The Curious Case of Kim Davis

At the end of June, the Supreme Court ruled in Obergefell v. Hodges that state bans on same-sex marriage violated the 14th Amendment and were thus unconstitutional. This led to same-sex marriage being legal throughout the country.

The majority of places began to make the necessary changes within the coming weeks. There was no more uncertainty where the law stood. But in Rowan County, the elected clerk Kim Davis decided to take a stand and defy the Court’s ruling. Not only has she refused to issue marriage licenses to same-sex couples, she has refused to issue any marriage license.

Davis filed a lawsuit in federal court after Kentucky Governor Steven Beshear told clerks throughout the state that they had to comply with the ruling and issue marriage licenses to same-sex couples. The court ruled that she had to comply with the law. So she filed an appeal to the Supreme Court which also ruled this week that she had to comply with the law to which she is still refusing to do today.

Fairness Campaign Director Chris Hartman at a protest outside the Rowen County Clerk's Office. (c) Chris Hartman

Fairness Campaign Director Chris Hartman at a protest outside the Rowan County Clerk’s Office.
(c) Chris Hartman

This ordeal has opened up the old debate of religious liberty protected under the First Amendment and equal rights for all citizens. Kim Davis has been quoted saying that she was not issuing marriage licenses “under God’s authority.” As an Apostolic Christian, she says that she cannot issue marriage licenses as it goes against her religious beliefs.

Another Kentucky clerk that is standing alongside Kim Davis is Casey Davis who has stated that they haven’t tried to prevent same-sex marriage just exercise their First Amendment rights and that same-sex couples could go to a neighboring county to get their marriage licenses.

From that it would seem, we’d be going from the patchwork of states that either legalized same-sex marriages or banned them to the counties. This would seem to be even more confusing if it came to this. Sadly, what Kim Davis is failing to recognize is that the law is the law. It has been ruled upon and even affirmed now.

Kim Davis has the right to believe what she wishes. However, she is a public servant and should do her job. The key words in that sentence are “public servant.” If she is unable to perform the tasks of her job then she either needs to be fired or resign on her own. She does not have the right to decide which laws she will follow and which she will not.

I’m sure we could all get into a huge discussion about what is actually written in the Bible about same-sex marriage, women’s rights, shellfish, slavery, and many other things but that is not the point of this. Yes, we all have the right to freely believe and practice whatever religion we wish to so long as it does not affect anyone else.

When James Madison originally proposed what would eventually become our First Amendment this is what he had written regarding our Freedom of Religion:

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.”

The civil rights of NONE shall be abridged on account of religious belief or worship. Same-sex marriage is a civil right. It has been ruled upon and affirmed. The Supreme Court even ruled back as far as Loving v. Virginia (1967) that marriage was a civil right and therefore was protected under the Constitution.

Let’s put this into a difference scenario. How would Ms. Davis feel if someone told her that because she is a woman that she cannot voice her own opinion and was subservient to her husband? The Bible does state this in Ephesians 5:21-30, “Wives, be subject to your husbands as you are to the Lord. For the husband is the head of the wife just as Christ is the head of the church, the body of which he is the Savior. Just as the church is subject to Christ, so also wives ought to be, in everything, to their husbands.”

I’m sure Ms. Davis would be quite vocal in her objection if someone were to enforce that upon her. Just like with the law, she doesn’t get to pick which parts of her religion she is going to practice and which she will not.

Despite what her religious beliefs or objections may be, the US Constitution is still the supreme law of this country (Article 6, Clause 2) and not the Bible. One may use the Bible for their own personal well-being and for their spirituality but it ends there. If Ms. Davis cannot separate these two things then she has no business being a public servant and should probably find a job at her church.

Executive Responsibility to Enforce Laws

In the past week, the Oregon Attorney General has stated that her office will no longer defend the state’s constitutional ban on gay marriage.  (Bloomberg)  This has come at a time when the voters of that state look to be voting on the issue to revoke the ban.  In recent months and even in the past year, we have seen several governors and attorneys general refuse to defend certain discriminatory laws.  Even President Obama (along with Attorney General Eric Holder) refused to defend the Defense of Marriage Act before the Supreme Court last year.

