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.

The New Religious Right to Discriminate

There is an old axiom that history repeats itself. Some may dispute this claim, but it is hard to argue with what a person can witness happening right in front of them. One just has to pay attention and know history to know what the outcome of certain things will be.

After the Reconstruction period ended following the Civil War, southern states (the old Confederacy) began enacting Jim Crow laws. These laws mandated that all public facilities be segregated. They were also used in an attempt to keep African-Americans from voting and even to keep interracial marriage illegal.

School segregation was eventually struck down by the Supreme Court in Brown v. Board of Education (1954). The rest of the Jim Crow laws were overruled by the Civil Rights Act of 1964 and the Voting Rights Act of 1965. However, bans on interracial marriage were not fully struck down until Loving v. Virginia (1967), when the Supreme Court ruled that they violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The same arguments that were used against interracial marriage are now being used against same-sex marriage, i.e. it’s against someone’s religious beliefs, it’s a sin in the Bible, etc.

Now, I’m not here to attack anyone’s religious beliefs as even I have my own. But we must remember that we are a secular country and that the U.S. Constitution is the law of our nation and not the Bible. No local, state, or federal law can violate the document, the individual rights that are enshrined within it, or its subsequent amendments.

This includes the Fourteenth Amendment.

Our Founding Fathers were mostly Christians, but we are not a Christian nation. That particular point was emphasized in the Treaty of Tripoli (1796), which states that the U.S. “is not, in any sense, founded on the Christian religion.”

Our Founding Fathers were mostly Christians, but we are not a Christian nation. We were set up to be a secular nation. We have the right to peacefully worship and practice whatever religion we choose to without government interference, but that right does not extend beyond one’s self. We do not have the right to force others to believe the same way we do.

Britain still has an official religion (the Church of England) and France was under the Catholic Church at the time of our independence. Both religion and government intermingled in these and many other European countries. Our Founding Fathers designed our government to discourage this relationship.

Today, we see the ongoing fight between religion and our secular government on the issue of same-sex marriage. In the past two years, bans on same-sex marriage have been struck down from coast to coast in federal court on the same grounds as the Loving decision.

Now, the Supreme Court has taken up the case once again and this time could make an official ruling for the entire country.


However, though same-sex marriage could soon be legal nationwide, some are finding new ways to treat the LGBT community like second-class citizens.

Instead of being called something like Jim Crow laws, these laws are referred to as “religious freedom laws.” In much the same way that the old Jim Crow laws allowed businesses to legally refuse service to African-Americans, these new laws allow any business or institution the right to refuse service to anyone based on the operator’s religious beliefs.

The purpose of these laws is to “protect” people who work in the service industry from having to provide their services for same-sex weddings if it goes against their religious beliefs.

In February 2014, Republican Governor Jan Brewer of Arizona vetoed SB 1062, which critics argued would have legalized discrimination against the LGBT community. Brewer was pressured to reject the law by several business leaders who believed it would hurt the state’s economy.

More states are now taking up this exact same issue and some are poised to put these policies into law. Indiana Governor Mike Pence, for example, signed the “Religious Freedom Restoration Act” on Thursday after it cleared both chambers of the state Legislature.

Some of these laws are written so vaguely that they could extend well beyond just same-sex marriage. The “religious freedom laws” will eventually end up in the courts and will be subsequently overturned via the Fourteenth Amendment.

If someone is a Christian, can he or she refuse service to someone in the Jewish community based solely on a difference of religion? No.

The Bible states that women are inferior to men and that women should obey men. So do Christians have the right to refuse service to a woman if she is not accompanied by a man or has a different opinion than a man? No.

Why? Because in a secular society, though a person may have the right to practice his or her religion freely, they do not have the right to force those beliefs on others. Everyone is supposed to be treated equally under the law.

Again, people have the right to their religious views. No one can force an individual to accept same-sex marriage if it goes against their religious views.

However, that right still does not extend to discriminatory actions against the LGBT community. If a person runs a business that provides a service to weddings and doesn’t want to provide that service to a same-sex wedding, there are a couple of options:

  1. They can find a new job that will take them out of that situation; or
  2. They can grow up and act like a rational adult and do the job they are paid to do.

There are times when we blur the line between religious freedom and secular government. It is imperative that we remember why this line was put in place by our Founding Fathers, and why we’ve amended the Constitution to specify that all citizens are free and equal under the law.

Using religion to discriminate is still discrimination and is still wrong. And as history has proven before, it is also unconstitutional.

The Progress of Gay Rights in 2013

Last week, both Illinois and Hawai’i passed same-sex marriage making them the 15th and 16th states to do so.  Overall, 2013 has been quite a year for the LGBT community.  These last two states just seem to put the icing on the proverbial cake.  It all comes on the heals of the 2012 election where voters in three states (Maine, Maryland, and Washington) approved same-sex marriage and in the state of Minnesota, rejected a ban on it.

