My Rights v Yours: Martyr or Homophobe?

In our modern world, and particularly in the land of the star spangled banner, it really shouldn’t surprise us that the language of ‘rights’ is commonplace when people disagree.

We can talk about hugely contentious public policy matters, such as making immunisation mandatory to receive welfare, or we can talk about the everyday disagreements such as whether you watch the recent trainwreck that is Q&A or sit through yet another show where girls, who are told by society that they should be married by now, are flinging themselves at some egotistical half-good looking fame-seeking dude bro. Regardless of your disagreement, it seems inevitable that an asserted ‘right’ will crop up. Who has the right to mandate the invasion of the human body? Who has the right to make me consume garbage television? The common thread in our disagreements though, is that people will often assert their rights back at us; who has the right to expose my child to preventable diseases? Who has the right to make you watch defunct politicians in a battle of egos in which Tony Jones can be the only winner?

This is the exact sort of ‘conflict of rights’ that has presented itself in the form of Kim Davis, County Clerk in the proud state  of Kentucky (proud for reasons beyond the comprehension of this author). As the Rowan County Clerk, Ms Davis is charged with the authority to issue marriage licenses on behalf of the State. What should otherwise be a riveting bureaucratic exercise of dynamic form filling and amazing paper stamping however, has recently been brought into public political discourse following the Supreme Court (SCOTUS) ruling that grants marriage rights to all American citizens regardless of the gender of their partner.

Ms David is a devout Apostolic Christian (I’ll forgive you if you’ve never heard of this branch of Christianity either, it’s essentially a branch of Christianity that foregrounds the infallibility of the bible – very little room for interpretation) and as such, refuses to recognise the authority of SCOTUS over her God. This belief has taken Ms Davis so far as to refuse the direct order of US District Court Judge, His Honour Judge David Bunning. For her contempt of that order Ms Davis was gaoled for six days and has now been released following significant protests.

Like anything in America, the matter instantly attracted the ire of the left and the right, with even Republican candidates divided on the matter, although while Donald Trump commented on the issue his hair (the real Presidential candidate) is yet to make a public comment. It is also unknown at this stage what President Kanye West (oops, not yet) has to say on the matter.

Essentially though it comes down to this; do Ms Davis’ rights entitle her to refuse to recognise the rights of others? Does a right to freedom of belief and religion outweigh the right to State recognition of a relationship?

Normally, the correct legal question to ask is one of ‘proportionality’. In asking one to curtail their rights, the curtailing must be proportionate to the value of recognition of the other right or need. The problem here is, depending on your world view, the rights have entirely different values. How is an atheist to quantify the right of a woman to injure the feelings of others on the basis of a fairytale creature? Equally, how is a conservative Christian to quantify the right for people to participate in State-sanctioned sin?

Of course, those questions ignore the actual substance of the matter. The State is blind, the law is impartial, and both are certainly secular. So while Ms Davis might enjoy her self-perceived martyrdom, the way forward is clear: Ms Davis can continue to enjoy her freedom of belief, but not in her capacity as an officer of a secular state that has unambiguously recognised the right of citizens to marry whomever they choose. If Ms Davis wants to continue to be a hero, she can do it in her own time and her own way.

So what’s the take away from all of this? Firstly, that Trump’s hair really needs to ditch that guy that he hangs out with all the time if the hair is going to be a successful presidential candidate. Secondly, the next time you’re engaged in a complex debate with friends, or arguing over the remote control, you can try to assert your rights and make claims of proportionality, but don’t be a Kim Davis, nobody wants to be ‘that’ guy.

Nathan Johnston

Law Clerk

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