I’ve been thinking about what to write on this issue,
because there may not be a single right path, and I’m in disagreement with a
lot of good rule-of-law people. I’m watching with interest what the county
clerk in Kentucky does. And I’m glad she’s taking a stand.
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| Rowan County, KY, Clerk Kim Davis goes to jail
photo made available by
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Both sides can be right. I’m looking historically at Helmuth
Hübener
and friends, in WWII. I wrote about their moral dilemma in December 2013.
It was not policy for Mormons to be encouraged to rebel against
their government, even under tyranny. But still they were taught the value of
freedom and God-given rights. So it was a dilemma.
German Mormons were not condemned for fighting in the war,
even if they believed their country was in the wrong; they were obliged to do
as directed, and the blame would be on the hands of the nation’s leaders.
However, if they could find ways to do good to their fellow man, or to find
nonviolent ways to seek freedom, they were not forbidden by the Church. In
other words, they were taught the principles and allowed to make their best
decisions—just the same as today.
Hübener and friends didn’t have to do what they did. They
could have been justified in just going along with the coercive government. But
they chose to resist the evil. I admire them for that. I wrote,
The boys were right to act as they did, because the tyranny
surrounding them was wrong. Nevertheless, they did commit treason in the eyes
of the law, such as it was, and they acted with the full knowledge that they
would face punishment if caught. It would not have been sinful to them to have
followed their leaders’ advice, keep their heads down, and make no waves. It
would not be a dilemma if there weren’t two competing positions. But since they
were old enough to know their own conscience, and know what God was personally
leading them to do, it was right for them to act.
Kim Davis, the Rowan County Clerk, in Kentucky, has refused
to issue marriage licenses following the Supreme Court ruling in Obergefell v.
Hodges. That was the same-sex “marriage” ruling, which resulted in the slim
majority of unelected US Supreme Court justices throwing out the millennia-old
definition of marriage and replacing it with something of their invention.
I am a supporter of the rule of law. That creates a dilemma
when the “law” is created unjustly and illegally, and additionally goes against
God’s law. In theory (actually, in the written Constitution, so in reality),
only the legislative branch can create law. The judicial branch has no such
power. So when SCOTUS invents a new definition of marriage and imposes it as
law in all 50 states, the very idea is ridiculous. Except that it is happening.
However, government receives power from the consent of the
governed. So if the people do not consent, the government lacks the power. I
was hoping, in the wake of the erroneous decision, that many states would
simply refuse to comply. As Douglas Wilson wrote,
If just ten governors treated Obergefell the same way Kim
Davis is treating it, that entire unrighteous and despotic imposition would
collapse and fall to the ground. And if they did so, they would not be sinning
against the United States. Rather, they would be preventing the United States
from sinning.
The end game here is not armed revolution. The end game is
simply a refusal to cooperate with their revolution.
Every state that has a constitutional amendment defining
marriage pitted state sovereignty against federal government overreach. The 10th
Amendment guarantees that state sovereignty is supreme on any issue not
enumerated as a federal power.
In Ryan Anderson’s book Truth
Overruled: The Future of Marriage and Religious Liberty, his first step in
the battle we’re now in is to point out, clearly and consistently, that the
ruling was a bad decision, with no relation to the actual Constitution. This was
the approach taken by pro-life activists following the badly decided Roe v.
Wade, which is showing progress in the direction of life more and more.
Quoting Ted Cruz this week: “In dissent, Chief Justice
Roberts rightly observed that the Court’s marriage opinion has nothing to do
with the Constitution. Justice Scalia observed that the Court’s opinion was so
contrary to law that state and local officials would choose to defy it.”
There were temporary, brief refusals in various states,
including Texas. But, with this singular exception of Kim Davis, everyone else
seems to have succumbed to judges at various levels saying, “You have to do
what I say.”
If we’re going to live in a country in which unlawful laws
can be imposed by non-lawmaking branches of government, and abide by those
laws, then what are we going to do to accommodate those who find those laws
unrighteous?
