Standing up to the Obergefellers (2) -- Responding to a Comment

My previous post about the sending of Kentucky County Clerk Kim Davis to a federal jail attracted a new commenter to this site. I refused to publish her first comment, since it violated the rules of civil discourse here, but I invited her to try again. And I am pleased to report that she succeeded -- perhaps beyond what she imagined, because I am going to do her the honor of devoting an entire new post to her second comment.

I do this, not only because she has now come here respectfully, and with lots to say about the substance of my post, but also because much of what she says is what is being repeated in the blogs on the Internet that object to what Kim Davis has done. So, in the interest of a full dialogue, here follows Lisa Coston's second comment, with my responses indented. She begins by picking up on this last comment from me, in response to her question as to how many marriage licenses Kim Davis must have denied to previously divorced persons, on account of her Christian faith (see the actual quote of her question, further below):

[Curmudgeon:] So now you're saying that she, individually, gets to define what is a proper marriage? The whole point is that she applies the definition of marriage passed by the State through its legislature -- and that definition does not limit marriage to those who have not been married before. You're confusing the "marriage" that churches will perform with the marriage that she swore an oath to license on behalf of her employer, the State.

[Lisa C.] No, it seems it is you that are confused about "marriage' that churches will perform with marriage on behalf of her employer, not me.

Well, I can see that we disagree as to who is confused, but beyond that, you do not explain your position further, so you have given me nothing to which to reply (except as you take up this subject again, later in your response as quoted below).

You don't need to remind me of Plessy v Ferguson, and, as you say it was 'upheld' by the Supreme Court. However, it was at the state level, where slavery and segregation laws had their genesis. Jim Crow ring a bell?

And your point is? (Again, I remind you that the post to which you are responding dealt not with the Supreme Court’s power to use the 14th Amendment to end segregation or racial discrimination, which is what we agree was the reason why the Amendment was adopted in the first place, but whether the 14th Amendment gave the Supreme Court the power to oversee the State’s traditional regulation of the family, including the power to define, recognize and license marriages performed in that State.)

As well, it was through the Supreme Court's decisions on those cases that turned it back around and struck down those laws--many based on 'Religious Liberty' arguments concerning how it was God's will to keep blacks and whites separate and unequal--but your argument seems to be that no matter what is decided at a federal level, the state's law trumps federal law.

No, that is not my argument. A law enacted by Congress pursuant to its enumerated powers under the Constitution trumps a State law on the same subject -- that is true, and I do not dispute it, because that is exactly what the Supremacy Clause of the Constitution says. But the Supremacy Clause says nothing about decisions (by only five of nine justices, no less) of the U.S. Supreme Court. Nor will you find anything in the Constitution, or prior legal precedent based on the Constitution, that grants the Court the power to redefine the concept of marriage for all fifty States. So a decision claiming to do just that is without precedent, and has to stand on its own -- which it cannot do. The Court is not a national legislature, and cannot enact laws binding on all 50 States. 

You also are forgetting that the Supreme Court itself, along with many States, played a disgraceful role in the  history of the treatment of slaves under the Constitution — read the Dred Scott decision. But you keep straying from the point of the main post, and want to argue the history of racial discrimination. How about addressing the precedents in history for allowing five of nine justices to define for the entire nation what “marriage” is? (Hint: you won’t find any, because the majority hoisted themselves into that claimed “power” by their own bootstraps.)

Oh, no, I'm not saying she, individually, gets to define what is proper marriage.

Let’s review what you actually said, shall we? Here is the entire quote of what you said on that subject, which you claim I “cherry-picked” from your earlier, non-publishable comment: 

"I wonder how many divorced individuals this 'martyr' has rejected for her faith?” 

Now, let’s analyze what you said: you imply that because Kim Davis refuses, due to “her faith,” to recognize (same-sex) couples that Kentucky State law does not recognize, she must also (at sometime in the past) have denied marriage licenses to couples where one or both of them had been previously married. You insinuate that because Jesus Christ himself said that “those whom God has joined together, let no man put asunder,” therefore she (in following Jesus) must have denied a Kentucky marriage license to (some) previously divorced applicants. Well: 

(1) Where is your proof of your claim? You simply insinuate it, in order (in your sight) to denigrate the Christian religion, without any factual basis for your claim as to what she  must have known about such couples in order, supposedly, to reject their applications “for her faith.” 

