NobodysHome |
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So, I don' t want to delve into the rightness/wrongness of the whole, "Catholic Kentucky clerk refuses to grant marriage licenses to gay couples" thing, because we'd get threadlocked in an instant.
Instead I'd like to know what the heck's going on, because it is a complete mystery to me.
I work for a major software company. A customer comes to me and says, "NH, please do this for me."
Even though it's in my list of job duties, I say, "I'm sorry. I cannot do that for you. It violates my religion."
In "normalville", the customer then goes to my boss, who says, "NH, that's your job. You need to do it."
If I still refuse, my boss assigns me to a job that I *can* do within my religious restrictions. If all of that fails, my boss starts the process of firing me, because I refuse to do any of the tasks I have been hired to perform. If a lawsuit is involved, it is initiated by me, because I feel I have been discriminated against based on my religion, and we hash out in court whether I knew what my job duties were before I started.
QUESTION 1: Who is her boss, and why is he/she not involved?
I know she's an elected official, but there must be SOMEONE who makes sure elected officials perform their duties and removes them if they don't. Isn't there?
QUESTION 2: Why did the complainants sue her personally?
Same thing. I don't understand why SHE is in court. She's just refusing to do her job based on her religion. This should be between her and her employer. As an elected official, do all job complaints really go through the courts?
QUESTION 3: Why is she still working?
She openly said, "I won't do this."
To no one's surprise, she didn't. At that point she should have been removed from her position (on paid administrative leave) while the whole issue was sorted out, and a replacement willing to do her duties put in.
The whole thing is turning into a circus when it seems really very simple: She swore to uphold the laws of the state at a time when those laws coincided with her religious convictions. The laws changed. She refused to change. It seems a lot cheaper and more reasonable to just put her on a pension and hire someone else. What's that? $2 million? $3 million? As compared to HOW much in court costs and bad publicity so far?
I'm just very, very confused at the whole course of events. Isn't anyone in charge there, or is she just totally left to her own whims and devices?
NobodysHome |
And just to reiterate, I realize that many will feel that paying someone off for being a bigot is morally repugnant, but I don't want to get into that debate.
I'm far more interested in the process, which seems totally nonsensical to me. The whole thing seems broken as it's turned into "the courts and the people vs. one woman" when there must be SOMEONE in government she answers to...
FractalLaw |
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Question 1: Her boss, effectively, is the electorate. If an elected official does not perform their job then they can be voted out in the next election.
Question 2: She's the head of her office, and the reason that her office isn't issuing marriage licenses. Again, she doesn't really have an 'employer' other than the citizens of her county. Complaints against elected officials are normally handled in one of three ways: elections, courts, and (rarely) impeachment.
Question 3: The Kentucky state legislature is the only body that could remove her from office before an election. This is unlikely for a few reasons: the majority of the Kentucky legislature likely agrees with her, and even if they didn't they are not in session right now.
Yes, she is pretty much "totally left to her own whims and devices." She's still answerable to the courts, however, and I expect some significant fines tomorrow morning. There's also the potential for jail time, which will largely depend on how willing the judge is to make a martyr out of her.
Orfamay Quest |
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QUESTION 1: Who is her boss, and why is he/she not involved?
I know she's an elected official, but there must be SOMEONE who makes sure elected officials perform their duties and removes them if they don't. Isn't there?
She has no boss. Who is President Obama's boss? Who is Justice Scalia's boss? Who is Senator Cruz' boss?
The only entity with the authority to remove Kim Davis from office is the Government of Kentucky, through impeachment. Which is a long and politically laden process.
QUESTION 2: Why did the complainants sue her personally?
Same thing. I don't understand why SHE is in court.
If you want a government official to do something (or refrain from doing something), you sue that official "in her official capacity." Standard procedure.
Similarly, if I disagree with the City of Springfield about the assessed value of my house, this will eventually be resolved by a lawsuit that names me as the plaintiff and the appropriate official of the assessment board "in his official capacity." Less hypothetically, when the Gitmo prisoners sued the Army for their mistreatment, the named defendant was the Secretary of Defense, John Rumsfeld.
