Saturday, September 5, 2015

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.


  1. I truly want to take the time to thoughtfully comment on all that you said, but I found myself falling asleep about half-way through. It's truly given me much to think about. I would like a chance to respond, so I will have to do that tomorrow at some point.

    Thanks so much!

  2. It should apply, Maxine -- you are right. But the Court long ago gutted the meaning of the Ninth and Tenth Amendments, and the modern-day Supreme Court simply ignores them.

  3. "This blog, accordingly, does not exist to bend the actual text of Scripture to temporary cultural or human ends"

    Amen and amen fellow curmudgeon.

  4. Sorry it has taken me so long to reply, but I have been busy.

    Looks like Ms. Davis was released!!! With that noted, I am actually glad she was released, but that does not mean she and her attorneys ‘won.’ It means the judge lifted the contempt order, because the judge believes that when Ms. Davis returns to her job, she will not interfere with federal law.

    But, I have a feeling she will be back in jail soon. So, Mr. Haley, here is my response to your lengthy response to me. I will have to break it up into two comments, as it is as long as your post.

    I also had to look up a few things. So, Kim Davis has a right to her religious freedom, including her view that same sex marriage is a sin, abomination and goes against the law of God. She is free to worship how she sees fit, and that includes religious beliefs that she may hold.

    She also has First Amendment rights as an individual. But when she speaks out, not as Kim Davis ‘public citizen’ but Kim Davis Government Worker/County Clerk, carrying out her specific duties including issuing marriage licenses, what are her First Amendment rights?

    This is not a state issue and you know it. For argument’s sake, since you brought up the fact that Kim Davis is following Kentucky law, not federal law, does that mean the following:

    Let’s say that the Federal Government instituted a federal law that no alcohol was to be served on Sundays, either in restaurants or package stores, etc. on Sunday, across the US, yet my state has a law allowing alcohol sales on Sunday. If a local police officer catches me with alcohol on Sunday, can he or she legally arrest me? State law says I can have the alcohol.

    The Kim Davis affair is a federal issue, based on the ban being lifted by the Supreme Court concerning same-sex marriage in every county, in every state throughout the union. If the Governor allows the Kentucky legislature to pass a law saying that the state—as a governmental body—not Kentucky counties, issue the marriage license, then the problem is solved both for those same sex couples seeking their legal right to the license that allows the ‘contract of marriage’ and Kim Davis/County clerks across Kentucky. That is an idea being passed around right now in Kentucky.

    Barring that, let’s look at the opinion in Gil Garcetti Et Al, versus Richard Ceballos:

    In this appellant case that reached the Supreme Court, the question was whether Garcetti, a district attorney in California, was passed over for a promotion because of his critical comments on the legitimacy of a warrant in a case that was to be tried by his office. Ceballos conducted his own investigation about the warrant, and concluded in a two memos, sent to his superiors that the case for which the warrant was at issue, should be dismissed. An angry meeting was held with his superiors, but his superiors pursued the case anyway. The defense, in this case, made motion for dismissal but the motion for dismissal based on the warrant issues was denied. Ceballos was called to testify about the warrant by the defense.

    After this incident, Ceballos said he was denied a promotion, transferred to another court and other “retaliatory employment actions,” by his employers. He filed suit, saying he was denied First Amendment rights over what he said in the memos and his stance on the warrant issue in the case.

    In its opinion, the U.S. Supreme Court says that the First Amendment does not protect a government employee from discipline based on free speech made in the carrying out of duties related to the government job. First Amendment rights concerning their jobs are different

  5. I quote from the opinion:

    “The question presented by the instant case is whether the
    First Amendment protects a government employee from
    discipline based on speech made pursuant to the employee’s
    official duties.”

    Further, in the opinion, the complexity of the issue is discussed:

    “As the Court’s decisions have noted, for many years “the
    unchallenged dogma was that a public employee had no
    right to object to conditions placed upon the terms of
    employment—including those which restricted the exercise
    of constitutional rights.” Connick, 461 U. S…”

    Does Kim Davis’ rights as a public citizen trump her rights when she makes public comments and declarations during the commission of her duties as County Clerk?

    “The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. See, e.g., Pickering, supra, at 568; Connick,supra, at 147; Rankin v. McPherson, 483 U. S. 378, 384 (1987); United States v. Treasury Employees, 513 U. S.
    454, 466 (1995).

