Jerry Brown Flouted Gay Marriage Law. Why Not A Kentucky Clerk?

REUTERS/Max Whittaker

David Benkof Contributor
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As is now well-known, Kentucky clerk Kim Davis stopped issuing marriage licenses after the Supreme Court ruled in June that states are required to recognize same-sex nuptials. But the fury aimed at Davis has been disproportionate to the actual facts of the situation, and shows galling – and  revealing – inconsistency on the part of her critics.

In particular, where was the outcry when Attorney General and later Governor of California, Jerry Brown, refused to mount a defense of gay-marriage ban Proposition 8? Representing the state in court was at the center of his job. Yet he put his personal preferences – some influenced by his liberal version of Catholicism – ahead of the clear dictates of his state’s voters, who had been forced to use the initiative process when politicians failed them.

The Washington Post underscored this double standard today (surely by accident) in its editorial lambasting Davis’s stance. It wrote:

“… an essential principle on which government depends. Soldiers must fight wars they may disapprove of. Lawyers who choose to work at the Justice Department must apply and defend laws they wish had not been enacted.”

Well, yes. If you make a fuss that clerks have to perform duties they abhor, you should certainly expect Justice Department officials to defend laws they oppose. Yet the Post never criticized Brown for his inaction on Proposition 8, and in fact repeatedly editorialized for the initiative to be struck down.

I checked with several legal experts, and it appears the Post may in fact be wrong that Justice officials must defend every law the people enact. But that’s not the point. The Washington Post has been lecturing government employees to suck it up and do jobs they don’t like – unless they happen to agree with it about marriage.

We saw none of this high-mindedness that government workers must suppress their values about marriage and carry out their duties as written in 2004, when a wave of elected officials (most prominently San Francisco Mayor Gavin Newsom) began issuing same-sex marriage licenses in defiance of laws limiting marriage to male-female couples.

Let’s dispense with the claim she is discriminating against gay couples. She’s not. Davis has stopped granting marriage licenses to straight couples, too – an entirely reasonable compromise for someone who ran for the office when none of its duties aggrieved her.

Even some people who should know better continue to cry “discrimination.” I wrote Professor Erwin Chemerinsky, one of the nation’s leading thinkers on constitutional law, about the case, and he replied, “What if a clerk said that he or she would not issue wedding licenses to interracial couples? Clerks do not have discretion to decide as to who to give marriage licenses.”

There are serious public policy problems with Davis’s stance; she will almost certainly lose her battle; and she probably should. But why has a single minor pencil-pusher in a remote locale been subject to what smells like a nationwide secular Inquisition?

The answer is simple: her decision to stop issuing marriage licenses draws on her belief that marriage is between a man and a woman – a position about 40 percent of Americans still share. But gay activists plan to stamp out that perspective, and humiliate anyone who dares express it.

In 2004, clerks who violated the law to perform same-sex marriages were celebrated. In 2009, Gov. Jerry Brown was a civil rights hero for refusing to perform one of his essential duties. Yet in 2015, the Kim Davises of our country need to watch out for people with pitchforks who cannot tolerate even a pebble threatening the Goliath of the new marriage regime.

David Benkof is Senior Political Analyst at the Daily Caller. Follow him on Twitter (@DavidBenkof) or E-mail him at DavidBenkof@gmail.com.