Is Sally Yates the Left’s Kim Davis? No, but Some on the Right Think ‘Yes’

On January 30, 2017, President Donald Trump fired acting United States Attorney General Sally Yates. The reason? She sent a letter to Justice Department lawyers instructing them not to enforce the executive order that President Trump signed on January 27, 2017, titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” (commonly referred to as the “Muslim ban”; the full text of the order can be found here). Yates wrote, “At present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful.” Not surprisingly, many conservatives cheered the dismissal; one comment on an article on foxnews.com concerning the matter reads, “SHE SWORE TO UPHOLD THE LAW & CONSTITUTION AND TOOK AN OATH… at a minimum, she is in breach of oral contract, and should be subject to the pains and penalties of perjury.”

The whole event brings to mind the story of Kim Davis, the county clerk of Rowan County, Kentucky.

Ms. Davis gained international notoriety in August of 2015 when she refused to issue marriage licenses to same-sex couples following a Supreme Court decision in June of that year that paved the way for same-sex marriage, saying she was acting, “under God’s authority.” Several prominent conservative politicians, including Mike Huckabee and Senator Ted Cruz, both running for president at the time, lauded Davis’s action; on her release from jail after being sent there for contempt of court for failing to comply with a court order, Huckabee even offered to go to jail in her place, should she be sent back (sadly, we never got to see if he would have been true to his word; I wonder if he would have made the same offer if the clerk had been a Muslim woman who had decided that her religious faith precluded her from granting marriage licenses to Christian couples? Scratch that, no wondering needed). At the time, liberal opposition to Davis’s stand looked remarkably similar to what we’re seeing now from conservatives in response to Yates’s stand: outcry over the fact that she swore an oath that she was breaking, and calls for her ouster. So… is there a difference? You bet.

In 2015, Kim Davis used her personal religious faith in deciding to ignore a court order. Rights had been granted to a group of people, and because of her religious beliefs, she decided that those rights should not have been granted. And in her official capacity as a county clerk, she was able to prevent people from exercising rights that had been granted to them, because one of her duties was to sign off on marriage licenses.

In the case of Sally Yates, we have to first dig a bit deeper: what, exactly, is the United States Attorney General responsible for? According to The Judiciary Act of 1789: “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his or her advice and opinion upon questions of law when required by the president of the United States, or when requested by the heads of any of the departments.” So weighing in on the legality of any of President Trump’s executive orders is absolutely appropriate — and, should they be found lacking, it would be prudent for the Attorney General to communicate this fact to Justice Department employees.

So on the one hand, we have someone defying a court order to allow people to exercise rights that had been granted to them, because of her religious beliefs; on the other hand, we have someone whose official capacity demands that they comment on issues of legality, and instruct those who are in the employ of the Justice Department to not pursue cases where the legality of the government’s position might be in question; indeed, the oath of office for the Attorney General is an oath to uphold the Constitution, not an oath to “do whatever the President says.” Both sides can cry, “She took an oath!” But the situations are worlds apart.

Interestingly, Senator Jeff Sessions — President Trump’s pick for Attorney General, currently going through the Senate confirmation process — grilled Sally Yates on the topic of “saying no to the president” back in 2015 during her own Senate confirmation hearing:

It appears that Sally Yates means what she says.

 

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22 thoughts on “Is Sally Yates the Left’s Kim Davis? No, but Some on the Right Think ‘Yes’

  1. You got it. She’s not a lowly clerk, she’s someone who is actually supposed to exercise independent judgment and not simply do as told. This would be a bit like comparing a doctor who tells a patient something they don’t want to hear with a server who brings food the customer doesn’t want to eat. Doctors are supposed to tell you the truth, if they say ‘you have to quit doing [x]’ and you don’t want to, they’re supposed to tell you anyway. Servers aren’t supposed to editorialize that you shouldn’t eat [x] and then not give it to you.

    1. Exactly. Kim Davis was never in the position of exercising independent judgement contrary to the four corners of the law on marriage. She is not qualified to exercise such judgment.

    2. Whether you’re an attorney general or a lowly clerk, you’re not required to follow unlawful orders (Yates); however, you are required to follow lawful ones (Davis).

    3. Didn’t Robert E. Lee ‘take an oath’ when he entered the Academy, and again when he was commissioned? I remind my Rethuglican Friends&Relations of that when they allege Sally failed to be bound by her oath.

