Tuesday, September 8, 2015

Standing up to the Obergefellers (3)

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?


  1. Allan,

    Much of the Left doesn't care about how something is done as long as it suits their ends. If Law is changed by judicial fiat to what they want it is just fine. When it is changed to something they don't want they squeal like a pig about how it should be changed only by legislative means. The whole point of the Left is to essentially destroy America to rebuild it in the Left's image to an authoritarian state that they rule.

  2. Cite the law that made GW Bush president! What 'federal law' stated that GW Bush should be president in Bush v Gore?

    1. All right, Lisa, I will: Bush v, Gore involved the Court's construction and application of Title 3 of the United States Code, Section 5 ("Determination of controversy as to appointment of electors"). See the Wikipedia article on the case. And note that it was later determined, after counting the ballots using the same strategy that Gore had been following, that Bush would have maintained his lead in Florida if the Court had not halted the recount under the statute referenced -- so that the voters of Florida, and not the Court's decision, made Bush the President in the final analysis.

  3. As the President and Courts have claimed powers the don't have, and as Congress has refused to use powers they do have, we have become a country of people devoid of representation, mere "subjects", ruled by unelected bureaucrats.
    I think that the U.S.A. will never again be a Democratic Republic.

  4. Oh, but wait: It was the Supreme Court who decided this, and they don't have any legal power to make decisions like that, correct? According to you, they don't have any power to make laws, correct?

    1. Lisa, the Constitution grants only to Congress the exclusive power to make laws -- I quoted Art. I, Sec. 1 to you earlier.

      The Supreme Court does not make laws; it interprets the laws that Congress enacts.

      In Bush v. Gore, as I told you, the Supreme Court had to interpret a law previously passed by Congress to deal with situations where the appointment of the electors from Florida (who actually cast the ballots for the presidency) was in doubt. They had to decide, when Congress had specified a deadline of December 12 for Florida to certify its electors, whether Florida could meet that deadline with the Gore-requested recount still going on, with different standards being applied to ballots in different counties. (Remember the "hanging chads"?)

      So the Supreme Court, looking at the deadline in the statute, and looking at the chaotic recount process, simply said there wasn't enough time for Florida's Secretary of State to make the certification of electors required by the date Congress (not the Court) had fixed when it passed its law.

      No new law was passed to resolve the case. The Court interpreted the statute, which is its normal function, and told the Florida court to halt the recount (another function of the Court is to send orders to lower courts in cases, telling them what to do -- that's not passing legislation, either).

      The newspapers in Florida paid to have the recount go on even after Bush was declared president by the Electoral College -- and when every ballot had been tabulated, Bush still maintained his lead statewide over Gore. So the Supreme Court did not make Bush president; the voters of Florida did.

  5. "The Supreme Court does not make laws; it interprets the laws that Congress enacts."

    Such as: The cases from the state level that went to SCOTUS concerning the fact that denying those same sex couples a license violated the 14th Amendment.

    SCOTUS interpreted the 14th amendment as it related to the crux of the cases before them and agreed that denying licenses to same sex couples was unconstitutional.

    So, just because you don't 'like' that fact doesn't mean that the Supreme Court overreached. There is no need for a law, or anything in the Constitution that describes marriage, because SCOTUS simply 'interpreted the law' in this case.

    Is issuing a government-based license, in order for two people to enter into a binding contract, constitutional? Why yes it is, according to the 14th amendment and the the justices interpretation.

    I wasn't a fan of the outcome of Bush v Gore, nor were many others, including legal scholars, but the Supreme Court, interpreting "case law" (which you are obviously aware of) decided, over several factors, that the recount should stop, thus allowing Bush the presidency.

    As much as I wanted to whine and stamp my feet and declare "He's not my president, no matter what the court says," I moved on.

    You should move on too, as you know how and why the Supreme Court exists, and no matter how you wish same sex marriage was illegal and banned, it is not. Personally, you can keep the word 'marriage' for your church ceremonies that are symbolic only.

    Call it whatever you want to call it, but it is legal now, period, thanks to the Supreme Court. Circular arguments don't deter from what is fact.

    Also, as I wrote and cited--which you ignored--Kim Davis is a government worker and she does not have the right to force her religious beliefs on anyone that comes there for a license, then deny a licence whether she 'agrees' with it or not.

    I hope you will rally around the nice Muslim flight attendant who refused to serve alcohol on the plane, because it violates her religious beliefs. I hope you will devote the same fervor for her as well. In that case, as well, she does not have extended rights, via her job duties, to deny alcohol.

    This is not a 'religious' issue because you want to make it one.

