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.
We will need to agree to disagree on whether there is a first amendment conflict. My stance is that there is a conflict was created by the court overstepping their bounds, creating a situation in which Ms Davis should probably have resigned. My further point is not that the court had no jurisdiction, but that they based their judgment on factors that were for the legislature rather than the judiciary to consider. In other words, I think a fair reading of the judgment shows that it was an act of judicial activism rather than proper legal reasoning. Hence the same argument would not apply to the case of Loving v Virginia.
Furthermore to my knowledge there is no tenet of Christianity that would support an objection to the decision in Loving v Virginia. Whilst things have changed, it is historical fact that America was founded on Christian principles, one of which was the proposition that all men are created equal. But then I also I do think the American pledge is due for a revision as I do not think the current American public generally holds the notion that America should be a "nation under God". But then those are points of religion and politics, rather than legal procedure.
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We will need to agree to disagree on whether there is a first amendment conflict. My stance is that there is a conflict was created by the court overstepping their bounds, creating a situation in which Ms Davis should probably have resigned. My further point is not that the court had no jurisdiction, but that they based their judgment on factors that were for the legislature rather than the judiciary to consider.
There is no such thing as a "factor which is not for the judiciary to consider."
The plaintiffs claimed that they were being deprived of the equal treatment under the law which is guaranteed to them under the Fourteenth Amendment. Once this question has been raised, it is incumbent upon the court to consider any and all factors relevant to evaluating that claim.
That doesn't mean that the claim will be accepted, nor does it mean that the claim will trump other factors and policy considerations. But the idea that there's a line you can draw and say "the judiciary may not consider this" is, frankly, nonsensical. Especially in Constitutional issues.
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We will need to agree to disagree on whether there is a first amendment conflict. My stance is that there is a conflict was created by the court overstepping their bounds, creating a situation in which Ms Davis should probably have resigned.
That's no conflict. You yourself answered it.
"The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." (McAuliffe v. Mayor of New Bedford, Mass. (1892))
"[Petitioner] had no right or privilege to serve the State except upon such terms as the State prescribed." (Scopes v. State, Tenn. (1927))
Davis has the right to practice her Christian faith. She does not have a right to be a county clerk. In the event that she finds it difficult to reconcile the two, she also has the right to petition the government for a policy change -- which neither the state nor Federal government has opted to grant her (as is their right, respectively, and also their duty according to the Fourteenth Amendment).
I suppose in this instance it is I who was not making my point clearly. Allow me to rephrase. In their judgment, the judges considered factors that went beyond the purview of interpreting the Constitution. I do not mean to say that there are factors that intrinsically can never be considered in interpreting the Constitution. My point was rather that the judges based their judgment on what they thought social policy should be rather than what was intended by the letter of the Constitution, and that in doing so they erred.
As thejeff points out, the reasons in the recent judgment were different from the reasons in Loving v Virginia. I am suggesting that the approach taken was fundamentally different as well, which render the judgments uncomparable.
It is very much not for the Court to decide that certain claimed religious beliefs qualify as actual religious tenets and others don't.
Goodness me, no. That is and has been one of the key points in dispute in a lot of the law about conscientious objection (for example, to the draft in the Vietnam war).
Starting in 1864, a person was exempt from the draft if he (always a "he" so far in US law; I expect that to change if the point ever arises again) was a member of a sect "opposed to the bearing of arms and who [was] prohibited from doing so by the articles of faith." In other words, you could draft Catholics but not Quakers or Brethren. The law has changed since then, but it is still the case that:
1. The test of religious belief within the meaning of the exemption in § 6(j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption.
(a) The exemption does not cover those who oppose war from a merely personal moral code, nor those who decide that war is wrong on the basis of essentially political, sociological or economic considerations, rather than religious belief.
[...]
2. Local boards and courts are to decide whether the objector's beliefs are sincerely held and whether they are, in his own scheme of things, religious."
So, yes, the courts are explicitly charged under US law (and case law) with deciding whether claimed religious beliefs are, in fact, genuine. (And whether they're religious.)
Of course, there's a substantial difference here. Whether or not I am drafted or not makes very little difference to the Department of Defense or to the other draftees, so there is no reason not to carve out exemptions for religious-based beliefs. Whether or not I issue a marriage license is a question of a fundamental right to the people involved, and the government has a very compelling interest in making sure that people's fundamental rights are protected. Therefore, it's much harder to make a case for a religious exemption to providing a service in furtherance of a court-mandated fundamental right.
