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.
Yes somehow the defense attorney, the judge, and the entire bar of Kentucky managed to miss that, huh? Doesn't say much for their legal training, does it? </sarcasm>
“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.”
Civil unions are all it ever was to the state in the modern era, ‘gay marriage’ is only the latest and most impossibly ridiculous version of the state’s take on it. You can tell by how many times the state has changed it’s version of marriage, basically anytime judges, pols, or the voting majority thought the civil law should change. That isn’t marriage.
Freegards
http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdfthe State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.
Elsewhere:
It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performedin another State on the ground of its same-sex character.
It is clear that Robert's wasn't speaking theoretically when he said the marriage laws of most states were set aside by the Obergefell decision.
He was obviously relying on the words of Justice Kennedy in the majority decision.
Justice Roberts in his dissent specifically stated that the majority decision struck down the marriage laws of most states. He asserted it as fact, and nobody disputed it.
Justice Kennedy wrote that the laws are ‘held invalid’. That’s pretty clear.
http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
“the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”
The key word there being "dissent". Chief Justice Roberts was in the minority and his dissent doesn't mean that the laws were actually struck down.
He was agreeing with Kennedy, who said the same thing, and wrote for the majority.
Read the decision again. That wasn't what Justice Kennedy said.
The holding of the decision is that any State Statute that limits the definition of marriage to one man and one woman is now VOID (I.e., it no longer has any legal effect).
Since the entire marriage institution sanctioned by Kentucky begins with a definition of the institution as being a state sanctioned union of "one man and one woman", the entire Kentucky marriage code was struck down.
The Supreme Court can void a statute but it can't rewrite it.
At this point (based on everything I know about statutory law and statutory interpretation) there is no such legal institution as marriage in Kentucky.
Legally people might be able to go through the motions of getting married but it has no meaning.
THE SUPREME COURT VOIDED THE ENTIRE INSTITUTION OF MARRIAGE IN KENTUCKY.
Maybe they didn't intend to do it, but the did it anyway.
The law of unintended consequences. Kennedy either didn't bother to realize the implications of his opinion or he didn't give a damn. Personally, I think it was the latter.
the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples
To the extent they exclude same-sex, not in toto.
You seem to have difficulty understanding that when a court, any court, finds a statute unconstitutional, that there is generally no reason to throw out the entire statute, only the offending section.
In this instance the court held that the portion of the statute saying that marriage was only between a man and a woman was unconstitutional, not the portions saying you need a license, not the portion saying you need to be of age, etc.
How many ussc cert petitions and briefs have you worked on in the last year? Three here.
Perhaps 'now held invalid' means different things to different lawyers, but it the English seems clear. And apparently, Justice Roberts' interpretation of those words exactly matches your own.
Roberts: As a result, the Court invalidates the marriage laws of more than half the States
I don't really see how this could be viewed any differently. The justice writing the opinion says those 'state laws are invalid', and the chief justice in dissent says 'the Court invalidates the marriage laws".
Where exactly is the question? There is no question.
Kentucky’s law excludes same sex couples. Therefore, they are invalid. Do you want me to copy/paste Kentucky’s law?
Section 355 of the Kentucky law has a severability clause.
Section 402 (marriage) does not.
Moreover, in Kentucky law section 402 DEFINES marriage as between one man and one woman. IOW, every instance of that word was struck down by the court decision.
And, of course, we must acknowledge the lack of a severability clause.
"“the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Where they do not exclude same sex couples then the law remains valid.
I don't really see how this could be viewed any differently. The justice writing the opinion says those 'state laws are invalid', and the chief justice in dissent says 'the Court invalidates the marriage laws".
He was writing for the minority, not the majority. And while we may all agree with him that doesn't negate that the majority held a different view.
In your career, how many appellate briefs have you filed where the issue is statutory interpretation? Before you get past the third paragraph you have to show the LEGAL definition of the term. In this case the legal definition of "marriage" is quite specific. It is a union of one man and one woman. That provision may have been voided, but it has not changed.
The Court cannot rewrite that statute by voiding the definition without further voiding the entire statute that regulates that institution.
Marriage in Kentucky is defined as the union of a man and a woman. To void that definition is to void any statutory references to that decision.
Generally when a court finds some significant part of legislation unconstitutional or void, the legislature will go into emergency session to make sure their statutes comply with the constitutional requirement.
In this case Kentucky has not changed the definition of Marriage. Further since not only the Statute regulating marriage defines it as the union of one man and one woman, so does the Kentucky Constitution. So not only will the legislature need to change the statute but also the constitution. Unless and until they do that, Kentucky has no legal definition of marriage.
There is no constitutional requirement that any state define marriage or even recognize the institution of marriage. That is done entirely under the 10th Amendment.
Further the federal government has no authority to make states pass such laws.
For all intents and purposes, Kentucky is now in the position where they have no marriage laws. It is as if no marriage laws were ever instituted.
Kentucky isn't the only state in this situation.
This is what an activst court has wrought.
This is why it is imperative that we support Kim Davis and fight this judical tyranny at every turn.
Welcome to Free Republic.
Just out of curiosity Doodle Dawg, are you a licensed attorney or an armchair attorney?
Kentucky’s entire marriage system is built on a definition that was held to be void (Section 402.005 enacted in 1988).
Did Kennedy rewrite section 402.005?
If so, how does it now read?
Can you quote the working definition of marriage in accordance with the legal definition in section 402.005 as enunciated by that weasly twerp Kennedy?
I'm no more an attorney than you are. But I know a couple.
Kentucky’s entire marriage system is built on a definition that was held to be void (Section 402.005 enacted in 1988).
So if Section 402.005 reads "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..." then does that mean divorce is illegal in the Commonwealth?
No, that can't be true because Section 402.020 says that marriage is prohibited where there is a husband or wife living from whom the person marrying has not been divorced. So divorce is possible in Kentucky and the definition of marriage you quoted had been invalidated long before the Supreme Court issued their ruling. So really it is Section 402.020 which defines who may marry, and all the Supreme Court decision did was strike down clause (d) which prohibited marriage between same sex couples.
That would make you an attorney.
But I know a couple.
I know hundreds including me.
So if Section 402.005 reads "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..." then does that mean divorce is illegal in the Commonwealth?
In a recent court decision in Tennessee a family law judge dismissed a divorce case before him because there was no longer any such thing as a marriage in Tennessee.
Was he stupider than you?
o really it is Section 402.020 which defines who may marry, and all the Supreme Court decision did was strike down clause (d) which prohibited marriage between same sex couples.
Wrong. In order to enter into a "marriage" there must be a working statutory definition of marriage (section 420.005)
In your expert legal opinion (which we all value here because you are as much of an attorney as I am), how does Section 420.005 read right now?
What is the current statutory definition of "marriage" under the Kentucky code?
Did Justice Kennedy rewrite that section?
If so what is the language of section 420.005 that Justice Kennedy inserted?
Correct me if I'm wrong but we're discussing Kentucky and not Tennessee. So can you answer whether divorce was allowed in Kentucky prior to the Obergfell decision?
Wrong. In order to enter into a "marriage" there must be a working statutory definition of marriage (section 420.005)
I believe that just about all 50 states have laws which define marriage along the lines of Kentucky. Are you saying that since Obergfell just about nobody in the country has been able to be married since almost none of the states now have a definition?
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