  6. Lisa, we just keep talking past each other. You say: "There is no need for a law, or anything in the Constitution that describes marriage, because SCOTUS simply 'interpreted the law' in this case."

    Do you realize how that sounds to a lawyer? What if I change it to say: "There is no need for a law, or anything else in the Constitution that describes the President or how he is elected, because the Supreme Court can simply 'interpret the law', as it did in Bush v. Gore."

    So let's throw out all the laws (except for the 14th amendment), shall we, and just let the Court decide what the 14th amendment says on every possible question?

    The 14th amendment, by the way, as the Court interpreted it in Obergefallen, does not say that States have to license same-sex marriages. The Court read it to say that if a State offers to license whatever it defines as "marriage," it cannot define that term so as to limit it just to two people of opposite sex.

    In other words, the Supreme Court said to the States: "Your (traditional and age-old) definitions of 'marriage' are no longer in keeping with the times. So we are defining the term for you: 'marriage is between two people of whatever sex they wish.'

    Had they just said: same-sex couples under the 14th amendment have a right to equal treatment, so that States must recognize their contracts and give them the same rights and liabilities of opposite-sex couples, then the Court would not have had to go outside the Constitution and legislate the meaning of "marriage" for everyone. It could have left it to the States to call the union of same-sex couples by whatever terms they each decided.

    Why are you so determined to rob our traditional (and yes -- religious) term of its meaning -- when you don't care a fig for Christian marriage? What's it to you, if we keep our term while you make up a new one more to your point, such as "a civil contract," or a "spact" (short for "same-sex pact"), or something else?

    No, you got five justices -- two of whom should have recused themselves for bias beforehand -- to do your work, and now you want to proclaim what they did as "constitutional", and cram it down our throats. You can call it "constitutional" all you like, just like you are calling it "marriage", but the words have been rendered meaningless by your usage of them.

    So let's agree to disagree, shall we, and move on? I enjoyed trying to get you to see my point, and I hope you caught that I gave your arguments full space on this blog. God's grace and peace be with you, whether you wish it or not.

  7. Mr. Haley,

    And I believe several of the justices in Bush v Gore, including O'Connor, should have recused themselves as well for bias beforehand, so what?

    The majority made their decision in that case and in the one we are talking about.

    The case law interpreted and the decision was based on the 14th amendment, specifically: Due Process and Equal Protection Under the Law.

    Mr. Haley said:

    "Had they just said: same-sex couples under the 14th amendment have a right to equal treatment, so that States must recognize their contracts and give them the same rights and liabilities of opposite-sex couples, then the Court would not have had to go outside the Constitution and legislate the meaning of "marriage" for everyone. It could have left it to the States to call the union of same-sex couples by whatever terms they each decided."

    What your argument seems to be is that your religious beliefs tell you that two same sex persons, getting legally married, is a sin, just like Kim Davis believes. I have no problem with what you said in the above paragraph, but that's not what happened. I would have loved it if the Justices called Bush a 'weasel' and referred to him as such in their ruling Bush v Gore, but they didn't use that wording. Oh well.

  8. Here is where you are mind reading, and you are attempting to tell me what I feel, etc., or maybe a soft insult towards me:


    How am I robbing you, sir, or anything? How does the contract I have with my spouse impact your contract whatsoever? How do I diminish anything you have, by having the same basic 'right' that you have?

    I didn't say whether I cared or didn't care about 'Christian Marriage.' The point is--for which you keep making circular arguments--the symbolic ceremony you have in a church, as wonderful and lovely as it is, doesn't make you 'married' to your spouse. The government issued license does, however.

    Personally, I don't care what it's called. Call it 'civil union' call it whatever. The justices called it 'marriage' but there were some big dissenting opinions, as you well know. So all of this is a semantic issue? Because you think my relationship is less than yours, you own the word marriage? Fine!!! That's fine with me, seriously.

    What have I crammed down your throat, by the way??? Um, I did not personally stick a knife to the justices and say "You better do this or else." I entered into a 'civil union' in DC last year, because my state didn't recognize same sex unions. Now, the court has spoken and it says the same sex marriage bans at the state level are unconstitutional, based on the 14th Amendment.

    Again, they were discussing case law in the decision, not that there are faction of Christians who believe the Supreme Court should now go to hell for using the word 'marriage.'

    I don't want to impede on your religious beliefs, personally. I just want that legal contract made in DC to be legal in every state, so we can file joint tax returns, etc., you know, like every American should have the right to do? I think that's what the Justices concluded, whether your religion tells you otherwise.

    Again, Kim Davis is not a martyr for refusing to follow her job duties as a civil servant. I would suggest that those Christians who are being tortured and beheaded in Syria might be true martyrs.