QUESTION 3: Why is she still working?
Because no one has the authority to remove her from office.
Orfamay Quest |
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She has received a number of court orders with the latest from the Supreme Court. She is ignoring them and a contempt hearing has been issued. In other words, an escalating series of officials have tried to intervene and she has told them all, "nope."
Having said that, I expect that she will back down in the next seven days. Tomorrow, I expect her to receive substantial fines (which she will have to pay personally, not out of state or county funds) for contempt. If the fines don't work (e.g., if some conservative billionaire pays them for her), I expect her to spend Monday night in jail.
NobodysHome |
She has received a number of court orders with the latest from the Supreme Court. She is ignoring them and a contempt hearing has been issued. In other words, an escalating series of officials have tried to intervene and she has told them all, "nope."
Right. I saw the "insto-contempt" this morning and was wondering why everything was going through the courts instead of her employer. Now I know.
Paizo is awesome!
Orfamay Quest |
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Question 3: The Kentucky state legislature is the only body that could remove her from office before an election. This is unlikely for a few reasons: the majority of the Kentucky legislature likely agrees with her, and even if they didn't they are not in session right now.
Minor emendation. I believe that under Kentucky law, the Chief Justice of the State Supreme Court also has the authority to remove her from office. The procedure for doing so is only slightly more laborious than it was to build the Panama Canal.
I'm Hiding In Your Closet |
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She has no boss. Who is President Obama's boss? Who is Justice Scalia's boss? Who is Senator Cruz' boss?
Incorrect. In all these cases, their boss is the American people, and we must STOP forgetting that. It's certainly a weird job where you have 350 million bosses, and it does make giving them orders a complicated process at the best of times, but there you go.
Oh, and the words "Scalia" and "Justice" have no business occupying the same sentence unless they are kept apart by the phrase "has been brought to."
LazarX |
She has received a number of court orders with the latest from the Supreme Court. She is ignoring them and a contempt hearing has been issued. In other words, an escalating series of officials have tried to intervene and she has told them all, "nope."
That's not exactly what happened... here is the rough terminiology.
Supreme Court issues ruling that LGBT couples can not be ordered to discriminate against marriage.
State issues orders that all clerks are to conform to the Supreme Court ruling.
Clerk cites religious freedom and her personal beliefs and tells state to go to hell.
State reiterates it's demand and clerk seeks the Supreme Court to intervene based on her First Amendment Freedom of To Be A Religous Bigot Rights.
Supreme Court declines to hear the case. This starts and ends their involvement in this case so far. The Supreme Court did not issue a ruling, it essentially declined to intervene.
Nohwear |
Nohwear wrote:She has received a number of court orders with the latest from the Supreme Court. She is ignoring them and a contempt hearing has been issued. In other words, an escalating series of officials have tried to intervene and she has told them all, "nope."That's not exactly what happened... here is the rough terminiology.
Supreme Court issues ruling that LGBT couples can not be ordered to discriminate against marriage.
State issues orders that all clerks are to conform to the Supreme Court ruling.
Clerk cites religious freedom and her personal beliefs and tells state to go to hell.
State reiterates it's demand and clerk seeks the Supreme Court to intervene based on her First Amendment Freedom of To Be A Religous Bigot Rights.
Supreme Court declines to hear the case. This starts and ends their involvement in this case so far. The Supreme Court did not issue a ruling, it essentially declined to intervene.
I stand corrected.
Orfamay Quest |
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Nohwear wrote:She has received a number of court orders with the latest from the Supreme Court. She is ignoring them and a contempt hearing has been issued. In other words, an escalating series of officials have tried to intervene and she has told them all, "nope."That's not exactly what happened... here is the rough terminiology.
Supreme Court issues ruling that LGBT couples can not be ordered to discriminate against marriage.
State issues orders that all clerks are to conform to the Supreme Court ruling.
Clerk cites religious freedom and her personal beliefs and tells state to go to hell.
You missed a few steps.
Person denied marriage license seeks order in Federal Court to get said license.
Federal judge grants such order.
