Posted on 09/06/2015 4:20:07 PM PDT by Mrs. Don-o
’m sympathetic to Kim Davis, the county clerk in Kentucky who has stopped signing marriage licenses. In her position, I’d do the same.
Her decision was straightforward, it seems. After Obergefell, the Supreme Court decision mandating a national right to same-sex marriage, Davis decided that she could not affix her signature to documents perpetuating the falsehood that husbands can have husbands and wives have wives. To do so would be to act in a way contrary to her conscience as formed by her Christian faith. With admirable consistency, she decided to stop signing marriage licenses altogether, not wanting to discriminate against gay couples.
One can judge Davis mistaken about the dictates of her conscience. Perhaps she is wrong about what Christianity teaches about marriage, as many liberal Christians argue. Perhaps she is mistaken about the implications of signing a marriage license. There might be a clever Jesuit who can convince us that her signature on same-sex marriage licenses should not have troubled her conscience.
One angle for the casuist: When the Supreme Court issued its decree, American civil law ceased to define marriage and instead became a law of civil unions, with the word “marriage” now having no real meaning. With that sort of reasoning, I might be able to wiggle my way toward signing licenses that say “marriage” but really mean “civil union.”
Whatever we might think of the moral or legal substance of the matter, however, we cannot claim Davis has misunderstood her situation. One of her duties as county clerk now asks Davis to do what her conscience tells her she must not do. The way forward is clear: She must obey her conscience. She must act, as she puts it, “under God’s authority.” That’s exactly right.
Many modern people have the wrong impression that conscience is active, impelling us to do things contrary to the law. This is not the tenor of Davis’ stance in Morehead, Kentucky. She is not issuing counter-opinions to refute Obergefell. Nor is she campaigning to get other county clerks to join her. There have been no press releases, no assertive shrill spirit of protest on her part. That’s the progressive mentality, which tries to upgrade its political ambitions with appeals to conscience. Instead, Davis simply won’t do what her conscience tells her she cannot do. She’s not acting contrary to the law; She’s not acting at all.
Some might say that her refusal to sign marriage licenses disqualifies her from holding her position as county clerk. She should resign or be removed. People are certainly entitled to that opinion. But Davis does not think she must resign. The county clerks in Kentucky are elected, so she can’t be fired. She could be impeached, but that’s for the legislators of the State of Kentucky to decide. And the citizens of Rowan County can vote against her in the next election. Conscience, properly exercised in civil disobedience that otherwise respects the law, isn’t always easy to dislodge.
I can imagine some harrumphing about the notion that Davis respects the law. After all, isn’t she refusing to act in accord with it?! I find this worry rather rich when expressed by progressives. For decades, elite colleges and universities run by progressives have made arrangements with local police that allow students to use drugs and drink while underage, free from the worry of arrest. These sorts of special arrangements, which are widespread in elite institutions, are not criticized for the obvious ways in which they undermine the rule of law.
Under the circumstances, Kim Davis poses little threat to the rule of law. Her actions have done nothing to prevent gay couples from getting marriage licenses throughout Kentucky. The couples that present themselves for her signature can easily go to the next county, as I’m sure heterosexual couples in Rowan County have done over the last two months. She’s not making grand public statements about a supposed right to dissent. She’s done nothing in the way of organizing resistance to Obergefell. No counter-revolution.
So why the furor? Because her refusal poses a symbolic threat to “marriage equality” and its claim to realize the high ideals of justice. One word of dissent, one act of conscience, disturbs the serene confidence of progressives that they have a monopoly on all that is right and good.
Neither you nor I nor Kim Davis have a “right” to follow our consciences. That’s silly. Our consciences do not wait upon the niceties of rights. I would not protest if higher authorities decided to remove Davis from her position. The law has a proper claim on public life, even if it does not have a final authority over our consciences.
Our legal and political system has no final authority over us, because there is a higher one. At times, one ought not to do what one is told to do. Kim Davis finds herself in just that sort of situation. Good for her. She’s doing something noble: quietly following the dictates of her conscience.
R. R. Reno is editor of First Things.
I read that book when in the 7th grade. I assumed that I was the last person to read that book. It was tedious. Overly dramatic.
You are incorrect. The SC did not declare the entire Kentucky state marriage law unconstitutional, only the section that defined marriage as the union of one man and one woman.
I am a lawyer and yes, she is 100% correct.
Wrong. The Supreme Court did not rewrite Kentucky's statute to include homosexual marriages. It VOIDED Kentucky's statute.