(2) Even supposing she wanted to deny such licenses according to her faith, how could she determine that the previous marriage was one of those where, through the vehicle of an official church marriage, God joined the couple together? (Answer: she couldn’t, without invading the couple’s privacy — and again, you have no factual basis for assuming that she must have done so.) 

(3) Look again at what Jesus is reported to have said: his words applied to those “whom God has joined,” not those whom the State joined. The majority of people getting marriage licenses, last time I looked, do not go for formal church ceremonies to bless their union. So again, why would you presume that Kim Davis would have acted on her religious faith to deny applications to people about whom she could know nothing except that they had somewhere, at some previous time, been married?

Had you not cherry picked my censored post,

Well, as you see, I did not “cherry pick” it — I quoted what you said on the point in its entirety.

you might take note of the fact that the whole point of this is that she certainly does not have the power to define marriage —

Good: then we agree on that point, at least. And please note: Kim Davis never, at any point in her public statements, claimed any such power.

--the contract, not the symbolic church ritual--as the Supreme Court ruling on those cases that had their genesis in the states say[ing] that it is now unconstitutional to deny a marriage license--a civil CONTRACT--to same sex couples.

Here again you conflate two entirely separate concepts: “a marriage license” is not the same thing as “a civil CONTRACT.” The license is what enables the State to recognize and enforce the civil contract. Many States, before Obergefell, allowed two persons of any gender to enter into a civil contract of union — but that was not enough, for certain activists. They wanted that “civil contract of union” to be festooned with the term “marriage” -- even though tradition (and the law) had always held otherwise. And when they could not persuade the Kentucky State legislature so to redefine its terms, they resorted to the federal courts — resulting in the Obergefallen travesty of what the law actually allows the Supreme Court to decide. (Sorry: my bad for using a religious-weighted term for what they did -- but the case's name invites it.) 

Traditional marriage — that is, the marriage recognized by churches — is more than just a contract between two parties. It is a covenant, solemnly sworn to by a man and a woman before God, in the presence of a Christian congregation as their witness, with the consequence that they agree to be held accountable for the vows they invoked God to bless. So again, I repeat: you certainly do not come here claiming that what the churches have always called “marriage” is what the Supreme Court calls “marriage” — I recognize that. But your comment, quoted above, implied that Kim Davis had at some time done so — and I deny, without “cherry-picking” you in the least, that you have any factual basis for that claim whatsoever.

Her religious liberty is not infringed upon at all. She is free, under the First Amendment, to practice her religion without fear of jail or punishment.

But she is not. Look at what happened to her: she was sent to jail for obeying her religious duty (because she is a Christian, and not just because she swore on a Bible) to honor the oath she swore (“so help me God”), on taking office, to uphold both the Kentucky and the United States Constitutions. (I remind you that you have nothing but Justice Kennedy’s word for it that the Constitution says anything about the definition of “marriage”, or about the Supreme Court’s authority to change local State laws that have always defined what that term meant.)

She is not free, under the Constitution, to impose HER religious views, while working as a CIVIL servant, to deny issuing a government license/contract to anyone, based on her religious beliefs.

You have the situation exactly reversed: it is the five Obergefalleners, and not Kim Davis, who are imposing THEIR secular views on what has always been the traditional State-law realm of the family, and the laws governing its recognition. Moreover, if your view is the correct one, then where were you (and those who agree with you on this point) when, as this article points out, so many of those officials the left claimed as its  own refused to perform their official duties when they were faced with marriage laws with which they personally disagreed? Why were they "heroic" then, but Kim Davis is so despised now?

Why is that the case? Because the Supreme Court's decision states that it is unconstitutional to deny same sex couples the right to have that government-based contract, called a 'marriage license' based on the 14th Amendment, whether you like it or not.

First of all, as I hoped would be clear by now, a civil marriage contract is not a "government-based contract," as you assert, but a government-recognized one. And the marriage license, I repeat, is not the same thing as the civil contract -- the former comes from the State, but the latter comes from the couple themselves, and the license precedes the contract. What they agree to (within the limits of the marriage statutes), the State agrees to enforce -- until divorce or death, whichever comes first. In no way is the marriage license "based on the 14th Amendment," because States issued marriage licenses long before that Amendment was ever enacted.  