State [and Fed -- OQ] reiterates it's demand and clerk seeks the Supreme Court [Appellate Court -- OQ] to intervene based First Amendment rights.
Appellate court denies First Amendment claim and original Federal order stands.
Clerk asks Supreme Court to review Appelate case.
Supreme Court declines to hear the case. This starts and ends their involvement in this case so far. The Supreme Court did not issue a ruling, it essentially declined to intervene.
Your version makes it sound like she's not in violation of a Federal court order. She is. That's why there's a contempt hearing for tomorrow.
LazarX |
I said it was a rough chronology. The original poster implies that the clerk is defying a Supreme Court order when all the Supreme Court did was decline to hear her appeal. I did not claim to list every intermediary process, only the ones relevant to the post I replied to.
She is in violation of the general Supreme Court decision but not of a specific Supreme Court ruling directed at her particular case, as none has been made, or is likely to be so.
Orfamay Quest |
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She is in violation of the general Supreme Court decision but not of a specific Supreme Court ruling directed at her particular case, as none has been made, or is likely to be so.
But she's also in violation of a specific Federal District Court ruling directed at her particular case, which is the more important issue (at least from her lawyer's point of view) at the moment.
Vic Wertz Chief Technical Officer |
Vic Wertz Chief Technical Officer |
Question 2: She's the head of her office, and the reason that her office isn't issuing marriage licenses. Again, she doesn't really have an 'employer' other than the citizens of her county. Complaints against elected officials are normally handled in one of three ways: elections, courts, and (rarely) impeachment.
Is "recall" not also a possibility? (I know not the specifics of her position nor the laws specific to her state regarding recalls.)
FractalLaw |
FractalLaw wrote:Question 2: She's the head of her office, and the reason that her office isn't issuing marriage licenses. Again, she doesn't really have an 'employer' other than the citizens of her county. Complaints against elected officials are normally handled in one of three ways: elections, courts, and (rarely) impeachment.Is "recall" not also a possibility? (I know not the specifics of her position nor the laws specific to her state regarding recalls.)
From what I can find, Kentucky does not allow recall elections for elected officials.
Orfamay Quest |
Vic Wertz wrote:From what I can find, Kentucky does not allow recall elections for elected officials.FractalLaw wrote:Question 2: She's the head of her office, and the reason that her office isn't issuing marriage licenses. Again, she doesn't really have an 'employer' other than the citizens of her county. Complaints against elected officials are normally handled in one of three ways: elections, courts, and (rarely) impeachment.Is "recall" not also a possibility? (I know not the specifics of her position nor the laws specific to her state regarding recalls.)
That parallels what I can find. Unfortunately, I'm not only not a member of the KY bar myself, but I don't even know one I can ask.
Orfamay Quest |
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I'm guessing she will eventually resign, but only after a photo op of her being arrested. Then she can play the persecuted for religion card and practically win the lotto in donations to her cause.
Not to mention spending the rest of her life on (paid) tour speaking about Attacks on Religion as a conservative fundraiser.
LazarX |
LazarX wrote:But she's also in violation of a specific Federal District Court ruling directed at her particular case, which is the more important issue (at least from her lawyer's point of view) at the moment.
She is in violation of the general Supreme Court decision but not of a specific Supreme Court ruling directed at her particular case, as none has been made, or is likely to be so.
That's also true, but until there is a movement for someone to ENFORCE that ruling, things will presumably muddle along as they have been.
She is an elected official, not hired help, she can't be removed unless she's impeached. (not likely given that much of Kentucky's government symapthises with her stand), or a recall election is held, which again is by design a big thing to engineer.
Most likely scenario is a fine of some sort.
LazarX |
Technically, I believe, that her case hasn't yet been heard on the merits. What's made it's way through the court of appeals and up to the Supreme Court was her request for an injunction or stay allowing her to legally deny licenses while the case makes it's way though the court.
And they said that they will not hear the case, which ends the matter as far as the Supremes are concerned. The lower courts retain the ball.