So what has transpired during the year?  Rhode Island, Delaware, Minnesota, and New Jersey all passed same-sex marriage.  The first three were passed by the state legislatures while New Jersey was done through the New Jersey Superior Court (Garden State Equality v. Dow).  With 14-states and DC (this excludes Illinois and Hawai’i), the total population living in the various states that have same-sex marriage is roughly 104-million (33% of the population).  This number will increase with two newest states being added into the mix.

In Colorado, civil unions were legalized in May.  And starting in late August, several counties in New Mexico began issuing same-sex marriage licenses.  Currently, New Mexico has no statutes against gay marriage or in favor of them.  There is a case in the courts currently seeking clarification as to whether banning/denying same-sex marriage in the state would violate the state’s constitution.  The counties in New Mexico that began issuing the licenses did so after various court rulings.


Then there is the state of California.  In 2008, the legislature passed same-sex marriage.  That was quickly overturned by the voters with Proposition 8 that same year.  Thus started a lengthy court battle.  Lower courts ruled that Prop 8 was unconstitutional.  The Supreme Court (Perry v. Schwarzenegger) ruled that the proponents didn’t have ground to bring the suit and threw out the case leaving the ruling by the lower courts.  California resumed same-sex marriages as a result.

It wasn’t just on the state level where advancement was made.  There were federal developments, as well, as another case made its way to the Supreme Court.  In June, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional in United States v. Windsor.  It made it to where the federal government would recognize same-sex marriages there are performed in states where it is legal.  The federal government then stepped up even more stating that even if a couple lived in a state that did not recognize same-sex marriage, those marriages would be recognized on the federal level so long as they were performed in a state where they are legal.  Other parts of DOMA are now being argued in the courts, as well, especially where states do not have to recognize same-sex marriages performed in other states where it is legal.

Internationally, most of the focus has been on Russia which passed draconian measures against the LGBT community making it a crime to display it anywhere, to discuss it, and basically allowing groups of thugs to beat and even kill LGBT people.  This comes as Sochi, Russia is preparing to host the 2014 Winter Olympics.  The Nigerian parliament also passed a law banning same-sex marriage.  But despite these set-backs, the year saw progress.  France, England and Wales, Uruguay, and New Zealand all approved same-sex marriage.  This bring the total number of nations that recognize same-sex marriage to 16.  Two nations we should be watching in 2014 are Mexico and Ireland.  Various parts of Mexico have been approving same-sex marriage.  Will it continue piece by piece (as is being done in the US) or will it go national?  And in Ireland, the people will be voting on a referendum on whether to approve of same-sex marriage or not.

Washington Post - ABC Poll

Washington Post – ABC Poll

So what should we expect in the coming year here in the US?  According to a Quinnipiac poll in September 56% of adults (57% of registered voters) approve of same-sex marriage while 36% disapprove.  Support for gay marriage has remained roughly constant through the year while those opposed have dropped slightly.  Even with these numbers, the push for equality might seem to slow down a bit especially after the speed of progress during the last two years.  Why is this?  So far, the movement has been getting same-sex marriage approved in various states that had no constitutional bans (the exception being Maine which overturned theirs in 2012).  So either courts are going to have to throw out the state bans and rule them unconstitutional or the voters are going to have to overturn them in an election.  As stated earlier, New Mexico has neither a ban in place or any laws supporting same-sex marriage.  Other states to be watching are going to include Oregon, Nevada, Colorado, Wisconsin, Michigan, Pennsylvania and even Virginia, and Arizona.  In each of those states, recent polls show a majority of that state’s population support same-sex marriage.  Most of these states have constitutional bans on same-sex marriage which will have to be overturned in either way mentioned above.  Only Pennsylvania does not have such a ban.  It only has a state statute which can be dealt with by the legislature.  In Oregon, there is already a movement underway to overturn its constitutional ban.  It will be interesting to see if they push for it in the 2014 midterms or wait for the 2016 presidential election.

According to Pew Research, 72% of those asked (proponents and opponents) say that same-sex marriage is inevitable.  This is up from 59% in 2004.  Even the southern state of South Carolina is starting to show some movement on this issue.  In a Winthrop University Poll, 52% state that they do not approve of same-sex marriage.  This may not seem very surprising, but the state did approve of a constitutional ban in 2006 with 78% of the vote.  Mitt Romney won the state in 2012 with 55% of the vote.  It has a Republican governor, two Republican Senators, a Republican-controlled legislature, and 6 out of 7 of its US Representatives are Republican, as well.  The state is solidly red, but yet attitudes are changing to a slight degree.  The possible cause of this is that, according to a Washington Post-ABC News poll, a majority of Republicans aged 18-49 do approve of same-sex marriage.  Even US Senators Mark Kirk (R-IL), Rob Portman (R-OH), and Lisa Murkowski (R-AK) have stated they support same-sex marriage, and several more Republican Senators just voted in favor of the Employment Non-Discrimination Act (ENDA).

The progress of gay rights in 2013 has been remarkable.  There is still plenty of work to be done though.  The next couple of years (2014-2016) should still see great progress being made.

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

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