The courts routinely make judgments about the nature of religious beliefs when they have to decide whether the free exercise clause trumps whatever other considerations are being raised (typically by government lawyers). A Muslim prisoner may grow a beard, and Jewish soldiers are entitled to kosher food. But the authorities still look at such requests on a case-by-case basis and are well within their rights to determine a) whether or not a person is actually of the religion claimed, and b) whether the request is actually in line with religious obligations.
And ultimately, as in the case I just cited, the judiciary needs to step in and double-check the decisions of the executive ("redress of grievances").
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In their judgment, the judges considered factors that went beyond the purview of interpreting the Constitution.
[Citation needed.]
"I disagree with it" is not a factor.
My point was rather that the judges based their judgment on what they thought social policy should be rather than what was intended by the letter of the Constitution,
The "letter of the Constitution" says that people are entitled to equal protection under the law. [Amendment XIV] The "letter of the Constitution" says that no state may violate Federal rules regarding equal protection [Amendment XIV] (and therefore, the power to violate equal protection is specifically "prohibited by [the Constitution] to the States" [Amendment X]). The "letter of the Constitution" specifically protects unenumerated rights [Amendment IX], and the right to marry is identified in long-standing case law as one of those (Loving v. Virginia). Finally, the authority to resolve questions involving the Constitution is specifically (as in, "letter of the Constitution") granted to the Judiciary under Article III.
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Welcome to Orfamay Quest's class, Constitutional Law 101, kids, 'cause we are getting SCHOOLED! :)
Thanks, OQ.
Thank you. Or perhaps, you're welcome.
I should add one more data point.
The authority of Federal Court decisions to trump state statues and even state constitutions is established in the Supremacy Clause [Article VI], although it's not strictly relevant here, because Kentucky has made it clear that Kentucky policy is to grant same-sex licenses because, well, that's what the law says.
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What's funny is that my questions were all answered by the 3rd or 4th post, but OQ's thorough constitutional analysis is riveting.
Yeah, I'm a geek. What can I say?
In their judgment, the judges considered factors that went beyond the purview of interpreting the Constitution.[Citation needed.]
"I disagree with it" is not a factor.
My point was rather that the judges based their judgment on what they thought social policy should be rather than what was intended by the letter of the Constitution,The "letter of the Constitution" says that people are entitled to equal protection under the law. [Amendment XIV] The "letter of the Constitution" says that no state may violate Federal rules regarding equal protection [Amendment XIV] (and therefore, the power to violate equal protection is specifically "prohibited by [the Constitution] to the States" [Amendment X]). The "letter of the Constitution" specifically protects unenumerated rights [Amendment IX], and the right to marry is identified in long-standing case law as one of those (Loving v. Virginia). Finally, the authority to resolve questions involving the Constitution is specifically (as in, "letter of the Constitution") granted to the Judiciary under Article III.
In light of other constraints on my time, I suppose I will need to summarily say that I find the decision of Roberts CJ more significantly more persuasive, in particular his criticisms of the majority approach on pages 19-20 of his dissenting judgment, in particular this line starting from page 19:
"The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner."
What Roberts CJ is saying is essentially that in the majority's reasons, they relied on statements of moral opinion that already presupposed the validity of same-sex marriage independent of any analysis of the Constitution, and then declared that as a form of marriage it is protected by the Constitution. I would take it a step further and argue that to the extent that the moral philosophy of the majority formed the true basis of their judgment (as opposed to an analysis of previous case law and the intent of the letter of the Constitution), and that the case of Obergefell v Hodge was determined of a 5-4 majority, the Supreme Court should not be slow to revisit the merits of the majority and dissenting positions in Obergefell v Hodge in subsequent matters, and consider whether or not to overrule it.
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Welcome to Orfamay Quest's class, Constitutional Law 101, kids, 'cause we are getting SCHOOLED! :)
Thanks, OQ.
Thank you. Or perhaps, you're welcome.
I should add one more data point.
The authority of Federal Court decisions to trump state statues and even state constitutions is established in the Supremacy Clause [Article VI], although it's not strictly relevant here, because Kentucky has made it clear that Kentucky policy is to grant same-sex licenses because, well, that's what the law says.