Orfamay Quest |
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Orfamay Quest wrote:
But she's also in violation of a specific Federal District Court ruling directed at her particular case, which is the more important issue (at least from her lawyer's point of view) at the moment.That's also true, but until there is a movement for someone to ENFORCE that ruling, things will presumably muddle along as they have been.
She is an elected official, not hired help, she can't be removed unless she's impeached. (not likely given that much of Kentucky's government symapthises with her stand), or a recall election is held, which again is by design a big thing to engineer.
Most likely scenario is a fine of some sort.
Well, that's the what the plantiff has asked for, at this moment.
My impish understanding is that jailing her would actually be a quicker and possibly better resolution. Under KY law, if the county clerk is "absent," then there's another official who has the authority to issue marriage licenses, which basically means that if she's jailed tomorrow, the plaintiffs can get their licenses on Friday, and Ms. Davis simply stays in jail until she's willing to grant the licenses herself.
I doubt that will happen, for several reasons, of which one is that the substitute is a busy man and doesn't have the time to spend the next three and a half years doing what is, fundamentally, the clerk's job.
I admit that I don't know what you mean by "until there is a movement for someone to ENFORCE that ruling." That's what the contempt hearing tomorrow is about, asking the judge to enforce that ruling. For good or for evil, judges are actually rather limited in what they can personally do, and a Federal judge doesn't have the authority to issue a Kentucky marriage license. Only the State of Kentucky can do that, and the State of Kentucky has said that only Ms. Davis can issue licenses for Rowan County (or Judge Executive Blevins, in her absence). [If both Blevins and Davis were killed in a car crash, there would literally be no one in the world with the authority to issue such licenses until a replacement was installed.] The State of Kentucky could change those rules, but that would require an act of the legislature (which isn't in session right now) and the signature of the governor, and the State of Kentucky, in its official capacity, has already ordered Davis to issue the licenses, so it's not like they've got a lot of options.
I wonder what this "movement for someone to ENFORCE that ruling" would look like, in your opinion.
thejeff |
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MeanDM wrote:Technically, I believe, that her case hasn't yet been heard on the merits. What's made it's way through the court of appeals and up to the Supreme Court was her request for an injunction or stay allowing her to legally deny licenses while the case makes it's way though the court.And they said that they will not hear the case, which ends the matter as far as the Supremes are concerned. The lower courts retain the ball.
It ends the request for injunction. The SC has not said it will not hear the actual case, because the actual case has not been resolved and they have not been asked to hear it.
The question now is a) What does she do now that she has exhausted her legal options?
b)If she illegally refuses to grant licenses while the case is pending, what action does the court (federal or state, as appropriate) take. It can hold her in contempt and impose either fines or hold her in jail. Interestingly, if she is imprisoned, I think she would count as "absent" from her job and the responsibility for issuing licenses would pass to someone else.
Orfamay Quest |
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MeanDM wrote:And they said that they will not hear the case, which ends the matter as far as the Supremes are concerned. The lower courts retain the ball.Technically, I believe, that her case hasn't yet been heard on the merits. What's made it's way through the court of appeals and up to the Supreme Court was her request for an injunction or stay allowing her to legally deny licenses while the case makes it's way though the court.
No. They said that they will not hear the arguments regarding the preliminary injunction. They may still opt to take the actual case itself (although that would be extremely unlikely).
It's possible for the following set of events to occur.
* Davis opts to issue the license (clearing the contempt issue)
* District Judge Bunning finds against Davis in the actual case
* Davis appeals to 6th Circuit
* 6th Circuit reverses Bunning and vacates the improperly granted marriage license
or
* Davis opts to issue the license (clearing the contempt issue)
* District Judge Bunning finds against Davis in the actual case
* Davis appeals to 6th Circuit
* 6th Circuit upholds Bunning
* Davis appeals to SCOTUS
* SCOTUS reverses 6th Circuit and vacates the license
This is unlikely, because both 6th Ct. and SCOTUS have already had one bite at the cherry, but judges are replaced, and sometimes simply change their minds.
thejeff |
Actually, it's also possible and probably more likely that even if her case is upheld, any licenses granted while it was in process wouldn't be vacated. She would just be able to stop again.