Coming from the side where such decisions are of great benefit, it is usually something to cheer.  However, I must also look at things in terms of the role of government.  Here we have executives (both state and federal) determining unilaterally which laws they will enforce and which they will not.

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article I, Section 1 – US Constitution

Each branch of government (whether state or federal) has predetermined responsibilities.  The Legislative Branch passes laws while the Executive Branch enforces those laws.  (see also By Order of the Executive)  No where in the responsibilities of the Executive Branch does it state that the chief executive (e.g. Governor, President) has the right to determine which laws to enforce and which ones not to.  The role of the executive is to enforce all of the laws that are passed.

“[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
Article II, Section 3, Clause 5 – US Constitution

According to Humphrey’s Executor v. United States (1935), the Supreme Court ruled that the President (as the Executive) must obey the law and cannot dispense with the law’s execution even if he/she disagrees with it.  Even during the Whiskey Rebellion (1791-1794), President Washington stated, “[I]t is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to that duty.”

So though we may cheer about progress when an Executive, whether it’s a Governor, Attorney General, or even a President, decides not to enforce a discriminatory law against same-sex marriage, we must also be wary.  We are giving our approval for one person to decide if a law is enforced or not.  This can set a dangerous precedent.

If a law is detrimental to the citizens then it should be either ruled unconstitutional in the courts (if it violates part of the Constitution) or repealed/amended through the legislative process.  Our government has been set up so that one person does have full authority.  And any Executive that fails to enforce the laws that have been passed by the legislature  has failed to uphold their responsibilities of the office.


Just because we might tend to think that the Executive is doing the right thing now in not enforcing or defending such discriminatory laws, what will we say when another Executive decides to not enforce or defend another law that could be detrimental to the public?  We don’t get to pick and choose which laws to obey once they have been passed.

If a law has been passed that is harmful to the people then we have legal ways of reversing it.  We have the freedom of speech and assembly that is guaranteed by the Fist Amendment to the Constitution.  We can elect new legislators and an Executive so that they can repeal the law.  We can send a lawsuit through the court system to have them rule as to whether that particular law violates the Constitution.  Regardless, allowing an Executive to have the sole authoritarian role of determining whether a law is enforced/defended is not a legal option and is dangerous to overall society.

In Defense Of…

DOMA: The Confusing Legal Precedent Of State v. Federal

Yesterday the Supreme Court of the United States (SCOTUS) heard the case involving California’s Proposition 8, but today the court heard the case involving the Defense of Marriage Act (DOMA).  It’s the second of the two cases involving gay marriage.  So what is DOMA?  The Defense of Marriage Act was signed in 1996 by President Bill Clinton, and it defined marriage as between a man and a woman for federal and interstate purposes.  Section 2 of DOMA states that no state or territory has to recognize a same-sex marriage that is performed legally in another state.  Section 3 states that for federal purposes, a marriage is between a man and a woman only.  When the law was passed in 1996, no state had legalized same-sex marriage.  Today, there are 9 states and the District of Columbia that have legalized same-sex marriage, but the federal government has refused to recognize them.  There are several ways the court could rule with this case.  One is to strike down the entire law as unconstitutional, another would be to just strike out Section 3, and, of course, it could say that the law is legal via the Full Faith and Credit Clause of the US Constitution which is how the law was argued in Congress in the first place.

supreme-courtIn an op-ed piece in the Washington Post on March 20, conservative columnist George Will stated that marriage is performed at the state level and not at the federal level, and that until DOMA, the federal government had always just gone along with the states on the issue of marriage.  He’s half right and half wrong.  Yes, marriages are done at the state level.  This would be why at weddings the power is invested by God and the state, not the federal government.  Where Mr. Will gets it wrong is that the federal government hasn’t ventured into the marriage issue until DOMA.  In 1862, Congress passed the Morrill Anti-Bigamy Act which stated that having more than one spouse (bigamy) was illegal.  It was passed as a way to target the Mormon practice of plural marriage, which was then in the Utah territory.  The law was challenged in 1878 in the case Reynolds v. United States.  The Supreme Court ruled that religious duty was not a defense to a criminal indictment.  Reynolds was a Mormon and had multiple wives.  He had claimed that as a Mormon male, it was his religious duty to have multiple spouses.  The Morrill Anti-Bigamy Act would be amended in 1882 by the Edmunds Act and again in 1887 by the Edmunds-Tucker Act.  The latter would be fully repealed in 1978.

