Now that the federal judge has ordered Rowan County's elected clerk released from federal prison so that she may resume her official duties, the Internet is rife with speculation as to whether or not she will go back to ordering (as she did before she was cited for contempt of court) that no marriage licenses be issued under her name at all. In order to cut through all the obfuscation that the left so delights in, let me use this post to lay out a few clear mileposts whose simple obviousness should be evident to anyone interested in a fair discussion.
First, let us review why Kim Davis was ordered to jail. In the wake of the legal confusion caused everywhere by the Obergefellers and their unilateral claim of federal authority to redefine marriage, while not legislating from the bench, Kim Davis simply stopped issuing all marriage licenses in her county. Period.
All such licenses had previously gone out (by Kentucky law, again) over her name. Since she could not issue licenses to same-sex couples without violating the definition of "marriage" adopted by the people of Kentucky in its Constitution (which she had taken an oath to uphold, "so help me God"), and since she could not issue licenses only to male-female couples without violating the fiat of the majority in Obergefell, she had simply stopped issuing marriage licenses in her county altogether.
I submit that this was a perfectly rational response to the chaos the Obergefellers (as I choose to call them: Justices Kennedy, Breyer, Ginsburg, Sotomayor and Kagan) had created with their 5-4 ruling in that case (which I now sometimes call "the Obergefallen decision"). That ruling, which had no basis in the jurisprudence of our federal system, but was simply a blatant act of legislating a definition of marriage from the bench, was unobservant -- and disrespecting -- of the traditional restraints on its powers theretofore honored by the Supreme Court, and directly resulted (as the Justices in the minority so plainly warned) in the prompt jailing of a Christian for her sincerely-held religious beliefs.
For those on the left, Kim Davis faced no conflict whatsoever: she should hold her nose and issue licenses to whichever two people happened to ask for them. But religion comes cheap to those on the left: it is something always to be more honored in the breach than in the observance. If religion gets in the way of the left's agenda, it is yesterday's toast, to be discarded without a second thought.
Kim Davis, however, is not a fly-by-night Christian, who observes her religion only when no one else is looking, or could conceivably be bothered by it. By all the evidence (including her facing down the federal judge) she is (after an admittedly rough, secular past) a full-fledged, born-again Christian, who came by her beliefs at great personal cost and tribulation. She is thereby committed to them in a way that the "fly-by-nights" cannot understand. With her newly granted grace of God's forgiveness, Kim is very aware that salvation is not a matter of personal convenience, or accommodation to contemporary desires. And that understanding makes her persona non grata in the eyes of all the secularists who rejoiced at her imprisonment, because it makes her impervious to their demands.
So the ever-handy ACLU drummed up a case by which to sue her, recruiting two gay couples and two straight couples to say that she had denied their licenses. The suit, of course, was filed not in Kentucky state court, but in Judge Benning's federal court, because the Obergefellers had by their ruling ostensibly transformed marriage into a matter of federal constitutional law.
Judge Benning looked at the 5-4 ruling in Obergefell, and reasoned as follows:
"Obergefell is binding upon me as a federal court judge. So I am not free to hold that Kim Davis is within her constitutional rights to withhold marriage licenses from all applicants pending clarification of what law she should follow. Under the holding in Obergefell, which I am bound to apply to the facts of this case, she can neither refuse to license gay nor straight couples, and I will accordingly order her to do so at once. If she refuses to obey my order, I will hold her in contempt, and send her to jail -- because I don't think any fines would persuade her to act differently."
In so deciding, however, Judge Bunning accepted blindly the Obergefellers' premise that they were free to pass federal legislation from the judicial bench, in contravention of the very first sentence of the U.S. Constitution (after the Preamble). Article I, Section 1 begins: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Emphasis added.)
I don't see in that language any sharing of the "legislative powers" with any other branch -- do you? How, then, do the Obergefellers get away with legislating a new definition of marriage, to be applied by all fifty States no matter what?
The true answer, which you will not read on any left-leaning blog, is this: They will get away with it only if we let them get away with it -- which is to say, if we do not come to the defense of Kim Davis.
Let us review one more time the impossible dilemma into which the Obergefellers' overreach has landed the Kim Davises of this country (i.e., officials charged with enforcing their State's laws while respecting the authority of the federal government, acting in its proper sphere):
They have commanded that Kentucky's laws defining marriage as only between a man and a woman be struck down as violating their view of the definition of "marriage" as prescribed by the Fourteenth Amendment to the U.S. Constitution.
At the same time, in their black-robed collective wisdom, they have declined to furnish the ordinary officials charged with enforcing the laws with a simply worded definition of what "marriage" means. They decree only: "If a State recognizes marriage between a man and a woman, it cannot also refuse to recognize 'marriage' (as we deem it) between those of the same sex."
So we have a judicially declared principle of law, which ought, in the Obergefell case, to apply only to those persons who were parties before the Court in that case.
But under our federal system, other federal courts, and State courts too, are required to recognize principles of federal law as declared by the United States Supreme Court.
And what, pray tell, transforms the ruling in Obergefell into a declaration of principles of federal law?
Is "marriage" a traditional area in which federal courts previously exercised their powers? No.
Well, what about "equal protection of the laws" under the Fourteenth Amendment? What about it?
Doesn't the Fourteenth Amendment require States to apply their laws equally to all people who are similarly situated? Yes, it does.
And aren't same-sex couples who want to get "married" in the same situation as male-female couples? Only if you ignore what the fifty States have always, since the founding of this country, regarded as constituting "marriage." Because if you accept their traditional definition of marriage as between a man and a woman, then you have no denial of "equal protection."
It is not "discrimination" to deny "marriage" to couples who have never met the basic criteria for marriage -- any more than it is "discrimination" to deny South Carolina residents the right to vote in Kentucky elections.
OK, so let's ignore that, then. Why is the Supreme Court of the United States (or at least five of its Justices, who get to call themselves "the majority") not free to say just what "marriage" is? Because the only way they could do so is by passing a piece of federal legislation. And they are not Congress -- the only federal body the Constitution empowers to pass legislation binding on the fifty States.
Why does redefining "marriage" involve legislation? Because you are not redefining it just for the couples involved in the Obergefell case; you claim to be redefining it for all people in all fifty States. And that is the function of legislation -- as even the most die-hard liberal will have to admit.
I like to test liberals on the limits of what they would accept from a Supreme Court majority. Currently, my favorite is this:
Suppose a majority of the Justices of the Supreme Court rule that every business in the United States with one or more employees must allow at least one day off from work, in every seven-day period, and in default of choosing a different day, the day off must be Wednesday (to avoid clashes with religious groups). They do so on the grounds -- urged by the labor unions in the case before them -- that the "general welfare" clause of the Constitution allows them so to rule in order to promote the general welfare of all employees in all fifty States.
1. Would you uphold their power to make such a ruling? Why, or why not?
2. What if an employee wants Wednesday off, but his employer decrees that it shall be Thursday, because that is the day that the employer's religion requires that he rest? Does the employee have a federal case? Why, or why not?
3. What if a business (say, like Uber) claims they have no "employees", and therefore that the ruling does not apply to them? Who decides what an "employee" is?
4. What if a church-sponsored school claims that it is not a "business", but a "religious institution"? Again, who decides the question?
Do you begin to see what I mean? Can you begin to understand why the ruling in Obergefell is not a legitimate ruling for the U.S. Supreme Court to make, given its limited powers under the Constitution? Once the Court -- or a bare majority of its Justices -- ignores those limited powers, where do things stop?