Even in states where courts ruled that same-sex marriage wasn't actually legal and licenses had to stop being granted, the existing marriages were (sometimes?|always?) allowed to stand.
That said, I really doubt she'll win. At any level. As apparently do the courts, since they wouldn't issue the injunction. Admittedly, likelihood of her prevailing is only one consideration.
As for the actual licenses, they'll soon be issued. Most likely she will cave to the contempt hearing, possibly before a fine, possibly after. She certainly won't sit in jail for 3 years. If she does, as you said, someone else will be issuing those licenses.
LazarX |
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That said, I really doubt she'll win.
She will win... she'll become a cause celebre among the fundamentalist crowd, get hundreds of thousands through a fund me campaign, and become a regular on the Fox news talk circuit.
Nohwear |
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thejeff wrote:She will win... she'll become a cause celebre among the fundamentalist crowd, get hundreds of thousands through a fund me campaign, and become a regular on the Fox news talk circuit.
That said, I really doubt she'll win.
I have to wonder if that is her plan at this point, or possibly from the beginning.
thejeff |
thejeff wrote:She will win... she'll become a cause celebre among the fundamentalist crowd, get hundreds of thousands through a fund me campaign, and become a regular on the Fox news talk circuit.
That said, I really doubt she'll win.
Well, in that sense yes.
Not the actual court case though.
And whether it's her plan or not, I'm sure knowing she's got the support helps keep her from backing down. I'll bet jail time does it, though.
Bryan |
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So, I don' t want to delve into the rightness/wrongness of the whole, "Catholic Kentucky clerk refuses to grant marriage licenses to gay couples" thing, because we'd get threadlocked in an instant.
I never get involved in these discussions, preferring to just stick to the pbp forums, but I feel the strong need to correct something here. The clerk is NOT Catholic, but rather an Apostolic Christian according to every single news report I've seen.
NobodysHome |
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NobodysHome wrote:So, I don' t want to delve into the rightness/wrongness of the whole, "Catholic Kentucky clerk refuses to grant marriage licenses to gay couples" thing, because we'd get threadlocked in an instant.I never get involved in these discussions, preferring to just stick to the pbp forums, but I feel the strong need to correct something here. The clerk is NOT Catholic, but rather an Apostolic Christian according to every single news report I've seen.
Thank you. I appreciate the correction. My bad entirely.
Orfamay Quest |
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thejeff wrote:She will win... she'll become a cause celebre among the fundamentalist crowd, get hundreds of thousands through a fund me campaign, and become a regular on the Fox news talk circuit.
That said, I really doubt she'll win.
I'm oddly cool with that, in the same way that I'm oddly cool with the Flat Earthers paying other Flat Earthers to tell each other that the Earth is Flat. The further the Christian RIght crawls down its own self-referential rabbit hole, the more out-of-touch it will appear and the less influential it will become.
The more time, energy, and money that the Christian Right are spending fighting lost causes like the War on Christmas and the right of public employees not to do their job, the less time they'll have doing things like trying to privatize social security, eliminate health insurance, repeal the fourth and fifth amendments.
Have you seen Ross Douthat's column in the New York Times on "The End of the Republican Party"? He's a card carrying conservative who is deeply concerned that "the right-of-center electorate is ripe to be split by a third party spoiler, or multiple such spoilers over the next few cycles, in which case the Republican losing streak in presidential elections could be easily extended from five of six to eight of nine" and give the Democrats a free hand at shaping national policy while the Republican party "is reaching a level where fundamental transformation might become inevitable."
He's concerned about it. Given my deep and abiding distaste for almost all of the post-Reagan Republican policies,.... I welcome it.
thejeff |
LazarX wrote:thejeff wrote:She will win... she'll become a cause celebre among the fundamentalist crowd, get hundreds of thousands through a fund me campaign, and become a regular on the Fox news talk circuit.
That said, I really doubt she'll win.
I'm oddly cool with that, in the same way that I'm oddly cool with the Flat Earthers paying other Flat Earthers to tell each other that the Earth is Flat. The further the Christian RIght crawls down its own self-referential rabbit hole, the more out-of-touch it will appear and the less influential it will become.
