make her a sympathetic figure and help her cause for her to be sent to jail?

  • 10:43:45

    WOLFSONNo, I actually think at the end of the day, people really can see this for what it is. And, you know, nobody asked for her to go to jail. Nobody wanted her to go to jail. This is not about her. This is about serving the public and following the law. But at the end of the day, as I mentioned earlier, 66 percent of the people in even the Rasmussen poll said that she's wrong, and she's defying the law, and judge had no choice.

  • 10:44:08

    WOLFSONAnd if she continues, whether on the direction of her attorneys, who are, you know, a professional anti-gay organization, the Liberty Council, and the grandstanding of people like Mike Huckabee to defy the law, she gives the courts no choice but to uphold the law that all of us depend on.

  • 10:44:25

    BROWNEvan is wrong on so many fronts I don't know where to begin. But let me start with one area. As far as her being put in jail and as far as this Rasmussen poll, anyone, I encourage, go look at the Rasmussen poll wording. It didn't ask about Kim Davis. It was a very abstract, universal question about whether public officials should abide by the law.

  • 10:44:47

    BROWNNow we've seen this polling time and time again in religious liberty issues, that if you ask a more abstract question, you're not going to get as much support for religious liberty because it's abstract. If you ask a concrete question, should the baker be fined for refusing to bake a cake for a same-sex couple, should the videographer be sued by the state, should the florist, Barronelle Stutzman, be sued by the state, overwhelming majorities say no.

  • 10:45:13

    BROWNAnd in the same instance, in the Kim Davis case, you now have a face, you have a face, you have a person, you have a story. And people overwhelming oppose the notion that this judge should throw someone in jail because they're abiding by their conscience. So the poll that he's referring to is not directly on the Kim Davis case, and it's just like the misuse of other polls.

  • 10:45:35

    PAGEPerry?

  • 10:45:37

    BACONI think -- you know, I think as we look forward, Kim Davis is in a tough position because she's in a government job, the -- you know, judicial supremacy tends to be recognized by a lot of Americans. So the idea that as a public official she'll be able to, you know, not abide by a Supreme Court ruling is going to be challenging, I suspect.

  • 10:45:55

    BACONI do think this issue will keep coming up in the private sector context more, the florist, the baker example. That's where I think the -- that's where I expect this debate to be much sharper, and Americans will think about it a little more as, like, if you're a private company, and you have an -- or a private individual, and you have -- your religious view is that same-sex couples don't have rights, it's going to be hard to defend still, but your case will be stronger, I suspect, than if you're a government official because in that case you can always leave your government job. That's always going to be a hard rationale to get past.

  • 10:46:26

    PAGELet's go to Idaho Falls, Idaho...

  • 10:46:28

    WOLFSONTo be clear...

  • 10:46:29

    PAGEAnd let Joe have a word, join our conversation. Joe, hi, thanks for holding on.

  • 10:46:33

    JOEHi, thank you. Now, this woman, doesn't she handle all the court documents for the court system for that county, which includes divorce decrees and everything else that go against her Biblical view? And isn't she handling all those documents to file them away for the county, for government records? All she's doing is issuing a license. She's not actually marrying people. And to refuse that, doesn't it make her a bigot because she's just going against one so-called aspect of the Bible that she believed in?

  • 10:47:08

    PAGEAll right, Joe, thanks, thanks for your call. What do you think, Brian? What about the divorce question? I don't actually know, are divorces filed with the county clerk in Kentucky?

  • 10:47:18

    BROWNI don't know the answer to that question.

  • 10:47:20

    PAGEYeah, I don't know the answer to that, either. And I think it must not violate her religious views because we know that she is herself divorced, an issue that's come up, as well. Joe, I'm sorry we can't be more helpful on that. Let's go to Logan, Ohio, and talk to Susan. Susan, you're on "The Diane Rehm Show."

  • 10:47:33

    SUSANYeah, hi. I just wanted to say that I -- to me, it's a clear-cut case of separation of church and state. You know, who's paying her, the church or the state?

  • 10:47:48

    PAGEAll right, Susan, thanks very much for your call. Let's go to Bruce, calling us from Rochester, New York. Bruce, go ahead.

  • 10:47:54

    BRUCEYeah, I have a couple of points. The first one is, I don't know how her religious rights outweigh the religious rights of the people that want to get married. There are many Christian sects that allow gay marriage, that have gay pastors, even gay bishops. And the second, there is no real discussion about how this parallels interracial marriage and whether there -- plenty of people use the Bible to say, oh, that's wrong, you know, it shouldn't be happening. And, you know, florists and like that. Well, if the couple was black and white, no I don't believe in that, I can't do it, and how that -- and third, marriage is not a religious institution.

  • 10:48:29

    BRUCEReligious people are allowed to do it, but it is a contract between two people to merge their households. And when you look at the history of it, when you go back through the Bible, men were allowed to marry multiple women. So I don't know how this person, who says, oh, you're wrong on all these points, can sit there and defend individual liberty and not defend the individual liberty of these people to get married.