Judicial Review is not an explicitly granted power in Article III. It's existence can be argued to be implied by Article III and the Supremacy Clause, but the founders were bitterly divided on it both before and after Marbury vs Madison which was at least as politicized and partisan as anything the Supreme Court has ever done.
That said, the Courts (and Scalia) have been fairly consistent in the precedent that if you have a moral objection to preforming a required, legal function of your job than your recourse is to quit.
Oddly, despite my misgivings about the majority judgment in Obergefell, I do think the best Christian response would also have been to resign. To explain, I would need to refer to a Biblical passage quoted without context earlier in this discourse.
Mark 12:17
Jesus said to them, “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.” And they marveled at him.Ergo, do your job. Jesus himself understands the separation of church and state.
My understanding is that Jesus' main point in that passage was not about separation of church and state. The trap that was laid for Jesus was to make a choice between the authorities, thereby causing him to give offence to either the Jews or the Romans. They marveled because in His response Jesus showed that He saw through their trap and His answer gave offence to neither. Jesus was using an illustration of a coin and the image on it. In making a reference to 'image-bearing', Jesus was making a reference to the Genesis account of creation, in which God made Man in His image - that is, just as the coin bears Caesar's image and so belongs to Caesar, so too does man bear God's image and so belong to God. Caesar's due as emperor was his taxes (and one might fealty as well), and God's due as God was the obedience of His created beings who bore His image, and both claims were legitimate.
Jesus' answer completely circumvented the trap that was laid for Him whilst enforcing the main message that Jesus was constantly reiterating - that humans should live in obedience to God. Jesus wasn't teaching separation of Church and State (would have been pointless when the Jews were already living in a society where their church was already completely separated from the Roman state), and was certainly not advocating that a person should only obey one or the other in different contexts. He was setting a higher bar of seeking obedience to God AND State as much as possible.
On that analysis, Jesus might have advised Ms Davis to resign rather than embark on her current course of action, for in so doing she would have kept her true to her beliefs as a Christian whilst also giving due consideration to her duties as a civil servant.
Or in other words, Jesus was commanding Christians to tackle to paladin dilemma even before Gygax came up with the concept of paladins, and taking the difficult path where necessary.
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I am persuaded that those arguing same-sex marriage should have been pursued by the most arduous paths, ensuring it remained unavailable to the largest number possible for the longest possible amount of time, are just expressing heartfelt constitutional convictions rather than deliberately scheduling its arrival for quarter to never. So it has always been.
Also, I am a sentient tomato with six legs who lives in a swimming pool on Venus.
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In light of other constraints on my time, I suppose I will need to summarily say that I find the decision of Roberts CJ more significantly more persuasive, in particular his criticisms of the majority approach on pages 19-20 of his dissenting judgment, in particular this line starting from page 19:"The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner."
What Roberts CJ is saying is essentially that in the majority's reasons, they relied on statements of moral opinion that already presupposed the validity of same-sex marriage independent of any analysis of the Constitution, and then declared that as a form of marriage it is protected by the Constitution.
Well, What Roberts wrote is of course merely dicta, but he also provides no evidence in support of this dicta. In fact, his argument is rife with outright misstatements.
For example:
The fundamental right to marry does not include a right to make a State change its definition of marriage. Certainly it does; that was decided by Loving.
[A] State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. Certainly it can, and plaintiffs did so in the instant case. More to the point, so did the various district judge, when they found, repeatedly and with argumentation, that there was "no rational basis" to exclude same-sex marriage.
Our Constitution does not enact any one theory of marriage. True, but it does demand that whatever theory of marriage is enacted conforms to the principle of equal protection.
The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. They are not. That's the whole point of the equal protection clause, to limit the State's freedom to enact and retain unequal laws.
There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. (Well, I'm glad he accepts that.) The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?[i] The individual states, of course, provided always that their decision is Constitutional and guarantees equal protection to all. Kansas is free to adopt any definition of marriage it likes, including none at all, provided that the definition is even-handed. In the event that Kansas applies an unequal protection to its citizens [i]on any subject whatsoever, Federal court is the appropriate venue to hear the dispute.
I would take it a step further and argue that to the extent that the moral philosophy of the majority formed the true basis of their judgment (as opposed to an analysis of previous case law and the intent of the letter of the Constitution),
There's nothing in Roberts' dicta to suggest, other than an annoyed ipse dixit, that the moral philosophy had anything to do with their decision. He failed to identify a single legal argument (other than "tradition," which district courts had already dismissed as failing to provide a rational basis).