There is also the case of Loving v. Virginia (1967).  This is different as it didn’t challenge a federal rather law, but rather state laws that banned interracial marriage.  In its decision, the Supreme Court ruled that Virginia’s anti-miscegenation laws (and thus any of other state that had such laws) were in violation of the Due Process Clause and the Equal Protections Clause of the 14th Amendment.  In writing the decision for the unanimous court decision, Chief Justice Earl Warren stated, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 9th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
10th Amendment

Other than the 14th Amendment, the 9th and 10th also could come into play with the court’s decision.  In setting precedent in 1965 on the 9th Amendment, the court ruled that “personal rights should not be denied simply because they are not listed” in the Constitution.  This would almost seemingly fall right into what Chief Justice Warren said with the Loving case in 1967 in that marriage is a right; therefore, it cannot be denied by government.  However, to fly contrary to this argument would be the 10th Amendment that powers not delegated to the United States by the Constitution are given to the states.  In going back to George Will’s argument from earlier, marriage is a state issue.  States still cannot violate the Constitution, but it still doesn’t determine where the line for DOMA falls at.  In Sherrer v. Sherrer (1948), the Supreme Court stated that, “[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.”  This would make the argument for the 10th Amendment; however, it flies in the opposite direction of the Loving case from 1967 which makes the case for the 9th and 14th amendments.

gay-marriage-debate-thumb-320x240-9845It’s interesting that the Supreme Court took up this case at the same time it’s deciding California’s Proposition 8.  The decision in the DOMA case could very well be intertwined in how the court rules in the Prop 8 case.  Does the court rule that all of DOMA is unconstitutional, which would go along the same lines that determined the Loving case or does it rule that that only Section 3 is unconstitutional in that the federal government must recognize same-sex marriages that are performed legally in states where it is legal?  If the court rules that the Prop 8 decision only applies to the state of California and none of the others that have banned same-sex marriage, then it would seem the more logical decision in the DOMA case would be to rule that Section 3 is unconstitutional only.  If the court rules that the Prop 8 decision applies to California and all the other states that have banned same-sex marriage, then the it would seem more plausible that all of DOMA would be ruled unconstitutional as well.  The big difference between the Loving case and the DOMA case is that the Loving case involved state law, and the DOMA case involves federal law.  It would seem that in order to challenge the states that have passed same-sex marriage bans (other than California) would require an entirely different lawsuit.  Remember, California stripped away the right of same-sex marriage after it had already been granted; whereas, other states banned same-sex marriage before such action could be taken.

Earlier this month in Sacramento, Justice Anthony Kennedy stated that, “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”  That might lead to a conclusion on the bigger issue as it basically means to leave it to the states to make up their own minds.  However, that still doesn’t address the issue in regard to the federal government’s role with DOMA.  And here’s one last twist to make the end result even more confusing.  If the court strikes down only Section 3 thus making the federal government recognize same-sex marriages that are performed in states where it is legal (though still allowing the individual states to decide on their own), how will it work for those individuals that get married in a state where it is legal but live in a state where it is not?  And could this question… this confusion… actually influence the court’s decision?  The days are numbered for Section 3, but the bigger question is whether the rest of DOMA will follow.  Where will history write the final chapter on this particular law?

