There’s a meme floating around social media attempting to “expose” the hypocrisy of the left by equating Kim Davis’ actions to the actions by Dallas County 116th District Judge Tonya Parker. Parker said in 2012 she wouldn’t perform traditional marriages in Texas because gay marriage was banned.
The problem with the meme is it’s based on a flawed premise. Here’s what the Texas Family Code says about wedding ceremony officiants.
Sec. 2.202. PERSONS AUTHORIZED TO CONDUCT CEREMONY. (a) The following persons are authorized to conduct a marriage ceremony:
(1) a licensed or ordained Christian minister or priest;
(2) a Jewish rabbi;
(3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony;
(4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts of appeals, judge of the district, county, and probate courts, judge of the county courts at law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice or judge of those courts, justice of the peace, retired justice of the peace, judge of a municipal court, retired judge of a municipal court, or judge or magistrate of a federal court of this state; and
(5) a retired judge or magistrate of a federal court of this state.
So Parker has the ability to perform marriages, but it’s not a requirement of her office. Texas district court judges mostly handle civil actions, divorce, contested elections, and felony criminal matters. Here’s what’s in the Texas Constitution Article V, Section 8 about district judges.
Sec. 8. JURISDICTION OF DISTRICT COURT. District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body. District Court judges shall have the power to issue writs necessary to enforce their jurisdiction.
The District Court shall have appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law.
There’s nothing in the job description which says district judges have to perform marriage ceremonies. In fact, the only Dallas judge who even mentions weddings is Justice of the Peace Judge Al Cercone. Bexar County Justices of the Peace are also the only judges who advertise weddings. Houston municipal courts started doing weddings in 2013 as a way to bring in more cash. But it’s not a constitutional requirement. It’s just something judges can do to earn more money or to help couples save cash on a lavish ceremony.
This is a lot different than Davis’ elected duties as county clerk. The Kentucky Duties of Elected County Officials book has specific instructions about marriage licenses.
The county clerk issues marriage licenses (KRS 402.080) and files and records all marriage certificates (KRS 402.220 and 402.230). Military discharges may also be recorded in the county clerk’s office (KRS 422.090). On or before the 10th day of each month, the county clerk reports to the state registrar of vital statistics all marriage licenses issued and all marriage certificates returned (KRS 213.116). Each county clerk must furnish each applicant for a marriage license with a copy of a marriage manual to be prepared and printed by the Human Resources Coordinating Commission of Kentucky (KRS 402.270).
The Rowan County Clerk’s Office is required to issue marriage licenses whether Davis likes it or not. This means the judge was correct in finding her in contempt of court. Davis shouldn’t have been sent to jail, but the judge had every right to make that call. There’s no way to logically compare Davis and Parker and what they did on marriage. One was refusing to do her elected duties, while the other was refusing to do optional duties. Those on the right who are trying to compare the two aren’t doing their homework or just don’t care.
Davis’ case also can’t be compared to cases involving private businesses who didn’t want to serve gay couples. For one, it’s a private business. The owners should be allowed to serve whoever they want to. If it means no homosexuals, no Christians, no Muslims, or no people wearing Batman costumes, that’s fine. Private businesses have the right to enter into (or exit) contracts with their customers or refuse to serve customers at all. Davis doesn’t really have this opportunity because she’s an elected official with constitutional duties. The only ways for her to not have to personally issue the licenses are to either have deputy clerks do it or to resign. Davis has every right to stand up for her religious convictions in her personal life, but not as an elected official. The politicians like Ted Cruz (who I like) and Mike Huckabee who went apoplectic about Davis’ incarceration should have known better. The same with the people who created the Parker/Davis meme.
There’s an even bigger point to all this. How many Republicans were bashing the Democratic Senate for not passing a budget from 2010 to 2013? How often did people on Twitter complain about it as well and accuse Democrats of not doing their jobs? How often has the Obama Administration been rightly accused of going around the Constitution? What’s good for the goose is good for the gander. Davis wasn’t doing the job her constituents elected her to do. Conservatives need to show consistency in their complaints about elected officials. If not, then they’re just opening themselves to ridicule.