The most positive analysis of Roberts' dissent that I've seen includes such charming languages as the following:
It's analysis of the strongest argument for marriage equality — the argument that denying equal rights to LGBT Americans violates the Constitution’s promise that no one shall be denied “the equal protection of the laws” — barely even qualifies as cursory. Roberts’s discussion of equal protection spans less than two pages of his opinion, and it does not grapple at all with the Court’s precedents establishing that groups that have historically faced discrimination that bears “no relation to ability to perform or contribute to society” are entitled to heightened protection under the Constitution.
And his fundamental (and what the analyst calls his strongest) argument:
Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.
... is patently ridiculous, because the right to marry has long been recognized as a fundamental right. If Roberts feels that the right to marry is inappropriate, then the case to revisit is Loving, not Obergefell. Otherwise, he's arguing that the right to marry is fundamental for heterosexuals (regardless of race) but not homosexuals. That's rather like saying that the right to vote is fundamental for property owners but not for renters.
Here's another analysis:
[T]here is little that is persuasive. (Judge Posner, once again, minces no words. He called the Chief Justice’s dissent “heartless.”) Let’s start with polygamy. While Chief Justice Roberts is correct about that “short leap” logically, it’s not likely that we’ll adopt polygamy any time soon. Marriage, as we’ve come to know it (even in its “traditional” one-man/one-woman form) is about equality between each spouse in the relationship. Polygamy, especially polygyny (which is one man-multiple wives) is not. When we move from polygamy in its abstract sense to polygamy in its practiced sense, it’s usually something practiced by a select few men, thereby reducing the number of marriageable women for the rest. And where polygamy is practiced, women’s groups have tried to ban or limit it, in large part because it operates on unequal power.Second, much of Chief Justice Roberts’ criticism of the Court’s due process analysis could easily apply to all of the unenumerated rights the Court has found. Almost always, the Court has found these rights by looking not only at “history and tradition,” but also at “new insights”—looking back as well as forward. Many times history has failed us as a people.
In summary, Roberts' dissent is basically drek -- although I admit it's the best of a bad lot (compared, for example to the train wreck that happens any time Alito gets near a word processor).
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Sort of aside from the legal argument, but the idea that the current meaning of marriage is one that has persisted in every culture throughout human history is itself nonsense.
Yep, pretty much all of the 'historical facts' Roberts and the three other dissenters cited in that case were provably false;
As you note, Roberts' preferred definition of marriage has not "persisted in every culture throughout human history".
Same sex marriage has been around (off an on) for thousands of years. For example, at least two Roman emperors married other men.
Setting aside that the claim allowing same sex marriage would lead to bestiality becoming legal was ridiculous... bestiality is ALREADY legal. There is no federal law against it, roughly a quarter of the states have no state law against it, and in another half of the states it is just a misdemeanor... like jaywalking.
Et cetera. Their comments were just a parade of errors... not just on the law but in reference to reality itself.
Setting aside that the claim allowing same sex marriage would lead to bestiality becoming legal was ridiculous... bestiality is ALREADY legal. There is no federal law against it, roughly a quarter of the states have no state law against it, and in another half of the states it is just a misdemeanor... like jaywalking.
To be fair, this specific claim not necessarily that ridiculous. When you've got a patchwork of local laws like that, that can result in injury to people (Some of the examples given in the same-sex marriage litigation, for example, include "what happens when my spouse and I are transferred to a different state?")
The first question, then, is whether or not the pro-bestiality lawyers can actually find anyone with standing to sue, someone who has suffered an actual injury due to anti-bestiality laws applying unequally across the United States. I think that would be difficult, but we'll assume that the lawyers can find someone.
The second question, then is whether that person's alleged right to engage in bestiality exists, or (to put it another way) if bestiality is in fact a form of marriage. Given that animals can't consent, this would be a difficult argument to make,.... but again, lawyers get paid to make difficult arguments.
The third question, then, is whether the state's violation of this alleged right is in fact justifiable. Just because you have a right doesn't mean that the right is unconditional. You have the right to free speech, but not to slander. You have the right to assemble freely, but not on someone else's land (that's trespassing). Muslim prisoners have the right to grow beards, but JW parents do not necessarily have the right to withhold medical treatment from their children. In particular, protection of the rights of others is often a public policy consideration that will result in your rights being limited -- "your right to swing your fist ends where my nose begins."