  • 10:48:50

    PAGEBruce, thanks so much for your call. You know, some people have made this comparison with public attitudes and laws, in fact, that barred marriage between different races. And I'd like to ask our two panelists if you think that's a fair comparison. Start with you, Evan.

  • 10:49:07

    WOLFSONYes, it is of course a fair comparison, and by the way, the attempt to use the banner of religious liberty, a value we all believe in, to camouflage efforts to subvert civil rights laws is not a new phenomenon. This didn't just happen. This is not a debate that just came about because of gay people or the Supreme Court. Through American history, whenever there has been a civil rights advance, going back to the '50s, the '60s and so on, you know, whether with regard to racial justice or women's equality and empowerment and now gay people, those who fail to stop that advance then turn to efforts to carve themselves out from that advance, try to subvert that advance, often disguising that effort under the banner of religious liberty.

  • 10:49:49

    WOLFSONAnd they claim that, well, I should be able to impose my views to get a license to discriminate even though the law says otherwise, even though the Constitution says otherwise. So we've seen this again and again and again, and fortunately in our country, the American people have seen through these kinds of efforts and have realized that it just becomes unworkable, untenable to say that the rule of law is subject to every person's individual views no matter how inconsistent or no matter how sincere. It just can't work that way.

  • 10:50:15

    PAGEBrian.

  • 10:50:17

    BROWNAgain...

  • 10:50:18

    WOLFSONThis is not a church. This is a government office.

  • 10:50:21

    BROWNThis is actually not what Americans believe. Americans...

  • 10:50:23

    PAGEBut Brian, before you go into that, I want you to just address the question the Bruce raises. Is this a parallel to the laws that barred interracial marriage in some places?

  • 10:50:32

    BROWNOf course not. It's completely apples and oranges. Again, you're trying to say that in one point of human history, when a number of very bad people decided that they were going to add this aspect of marriage, race, that has had nothing to do with it, to marriage, that is completely different than the foundational truth that marriage is based upon the union of a man and a woman.

  • 10:50:53

    BROWNAnd what Evan's essentially saying is that those who subscribe, those who are Christians, Catholics, who subscribe to the understanding of marriage, throughout human history that there's a uniqueness of men and women coming together are the functional equivalents of bigots and racists. You can't say that and then look up and say hey, people are being thrown in jail, people are being persecuted, we never intended this to happen.

  • 10:51:18

    BROWNTen years ago we were told no one would be thrown in jail, people wouldn't be persecuted because of their beliefs, if you pass same-sex marriage, it's only about that couple, it's not going to affect anyone else. Is that true? Has -- is that what has occurred? Of course not. We see people being punished and marginalized by the state, and I'm frankly, because of the Kim Davis situation but other situations like this, we're gaining a lot of steam in passing the First Amendment Defense Act in Congress, which would stop a lot of this. We're up to 140 sponsors in the House. We're up to I think 36 sponsors in the Senate. And what the American people understand is that there's something unique and special about marriage as the union of a man and a woman.

  • 10:52:02

    BROWNAnd frankly it's a slur to say that those of us that believe that are the equivalent of the KKK.

  • 10:52:07

    PAGEBut I don't really -- I don't...

  • 10:52:07

    WOLFSONBut again, there's this...

  • 10:52:09

    PAGEJust a second. I don't believe people were saying it's the equivalent of the KKK.

  • 10:52:12

    BROWNIt's discrimination.

  • 10:52:12

    PAGEI think that's going pretty far in the comparison with interracial marriage.

  • 10:52:17

    BROWNIf you say you're the same as people who oppose interracial marriage, you're essentially saying we are like the Southern bigots during the '50s and '60s. That is a slur. That is wrong. There's something profoundly different between understanding marriage as the union of a man and a woman, bringing the sexes together, and the heinous view of keeping the races apart. It is discrimination.

  • 10:52:37

    PAGEYou know, I think that's an unfair characterization. No one's compared people who support same-sex marriage -- who oppose same-sex marriage to the KKK. The question is, there was a time when attitudes on race, interracial marriage were different in a lot of parts of the country. It took some time for attitudes to change. There were legal decisions that were made, issued by courts, that said this was allowed. And over time it's become something to be totally unacceptable to oppose interracial marriage. And so some people have made a comparison with same-sex marriage. I wonder, Perry, what do you think about that comparison?

  • 10:53:09

    BACONI mean, in terms of where public attitudes are, I don't want to get into the debate they're having. On the merits of it, I understand the debate, and I have some views about it, but I'll keep those to myself. But in terms of, like whether this issue is more like -- Evan is saying this issue is more like interracial marriage, and Brian's saying it's more like abortion, and I don't think we're going to know anytime soon. It'll have to play out in some ways.

