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Kim Davis and the Rule of Law
Townhall.com ^ | October 14, 2015 | Ken Blackwell

Posted on 10/14/2015 9:35:46 AM PDT by Kaslin

Most liberals and even some conservatives are arguing that Kentucky county clerk Kim Davis must either issue marriage licenses to same-sex couples or quit her post. Where you stand on this issue too often comes down to a case of where you stand on the question of whether same-sex nuptials are now “the law of the land” because Justice Tony Kennedy and four of his black-robed cohorts say so.

We all know about the Defense of Marriage Act. President Obama announced early in his administration that he would not enforce that law. This 1996 act had been overwhelmingly passed by Congress and signed by President Bill Clinton. That law could have passed both Houses without a single Republican voting for it.

State constitutional amendments protecting marriage similar to the federal Defense of Marriage Act had been approved in 32 states over the decade. Fifty million Americans voted in those referendums.

The U.S. Supreme Court—in another act of “raw judicial power” akin to the infamous 1973 Roe v. Wade ruling that overturned the homicide statues of all fifty states—has recently issued a ruling saying marriage is whatever the Court says it is.

By the narrowest of margins (5-4), and citing nothing in the history or text of the Constitution itself, the majority in Obergefell last June overturned thousands of years of societal norms and engaged in the worst instance of voter suppression in American history.

Similarly, this President has flouted U.S. immigration laws. He has tolerated so-called Sanctuary Cities where liberal ideologues flagrantly defy “the law of the land.”

Also worrisome is the failure of this administration to enforce federal laws on drugs. Colorado and Washington State passed referendums that violate federal law on the sale and use of marijuana. One might make a case for repealing federal laws on this subject, but we have such a law. And President Obama is ignoring it.

Family Research Council’s Marriage and Religion Research Institute (www.marri.us) has shown how family breakdown leads to increased drug use, which we know to be harmful to children, to youth, and to adults.

Some states have passed and others are regrettably considering laws to permit physicians to kill their patients by administering lethal drugs. These are masked as “right to die” laws and “death with dignity” measures. But as with the horrors of killing innocent unborn children, these vague and unenforceable enactments have led and surely will lead to abuse. More innocents will die. And this administration approves this tendency.

In fact, President Obama when a candidate said he regretted only one thing in his brief Senate career. He told the late Tim Russert he wishes he had objected when the Senate gave its unanimous consent to letting Terri Schiavo’s stricken family go into federal court to save her life. In brief, Mr. Obama wanted Terri Schiavo—who was not in a coma and not dying—to be put to death more quickly and without access to the courts.

There are and must be many ways to protect the conscience rights of public officials. Military doctors and nurses—and many others in the healing professions—have long enjoyed conscience rights not to take part in the destruction of innocent human life. Doctors have successfully lobbied in many states for the right not to take part in lethal injections in state prisons.

Surely, a free republic can find the means to exempt conscientious objectors from having either to violate their beliefs or quit the offices to which they were elected. We are seeing in the Kim Davis case—and in a host of cases of Americans being conscripted into the gay pride movement—a dangerous assault on liberty.

Shall we be ruled by the Supreme Court and only the court? President Lincoln did not think so. With all due respect, he told the Supreme Court justices of his day, they could not overrule the American people. In his first Inaugural Address, he said:

And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

We should stand with Lincoln on this one and seek accommodation of conscientious objectors’ First Amendment rights as we go forward.


TOPICS: Culture/Society; Editorial; Government; US: Kentucky
KEYWORDS: fagmarriage; gaykkk; homosexualagenda; kentucky; kimdavis; libertarians; medicalmarijuana; ruleoflaw; samesexmarriage
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1 posted on 10/14/2015 9:35:46 AM PDT by Kaslin
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To: Kaslin
One aspect I've never seen discussed is which law authorizes anyone in Kentucky to issue marriage licenses to anyone?

The existing law prohibits marriage licenses to same-sex couples. If it's still in force, she can't issue such licenses. But, if it's been overturned by the Supreme Court, then no one can issue marriage licenses to anyone.

As of right now, no marriage license issued in the State of Kentucky is valid. It will require the State legislature and Governor passing a new law to replace the one struck down by the Supreme Court before anyone has the authority to issue them.

Or so it seems to me.