So, the third question becomes whether or not there is a sufficient (secular) purpose for anti-bestiality laws (at a minimum, prevention of cruelty to animals would appear to be a prima facie example of such a purpose). This has been formalized as the Lemon test (q.v.) and the judge would ultimately need to decide which set of rights prevails under these circumstances.
It's certainly possible that someone could lay claim to the right to practice bestiality and prevail in court (although I think it's highly unlikely). It's more likely that someone could lay claim to the right to practice polygyny, but again it's unlikely (in part for reasons thejeff discussed briefly). But nothing about Obergefell changes that. The change, as I said before, was Loving, the case that identified marriage as an unenumerated right to be protected by Federal policy.
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Whilst things have changed, it is historical fact that America was founded on Christian principles
Your "historical facts" are at odds with history.
First off, the United States was, uniquely at the time, founded on the principle that the power of the state stems directly from the consent of the governed, and not from divine right. Jefferson, the author of the Declaration you try to cite below, was a Deist who famously took a pair of scissors to the Bible.
Madison, the Father of the Constitution, said this:
Nothwithstanding the general progress made within the two last centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Gov' & Religion neither can be duly supported: Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded agst.. And in a Gov' of opinion, like ours, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Gov will both exist in greater purity, the less they are mixed together.
(Letter to Edward Livingston, July 10, 1822).
...one of which was the proposition that all men are created equal.
Yes, that's why slavery is endorsed in the Bible.
But then I also I do think the American pledge is due for a revision as I do not think the current American public generally holds the notion that America should be a "nation under God".
You are aware that the words "under God" were added to the pledge in the 1950s, are you not? Appealing to them as some kind of historical norm is grotesque.
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Whilst things have changed, it is historical fact that America was founded on Christian principlesYour "historical facts" are at odds with history.
First off, the United States was, uniquely at the time, founded on the principle that the power of the state stems directly from the consent of the governed, and not from divine right. Jefferson, the author of the Declaration you try to cite below, was a Deist who famously took a pair of scissors to the Bible.
Similarly, the foreign policy of the early US explicitly rejected the idea that "America" was founded on Christian principles. As an early example of that, here's Article 11 from the Treaty of Tripoli (1796), less than ten years after the ratification of the Constitution:
As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.
(Emphasis, of course, is mine.)
...one of which was the proposition that all men are created equal.Yes, that's why slavery is endorsed in the Bible.
And the endorsement of the Divine Right of Kings, et cetera. The notion of equality derives from John Locke, not from the Bible. The Christian view is more aptly expressed through the Great Chain of Being: "[T]he belief in the Chain of Being meant that a monarchical government was ordained by God and inherent in the very structure of the universe. Rebellion against a king was not challenging the state; it was an act against the will of God itself, for a king was God's appointed deputy on earth, with semi-divine powers. King James I himself wrote, "The state of monarchy is the most supreme thing upon earth: for kings are not only God's Lieutenants upon earth, and sit upon God's throne, but even by God himself they are called Gods." Similarly, within a family, the husband was superior to his wife and children, and the notion of equality was ludicrous.
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...
See also Marbury vs Madison.
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Welcome to Orfamay Quest's class, Constitutional Law 101, kids, 'cause we are getting SCHOOLED! :)
Thanks, OQ.
I'm a lawyer, and he's good enough I thought he was one until he told me otherwise.
Keep up the good work.
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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.
Well, I was wrong. The judge apparently skipped the fines and sent her straight to jail. There goes my record as a precognitive. Guess maybe I should keep my day job instead of buying lottery tickets tonight.
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1:05 p.m.
A federal judge has ordered a defiant Kentucky clerk to jail after she refused to issue marriage licenses to gay couples.
U.S. District Judge David Bunning told Rowan County Clerk Kim Davis she would be jailed until she complied with his order to issue the licenses. Davis said "thank you" before she was led out of the courtroom by a U.S. marshal. She was not in handcuffs.
Davis has refused to issue marriages licenses for two months since the Supreme Court legalized gay marriage. She argues that her Christian faith should exempt her from signing the licenses.
As it was predicted, it seems that she was counting on this to make her "martyr".
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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.Well, I was wrong. The judge apparently skipped the fines and sent her straight to jail. There goes my record as a precognitive. Guess maybe I should keep my day job instead of buying lottery tickets tonight.
