By Trevor Law
Kim Davis…by now I am sure you have heard all about her, and how (depending on who you ask) she bravely stood up to the supreme court and was thrown in jail for her beliefs, or how she is standing in the way of progress, and keeping honest Americans from forming families. Oh, American politics, no room for the most basic level of empathy…. Anyway, the entire thing has forced me to reexamine my own views, the supreme court decision, and why exactly she is in jail.
First let’s go back to the supreme court’s decision to legalize same sex marriage. Now, there is a lot that went into this but to sum it up to its most basic level, the Conservative argument came down to the tenth amendment, which states
“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.”
Really short right? What this means is that if it isn’t covered under federal law, its either a state issue, or an individual right. So there is little to no federal law governing marriage. So its a state matter, now while the federal government gives benefits to married people they really just let the states deal with licensing, divorce, etc.
But Trevor, these seems to be a really solid argument against same sex marriage, how did the supreme court legalize it? Well that’s because the liberal argument came down to the fourteenth amendment, which states (I put the entire amendment here in case you got curious, but really only section one and five is important for this discussion):
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
What those two sections mean in this context in that a state can’t deprive you of life, liberty, or property without due process. So if a state decides that all people named Fred can’t get a driver’s license then all Fred’s could sue the state in federal court and would win, since that would be taking away a right others in the state have. So if a state lets people get married, then EVERYONE as the right to get married. It is based on this reasoning that the supreme court legalized same-sex marriage. If you want the court’s complete ruling, click here, or for a summery of it click here.
Ok then, so it’s the law for a court clerk to give a gay couple a marriage license, and since Kim Davis is a Christian and feels like this is violation of her religious rights then she just stopped giving out marriage licenses all together. There! Problem solved! Nope, she was held in contempt of court for violating a judge’s orders to keep handing out marriage licenses. Since the state of Kentucky, where she resides, still has marriage licenses she can’t just decide to stop doing her job. To a lot of Conservative Christians this is viewed as persecution, but think about it like this: If a Catholic judge stopped allowing divorces because it was against his religious beliefs, he would be thrown out pretty quickly, or an Orthodox Jew who is a meat inspector, who started calling all ‘unclean’ meat unsafe for consumption. These are all things we would more or less universally say are a right under U.S. law, so why is she any different? Heck she isn’t legally required to say “my god bless this gay union” She is only required to recognize it as a marriage under Kentucky and U.S. law. It is why an Atheist fire inspector can’t just deny a building permit to a church, because it is against his personal beliefs. From a legal standpoint it is pretty cut and dry.
Here is what I find REALLY funny about the entire thing though, Conservatives essentially insured this would happen. You see back in the 2000’s Republicans started putting same-sex marriage bans on the ballots to try and get higher turnout. It didn’t really work but it did set up a cut and dry showdown. You see now Conservatives were locked into a system that couldn’t recognize ANY gay marriage or really any rights for gay couples. So when the country kept shifting on this issue Conservatives were locked onto a losing side. Had they sought a compromise and given gays the same rights as married couples but just not called it marriage it is very possible the 14 amendment couldn’t have been used to legalize it. It is a classic strategy of the Conservative movement and it insures the biggest possible win for liberal issues. So instead of having a system of civil unions and giving all Americans equal rights under the law, now Conservative Christians like Kim Davis have to sign marriage licenses for gay couples, or lose their job. It truly is amazing the shortsightedness of so many Conservatives on this issue, but its what I’ve come to expect.
View Comments (7)
I agree, but did you feel the same when the president refused to enforce DOMA when it was law? Or when Gavin Newsome married gay couples in violation of current law? Many other examples, but you get the point..........your hypocrisy is showing
Who said I agreed with those decisions?
Gavin Newsome stopped giving out marriage licenses when a Federal judge told him to. He is not stupid OR ignorant unlike Kim who even refused to allow her clerks who had no problem with gays to do it. She was imposing her religion on everyone including her own clerks! The judge had no option but to jail her which made me happy. People like her have had their way against everyone else for years and years. Finally a little justice is being given to others who don't have her beliefs!!!
First of all, the constitutionality for a lack of enforcement OR defense is a matter of conjecture and legal precedent. In fact, Jefferson, Lincoln, Roosevelt, Jackson, Bush I, Bush II, Carter, Kennedy, and Clinton have all at one point supported a position of non-enforcement on topics like separate but equal, commerce related issues, and civil rights. Second, to support a stance of non-defense is NOT the same as non-enforcement. Fact is, a President can, choose not to enforce a law if they believe that it is unconstitutional, believe that enforcement of the law would be unconstitutional, and they are reasonable certain that a court would agree with their legal perspective, i.e., win in court. The Obama administration chose not to defend the law, but for a time period still enforced it, it was no until later in that debate that he chose not to enforce certain provisions of the law, and in the end, his perspective won out. The article at present does not present with any symptoms of hypocrisy.
It is not necessary to arrest someone to enforce DOMA or for marrying a couple against it. Since those contracts aren't acknowledged by the law, they become nothing more than a protest ceremony and is not recognized as valid in any legal sense. Nothing is lost, gained or changed in any other way. However, when the courts legalized same sex marriage, those that issue licenses are the gateway to that act and are blocking implementation of the law, a legal right is denied and damage has been realized by denying a legally acquired civil right. The comparison is not valid.
Here's an apples to apples comparison. This woman refused to perform marriages for 3 years
http://www.nbcdfw.com/news/local/Gay-Dallas-Judge-Wont-Perform-Marriages-140154903.html
Your article is not an "apple to apple comparison," unless you mean to suggest that your apple is rotten, or a the very least a different kind of apple.
Here's why: 1) The Dallas Judge, Parker, refused ALL marriage licenses - not licenses to a specific group, i.e., straight people - and send these couples to a different judge that WOULD perform the marriage. 2) Parker, being a judge, is not required to perform weddings, as it is a discretionary function of her job. 3) Davis, by contrast, is required to issue marriage licenses, not simply because she was elected to do so, and doing so is a primary function of her job - but because she was ordered by a court to do so. 4) Davis, by contrast, not only refused to do her job, she told her staff not to do their job either, actively obstructed the issuance of licenses, and told her staff not to follow a court order. 5) Parker ended her protest the day gay marriage was ruled as constitutional, and now weds straight AND gay couples. 6) Davis, by contrast, stopped doing her job the day gay marriage was ruled constitutional.
So please explain to me how it is that a judge, who does her primary duties and does not, in the eyes of the court, break the law - is comparable to a woman who refused to do her job in the eyes of a legal change? The fact that you land on the opposite side of a political question than Judge Parker, and your inability to make valid logical arguments does not make your article, or your stance, correct, or even true.