  6. Then, the Pickering case is cited:

    School teacher, Marvin Pickering was dismissed from his job after he wrote a letter to a local newspaper, criticizing the Board of Education for the way they handled proposals to raise revenue.

    Pickering said his letter was protected by the First and Fourteenth Amendment. At the lower state appellant courts, the dismissal was upheld, but the Supreme Court reversed the decision and said the letter was protected by the First Amendment.

    “The question becomes whether the relevant government
    entity had an adequate justification for treating
    the employee differently from any other member of the
    general public. See Pickering, 391 U. S., at 568. This
    consideration reflects the importance of the relationship
    between the speaker’s expressions and employment. A
    government entity has broader discretion to restrict
    speech when it acts in its role as employer, but the restrictions
    it imposes must be directed at speech that has some
    potential to affect the entity’s operations.”

    Kim Davis’ ‘speech’ definitely affected the operations of the County Clerk’s office, indeed. It affected the operation of issuing marriage licenses, according to Federal law.

    The opinion continues:

    “Pickering and the cases decided in its wake identify two
    inquiries to guide interpretation of the constitutional
    protections accorded to public employee speech. The first
    requires determining whether the employee spoke as a
    citizen on a matter of public concern. See id., at 568. If
    the answer is no, the employee has no First Amendment
    cause of action based on his or her employer’s reaction to
    the speech. See Connick, supra, at 147.”

    Kim Davis was not speaking as a citizen on a matter of public concern. She was speaking as County Clerk, as she made the comments while engaged in her job of issuing licenses.

    Therefore, in agreement with Justice Kennedy:

    "When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom," Page 6.

    I think, based on the above, the Kim Davis case-- though a First Amendment issue concerning free expression--also relates to the freedom of religion of public employees in the operation of their job.

    Kim Davis is promoting her own religious convictions at the expense of others, while carrying out the role of her government job. When she took her oath, after being elected, she waived her right to object to same-sex marriage licenses.

    She can disagree with the law all day long, but she cannot disobey the law. She is denying other people their ‘Constitutional rights,’ and then claiming that she’s some sort of new Martin Luther King, by risking jail for not doing her job. Martin Luther King and others were not denying other people their rights, by the way. She is no martyr.

    It’s you, A.S. Haley that seem to conflate the issue, because you want a theocracy based on your religion, period. Therefore, Davis is a ‘martyr’ for refusing her oath of office, when you know, or you should know, Constitutionally, I believe she doesn’t stand a chance, as I have explained and cited.

    Her freedom to express herself has not been squelched. Her freedom to practice her religion has not been squelched. When she took her oath, she relinquished her right to disobey her job duties based on her religion.

    1. Lisa, thank you for being so thorough, and for backing up your points with case law. While I appreciate your argument that "what is the definition of a marriage" is now a question of federal law, and no longer one where the States are free to act as they always had previously, I think that you and those who argue as you do still are evading some key questions, for which you can have no answer.

      The first question: "Where is the federal 'law' that defines what a 'marriage' is? Can you quote it to me? Can you cite to it anywhere in the United States Code or regulations? When did Congress -- which is the only body authorized by our Constitution to pass laws [see the first sentence after the Preamble] -- enact it?"

      The second question: "If there is no such law enacted by Congress, then how can there be anything that the fifty States are required to treat like a federal law, and obey? In particular, where is Kentucky's law, which Kim Davis took an oath to enforce? Who changed from one day to the next what it says, and with what words did they change it? Where is the text of the change you are holding Kim Davis liable to enforce, at her peril?"

      Your alcohol example provides no response to those questions, because you hypothesize a federal statute, not a Supreme Court decision. And that leads to my third question:

      "Even if it wanted to, could the Supreme Court -- or five justices of that Court -- lay down a 'law' that all businesses must close down on, say, Wednesdays? What if it claimed to do so in order to protect the health of workers, pursuant to the welfare clause of the Constitution? Who would have to obey such a 'law', and why?"

      In short what makes a "law" a law? Until you come to grips with that question in the context of defining what marriage is for everyone in the country, you have not provided me with an answer to my points in my post.

      And please, Lisa, I beg you to lay off the "theocracy" bits. They add nothing to, and in fact detract seriously from, your argument. You have not done the real job of reading the over 1000 posts on this blog in order to come anywhere near to being able to make such a judgment -- and even if you had, you could never in fairness say any such thing.