  • 10:53:30

    PAGEAnd maybe it'll be a debate different from both of them.

  • 10:53:31

    BACONDifferent from both, exactly, yeah.

  • 10:53:33

    PAGEI'm Susan Page, and you're listening to the Diane Rehm Show. Let's let a listener get back into this conversation. We'll go to Detroit, Michigan, and talk to Arnie. Hi Arnie.

  • 10:53:42

    ARNIEHi, how are you doing?

  • 10:53:43

    PAGEGood.

  • 10:53:44

    ARNIEGood. I've been listening carefully to this hot topic that everybody's talking about, and I'm an attorney, and it seems to me that it can be simplified by simply looking at the requirements of this clerk or any other appointed or elected public official when they are sworn in to a position of public trust, that they put their hand typically on the Bible and swear to uphold the Constitution.

  • 10:54:10

    ARNIEI think this woman probably put her hand on the Constitution and swore to uphold the Bible, and it's totally inappropriate. So that's my comment.

  • 10:54:19

    PAGEAll right, Arnie, thanks so much for your call. We also had a question before on whether divorces were also handled through county clerks' offices, and our very helpful Diane Rehm Show producer has found the answer to that. On the website, it says that circuit county clerks do indeed grant divorce decrees. Perry, you talked -- earlier you mentioned the governor of Kentucky, Steve Beshear, a Democrat. What has he done? What's his stance been on this as this controversy's unfolded in the state?

  • 10:54:44

    BACONHis stance has been along the lines of she should follow the law. It's been pretty simple. He's not in the -- he's not been a particularly -- he's not been particularly vocal on this issue, on the issue of same-sex marriage itself, but he's now come down pretty strongly on the side of saying Ms. Davis should follow the law. And there's a been a question for whether he should call a special session because there's some idea about whether the law should be changed in Kentucky to allow Ms. Davis' behavior to go on, and Beshear so far has said no, I'm not going to do that, she should just follow that, we're not going to have a new session to just discuss something like this.

  • 10:55:15

    BACONAnd so that has been his view up to now, and he needs to call the session for it to happen.

  • 10:55:19

    PAGEBut if he called the legislature into special session, it's not clear what they would do, right? They might impeach her, but they might also pass a law that allowed for religious exceptions. Is it clear what the state legislature would do?

  • 10:55:28

    BACONYeah, I don't have a good sense of it. There's not been a lot of great reporting about what they would do. And like I said, the two parties are divided in the legislature itself. So I'm not sure what would happen.

  • 10:55:34

    PAGEEvan?

  • 10:55:34

    WOLFSONSusan, there was an incident about a year or two ago in Louisiana where it was either a clerk or a judge, I don't recall exactly, refused to issue an interracial couple a marriage license, saying that he did not believe interracial marriage was consistent with his understanding of the Bible. Quite correctly, almost everyone in the country came down on that, including Governor Bobby Jindal, who said that clerks or judges don't have the right to just assert their sincere views and their sincere religious views to refuse licenses, to refuse to provide public services.

  • 10:56:07

    WOLFSONThe same Bobby Jindal, now running for president, this year chimed in and said this clerk ought to be given a religious permission to not issue a license to a couple that Bobby Jindal doesn't like. And that exposes exactly what's really going on here, and why it's so unworkable to go down this path, and that's why the majority of the American people think it's wrong.

  • 10:56:26

    BROWNThey're clearly two different things.

  • 10:56:27

    PAGEBrian, we're almost out of time. Let me just give you a few seconds to respond.

  • 10:56:29

    BROWNOf course. Marriage, up until a few months ago, the federal government did not say anything about what the nature -- the federal government did not redefine marriage. So to say somehow that everyone who believed what most states believed a few, you know, just a few months ago is now the equivalent of someone who opposes interracial marriage is just laughable, and it's wrong. And I think the American people are waking up to that. I think that's why you're seeing the support for Kim Davis. I think it's wrong to say that it's anti-gay or bigotry to stand for marriage as the union of a man and a woman, and the two things are very different things.

  • 10:57:04

    PAGEWe're just about out of time. I want to thank our panel for being here with us. We've gotten a lot of interesting emails on this. Here's one from Phillip. He writes, if gay marriage is so popular, why did it have to be imposed by judges? But here's one by -- from Louise in Michigan. She writes, it seems they are seeking not only freedom to practice their religious beliefs, they are seeking to impose those beliefs on everyone else. I just don't understand why anyone thinks they have a right to do this. So two very different views there. Perry Bacon, Brian Brown, Evan Wolfson, thanks for being with us.

  • 10:57:32

    BACONThanks for having me.

  • 10:57:33

    WOLFSONThank you.

  • 10:57:33

    BROWNThank you.

  • 10:57:35

    PAGEI'm Susan Page of USA Today, sitting in for Diane Rehm. Thanks for listening.

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