Crime: Actively Thwarting FEDERAL IMMIGRATION LAWS!
Posted on 09/08/2015 4:56:03 PM PDT by markomalley
Until her release earlier today, Kim Davis, the clerk of rural Rowan County, Kentucky, was confined to a jail cell because she refused to issue marriage licenses over her name to same-sex couples. She has been pilloried in the media for “lawlessness” and compared not to Martin Luther King Jr. for her civil disobedience but to Governor George Wallace of Alabama. Michael Keegen of the grossly misnamed People for the American Way called her actions an “abuse of power” and proposed instead that she should “find another line of work” — that is, resign her elected office — if she “can’t in good conscience fulfill [her] duties.”
The double standard on display is palpable. I don’t recall Keegen or any of the other self-righteous, newfound devotees of the rule of law calling for the resignation of Kentucky’s attorney general when he refused to defend his state’s marriage law — or any of the other state attorneys general who did the same, from California’s Jerry Brown to Pennsylvania’s Kathleen Kane, and several others, including perhaps most notoriously Oregon’s Ellen Rosenblum, who was caught actively colluding with plaintiffs to ensure judicial invalidation of the Oregon marriage law she disliked.
“But Davis was refusing to comply with a decision of the Supreme Court,” it will be argued. So, too, did all those illustrious attorneys general. All of them refused to do their duty and defend their state’s man-woman marriage laws, even though the binding precedent of the Supreme Court at that time, a 1972 case called Baker v. Nelson, was that such laws were constitutionally valid.
Ms. Davis’s position has also been mischaracterized as asserting that because the Supreme Court’s decision is contrary to God’s authority, she cannot be compelled to comply with it and therefore can prevent same-sex couples from getting married in her county. Her position — so described — has been belittled by simpletons across the political spectrum as nothing more than the misguided stance of a crazy evangelical clinging to her Bible. But that is not her legal argument at all (however much merit it might have as a reaction to an illegitimate decision by the Supreme Court). Her actual argument is much more restrained.
Kentucky has a Religious Freedom Restoration Act, which expressly prevents the government from imposing a substantial burden on someone’s religious beliefs unless the government’s mandate is narrowly tailored to further a compelling governmental interest. Because this lawsuit is pending in federal court, the federal Religious Freedom Restoration Act, which contains the same protection, is also applicable. Ms. Davis’s lawyers have simply argued that these federal and state laws require that her religious objection to issuing same-sex “marriage” licenses over her own name be accommodated.
There is no compelling interest here. Even assuming the validity of the Supreme Court’s decision holding that right to same-sex “marriage” is a fundamental right, no one is being denied the right to marry. As a matter of Kentucky law, the couples seeking to compel Ms. Davis herself to issue them a marriage license can obtain a marriage license from any other county in Kentucky. They can also get one from the county executive of Rowan County. And if the governor would simply call the legislature into special session to deal with the problem that has arisen since the Supreme Court’s decision in June, it would likely even be possible for other clerks in Ms. Davis’s office to issue a marriage license without its being issued on Ms. Davis’s authority (the legislature could simply remove the problematic “under [her] authority” language from the statewide uniform form), or for marriage licenses to be obtained via a statewide online system.
But none of those options would accomplish what the same-sex couple and its chorus of advocates are really after, which is not the “marriage” but forcing Ms. Davis and everyone like her to bow to the new, unholy orthodoxy. In other words, this controversy has all the hallmarks of the one that engulfed Thomas More, who silently acquiesced in but would not condone King Henry VIII’s illicit marriage.
The Religious Freedom Restoration Acts, both the federal law and Kentucky’s version of it, required that Ms. Davis’s religious objection be accommodated as a matter of law. The federal court’s refusal to respect those laws is where the real lawlessness lies in this case. And of course, that lawlessness is quite apart from the not insignificant question of whether the Supreme Court’s Obergefell decision is itself lawless. Such claims did not originate with Ms. Davis, but with the four Supreme Court Justices who stridently dissented from Justice Kennedy’s diktat, calling it “illegitima[te],” “indefensible,” “dangerous for the rule of law,” “demeaning to the democratic process,” “a naked judicial claim to legislative — indeed, super-legislative — power,” “pretentious,” “egotistic,” a “judicial Putsch,” “deeply misguided,” a “usurp[ation of] the constitutional right of the people,” a “perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation,” and an “extravagant conception of judicial supremacy.”
That latter point is important to put to rest the other charge that has been leveled against Ms. Davis, namely, that she is violating her oath of office by not upholding the law she swore to uphold. The Constitution requires that all officials, both federal and state, take an oath to “support this Constitution,” and the Constitution itself provides that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” Neither the oath clause nor the supremacy clause requires fealty to an erroneous decision of the Supreme Court that is contrary to the Constitution itself. That is not constitutionalism, or the rule of law, but the rule of judges; a claim that although the Constitution is the supreme law of the land, the Constitution is whatever the judges say it is, even if what they say is a patently erroneous interpretation of the Constitution.
Reacting to a similar piece of judicial tyranny in the Dred Scott case, Abraham Lincoln famously said, in his first inaugural address, that although judicial decisions are binding on the specific parties to a case, “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.”
In short, Ms. Davis was much more faithful to her oath of office, and to the Constitution she vowed to support, than the federal judge who jailed her for contempt, the attorney general of the state who refused to defend Kentucky’s laws, and Justice Anthony Kennedy, who usurped the authority of the states and the more than 50 million voters who had recently reaffirmed the natural definition of marriage, in order to impose his own more “enlightened” views on the nation. One can only hope that Ms. Davis’s simple but determined act of civil disobedience will yet ignite the kind of reaction in the American people that is necessary to oppose such lawlessness, or at the very least bring forth a national leader who will take up the argument against judicial supremacy in truly Lincolnian fashion.
I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. 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 over-ruled, 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. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.
-Abraham Lincoln, First Inaugural Address
Better said than the “useless” strategy used by Michael Medved on his show.
The Brilliant and Keen John Eastman weighs in with the Truth.
Eastman for AG under President Donald.
Vice President Cruz will approve.
Crime: Actively Thwarting FEDERAL IMMIGRATION LAWS!
They'll kill to make this happen. Literally. And soon.
Crime: Actively Thwarting FEDERAL IMMIGRATION LAWS!
Why do you suppose Ted Cruz would ever stoop to playing kiss-ass to a liberal?
Are members of the U.S. military still trained not to obey illegal orders?
Excellent post.
And Rosa Parks should have wsited for another bus or walked or taken a taxi.
Some things are self evidently wrong. Gay so called marriage is obviously wrong and unjust discrimination also.
No one should have to do wrong to have a government job or ride a government regulated bus.
That’s hilarious
Ed Lee: Chinese Supremacist, overt and despicable Racist, anti-American thug seeking revenge on Whitey for the 1882 Exclusion Act.
I thought I read somewhere that Davis is a democrat? Go figure. Not many dems coming to her defense.
Do federal judges, even for the supreme court, place their right hand on a Bible and swear to God to uphold the Constitution?
Because Ted Cruz wants to be President of the United States one day and he is only 44 years of age. A person of 44 who has a term or two as VP is in a great position to become President when his VP term comes to an end.
Let’s forget about religious principles that govern Ms. Davis’ life and talk about her job responsibilities. Which is to register lawful marriages (as Kentucky law defines them, between a man and a woman), and not marriages between, for example, a man and a goat. There is no federal law that defines marriages, created by US Congress and signed by POTUS. The personal opinion of five members of the Supreme Court may or may not be of interest to Ms. Davis, but it’s just not a Federal law. So Ms Davis does a wonderful job to uphold laws of her State, and she is not breaking any federal laws. Good job, Ms Davis!
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Should The Law be that Marriage is defined as only Not Marriage, what would you do. (You are on a slippery slope here...)
That’s correct. She was following her State’s law. There is NO federal law or mention in the US Constitution regarding marriage between genders.
I think the KY voters added a provision to their State Constitution around 2004 that marriage was between two people of different sexes.
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