  2. It’s really not that complicated. The oaths they took were to uphold the law and the Constitution, not to fulfill their job duties as instructed by their superiors. (Fun Fact: The law isn’t whatever your boss says it is or whatever you think it ought to be.) A SCOTUS decision carries the weight of law, so Davis was breaking her oath by refusing to follow it. Yates was upholding both the law and the Constitution in refusing to follow orders that were unconstitutional. Christ on a cracker! An oath of office is not the equivalent of a BFF pinky swear.

  3. One major difference that I can think of offhand, is because Kim Davis isn’t a holder of any professional license that comes with it’s own set of ethical principles (such as a lawyer, doctor, nurse, etc.).
    A lawyer is not ethically bound to take any case that comes down the pike, and in some instances, shouldn’t take a case. A county clerk’s job is to shuffle paperwork to ensure that all parties to a marriage (for instance) meet the legal qualifications to be married, and then hand them the license. That’s all. Her morals never, EVER enter into the equation.

  4. The nuance will be missed by the people who need to understand it the most. Explaining the nuance will be thrown out as excusing hypocrisy. Ultimately, doesn’t really matter and won’t be convincing at the end of the day.

    But that’s not the point. Defying orders for religious reasons, regardless of how it negatively affects others lives when those ‘others’ are disgusting dirty sinners, is good. Defying orders that would otherwise stop even green card holders from coming back to the United States? That’s bad. It’s not about whether something is legal or not, or whether the person has the authority to do/not do something. It’s about the fact the Kim Davis stuck it to LGBT and supported the Fundamentalist Christians, which is seen as good, and Yates stuck it to Trump and supported the ‘dirty immigrants’, which is seen as bad. Doesn’t matter how ‘legal’ either one is, that’s ultimately how they are going to feel.

      1. Thanks for confirming my statement. If she believes the order is unlawful she should say it is, and say why. She does neither of those things, because she can’t, so she makes the lawyerly claim she’s “not convinced it is lawful”.

          1. Ah Otto, we meet again. I wonder if you’d mind answering my question about the transgender child? For those of you who don’t know, and there probably are still a few left, Otto said on another of these blogs that an eight year old transgender child, which he eventually ended up calling a “tranny” should be put into a circus freak show by their parents. I’ve been trying to get him to explain why he would do that – apart from being a prick. But he doesn’t seem to want to answer my question.
            Just a quick edit Otto. You also haven’t told me what religion you belong to as I asked you the other day, considering you said you weren’t a Christian, and considering the atheists don’t usually care about people’s sexual orientation, proclivities or anything else for that matter aside from nonconsensual sex of course. Just askin’.

    1. My only question in response to this comment is: so what?

      If your point is simply that statement of fact, well, you’re right.

      If your point is that because she didn’t state the EO was unlawful, she shouldn’t have instructed the lawyers in the DoJ to refuse to enforce it, I’ll have to disagree with you. Both, “This order is unlawful,” and, “I’m not convinced that this order is lawful,” are valid reasons for instructing lawyers in the department to not enforce it. In the first case, it is imperative that the DoJ lawyers not enforce it, as that would be illegal; in the second case, it is prudent for the DoJ lawyers to not enforce it before it is deemed to be lawful after careful review, as doing so could open up the department to lawsuits.

      1. The order isn’t unlawful, which is why she didn’t make that case. She wanted to grandstand so she made the lawyerly statement “I’m not convinced that this order is lawful”. Her actions are improper and unserious.

  5. Standard Operating Procedure for the Right: Ignore any nuance or context and loudly accuse the target of their ire of “hypocrisy.” Of course, the rank and file conservatives don’t bother to find out the facts. All they tend to hear is “this case involving my side was vaguely compared to another case involving my opponents,” therefore they shriek about double standards that don’t really exist.

  6. I agree with you there. Sally Yates was essentially fired for doing her job. That said, while it was outrageous that Trump fired her and didn’t say good things about him AT ALL, I’ve not seen people saying he wasn’t within his rights to fire her.

  7. Lets see. Kim Davis refused to obey the law and do her job and she sought to deny gays their rights because of her religious beliefs.

    Ms Yates refused to violate the law because the oath she took is to the US Constitution and the laws of the United States and not to Pumpkinfuhrer.

    Anyone who says that they’re equivocal situations is being blatantly stupid.

    US Attorney Generals are not the President’s lawyer nor are they the White House’s lawyer.

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