DOMA: Oral Arguments – Audio
DOMA: Transcript

The Rights of the People
By Popular Vote
Unconstitutional Proposition

The Rights of the People

Prop 8: Majority Rule Of Minority Rights

Today the Supreme Court of the United States (SCOTUS) is hearing the case regarding the constitutionality of California’s Proposition 8 (Prop 8) which made same-sex marriages in the state illegal.  Two lower courts have overturned the proposition, so the question of whether the Supreme Court could intervene was brought into question since the lower court’s ruling was not overturned by the Appeals Court.  Also called into question was whether the federal courts could decide an issue that was based solely in the states which would be based on 10th Amendment to the US Constitution.  (SCOTUS blog)  However, SCOTUS is hearing the case and will be making its ruling later this year.  It could indeed overturn the lower courts on the grounds of the 10th amendment, but it’s not likely since there has been a precedent set by such cases as Lawrence v. TexasRomer v. EvansLoving v. Virginia, and even Brown v. Board of Education.

Though the Appeals Court did not overturn the lower court’s ruling, there was a difference between the two.  The lower court ruled that a majority vote cannot strip away the rights of a minority.  Basically, this would make all constitutional bans on same-sex marriage null and void if upheld and not just California’s Prop 8.  The Appeals Court would rule that it just applied to California and to no other state because same-sex marriages were legal before Prop 8 was passed thus stripping away the rights once they had been granted; whereas, other states simply banned same-sex marriage before it became legal.  So there are two ways for the Supreme Court to rule if it upholds the lower courts.

gay-marriage-debate-thumb-320x240-9845We’ll start with the lower court’s ruling that a majority vote cannot strip away the rights of a minority thus making all the state constitutional bans unconstitutional.  Thomas Jefferson would have disagreed with this notion.  He felt that since we had such a diverse population that the will of the majority should always be upheld since it would be void of outside influence and would point the nation in the best possible direction.  However, we have the luxury of a bit more history to look back on than Mr. Jefferson did.  We can see that the will of the majority is not always correct.  Case in point the Territory of Wyoming.  When the territory was set up in 1868, it included the right for women to vote.  This was long before the passage of the 19th Amendment (1920).  When Wyoming applied for statehood, the federal government said it would have to get rid of its suffrage in order to be admitted since the rest of the US didn’t allow women to vote, and it was still the majority opinion that they shouldn’t.  The territorial government refused to budge and said it would wait for the rest of the country to catch up.  Wyoming would be admitted in 1890 as the 44th state without giving up the right for women to vote in the state.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  9th Amendment

supreme-courtIn Afroyim v. Rusk (1967), the Supreme Court ruled that Congress could not strip away a person’s citizenship which is guaranteed under the Citizenship Clause of the 14th Amendment.  With this ruling though, the court was stating that once you have a right, it cannot be stripped away.  In Brown v. Board of Education (1954), the Supreme Court ruled that states could not establish separate schools for black and white students (state-sponsored segregation).  As a result, racial segregation in all matters was ruled to be in violation of the Equal Protection Clause of the 14th Amendment.  It did not matter if a state had passed segregation laws or not.  The case Griswold v. Connecticut (1965) set the legal precedent for the 9th Amendment to the US Constitution.  Though the case pertained to a person’s right to privacy, the ruling had something more to it.  In writing his concurring opinion, Justice Arthur Goldberg stated, “Other fundamental personal rights should not be denied protection simply because they are not specifically listed [in the US Constitution].”

The Supreme Court has already ruled that government cannot ban interracial marriage (Loving v. Virginia, 1967), so what would be the difference between that ruling and the ruling to come regarding Proposition 8?  Opponents to interracial marriage were making the same arguments then that opponents to same-sex marriage are making now.  It’s not so much whether Prop 8 is going down or not.  The real question is going to be how and the full effect of that ruling.  Will it be more in line with Afroyim and thus would technically only apply to the state of California (since they are the only state to strip away the right to same-sex marriage after it was granted), or will it be more toward the Brown and Griswold rulings which would negate all same-sex marriage bans?  Though it has been completely overlooked, will the precedent set by the 9th Amendment come into play as much as the Equal Protection Clause of the 14th Amendment?  These questions will be answered in a few months when the court’s decision is announced, but it will be felt for ages to come.

Prop 8: Oral Arguments – Audio
Prop 8: Transcript

By Popular Vote
Unconstitutional Proposition

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