The Definition of Marriage in Kentucky was the union of (1) MAN and (1) WOMAN. When the supreme Court said that was unconstitutional, it voided the very definition of "marriage." Therefore there is no such institution as "marriage" in Kentucky or any other state that defined marriage as the union of one man and one woman.
Where do you practice law? Do you understand statutory interpretation?
County Clerks work under statutory authority only. Where in the Kentucky Statute does it authorize any clerk to issue a marriage license to two men or two women or three women and four men?
Show me some statutory authority that permits Kim Davis to issue a marriage license to anyone right now.
JhawkAtty
Since Sep 6, 2015
Newbie.
You signed up today to post that stupid interpretation of the law? And you claim to be an attorney? What, are you with the ACLU?
IBTZ
I am an attorney, but one doesn’t need to be to understand that the entire marriage statute wasn’t struck down. Here’s the actual holding: “The Constitution, however, does not permit the State to bar same couples from marriage”
I disagree with the opinion, but nowhere in it did the court say that the entire marriage statute was unconstitutional, that would be silly.
Have you actually read the opinion?
Could be great news - I’ve heard her lawyer is a good one and it would be nice for our side to hand one back to the tyrants that are called “judges”.
YESSSSSSSSSSSSSSSSSSS!!!!!!!!
However, if they only found the "one-man-one-woman" part unconstitutional, nevertheless the KY legislature has not rewritten a new definition of marriage to the USCC's liking. (Nor can the USCC do this because it is a court, not a legislature, and cannot create positive legislation.) Therefore KY no longer has any definition of who is eligible to marry in the state of KY, and as a consequence I would say they cannot lawfully marry anybody.
Have you actually read the statutes in question? All of them?
The KY marriage statutes are heavily infused with hetero-normative language, such that the woman has to be the one that applies in writing or in person, among other things. The rules for issuing marriage licenses specify man and woman. The rules for solemnizing marriage specify man and woman.
SCOTUS stated that homosexual has to be treated the same as heterosexual when it comes to marriage. The only way to do this is to rewrite the statutes - a power that SCOTUS does not have for two very simple reasons:
1) They are a court, not a legislature. The concept of judicial review (itself extra-constitutional) allows courts to nullify laws the abridge the constitution, not rewrite them.
2) The laws are STATE laws, not federal.
Keep in mind that the KY laws that define when a marriage license is issued also specifically identify the man and woman requirement.
If one voids the hetero-normative language in marriage related statutes, there is no statute left in Kentucky.
If someone wants to argue that anywhere the law says “man” or “woman” it now says “person”, then the court has been allowed to rewrite the law illegally.
Have you read the Kentucky Statute that gives the legal definition of marriage?
In your practice have you ever had to do research and appeals utilizing statutory interpretation?
The SCOTUS voided every state’s definition of marriage where the definition limited the institution to one man and one woman. In those states, such as Kentucky, there is no longer a working definition of the term. Hence the SCOTUS did not simply make it legal for same sex couples to marry, they ended the institution as a legal institution.
Now show me the valid statutory authority that authorizes Kim Davis, or any Kentucky clerk to issue any marriage license at all right now?
Tell me, under Kentucky law, what is the current statutory definition of marriage.
It is also important to note that Justice Roberts in his dissent specifically stated that the majority decision struck down the marriage laws of most states.
That is an assertion of fact, and to make such a factual assertion would lead to ridicule if it simply were not true.
I do not recall at any place hearing Roberts taken to task over that statement.
Have you read Kentucky's marriage Statutes?
Have you read Roberts' dissent?
I disagree with the opinion, but nowhere in it did the court say that the entire marriage statute was unconstitutional, that would be silly.
The entire idea that two men or two women can marry each other is silly. What the SCOTUS did was not only silly, IT WAS DISASTEROUS!
The SCOTUS did not think of the ramifications that overturning the very foundation of the institution of marriage before they did it.
Or maybe they did. Maybe their intention (and the intention of the Gaystapo) was to end the whole institution of marriage because it has a religious foundation.
If you read the Kentucky statutes regarding receiving a marriage license, one requirement is that the female has to be the one to apply for the license. Unless that law were to be re-written, no male homosexual couple could ever get a marriage license (although I suppose a lesbian couple could).
Excellent point, xzins.
If there is only one lawyer in town he starves. If there are two, they prosper.
Thank you, thank you. I have changed my mind on this. I did not realize that she was refusing to issue ALL marriage licenses because the term “marriage” has been eviscerated of any legal meaning. This clarifies things a lot for me. I think she did the right thing.
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