    I cited case law, plenty of it, to show that she doesn't have full free speech protection when she is carrying out her job.

    Seriously, I'm not trying to rob you of anything. I love the same God you love. As a person, I am entitled to the same rights that you enjoy as it relates to obtaining a license, that's what the court ruled. Again, just because you don't like it, doesn't mean it's not valid.

    Being an attorney, I think you know that. Thanks for letting me post. God's grace and peace to you too. I get very passionate, so I apologize if it ran over your guidelines about what constitutes and attack.

  9. Even 'born-again Christians cannot evade the requirements of Federal Laws. Remember Jesus' injunction;"'Render unto Caesar......". Mike Huckabee's friend has no divine right to live outside of the due requirements of the country's laws. Until Mr Huckabee gets into the House of representatives and changes that law, even he has to abide by it.. Is that not correct, Curmudgeon? Or do you live by another code?

  10. I don't have an email address for you, so I will leave you with this article from The New Yorker.


  11. My esteemed Cousel:

    We admire your willingness to practice civility with the those who suffer so much from their affliction that they must blame others for such afflictions.

    It is always a pleasure to review the workings of your mind in the formulation of rational argument. I was going to start railing forth and blustering, as you know I am prone to do at times. But, in truth, you have said it all, and said it well.
    I shall allow the matter to rest for me, and for your mates in the above styled case to exhaust themselves as they attempt to retire form the La Brea tar pits of guilt feelings and self-hatred.

    El Gringo Viejo

  12. What can be the rationale following "Obergefeller" with respect to whether marriage of more than two individuals would actually differ with respect to constituting an "equality" under the law in a situation involving more than two individuals seeking to be married? Would a federal court hold that the Fourteenth Amendment does not require a state to extend its laws regarding marriage to situations where more than two individuals are seeking to be married? A federal court finding of that nature would appear to be based in reality upon the court's view that at present the good folks of our country simply aren't ready for a change that embraces marriage of more than two individuals (such result sounds very legislative in nature (right?), and perhaps such folks can simply accept that it is up to the courts to decide when the time is now ripe for a decision that extends the thrust of "Obergefeller" to situations where more than two individuals seek to be married. In any event, the Constitutional Conundrum created by "Obergefeller" dramatically illustrates the potential for harm when federal courts fail to act within the constraints placed on them by the Constitution with the ensuing result that the "sky" is truly potentially the limilt.

  13. Shortly after my wife and I moved to San Antonio, TX, last October (from the liberal leftist Nirvana that is the Seattle metropolitan area), I received an invitation to attend a one day event in Houston, sponsored by the Ludwig von Mises Institute in re Secession.

    ISTM that we may be nearing an opportunity (however fleeting) to use that mechanism as the vehicle either to bring the runaway Federal government (including the Supreme Court) to heel, and failing that to escape their jurisdiction.
    Pax et bonum et Ave, from Texas,
    Keith Töpfer

  14. I won't publish Ms. Coston's reply to your comment, MA, because its derisive tone violates the standards here. Suffice it to say that she encourages Texas to secede from the Union.

    Lisa Coston, you are a new commenter on this blog, and so you may still need to test the limits for a while before you learn why I moderate all comments here. In general, a personal slight against another commenter will disqualify you every time -- just stick to responding to the substantive content, and you'll do fine.

  15. How did I slight anyone by saying secede from the Union, after said commenter says he thinks it might be a good idea? How is that derisive to agree with another person's comment, that, in and of itself, is derisive?

    You allowed the esteemed "Gringo" to basically infer I was a sick individual, etc. etc.

    I don't see you chastising him. Why? You know why. So, comments against gay liberals, slights, comments inferring mental illness are allowed, but agreeing with another poster who says it might be time to secede from the Union is somehow slighting that commenter?

    Don't worry. I won't be back.

  16. And now Ms. Coston accuses your moderator, who tried to give her all the space she needed to vent her thoughts, of favoring conservatives over liberals, and specifically, over gay liberals, at that -- so she says she will not be back.

    Another experiment with the revisionist mindset -- failed. Just as she was quick to give offense without reflection, so was she quick to infer offense from the comments against her positions. She read into words what no one had actually said, but which she herself would not have refrained from saying. At the same time, she took silence to be non-opposition to what she said, when the possibility that her comments about a particular point (e.g., about the limited First Amendment rights of government employees) did not deserve a response (because Kim Davis was an elected official, and not anybody's political employee).

    And then she runs away from discipline designed to make her comments less ad hominem and more on topic.

    Is this a real-life example of why we are devolving into a nation of two camps who are incapable of communicating with each other? Apparently, the effort it takes on each side is just too much, compared with the ease of being among one's own flock.