** spoiler omitted **
One thing I have learned about judges is that they hate having their authority questioned.
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As it was predicted, it seems that she was counting on this to make her "martyr".
Well, I'll play Devil's Advocate (amusingly enough) on her behalf.
She believes in a God who will send her to Hell for endorsing gay marriage by issuing gay marriage licenses. The state has ordered her to do so anyway. She has 3 choices:
(1) Obey the state and issue the licenses. This is unacceptable as a fundamental violation of her faith.
(2) Avoid obeying the state by resigning. I can see her seeing this as a tacit acceptance of the state's orders. I can see her as thinking, "Why should *I* have to quit *MY* job when I'm in the right?" Either way (faith-based stance or selfishness), this was unacceptable as an option to her.
(3) Go to jail to stand up for her beliefs.
She chose (3), and as I said from the beginning, I don't want to discuss the morality of her decision, but I do feel she made the "right" choice for herself, not out of any sense of martyrdom, but out of a sense of, "This is the only option I have that allows me to uphold my faith."
Once she's in jail, and a substitute comes in and starts issuing the licenses, THEN she can in good conscience resign: The licenses were issued without her approval and against her will.
At that point it'll just be old-fashioned stubbornness and yes, a bit of a martyr complex, to stay in jail while the certificates are being issued.
Does she still earn her pay while imprisoned? If she'd lose her financial solvency by resigning, she might have no choice but to stay in jail indefinitely, or at least until someone with significant cash gets her out of the mess she's gotten herself into.
I ask this, respectfully, Nobody, is there a faith-based rationale for someone going to Hell for someone else's sin?
I mean, she's not committing a sin by getting married to a woman herself. Is there a theological basis for her committing a sin simply by allowing others to "sin?"
She'll cave once she figures out what the toilet in the cell is for:-D
Well as of today the county clerk is off to jail and will be held in custody until she complies with the court order to do her job. Hope she likes jail food.
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I ask this, respectfully, Nobody, is there a faith-based rationale for someone going to Hell for someone else's sin?
I mean, she's not committing a sin by getting married to a woman herself. Is there a theological basis for her committing a sin simply by allowing others to "sin?"
Not being a theologist, I can only accept what someone else tells me her beliefs are. If they are wrong-headed, or conflict with her own religion, that is between her and her pastor.
She has stated that her choice is a "Heaven or Hell" decision. The rest, I openly admit, is inferred by me from the fiery rhetoric I've heard from others opposed to gay marriage based on religious grounds.
As I said, I'm just trying to provide a possible rationalization for her thoughts beyond, "Oh, boy! I can become rich and famous just by sticking to my guns!"
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I ask this, respectfully, Nobody, is there a faith-based rationale for someone going to Hell for someone else's sin?
I mean, she's not committing a sin by getting married to a woman herself. Is there a theological basis for her committing a sin simply by allowing others to "sin?"
Yes, or at least, there are strong injunctions against enabling others to sin. The Christian community has a responsibility that goes all the way back to the Old Testament to keep others from evil. For example, Ps. 50:18: "When you see a thief, you join with him; you throw in your lot with adulterers." It's more explicit in 1 TIm. 5:22: "Do not be hasty in the laying on of hands, nor take part in the sins of others; keep yourself pure." You can also look at 1 Corinthians 9-12: "I wrote to you in my letter not to associate with sexually immoral people— not at all meaning the people of this world who are immoral, or the greedy and swindlers, or idolaters. In that case you would have to leave this world. But now I am writing to you that you must not associate with anyone who claims to be a brother or sister but is sexually immoral or greedy, an idolater or slanderer, a drunkard or swindler. Do not even eat with such people."
Does she still earn her pay while imprisoned? If she'd lose her financial solvency by resigning, she might have no choice but to stay in jail indefinitely, or at least until someone with significant cash gets her out of the mess she's gotten herself into.
I believe (but have no proof) that she has a salaried job and that she will continue to draw pay while in jail. Of course, the judge can negate this salary with a stroke of his mighty judicial pen.....
Having said that,.... it's actually easier for her to find a donor to make sure she doesn't starve than an advocate who can spring her from jail.
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She has stated that her choice is a "Heaven or Hell" decision.
"Blessed are those who are persecuted for righteousness' sake: for theirs is the kingdom of heaven." (Matt 5:10)
I would take it a step further and argue that to the extent that the moral philosophy of the majority formed the true basis of their judgment (as opposed to an analysis of previous case law and the intent of the letter of the Constitution)
This is different from every other case... how?