The more time, energy, and money that the Christian Right are spending fighting lost causes like the War on Christmas and the right of public employees not to do their job, the less time they'll have doing things like trying to privatize social security, eliminate health insurance, repeal the fourth and fifth amendments.
Have you seen Ross Douthat's column in the New York Times on "The End of the Republican Party"? He's a card carrying conservative who is deeply concerned that "the right-of-center electorate is ripe to be split by a third party spoiler, or multiple such spoilers over the next few cycles, in which case the Republican losing streak in presidential elections could be easily extended from five of six to eight of nine" and give the Democrats a free hand at shaping national policy while the Republican party "is reaching a level where fundamental transformation might become inevitable."
He's concerned about it. Given my deep and abiding distaste for almost all of the post-Reagan Republican policies,.... I welcome it.
I'd welcome it too.
OTOH, pundits have been predicting the end of the Republican party since 2008 (or even 06) and they now control the Senate and the House. Demographics and long term trends aren't in their favor, but they've been very good at holding on against that.
Rednal |
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Sadly, I feel that "standing up for one's beliefs" in cases like this tends to hurt those beliefs more than it helps. And I say that as a Christian who's completely okay with other-than-heterosexual couples getting married. Historically, bigotry never ends well for those trying to keep it in force - and when you don't learn from history, your doom is your own fault...
That said, I appreciate the info contained here - I'd heard that Ms. Davis wasn't doing the job, and I was very curious about why she hadn't been removed. Now I know. ^^ Thanks for sharing!
FiddlersGreen |
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I always found it interesting that the county clerk is using the 1st amendment to violate the 1st amendment's establishment clause
I don't see any violation of the establishment clause. There is no state religion being created (there is much more to Christianity or Catholicism than marriage laws), nor are religious institutions the only voice objecting to same-sex marriage (though they are, by virtue of being institutions, also for that reason the most organised and thus the most vocal).
My legal opinion would be that the legalisation of same-sex marriage in America should have been done through a legislative instrument rather than a court-ruling, precisely because it inevitably creates conflict with the first amendment Constitutional rights. It does not help the legal process to pretend that the conflict does not exist. Rather, the hypothetical legislative instrument would have needed to address what recourse a person in the position of or a similar position as the clerk in question with due consideration to her first amendment rights.
That said, I am also not defending the clerk. I think that the clerk's best option under the circumstances would have been to resign from her position and contact her elected parliamentary representatives about having a proper bill put forth. There was no way she could not have seen that this would happen. The proper channel for her to protest against the mis-steps of the judiciary (if that was her intent) would be through the legislature, not through her current course of action. As it stands, she does stand in contempt of court, and should receive the appropriate legal sanctions. And I hope that she at least embarked on this course of action conscious of this and prepared to face the consequences.
I reckon anyone with a basic understanding of legal theory should be cringing at the current state of affairs in the US concerning this issue. If anything, this whole legal mess provides a case study to the rest of the world for why such a strident change to the law should be handled by the legislature rather than the judiciary. In the first place, under the fundamental legal notion of the separation of powers, the high court overstepped their bounds at several points in the judgment that legalised same-sex marriage. The US is a DEMOCRACY, not a KRITARCHY (the added irony being that most kritarchies enforce religious laws).
Short version: the whole state of affairs is an embarrassment to all parties involved.
#facepalmatthewholestateofaffairs
thejeff |
Blackvial wrote:I always found it interesting that the county clerk is using the 1st amendment to violate the 1st amendment's establishment clauseI don't see any violation of the establishment clause. There is no state religion being created (there is much more to Christianity or Catholicism than marriage laws).
My legal opinion would be that the legalisation of same-sex marriage in America should have been done through a legislative instrument rather than a court-ruling, precisely because it inevitably creates conflict with the first amendment Constitutional rights. It does not help the legal process to pretend that the conflict does not exist. Rather, the hypothetical legislative instrument would have needed to address what recourse a person in the position of or a similar position as the clerk in question with due consideration to her first amendment rights.
