Every week on Monday morning, the Council and our invited guests weigh in at the Watcher’s Forum with short takes on a major issue of the day, the culture or daily living. This week’s question: Kim Davis And Gay Marriage Licenses: Civil Disobedience Or Bigot?
Rhymes With Right: Simply put, this is not an either/or question.
One can be a bigot or a racist and still engage in civil disobedience – one can be a despicable human being and still protest against injustice. One can even be wrong about the justice or propriety of a law or policy and still properly engage in civil disobedience by violating that law and accepting one’s punishment as a way of seeking to garner support for a change to that which you believe to be unjust.
And that is the key thing that Kim Davis and her supporters are missing here. Crying “civil disobedience” is not a talisman that shields you from punishment or a “get out of jail free” card. As exemplars of civil disobedience like Thoreau, Gandhi and King show us, civil disobedience requires submission to the rule of law as a means of shocking the consciences of others in order to spur change.
But in Kim Davis’s case, there is another angle that should be considered. Davis is not acting as a private person here; rather, she is acting in her official capacity to deny the citizenry that which the law and the Constitution require she give them in that capacity — a legal document granting legal recognition to their marriage. One can strongly argue against the holding in Obergefell (and i do) and still recognize the danger to liberty and the rule of law that her actions represent.
Of particular concern to me is Davis’s abuse of the First Amendment to justify her malfeasance in office and defiance of a court order. She claims the right to not only refuse to issue marriage licenses herself, but to also forbid every employee of her office from issuing them. That has the effect of officially establishing her religion as the official religion of Rowan County. And while one might be tempted to cut her slack because of the relative ease with which couple could work around her decree and the troubling nature of the Obergefell decision which created this situation, one has to look at other situations. Would we accept the declaration of a county prosecutor that there will be no prosecutions of spousal rape because she believes that allowing her office to move forward with such cases would violate the Biblical principle that wives must submit to their husbands? Of course not — the very notion is offensive to anyone with a sense of moral decency, no matter how broadly we interpret the First Amendment’s religious liberty guarantee.
So let me be quite clear on this matter — regardless of the sincerity of her faith (a matter that has no bearing here) Kim Davis belongs in jail until such time as she either agrees to a) issue marriage licenses to all legally eligible couples, b) stand aside and allow her subordinates to do so for her, or c) resigns or is removed from her position and county clerk. If this spurs a change in the national attitude towards gay marriage and results in a reversal of Obergefell, perhaps her short-lived effort to make her faith the established religion of Rowan County will have had some positive impact. Until that time, let her failed claim of privilege serve as a reminder that the rule of law requires we abide by a court order until it expires or is overturned on appeal, even if we believe it is wrong and in violation of our rights.
The Glittering Eye: It’s a thorny issue. On the one hand, since Obergefell v. Hodges homosexual marriage is the law of the land and there’s some merit to the idea that if a public employee can’t perform his or her job she or he should resign.
On the other hand that flies in the face of the last 70 years of labor law. Employers have an obligation to make reasonable accommodations for the religious obligations of their employees. Kentucky, specifically, has a RFRA law that extends that not only to public employees but to elected officials. I would also argue that demanding that public officials who cannot comply with some of the obligations of their job for religious reasons resign violates the “No Religious Test” clause of the U. S. constitution.
IMO the judge in this case erred in throwing the county clerk into jail. There were plenty of other remedies available. He could have ordered a recall election and then fined the county if she were retained and failed to comply. He could have thrown it back to the Kentucky legislature to place the onus on them to change the laws requiring the county clerk’s signature on all marriage licenses issued by their counties.
We’re now engaged in a great experiment. After a half century of relentless propaganda, a slim majority of Americans and one half plus one of the justices of the Supreme Court believe that a just and decent society demands the legality of homosexual civil marriage. To date we’ve seen campaigns to force people to comply with court orders that until very recently would have been considered immoral by the overwhelming preponderance of the people. Such is not the stuff of which persuasion is made. It’s also contrary to the promotion of liberal values in a large, diverse country in which reasonable accommodations should be made for the religious beliefs of all members, not just members with whom you happen to agree.
JoshuaPundit: My original feeling when I first heard about this was that as a public servant, Ms. Davis had a duty to perform that which the taxpayers had elected her to do.