2 posted on 10/14/2015 10:11:33 AM PDT by Johnny B.
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To: Kaslin

Slightly off topic but: I am thankful we gun owners don’t need to be licensed. And that (at least in my experience) concealed carry licenses aren’t granted in person. The left would be rubbing in our faces their right to deny us our right.


3 posted on 10/14/2015 10:20:49 AM PDT by BlueYonder
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To: Johnny B.

It seems Johnny B. is right— the Kentucky State Constitution defines legal marriage as between a man and a woman. The Governor ordered County clerks issue marriage licences to same sex couples with NO legislative changes.
Under our US Constitution NO Court —NOT even the US supreme Court can “Make law” Under our US Constitution there is NO Federal grant of power to regulate or define “Marriage”. Kim Davis seems the only party intimate to the case who has obeyed the US Constitution and Kentucky State Constitution. I say those who insist the law changed with the majority opinion 06/26/2015 prefer IGNORANCE and TYRANNY to any rule of Law.And it seems to me if the Constitution says only the Legislature can “make Law” then the US supreme Court ought cease “making Law” for the Rule of Law is “the Legislature makes Law.’
America was better off when our government understood that human Law ought NOT contradict the Laws made by God,Himself.As both Blackstone an Locke agree.And as these two represent two of the three most cited European writers during the Founding Era— and as the Holy Bible was cited more than any other authority —seems we need to put American Law back on track.


4 posted on 10/14/2015 10:25:57 AM PDT by StonyBurk (ring)
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To: StonyBurk

Excellent point.


5 posted on 10/14/2015 10:34:36 AM PDT by Sergio (An object at rest cannot be stopped! - The Evil Midnight Bomber What Bombs at Midnight)
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To: Kaslin
Shall we be ruled by the Supreme Court and only the court? President Lincoln did not think so. …
Neither did Thomas Jefferson.
The nation declared its will by dismissing functionaries of one principle, and electing those of another, in the two branches, executive and legislative, submitted to their election. Over the judiciary department, the constitution had deprived them of their control. That, therefore, has continued the reprobated system, and although new matter has been occasionally incorporated into the old, yet the leaven of the old mass seems to assimilate to itself the new, and after twenty years’ confirmation of the federal system by the voice of the nation, declared through the medium of elections, we find the judiciary on every occasion still driving us into consolidation.

In denying the right they usurp of exclusively explaining the constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our constitution a complete felo de se. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation. […]

The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent is absolute also.

Letter to Spencer Roane, 09/06/1819
It would be a miracle that the USA survived as long as it did with the USSC acting as a fifth column even back then.
6 posted on 10/14/2015 10:45:03 AM PDT by Olog-hai
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To: StonyBurk; Sergio

“A state judge in Alabama is arguing that since the U.S. Supreme Court – a branch of the federal government – created “same-sex marriage,” Washington can just go ahead and administer the licenses.”

The federal government created the law. (A law which is unconstitutional anyway.)
Let the federal government enforce the law.

But this process is way out of control...


1. The supreme court created a law.
[Judicial Branch created a law.]

2. The federal court system has to enforce the law.
[Judicial Branch enforces the law.]


I don’t think this is the way it supposed to work!!!


7 posted on 10/14/2015 11:20:53 AM PDT by ForYourChildren (Christian Education [ RomanRoadsMedia.com - Classical Christian Approach to Homeschool ])
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To: Johnny B.
One aspect I've never seen discussed is which law authorizes anyone in Kentucky to issue marriage licenses to anyone? The existing law prohibits marriage licenses to same-sex couples. If it's still in force, she can't issue such licenses. But, if it's been overturned by the Supreme Court, then no one can issue marriage licenses to anyone. As of right now, no marriage license issued in the State of Kentucky is valid. It will require the State legislature and Governor passing a new law to replace the one struck down by the Supreme Court before anyone has the authority to issue them. Or so it seems to me.

Kim Davis's lawyers didn't make that argument. In fact, I have not seen any lawyer make that argument anywhere, because that is not the way court decisions work.

By way of illustration: The Alabama Constitution used to ban interracial marriages. In 1967, the U.S. Supreme Court held that such bans were unconstitutional. Alabama stopped enforcing its ban, but didn't get around to amending its Constitution to remove the ban until 2000. Does that mean that no one was legally married in Alabama between 1967 and 2000?

Short answer: no. The longer answer involves a legal doctrine known as "severability," which I'd be happy to discuss if anyone wants to be bored to death.

