Friday, September 4, 2015

What Law Did Kim Davis Break?

     Kentucky Clerk of Courts Kim Davis has gone to jail for refusing to issue marriage licenses, because to do so for same sex couples would violate her religious conscience. There are many on the Right that have said she is wrong to expect to keep her job while choosing to not perform this one aspect of her position. The argument from many on the Right is, "Well it is the law and she must obey it or resign her elected position." They also employ the worn and to oft used platitude, "We are a nation of laws, not men."
     Primarily I am in agreement with the ideal expressed in the latter statement above. However, if we claim to be a nation of laws, the most sacred of which is the constitution of the United States, then the "law" that Ms. Davis has violated is opinion and not law. The constitution is very clear that the sole legislative ability in the United States of America is vested in the bicameral body known as the House of Representatives and the Senate. And since those august bodies have passed no legislation which was signed into law by the president respective of same sex marriage, what law then is Ms. Davis violating?
     The idea of judicial review breathed to life by Marbury vs. Madison was in the opinion of the defendant in that case (and primary father of our constitution) not in keeping with his understanding of this nation's guiding principle. How much more dismayed would Mr. Madison be today if he could see the representative republic he helped to originate imprisoning one of its citizens for practicing her religious freedom of conscience guaranteed by the very document he helped frame? There is nothing to suggest, even by judicial review, that a Supreme Court decision in one case could bypass the constitutional legislative mandate given to congress in favor of law by fiat.
     Think about the tyranny of a government that only needs the opinion of 5 justices to impose their will on a nation. It is a concept that is completely antithetical to the principles of our republic which were so torturously brought into being by the Founders. The whole concept of Supreme Court decisions having the weight of law corrupts the foundations of self-government in which the Founders believed so mightily. And if the deliberative process of congress is bypassed in such a manner, how much easier the road has been paved for tyranny.
      If a government is given the awesome authority to impose, not law but opinion, on its citizens, whether elected or appointed official or ordinary citizen, then the nation is no longer a republic but has crossed the line into oligarchy. And if that same government, lead by five lawyers in robes, is given domain over millennia-old institutions of civilized society and the prerogative of God, then we as a nation have certainly left Liberty's stage and are waiting in the wings of oppression and tyranny.


  1. Point One: Ms. Davis did NOT go to jail for refusing to issue marriage licenses. She went to jail for refusing to obey a court order. She is being held in contempt until she complies. That may seem like a nuanced difference, but it is crucial to understanding the situation.

    Point Two: Don't hold your breath waiting for the U.S. Congress and Senate to pass laws on this matter: Marriage is governed by state law, not federal.

    Point Three: Per the dictates of the 14th Amendment, states must give equal treatment to all citizens and afford them equal access to all privileges. If they do not, and when challenged on it, there is then a federal question for which the US Supreme Court is granted original jurisdiction. That is what the Supreme Court is FOR, per the Constitution, Article III section 2. Someone has to mediate these disputes -- we can't have people shooting their disagreements out in the streets.

    Point Four: The court has stricken down as unconstitutional all anti-gay marriage laws; furthermore, they mandated that existing marriage laws must no longer be interpreted as excluding same-sex couples. They must treat both opposite- and same-sex couples equally.

    This is all ENTIRELY and properly within the purview of the Supreme Court to issue this sort of ruling. Justice has prevailed.

    1. There is nothing in the Constitution about the right that the (5) SC Justices supposedly ruled in favor of.
      It appears to be a purely culturally driven opinion rather than an interpretation of the US Constitution

    2. It is unclear what you are driving at. If you are attempt to state that the U.S. Constitution does not specify the right for same-sex couples to marry, that is correct. It does not specify the right for opposite-sex couples to marry, either.

      It does, however, state in the 14th Amendment that states must give equal protection of the laws to all citizens, and equal access to all privileges. A number of U.S. states had been denying the privilege of marriage to same-sex couples. Some of those who were excluded brought a federal lawsuit. The suit was fought and re-fought, and appealed all the way to the Supreme Court, where the plaintiffs prevailed.

      That's it -- end of story. Same-sex marriage is now legal in the entire United States.

    3. The SCOTUS Majority issued a ruling establishing as a 'right' same sex marriage: striking down DOMA's and removing injunctions from states with Same-Sex Marriage Statutes. SCOTUS DID NOT CREATE A LAW governing Same-Sex Marriage, nor did it create an enforcement procedure(with civil and criminal penalties) regarding it. It did rule that individuals did not have to wait for states to enact legislation, they could pursue "Constitutional Protection"; meaning a trial, or legal procedure(ruling of a superior court) to establish their 'right'. Kentucky had neither a law held in abeyance, waiting for a ruling, nor legislation establishing the 'new' rights: it had an "activist" judge willing to issue a court order of which he had no legal ground to do so; and commanded the deputy to arrest her in defiance of a court order he had no right to issue-the SCOTUS declared the ruling, not the remedy. He should have waited(or ordered) the State of Kentucky to adopt a statute which prescribes the necessary actions(and consequences) of a Same-Sex Marriage Law. His actions "became a law unto itself" which was precisely what concerned the Dissenting Justices; rather than enforcing a law in place, raw judicial power was exercised in creating law where none existed.

  2. First of all no state had "bans" on same sex marriage. They defined in law that they in their state would define marriage as between one man and one woman. Same sex couples have had the ability to marry for decades, and have had civil unions which give them all the rights of traditionally married couples. The states were only saying they were not going to officially sanction these types of unions. The 14th amendment argument is weak because gays were not being denied something available to others. In other words no one had the right to marry someone of their same sex.