After thinking it through, it’s very obvious that she could and should have been offered a reasonable accommodation for her religious beliefs and would have had the full might of the Obama Justice department behind her if she wasn’t a Christian and this wasn’t about homosexual marriage.
The Obama ‘Justice’ Department actually sued an Illinois school district because a Muslim school teacher’s request for three weeks leave in the middle of the school year to attend the Haj in Mecca (something that takes at most a week) in violation of her contract was denied. And they won, in spite of the fact that the Haj can be taken any time in a Muslim’s life…such as after retirement, or when sufficient sick days have been accrued.
I myself have received what are called reasonable religious accommodations under existing law. I once accepted a job at a financial corporation and was told several days into it that ‘Saturdays are mandatory.’
Once I explained that Saturday wasn’t an option for me and had they informed me beforehand I would not have taken the job, they were forced to make an exception in my case, albeit with quite a bit of rancor,nasty cracks and ill will that never dissipated for the short period of time I remained there. There’s no reason Kim Davis couldn’t have gotten the same kind of accommodation (especially since she worked in government) instead of being thrown in jail, but they simply wanted to make an example of her.
Only prog Fascists are free to ignore the law in Obama’s America. We’re in for an interesting 14 months.
Well, there you have it.
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Sir, you have it all wrong. The case of activist federal judge Bunning is a sad one.
As has occurred so many times in the past, in the case of Kentucky clerk Mrs. Kim Davis, the media and activists present two sides of an argument, supposedly fair and balanced, and they let you decide. And as has occurred so many times in the past, the truth and facts are in neither of those two sides. The facts are not investigated or even mentioned. The public was presented a false argument surrounded by spin in order to sway public opinion. They keep doing that because people keep falling for it. And here they go again. And you fell for it.
Discussion in the public square (social media) exhausts people’s energy and motivation on the wild goose chase. By the time and if the facts finally do come out and the dots are correctly connected, the public has lost interest and moved on. Thus the consensus desired by the activists like federal judge Bunning hold sway. Politicians especially depend on this process.
Kentucky Clerk Mrs. Kim Davis asks: ‘Under what law am I authorized to issue homosexual couples a marriage license?’ There is no such law. In fact, the opposite law is still on the books. Kentucky passed Amendment 1 in 2004, prohibiting recognition of same-sex marriages. It passed by a 75-25 percent margin. In 2004, the citizens of Kentucky, along with Arkansas, Georgia, Utah, Mississippi, Michigan, Montana, North Dakota, Ohio, Oklahoma, and Oregon passed – by substantial margins – bans on same sex marriage. In 1996, the U.S. Congress passed by veto proof majority the Defense of Marriage Act (DOMA) and President Bill Clinton signed it into law, now known as U.S. Public Law 104-199.
Section 3 in DOMA defined marriage for all federal law purposes as “only a legal union between one man and one woman as husband and wife.” In 2013, the U.S. Supreme Court ruled in United States v. Windsor that section 3 of that DOMA law (ONLY section 3) was unconstitutional under the due process guarantees of the Fifth Amendment. [As a result, the federal government was ordered to issue Windsor a tax refund.]
But DOMA in Section 2 also confirmed primacy of state law in these matters and that part of the federal law known as DMOA still stands. And that is further confirmed in Windsor.
[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” U.S. Supreme Court, United States v. Windsor, 2013. Only 2 years ago is ancient history when civilization and law are in free fall after self-glorified tyrants shoved them off the cliff of fascist transformation.
Please read section 2 of the federal law, DOMA, which is still law of the land.
[104th Congress Public Law 199]
[From the U.S. Government Printing Office]
Public Law 104-199
104th Congress
An Act
To define and protect the institution of marriage. Sept. 21, 1996 –
[H.R. 3396]
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
Defense of Marriage Act.
SECTION 1. SHORT TITLE.
This Act may be cited as the “Defense of Marriage Act”.
SEC. 2. POWERS RESERVED TO THE STATES.
(a) In General.–Chapter 115 of title 28, United States Code, is
amended by adding after section 1738B the following:
“Sec. 1738C. Certain acts, records, and proceedings and the effect
thereof
“No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such
relationship.”.