And no, I am not comparing same-sex marriage to interracial marriage; I am trying to illustrate the legal doctrine of severability.

8 posted on 10/14/2015 11:39:00 AM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Kaslin

When discussing “the rule of law”,

and actual “law” is assumed.

A “law”, you know, passed by an elected legislative body and signed into law by the chief executive.

Now, what “law” is applicable to Kim Davis?


9 posted on 10/14/2015 11:40:33 AM PDT by MrB (The difference between a Humanist and a Satanist - the latter admits whom he's working for)
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To: Johnny B.

I see it exactly the same way. KY has no valid marriage statute. How can any county clerk carry out a “statutory duty” to issue marriage licenses when there is no statute?


10 posted on 10/14/2015 11:48:26 AM PDT by Mrs. Don-o ("Heaven goes by favor; if it went by merit, you would stay out and your dog would go in."-Mark Twain)
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To: Lurking Libertarian
My understanding of "severability" was that it had to be written in to the law. That was one argument regarding Obamacare (where the Democrats failed to include it in that law).

I didn't see any severability clause in the text of the Kentucky law.

But I'm no expert.

11 posted on 10/14/2015 12:15:00 PM PDT by Johnny B.
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To: Johnny B.

That has been my exact position on this since shortly after she was jailed.


12 posted on 10/14/2015 12:22:43 PM PDT by cuban leaf (The US will not survive the obama presidency. The world may not either.)
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To: EternalVigilance

Ping


13 posted on 10/14/2015 12:34:51 PM PDT by HandyDandy (Don't make-up stuff. It just wastes everybody's time.)
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To: Johnny B.
My understanding of "severability" was that it had to be written in to the law.

Short answer: it is often written into the statute, but doesn't have to be. Longer answer on request, if you really want to get into the minutia of the law of remedies.

14 posted on 10/14/2015 12:35:22 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Lurking Libertarian
Longer answer on request, if you really want to get into the minutia of the law of remedies.
Don't bother for my sake. But since you seem to know your way around the law...

The law lists a number of categories of people who cannot marry (more than two people, blood relatives, children, mentally disabled, etc.).

Since the Supreme Court (AFAIK) didn't specifically rule on same-sex marriage, but instead ruled that the States couldn't "discriminate" against any group, how does that affect the other categories?

In other words, why can't anyone on the "prohibited" list now claim the right to marry? For example, why can't parents and their children now get married? Don't they get the same "right" that same-sex couples now get?

15 posted on 10/14/2015 2:28:11 PM PDT by Johnny B.
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To: Johnny B.

you are correct and I would expect spinster sisters to marry


16 posted on 10/14/2015 2:30:46 PM PDT by bert ((K.E.; N.P.; GOPc.;+12, 73, ....carson is the kinder gentler trump)
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To: Lurking Libertarian
"...legal doctrine known as "severability,"..."

Ok, here's the law in question:

402.005 Definition of marriage. As used and recognized in the law of the Commonwealth, "marriage" refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.

Effective:

July 15, 1998

History:

Created 1998 Ky. Acts ch. 258, sec. 4, effective July 15, 1998.

Please show us how to apply the legal doctrine of severability to it.

17 posted on 10/14/2015 2:34:20 PM PDT by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: Johnny B.
Since the Supreme Court (AFAIK) didn't specifically rule on same-sex marriage, but instead ruled that the States couldn't "discriminate" against any group, how does that affect the other categories? In other words, why can't anyone on the "prohibited" list now claim the right to marry? For example, why can't parents and their children now get married? Don't they get the same "right" that same-sex couples now get?

The precise holding of Obergefell was (and I'm quoting the majority opinion) that "same sex couples may exercise the fundamental right to marry in all states." So the Court did not address other categories of people forbidden to marry.

18 posted on 10/14/2015 3:52:39 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Lurking Libertarian
"same sex couples"

It can never be pointed out too many times that this is an oxymoron. Two individuals of the same sex cannot possibly "couple." It is a physical impossibility.

19 posted on 10/14/2015 4:19:55 PM PDT by EternalVigilance
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To: EternalVigilance
Two individuals of the same sex cannot possibly "couple."

Sure they can. But two individuals of the same sex cannot marry. Not in the Biblical sense. Not in any moral sense.

20 posted on 10/14/2015 4:22:33 PM PDT by DoodleDawg
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