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Human Right Vs. Legal Right: Lessons From the Pope, Kim Davis

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By Christopher Coble, Esq. on September 29, 2015 10:55 AM

Gay marriage "outlaw" Kim Davis got a supporting nod of sorts from the Pope last weekend. When asked about a government official's duties to their office and their personal conscience, the pontiff responded: "I can say that conscientious objection is a right that is a part of every human right. It is a right. And if a person does not allow others to be a conscientious objector, he denies a right."

While the Pope didn't reference Davis or her refusal to issue same-sex marriage licenses specifically, many have interpreted his words as support for the Kentucky clerk's defiance of the Supreme Court. So how do we balance Davis's human right to object to the law with the legal rights of same-sex couples and with her duties to execute the duties of her office?

Christ and the Constitution

The Pope's message on conscientious objection might be more applicable in this situation if Kim Davis were drafted into her service of Rowan County Clerk. But she chose to run for her office, and she remains free to resign her post if she objects to what performing that job now entails. Based on the laws of the United States, what she may not do is discriminate against citizens in violation of the Constitution.

Human rights are a loosely defined set of moral principles or norms that people are entitled to fundamental rights simply because they are human beings. Legal rights, on the other hand, are specifically outlined under the U.S. Constitution and the Bill of Rights as well as state laws and the interpretation of all of the above by our court system. The Equal Protection Clause of the Fourteenth Amendment states that "No State shall ... deny to any person within its jurisdiction the equal protection of the laws," and this applies to federal laws and Supreme Court rulings.

Kim Davis, Under Oath

As a government employee, Kim Davis is, essentially, the State. So when the Supreme Court says that same-sex couples have a fundamental right to marry, she may not legally deny them that right. While Davis attempted to avoid this issue by refusing to issue any marriage licenses at all, the effect of her actions is discriminatory.

Not only did her refusal to issue same-sex couples marriage licenses violate the Constitution, it violated her own oath of office (emphasis added):

"I, ....., do swear that I will well and truly discharge the duties of the office of .............. County Circuit Court clerk, according to the best of my skill and judgment, making the due entries and records of all orders, judgments, decrees, opinions and proceedings of the court, and carefully filing and preserving in my office all books and papers which come to my possession by virtue of my office; and that I will not knowingly or willingly commit any malfeasance of office, and will faithfully execute the duties of my office without favor, affection or partiality, so help me God."

When sentencing Davis to jail for contempt, U.S. District Court Judge David Bunning told Davis, "Oaths mean things." If Davis objects to fulfilling the duties of an elected county official, that is her human right, and if she wants to exercise that right, she is free to resign. But under the law, she has no right to deny citizens of Kentucky their own rights.

If your rights have been violated, by any government entity, you may want to contact an experienced civil rights attorney.

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