(b) Clerical Amendment.–The table of sections at the beginning of
chapter 115 of title 28, United States Code, is amended by inserting
after the item relating to section 1738B the following new item:
“1738C. Certain acts, records, and proceedings and the effect
thereof.”.
SEC. 3. DEFINITION OF MARRIAGE.
(a) In General.–Chapter 1 of title 1, United States Code, is
amended by adding at the end the following:
“Sec. 7. Definition of `marriage’ and `spouse’
“In determining the meaning of any Act of Congress, or of any
ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word `marriage’ means
only a legal union between one man and one woman as husband and wife,
and the word `spouse’ refers only to a person of the opposite sex who is
a husband or a wife.”.
(b) Clerical Amendment.–The table of sections at the beginning of
chapter 1 of title 1, United States Code, is amended by inserting after
the item relating to section 6 the following new item:
“7. Definition of `marriage’ and `spouse’.”.
Approved September 21, 1996.
What we have is a rogue federal judge Bunning. Fortunately, someone got to Bunning and corrected him before he further harms himself and Mrs. Davis. Judge Bunning released Davis. Federal judge Bunning, who illegally ordered clerk Kim Davis to jail, was previously overturned on appeal after he ordered students to attend “anti-harassment sessions” designed to instruct students “to withhold Christian viewpoints about homosexual behavior.” Bunning’s ruling against the students, a direct ban on free speech, was overturned on appeal. It turns out that Bunning is an activist unlawfully acting out his personal opinions.
Justice Anthony Kennedy writing the opinion of the Supreme Court in Obergefell v. Hodges, that is the opinion of 5 of 9 justices of the Supreme Court in the same sex marriage case: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”… “It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” In other words, federal judge Bunning who imprisoned Mrs. Kim Davis defies the Supreme Court and is acting illegally.
In Obergefell, the Supreme Court was instructing THE STATES, about 29 of them, to issue marriage licenses to same-sex couples, but left alone the right of individuals to act on their conscience. So far, Kentucky and the other states have taken no action.
Justice Kennedy is correct according to the Constitution, which means federal judge Bunning is wrong and acting illegally. Federal judge Bunning should be impeached for his lawless action. Mrs. Davis is breaking no law. On the other hand, Davis would be breaking Kentucky law and her oath of elected office if she granted marriage licenses to same sex couples.
If you read the Supreme Court case in Obergefell (link below), the majority 5 justices “held” in their opinion that the “due process” clause of 14th Amendment applies to marriage. Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” But, clearly and obviously state governments, local governments and federal government do just that in thousands of laws and regulations.
You see, in the opinion of 5 justices some of whom are gay, gay people are special and in need of dignity. The Supreme Court claims that denying marriage licenses to gays is depriving them of life, liberty, or property. Dignity fits in there somewhere. But licensing for anything deprives one group of something and grants it to another based on certain standards set by the society. Fourteen years old is too young to drive. Eighteen years old is too young to drink alcohol. You have to pass this test before you can be licensed to practice law, or medicine, or engineer buildings or many other things. Society sets its standards by passing laws in the legislative process wherein the people weigh in through their representatives or through referendum, not through appointed judges.
Judges do not make law in America. We must keep it that way. Under the spurious logic of 5 justices, who could – based on their logic in Obergefell – stretch the 14th Amendment to overturn all local and state licenses, licenses which are by definition exclusionary. The opinion of the Supreme Court is cut from cloth that is wholly subjective. Essentially, these 5 justices have declared that duly passed and enacted state laws and the duly passed and but poorly enacted federal law known as DOMA are invalid. But the Supreme Court has no authority to make or amend laws or to enforce their opinion.
Judge Bunning might have had legitimacy in his ruling if he had ruled against the state of Kentucky instead of Mrs. Bunning. Obergefell requires THE STATES to issue licenses to same sex couples, but leaves intact the rights of individuals to act on their conscience. We will have to wait and see what, if anything, the states do.
Contempt of court (which was Judge Bunning’s charge against Kentucky clerk Kim Martin) is the appropriate act of disobedience against such judicial tyranny, unless you want to continue living under the tyranny of the subjective opinion of an elite minority. Be prepared.
What are you going to do when a government official or judge orders you to do something which is illegal or against your conscience? Will you obey orders like Hitler’s millions? Or will you disobey like Gandhi, Martin Luther King, and Mrs Kim Martin?
http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf