Posted on 09/10/2015 7:27:53 AM PDT by Kaslin
Shortly before the Labor Day weekend, a federal judge in Kentucky ordered the Rowan County clerk incarcerated for violating his orders. Five days later, he released her.
The judge found that the clerk, Kim Davis, interfered with the ability of same-sex couples in her county to marry by refusing to issue them applications for marriage licenses. Davis argued that she was following her conscience, which is grounded in a well-known Christian antipathy to same-sex marriages, which, in turn, is protected by the Free Exercise Clause of the First Amendment. Here is the backstory.
Davis is the clerk of Rowan County, Ky. Among her duties as county clerk is the issuance of applications for marriage licenses. When she assumed office, she took an oath to administer her duties consistent with the U.S. Constitution. Her job with respect to licenses is ministerial: issuing documents to those who legally qualify for them and filing the documents when they are returned to her.
Kentucky law requires that applicants for marriage licenses be unmarried, residents of Kentucky and at least 18 years of age. As a county clerk, Davis cannot add to these requirements another requirement -- namely, that the applicants be of the opposite sex. She cannot do that because the Supreme Court has ruled that marriage is a fundamental liberty, the exercise of which is protected by the Constitution, and within that liberty is the right to choose a same-sex marriage mate, uninterfered with by the state.
By adding her own requirement and using the force of law to enforce that requirement, she is frustrating the ruling of the Supreme Court, interfering with the fundamental liberties of marriage applicants, and violating her oath to uphold the Constitution, the final interpreter of which is the Supreme Court.
After Davis refused to comply with two of his orders to issue applications to those who comply with Kentucky law and not to add her own requirement, a federal trial judge found that she was in a state of civil contempt, and he incarcerated her.
Civil contempt is not a crime. Hence she was not sentenced to a jail term. The purpose of her incarceration was not punishment; rather, it was coercion. The courts have limited resources with which to coerce reluctant litigants to comply with court orders, and incarceration is one of them.
The court properly interpreted its duties under the Constitution, but was wrong to incarcerate her.
Davis is running a county clerk's office, not a church and not a legislative body. Moreover, her imposition of her own religious requirement upon the license applicants violates the well-respected and long-held First Amendment value of separation of church and state. She is free to believe as she wishes and to practice her beliefs, is free to impose her beliefs on her children and family, and is free to attempt to persuade others of the salvific value of her beliefs. But she is not free to use the force of law to further her beliefs by denying legal rights to those unwilling to accept them.
Suppose her religion forbade interracial marriage (as some Mormon Churches do). Could she deny a marriage license application to an interracial couple? Or, suppose she was a traditionalist Roman Catholic, who believed that Catholics should only marry other Catholics. Could she deny a marriage license application to a Catholic planning to marry a non-Catholic? Or, suppose her religion condemned the private ownership and use of guns (as some Quakers do). Could she refuse to issue applications for gun permits? The answers are obvious.
If her personal religious views could trump her obligations under the law when she is in a ministerial and not a discretionary government job, and other government officials similarly situated could do the same, then we'd lack the rule of law in America, and we would live instead under the discretion of bureaucrats.
But she should not have been sent to jail. Judges must do all possible to resist the temptation to incarcerate defiant litigants, because incarceration should be the last resort. Judges should enforce their rulings using the least force necessary, not the most force available. And history teaches that for those who conscientiously defy the law -- particularly for religious-based reasons -- incarceration is often fruitless.
I would have removed her authority to issue marriage license applications and assigned it to others in the Kentucky state government, and directed them to issue the applications in accordance with the law. That would have kept Davis free and her conscience clear, and permitted those in Rowan County to get married to whom they choose.
What about the St. Thomas More argument: "I die the King's good servant, but God's first"? That is not relevant here. More was tried, convicted and executed for his personal refusal to accept a heretical doctrine: that the monstrous King Henry VIII was somehow the head of the Roman Catholic Church in England. Even More admitted that one must do all one can to avoid martyrdom, even leaving public office knowing that one's successor will do what one has refused.
The Free Exercise Clause guarantees individuals the lawful ability to practice their religion free from government interference. It does not permit those in government to use their offices to deny the rights of those who reject their beliefs. That is the lesson for Kim Davis.
If you find yourself facing a line you can’t cross, and the state obliges you to cross it, just know that you are going to stand pretty much alone. Not many people are prepared to stand with you.
The Kentucky law also said they must be of opposite sex. This particular law stands until specifically struck down. I do not believe that has happened yet.
Nice try, Judge.
Kim Davis denied nothing to anyone.
Accommodations were made, but the gays and the ACLU demanded that SHE and SHE ALONE, signed the marriage licenses.
Like the rest of FoxNews, you continue to disappoint with your haphazard and incomplete legal analysis.
Nothing in there about how the Federal judge disregarded State laws concerning the matter.
Nor how for the first time in AMerican memory, your precious legal system put a Christian woman in jail for standing up for her religious beliefs.
No mention about the violation of her 1st Amendment and 14th Amendment protections, nor how there can be no religious test to hold any elected Federal or State office—also in the Constitution.
What we have seen in the past few years in an out-of-control judiciary at the Federal and Supreme Court level that will be reigned in by the people, sooner or later.
Your pandering and deliberate obsfucation of the issue puts you clearly in that group.
You do not give up your constitutional rights when your paycheck comes from the gov.
I did not know KY law did not also spell out the “opposite sex” requirement. Perhaps that has been obvious until lately.
I wonder why the Judge ignored the 2004 voter referendum in Kentucky to amend the constitution to define and limit marriage to one man and one woman. Curious omission.
So Christians must be now prohibited from holding public office, owning and operating a public business, serving in a religious capacity in the military, being employed as therapists, teachers, and the list grows and grows. The Mark of the Beast.
Wow. I expected better judgment from the Judge.
Oh well. Now I know what (lack of ) character he is.
I thought Napolitano had more depth of legal understanding than that. He has ignored the applicability to Davis’s stand of the Kentucky RFRA, the Federal RFRA, and Article VI, paragraph 3 of the U.S. Constitution as applied to the states by prevailing 14th Amendment juridsprudence.
Or, suppose she saw remarriage after divorce as adultery. Could she then deny a marriage license to heterosexual couples who've had a previous spouse?
I agree - I would have much rather read something by the Judge (a Catholic) that discussed how wrong this ruling was, how it overstepped constitutional authority, etc etc etc. Judge Napolitano is now endorsing the Tyrants ruling the People. It’s a false argument to throw race, religion, culture into the mix as a reason to deny a marriage license, and a lazy one at that. Interesting that there is no longer anyone on the Supreme Court who is an evangelical protestant.
Further, Kentucky law does not accommodate legally-recognized conscientious objection - and the governor amplified this point with an executive order. That is another conflict of law, between those that protect religious liberty (even for government employees!), and those that direct what some find to be unconscionable acts by government, such as authorizing homo marriage, putting a prisoner to death, and fighting in combat.
The Napolitano analysis train has derailed. He couldn’t be more wrong if he tried.
“Laws” are passed by a vote in the legislative body and signed by the chief executive of the jurisdiction in question.
Gay Mirage has not passed this procedure. Ever. It is not “law”. It is judicial edict.
It is very frustrating for the states and the people, to be forced (to the extent they submit is to be seen) to clean up a mess made by SCOTUS.
As a county clerk, Davis cannot add to these requirements another requirement — namely, that the applicants be of the opposite sex.
what the...? I was under the impression that Kentucky law already specified that the applicants be of the opposite sex...am I mistaken in that belief...?
And if he’s making the argument that the SCOTUS opinion invalidates that part of the law, then say so...but an uninformed person reading this analysis would assume that Davis decided to add that clause on her own...very strange on the part of the Judge...
Libertarian first, Christian second... That’s our judge. Wonder what his stand on conscientious objectors would be?
I’m just curious ... why is the government issuing licenses to marry if anyone can marry or claim they are not being treated equally to traditional couples if they are denied? There used to be reasons for it- having a growing population and big families was advantageous to the country and so encouraging fruitful marriage was a big deal. We can see in Europe the cost of a falling birth rate to culture.
Seems like now would be a good time to simply eliminate government having any role in marriage. If people want to make contracts for this and that let them do it unmolested and don’t call it marriage.
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