I wasn’t planning to write a blog post about Kentucky Clerk of Court Kim Davis and her refusal to issue marriage licenses to same sex couples. I don’t see the situation as being especially complicated or interesting from a legal standpoint. I feel that her recent jailing was highly predictable. On the surface, this situation seems to be little more than a woman who seeks a special exemption for herself from the performance of her elected duties on the basis of religious belief. However, when reading an ABC news report regarding her testimony during the contempt hearing, something jumped out at me that makes me suspect that this situation is more complicated and I’d like to discuss what I think might be going on.
ABC news reported: “’I did a lot of vile and wicked things in my past,’ Davis said when asked about her life before becoming a Christian in 2011.” I think this is an important statement that tells us a lot about how Mrs. Davis sees herself and the role her religious identity plays in her life. Clearly, Mrs. Davis carries a great deal of shame about prior decisions in her life and she sees her religious conversion as a return to worthiness. She’s seeking redemption, a way to undo the mistakes of her past, through her willingness to be a martyr.
As Jewish person I can get my head around this idea of redemption. People who follow my religious tradition are currently in the month of Elul, which is a time of reflection in preparation for Rosh Hashanah and Yom Kippur, two holidays in which there is great focus on redemption and repentance. Judaism recognizes two forms of redemption. One form of redemption involves healing the relationship between the individual and G-d, the other form involves healing the relationship between ourselves and other people, especially those whom we may have harmed. I believe that redemption is a universal human need. We all make mistakes in our lives and sometimes we harm others as a result of our mistakes. It is important that we find some sort of mechanism that allows us to repair whatever damage we may have caused and to move forward without carrying endless guilt.
It appears that Mrs. Davis believes that having even the most remote connection to same sex marriages will impair her relationship with G-d, and that she most prove her love and gratitude to G-d through self-sacrifice i.e. martyrdom. I can’t help but feel that this martyrdom is rooted in an unhealthy degree of self-righteousness that is contrary to the spiritual renewal of redemption that she seems to be seeking. During her conversations with the same sex couples to whom she’s refusing marriage licenses, her facial expressions are, at best, condescending and dismissive of their emotional pain.
Is there evidence to suggest that she’s being manipulated? There certainly is a crowd of opportunists surrounding her, for example, politicians like Mike Huckabee, who is championing her cause as judicial tyranny and as a war on Christians . According to CNN, Ted Cruz recently issued a written statement that this is an attempt to drive Christians from public office. I also wonder about the religious education and guidance she is receiving from the clergy and elders of her Church, who generally have no formal religious training, do not attend any seminary, and are exclusively male. Is her situation different from those who, while seeking religious purpose and redemption, are manipulated into being suicide bombers or jihadists by those seeking political and religious power and control?
Politicians have no obligation not to exploit people or their causes. Likewise there is no legal duty of loyalty, or even competency, for a clergy person. However, there are ethical obligations for lawyers, and I have to wonder what role her lawyers may be playing in promoting her martyrdom? As an elected official involved in a dispute regarding the policies and procedures in her office, one might expect that she is represented by the County Attorney or a law firm that routinely represents elected officials. This is not the case for Mrs. Davis, who is being represented by lawyers through Liberty Counsel, a group that describes its purpose on its webpage as, “to preserve religious liberty and help create and maintain a society in which everyone will have the opportunity to discover the truth that will give true freedom.” The Southern Poverty Law Center has labeled Liberty Counsel as an anti-LGBT hate group. According to the Southern Poverty Law Center, Liberty Counsel has championed causes such as removing hate crime legislation. The Liberty Counsel website contains a Marriage Solidarity Statement in which they claim “the Supreme Court has no authority to redefine marriage and thereby weaken both the family and society.”
Is there a conflict of interest between Liberty Counsel’s agenda and providing competent legal advice to their client, Mrs. Davis? That is, can Liberty Counsel competently advise Kim Davis regarding her best interests, or is it about promoting their political agenda with her being a martyr to the cause? This important question was raised in a recent Slate article in which the columnist observes:
“Yet the Liberty Counsel didn’t mind putting their client at risk—perhaps because the idea of a middle-aged woman being hauled off to jail for purportedly following her conscience would send thousands of anti-gay Americans reaching for their pitchforks (and checkbooks).”
A lawyer’s duty paramount duty is always to the client. The question that arises in many cases, such as Mrs. Davis’ where a third party is providing funding, is who is the client? Are her lawyers working for the “ministry”, which has its own agenda, or for Mrs. Davis whose interests might align in some ways, but in other ways might be at odds with those of the ministry? Such a problem is not unique in the law, insurance defense attorneys sometimes face a similar dilemma, especially when the insurance company wishes to settle or contest a claim and the client being sued does not. However, in cases involving insurance defense lawyers there is some protection for the client in that if an insurance company refuses to settle a claim and the client is forced to trial and loses, the insurance company then has to indemnify the client for the full amount regardless of the policy limits. In Mrs. Davis’ case, the stakes are not simply monetary and it’s not Liberty Counsel who is going to jail or who will be burdened with a record of contempt, it is only Mrs. Davis. I note that while Liberty Counsel is standing in front of the national press promoting its cause of suppressing rights for gays and lesbians, no court has found merit in any of the claims it has raised so far, and their client is sitting in a jail cell.
There is another ethical obligation of an attorney to keep in mind when advising a client such as Mrs. Davis. As a lawyer I am not permitted to advise my client to disregard or violate a Court order. I can agree with my client that an order is unfair or unjust, but I cannot counsel a client to violate a judicial order. This is my obligation as an officer of the Court. I must give respect to judicial rulings, even when I don’t agree with those rulings. I am free to challenge them on appeal, but I am not free to advise my client to disobey those rulings. As an outside observer of this case I have no idea what discussions have taken place between Mrs. Davis and her lawyers, but I’m left wondering what counsel she is actually receiving regarding complying with the Judge’s order? Is a client well served by lawyers whose focus may be their interpretation of Biblical law rather than the secular law of the Court? I think that an argument can be made that, unless you are able to encourage your client to follow the orders of the Court, you are not able to render competent legal counsel to the client.
I don’t agree with Mrs. Davis’ argument that her religious beliefs permit her to refuse to allow her office to issue marriage licenses to same sex couples. I feel that as a matter of law it fails on many levels. However, I’m really wondering whether or not her need for redemption is making her susceptible to the manipulation of those who have surrounded her in this cause. Of course, in the end, it will be Mrs. Davis who will bear the costs.