Monday, September 7, 2015

Duty to Resist

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.

Rowan County, KY, Clerk Kim Davis goes to jail
photo made available by 
Carter County Detention CenterZUMA Press/Newscom, found here

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:

·         Senator Ted Cruz’s Statement on the Arrest of Kentucky Clerk Kim Davis
·         Matt Walsh’s blog post “Kim Davis Broke an Illegitimate, Evil Law, and God Bless Her for It”
·         “In Which I Paint With Some Bright Yellows,” by Douglas Wilson 
·         “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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