Don’t Compare Me To Kim Davis

They’re at it again. In the wake of the U.S. Supreme Court’s definitive ruling on the constitutionality of same-sex marriage, apologists for hate are equating my 2004 decision to have the City and County of San Francisco issue marriage licenses to all loving couples with last week’s decision by a Kentucky county clerk to refuse marriage certificates to loving same-sex couples.

On ABC’s This Week, former Arkansas Governor Mike Huckabee wondered why Kim Davis was in jail for refusing to issue marriage licenses to same-sex couples and I was not for doing just the opposite:

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.

Here are some facts:

1. On February 12, 2004, I ordered the clerk of the City and County of San Francisco to start issuing marriage licenses to same-sex couples. I believed that the law on the books at that time, defining marriage between a man and a woman, violated the equal protection clause of the California State Constitution.

2. Citizens challenge the constitutionality of local, state and federal laws all the time. They have that right. That is how our system of democratic governance works. The matter is then handed to the courts to determine the constitutionality of a law.

3. One month and 4,000 marriages after we started, the California Supreme Court ordered the City and County of San Francisco to stop issuing licenses to same-sex couples. We complied with the court’s order immediately.

That’s it, and therein lies the key difference: We did not issue one more license after we received that order from the California Supreme Court. Because the Supreme Court is charged with interpreting the constitution, I could not, in my mind, object to its order — its order is law.

Kim Davis was in jail because she was in contempt of court. She defied the ruling of a federal judge, was given ample room to comply and was finally thrown in jail after she failed to do so. The same would have happened to me had I continued to order the clerk to issue marriage licenses in defiance of the California Supreme Court’s order.

The U.S. Supreme Court’s decision in Obergefell v. Hodges did not order individuals to perform or recognize same-sex marriages; it ordered state governments to legally recognize same-sex marriages. As the clerk for Rowan County, Ms. Davis took an oath of office where she swore to support the U.S. Constitution — the same constitution that gives the Supreme Court final word on all constitutional matters.

Ms. Davis would like to act as a martyr, but no one has forced her to issue marriage licenses to anyone. She had two very clear choices that would have allowed her to maintain her religious liberty. First, she could have resigned. Second, Judge Bunning told her that he would release her from jail if she would simply allow her deputies to issue marriage licenses to same-sex couples and not interfere in any way — but she pointedly said that she would interfere and order them not to issue licenses to same-sex couples.

San Francisco’s Winter of Love in 2004 expanded civil rights and furthered the pursuit of liberty and justice for all. The state that prohibited James and John to marry could not prove harm caused to others resulting from their union. In complete contrast, County Clerk Kim Davis’ refusal to allow same-sex couples their constitutional right to marry has the effect of curtailing civil rights and harming those whose love she deems inferior.

I challenge Governor Huckabee and all of Kim Davis’ supporters to think about this question that was posed by Jon Davidson of Lambda Legal:

I have to wonder: just how many of those supporting Kentucky clerk Kim Davis’s refusal to issue marriage licenses based on her religious objection to same-sex couples marrying would support a Quaker government official who refused to issue them gun permits based on a religious commitment to pacifism?

Here’s what I know for sure — while history is not always written by the victors, and while justice delayed is justice denied, one outcome is always certain: In our democracy, tolerance will defeat bigotry, equality will overcome injustice, and love will triumph over hate.

If you have any doubt about that, just look at the picture at the top of this post of Del Martin and Phyllis Lyon, a couple who, after being together for 50 years, finally had the opportunity to have their love recognized by the county they lived in — a right so many of us have taken for granted.

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