 Next, what kind of argument is “whether you like it or not”? It doesn’t matter what I like or do not like. I am not the U.S. Constitution. Your assertion is that the “Supreme Court” decided what the Constitution “said” in this matter — but only five of the nine justices did. If the next justice appointed to the Court joins the Obergefell minority, then there goes your argument about what is “unconstitutional.” And that is why Supreme Court decisions interpreting the Constitution for everybody else should never be resolved on a 5-4 basis. 

Those four minority votes mean that the majority’s argument was extraordinarily weak, from a constitutional point of view, and hence could be reversed by the very next appointment. This is, of course, why Supreme Court appointments are now so political: it is because they themselves have made their roles political, through issuing decisions where five of them think one thing, and four of them think the opposite. It would have been far wiser of them to leave the whole subject to the States and their elected legislatures. (But that is exactly what those on the left do not do -- they resort to the courts to do the legislating instead.)

It seems that you are the one that fails to see that a church marriage is only symbolic. It's that government-issued license that makes your "marriage" legal, period.

See what I said above: Obergefell is not about church marriages — nor was my post. And you and I disagree as to whether the Kentucky government or the federal government has the ultimate right to define, under what are the actual word-for-word powers granted to the U.S. Supreme Court under the Constitution, just what makes a State-licensed marriage "legal."

No, what I meant about wondering whether the 'neo-martyr' in question has rejected previously divorced couples who seek a marriage license is because of what is also stated in the Bible about divorce. Nope, it's just same sex couples who are targeted.

See my responses above, Lisa — we seem to agree that Kim Davis has never rejected any applicants on the ground that they were previously married, and that she could not do so, given the Kentucky legislature’s definition of “marriage.” But if same-sex couples insist that Kentucky must include them in that definition — as a matter of federal constitutional law — then I say that you are using a non-existent federal power to redefine what “marriage” has to mean in Kentucky -- and in every other State. (What a power! To get five unelected lawyers to declare what fifty State legislatures have to do! No wonder those on the left crave it so.) 

You call what Kim Davis has refused to do “targeting.” Just because same-sex couples are insisting on having everywhere, throughout the fifty States, what some States, but not all, have through their elected legislatures chosen to grant them, the demand that all States do so, by virtue of some unspecified and never-before-existing “power” of the US Supreme Court to intervene in local family law, does not give birth to such a “power.” Nor can the understandable denial of that “power” (i.e., what was never -- under the Constitution's language and historical division of State and federal powers in their own spheres -- theirs to demand as a constitutional “right” to begin with) fairly or objectively be called a form of “targeting.” 

If I claimed the right, under the federal Constitution, to have a no-fault divorce (so that I could claim an equal division of the marital property) even though I was caught in the act of adultery, and the State denied me that right (by favoring my spouse in the division of property, under such circumstances), would you agree that the State was “targeting” me for discrimination? How does it make any sense even to employ such a term in the context of my unconstitutional demand?

* * * * * * {End of Lisa C.'s comment and my responses} * * * * * *

Again, I want to commend Lisa C. for being forthright enough to come back and defend her views without engaging in the ad hominem arguments that are never allowed here. This blog is a reflection of what I uphold in the practice of the law, and it will never exclude any civil commenter just because of the views they express, so long as they are on topic, in response to the main post.

Nor (I add -- unnecessarily, I trust) does this blog sanction bias or prejudice against those inclined to a same-sex orientation. It treats all humans alike, as Christ commanded that they be treated, as made in God's own image, yet also as far from perfect. Indeed, we are all fallen sinners in God's eyes, and all in desperate need of His saving grace through our Lord Jesus Christ -- and it is just this message that constitutes the good news ("gospel") of the Christian faith, commended and upheld unreservedly in these pages.

This blog, accordingly, does not exist to bend the actual text of Scripture to temporary cultural or human ends -- which is why it will never endorse same-sex "marriage", or join in what is a fundamental category mistake by those who cannot handle Aristotelian logic. The truth does not change with time, and Christians are charged with preserving the faith handed down to them from the saints. If those of a secular bent disagree, so be it: we will have to disagree. At least, however, we may do so here in a civil manner.