I don’t say that Kim Davis’s way is the right way, or the
only right way. If I understand the situation correctly, she has refused to
issue any marriage licenses in her
county since the SCOTUS ruling. The intent was to avoid the accusation that her
office was discriminating based sexual orientation. She has also ordered her
employees not to issue licenses. Her basis is that issuing the licenses
violates her Christian faith. The reason she wouldn’t allow employees to issue
licenses is that her name, as county clerk, is on each document, so that means
she is actually approving the license, validating it.
There ought to be an accommodation for her. North Carolina
pre-empted the problem. As Ryan Anderson describes it,
North Carolina provides a great example. The state
legislature earlier this year passed a law that protects magistrates who object
to performing solemnizing ceremonies for same-sex marriages and clerks who
object to issuing same-sex marriage licenses. It also makes clear that no one
can be denied a marriage license, but magistrates or clerks could recuse
themselves from the process behind the scenes should they have sincere
objections to same-sex marriage.
Again, it’s a win-win for everyone. No one loses anything.
Every state could act to offer such accommodations. As Illinois
law professor Robin F. Wilson says, citizens may have a claim to receive
certain “services from the state, but they do not necessarily have a claim to
receive the service from a particular public servant.”
I can come up with a simple solution for Rowan County.
Create a new document, without the clerk’s name on it, for any “marriage” to be
licensed that the clerk does not want to validate. I was able to create a
nice-looking diploma for my homeschooled children; I’m sure it wouldn’t be
beyond the abilities of someone in the office. Allow someone else in the office
to issue the license. Done. No more contempt of court. No more lines of marriage
applicants being turned away.
Wait. While she’s been in jail the past few days, her office
has issued licenses, and I understand they do not have her name on them (actually it's unclear whether the documents just lack her signature and approval, or whether her name was removed). Her
lawyer, Mat Staver, points out that they aren’t worth the paper they’re printed on, because they were issued under the county clerk's authority, which she had not granted.
He’s right that they don’t include the imprimatur of the
county clerk. But they’re not necessarily invalid for getting what the couples require. I think the issue could be
resolved by printing the line of authority on the document:
“By the power granted to a majority of the Supreme Court of
the United States to write laws defining marriage in the state of Kentucky, in
the County of Rowan, this document ….”
And, like I said, make it pretty, so everyone is satisfied.
Those who believe the Supreme Court has lawmaking power have a document that
says so. And those who believe it does not, they have a document that says the
document is only valid if the Supreme Court has such powers, which it does not. And the clerk does
not have to spend time in jail for not having the court-prescribed opinion.
Kim Davis is an elected official. If she doesn’t give in,
the legislature will have to remove her, going against the voters who elected
her as well as the voters who defined marriage in the state. Or they can do the
simple accommodation.
I wavered in my thinking through this issue when I read that
Justice Scalia said she should do her job. “Justice Scalia explained why Kim
Davis should issue marriage licenses to same-sex couples or find a new job” was
the headline. But it turned out, that was just an
opinion piece quoting Scalia’s 2002 book, in which he said judges who have a
belief that there should be no death penalty, when it is the law of the land,
should not be judges; they should not undermine the law by ruling according to
their opinion. I see that as very different from someone who has an elected position, and
then after the fact, through dubious judicial lawmaking, definitions are
changed, thus changing the official's duties.
Are we prepared to say that everyone who still believes in
the necessity for marriage to include a man and a woman should be prevented
from serving in positions in which they are otherwise fully qualified?
At least Kim Davis is making us ask the question.
There are plenty of sources saying Kim Davis is in the wrong—all
the mainstream (liberal) sources, and probably a majority of more conservative
opinions. (I’m hoping son Political Sphere will follow up with his opinion,
which thinks Davis’s lawyers could have come up with a better defense, and
better advice for her. His opinion on the Obergefell ruling is one I haven’t
seen anywhere else, and I find it compelling, but he’ll explain it better than
I can.)
Nevertheless, some of us stand where I do. I’ve benefitted
from reading several views on this subject, which I recommend:
·
“Kentucky Clerk Not Issuing Gay Marriage
Licenses Causes Uproar. North Carolina Shows Better Way.” by Ryan T. Anderson
·
Mark Levin show, linked at “Mark Levin DefendsKentucky Clerk: Supreme Court Is Nullifying the Rule of Law, Not Kim Davis”
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