The Indefinite Detention of Kim Davis: Liberty Litmus Test


If you have engaged in social media discussions over the weekend with politically active friends, you have almost undoubtedly come across the situation with Rowan County, Kentucky clerk Kim Davis and her refusal to issue marriage licenses. Chances are, especially if you are libertarian or have many libertarian friends, you have seen many people passionately defending both sides of the issue. You have heard arguments about abuse of government power and adherence to the constitution coming from both sides, and it may be difficult to determine what is the libertarian view on this. Though I certainly do not consider myself to be an authority on libertarianism, I have been in the liberty movement for several years and have spent a lot of time thinking over both the movements principles as well as this particular case. After examining this case, it is absolutely clear that the liberty movement must come to the defense of Kim Davis by protesting for the end to her indefinite detention without a jury trial.

The immediate reaction of many readers may be “she was held in contempt of court, that is constitutionally satisfactory for putting her in jail”. I am not so sure. This point of view makes the crucial mistake of overlooking the 5th amendment right to a grand jury indictment for any “infamous crime”, defined in Mackin v. United States as any crime that is punishable by a sentence in a state prison. Seeing as Kim Davis is being held in a higher level prison than state (she is in federal custody), clearly her crime is infamous enough to meet this standard. So why do we accept that she can be detained indefinitely without a jury trial? Simply because this is how it has been done in the past? Her case should cause all of us to take a closer look at how contempt of court is handled in this country and whether that treatment squares up with the letter of the constitution or the supreme court case law built up around the subject. It is clear that her treatment does not pass the constitutional smell test.

The pro liberty position is to defend the woman’s right to practice her religion without threat of imprisonment. The federal judge in question gave Kim Davis the impossible choice to either violate her most sacredly held ideals, surrender her case completely or be thrown in a cage, with jail being an even greater punishment than what the prosecution was asking for to begin with. Unlike most people on Kim Davis’s side, I actually agree with the Supreme Court decision in regards to the equal protections clause of the 14th amendment and would like to see her office issuing the licenses. But are we as a society really willing to go to the extreme extent of saying that if she refuses to do her job we will lock her up until she submits? Is that what America and individual liberty are really all about? There is a middle ground solution here that can be reached, so the cries of religious persecution are not off base given the court’s immediate jump to the most violent possible answer.

Libertarian supporters of the imprisonment of Kim Davis also have a consistency problem to square up in regards to medical marijuana states. Gonzales v. Raich is absolutely clear that congress has the ability to regulate marijuana under the Commerce Clause, and that is an activity Congress took up with the Controlled Substances Act, which rates marijuana a schedule one drug (schedule one drugs are banned from medical use). Should the governors of the states that allow medicinal marijuana be thrown in prison for deciding to help sick people? Should the mayors of cities like San Francisco be thrown in prison for refusing to deport illegal immigrants? Should Edward Snowden be put in federal prison for exposing the NSA’s crimes? That the reaction to a violation of federal law should be immediate incarceration without a jury trial is perhaps the most anti liberty standard imaginable. The fact that the other side argues “all she has to do is surrender her entire case to be let out of prison” demonstrates the ridiculous nature of this standard.

We as a movement have an obligation to defend the rights of all individuals, even those whose views we may find personally distasteful. As stated before, I believe the supreme court ruling on gay marriage was the correct ruling, I am pro gay marriage and I am not a Christian. I am somebody who sees an argument for why Kim Davis should be impeached, and I am somebody who thinks Rowan County should start issuing marriage licenses to all couples as soon as possible (which the Democrat governor of the state could make happen legally if he weren’t cowering over his political future). But I am also somebody who despises government bullies and sees indefinite detention of an American citizen without a jury trial as an absolute outrage. Make no mistake about it, this is a litmus test issue for liberty activists across the country. Do you believe in freedom or don’t you? Do you believe the heavy hand of the state is how we solve societies most pressing problems? Do you believe there is a better way to solve things than with violence and cages? If you do, I hope you will stand with Kim Davis by shouting from the rooftops until she is released from her jail cell as a free woman. Libertarian principle demands nothing less.

Rocco Lucente is the Editor-at-Large of The Liberty Conservative as well as the chairman of the Town of Ulysses GOP and a county coordinator of Campaign For Liberty in New York.

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