That said, I also think that the clerk's best option under the circumstances would have been to resign from her position and contact her elected parliamentary representatives about having a proper bill put forth. There was no way she could not have seen that this would happen. The proper channel for her to protest against the mis-steps of the judiciary (if that was her intent) would be through the legislature, not through her current course of action.
I reckon anyone with a basic understanding of legal theory should be cringing at the current state of affairs in the US concerning this issue. If anything, this whole legal mess provides a case study to the rest of the world for why such a strident change to the law should be handled by the legislature rather than the judiciary. In the first place, under the fundamental legal notion of the separation of powers, the high court overstepped their bounds at several points in the judgment that legalised same-sex marriage. The US is a DEMOCRACY, not a KRITARCHY.
Short version: the whole state of affairs is an embarrassment to all parties involved.
There is no actual first amendment conflict here. The court will show that. There is no reasonable 1st amendment consideration that allows a government official to use religion to not only not perform her duties, but also prevent her office from carrying them out. If this was one clerk saying "I won't do it, go to the next window", that might be arguable.
Beyond that, your argument is that if the Court determines that a law (or regulation or other government action) is in conflict with the Constitution, the Court should not act, but should wait for Congress to pass a law? Mind you, any Congressional action would be subject to Court challenge anyway. Would the same argument have applied to Loving vs Virginia? A decision even more controversial at the time and to which the same religious objections could have been raised by at least some churches of the day.
Orfamay Quest |
There is no actual first amendment conflict here. The court will show that. There is no reasonable 1st amendment consideration that allows a government official to use religion to not only not perform her duties, but also prevent her office from carrying them out. If this was one clerk saying "I won't do it, go to the next window", that might be arguable.
There's also no First Amendment conflict on the other end here. She's not acting for the government. She's not acting for Kentucky (the State of Kentucky has officially ordered her to issue the licenses), and she's not acting for Rowan County (the judge looked at the policies she's enforcing, and Rowan County has no marriage policies to enforce -- see the judge's preliminary ruling on this question in the injunction). So in that sense, she's totally off the reservation and basically acting only in the interests of her own CloudCuckooLand beliefs.
Beyond that, your argument is that if the Court determines that a law (or regulation or other government action) is in conflict with the Constitution, the Court should not act, but should wait for Congress to pass a law?
I don't think that is what FiddlersGreen was saying. If it was, he's dead wrong. But he's correct that decisions of this magnitude are best left to the legislature, and the judiciary is well aware of that. That's actually a formal consideration in deciding a case, trying to figure out how much deference is due to the the authority of the legislature and the integrity of the political process.
So I think -- I hope -- we can all recognize that in an ideal universe, the decision would have been made by the various legislatures, and that the decision made would be one in accordance with the Constitution. I think we can all also realize that we do not live in such an ideal universe, that no such decision had been made, and no such decision would have been made. Similarly, in an ideal universe, James Holmes would not have decided to walk into a crowded theater and start shooting people.
In light of either set of established facts, the judiciary did what it was supposed to do; balance the rights of the parties and make an appropriate decision.
To put it another way,.... in an ideal universe, the various legislatures would not have established such blatantly discriminatory policies. It is not the fault of the judiciary that they did so. It is therefore not the fault of the judiciary that, having made this mess on their own, they are required to deal with the fallout of dealing with the consequences.
And I welcome the legislative attempts to protect the right to religious expression on the part of public servants,..... provided only that those attempts to protect that right are themselves constitutional.
Having said that, this sentence by FiddlersGreen is simply wrong beyond the possibility of rescue.
The high court overstepped their bounds at several points in the judgment that legalised same-sex marriage.
It did no such thing. The people are explicitly granted the right in the text of the Constitution (First Amendment) "to petition government for redress of grievances." The Court therefore, is granted the authority to provide such redress. (Specifically, Article III courts are granted the authority to "hear all cases arising under this Constitution.") The idea that Federal courts are somehow overstepping their bounds to hear and decide Constitutional cases is..... imaginative.