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She has stated that her choice is a "Heaven or Hell" decision.
"Blessed are those who are persecuted for righteousness' sake: for theirs is the kingdom of heaven. (Matt 5:10)
A good quote, though I'm not entirely sure it's applicable here - but I can understand why someone might think it was. Here's another:
“Go into all the world and preach the good news to all creation. Whoever believes and is baptized will be saved, but whoever does not believe will be condemned.” (Mark 16:15–16)
Many Christians believe this command is in force for all of the church, not just the people it was originally given to. You don't convince people to believe what you're saying by being bigoted and trying to oppress them - that tends to have the opposite effect. In this day and age, I think one could argue that Ms. Davis' actions are hurting Christianity more than helping it, and that she may not be demonstrating the love and compassion often considered to be the Christian ideal.
A good quote, though I'm not entirely sure it's applicable here - but I can understand why someone might think it was.
She has stated that her choice is a "Heaven or Hell" decision.
"Blessed are those who are persecuted for righteousness' sake: for theirs is the kingdom of heaven. (Matt 5:10)
Well, this is basically the command that tells everyone to go out and become a martyr, because it's a one-way ticket to Paradise. It's the carrot that (more than) makes up for the stick of jail time.
“Go into all the world and preach the good news to all creation. Whoever believes and is baptized will be saved, but whoever does not believe will be condemned.” (Mark 16:15–16)
Ah, yes, the Great Commission. Also very important, but (as you point out), it's not necessarily clear how her behavior counts as "preaching the good news."
A good quote, though I'm not entirely sure it's applicable here - but I can understand why someone might think it was."Blessed are those who are persecuted for righteousness' sake: for theirs is the kingdom of heaven. (Matt 5:10)
She has stated that her choice is a "Heaven or Hell" decision.
Speaking as someone who has been part of a conservative Christian organization for my entire life... yeah, that's pretty much exactly the way that verse is used and taught. Whether someone not associated with such an organization believes it's applicable or not is considered rather irrelevant to the people inside.
Many Christians believe this command is in force for all of the church, not just the ones it was originally given to. You don't convince people to believe what you're saying by being bigoted and trying to oppress them - that tends to have the opposite effect. In this day and age, I think one could argue that Ms. Davis' actions are hurting Christianity more than helping it, and that she may not be demonstrating the love and compassion often considered to be the Christian ideal.
The people preaching these things aren't interested in making Christianity popular ("Enter ye in at the strait gate: for wide is the gate, and broad is the way, that leadeth to destruction, and many there be which go in thereat; Because strait is the gate, and narrow is the way, which leadeth unto life, and few there be that find it." Matt. 7:13-14), especially if doing so gives the impression that they are in favor of or supportive of actions and behaviors that are in conflict with the prohibitions of their faith.
Apparently, after she was jailed 5 of her six deputy clerks agreed to begin issuing licences.
When the judge requested Ms. Davis to come back before the court in order to ask if she would oppose her deputies, she refused to return to court and accept her deputies actions, via her lawyer.
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You're about 20 posts late BNW =)
I was sleeping!
Only mad dogs and pathfinders go out in the midday sun
Apparently, after she was jailed 5 of her six deputy clerks agreed to begin issuing licences.
Interesting. Do you have a link? What happened to #6?
I admit that my initial response would be "I will comply with any order of the court directed at me, but I will not start issuing licenses on my own authority."
Apparently, after she was jailed 5 of her six deputy clerks agreed to begin issuing licences.Interesting. Do you have a link? What happened to #6?
I admit that my initial response would be "I will comply with any order of the court directed at me, but I will not start issuing licenses on my own authority."
I'm watching live news, this just happened now. The only link I've found so far is tweets.
Edit: Found one
The solution here is so easily solvable that I can't tell if the county is deliberately picking a fight, or is just amazingly incompetent. (very, very hard to tell the difference between malfeasance and incompetence with government...)
An individual clerk doesn't have to sign anything but the county does.
If someone asks a clerk that doesn't want to sign it, they get someone else.
If the clerk is the only person there that can sign marriage licenses, deputize the guy in the map room, the janitor, the mayor or whoever.
edit: hey, i was only one post late this time. SIX deputies and they couldn't figure this out?:?!?!??!?