Defiant Kentucky county clerk Kim Davis has appealed the contempt order that has left her languishing in jail. At the same time, her lawyer has argued that marriage licenses issued without her signature are invalid — an interesting question given the state’s requirement that her signature be affixed to every such license. Below is my recent Washington Post column on Davis and how she fits within our collective social and legal iconography. Defiance is a heroic value when it is Martin Luther King violating police orders and standing unbent before biting dogs and swinging batons. It was inspiring to millions when King cited St. Augustine to declare “an unjust law is no law at all”. Such figures stood against not just our prejudice but our laws in their defiance. As Henry David Thoreau stated “Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?” Those who transgress upon unjust laws today are often heralded as heroes tomorrow from early American patriots to abolitionists to suffragists to desegregationists. Even today many praise Edward Snowdon for his criminal actions in disclosing a massive surveillance system of U.S. citizens even though those same laws are designed to protect our national security. Yet, Davis is using her public office to impose her religious values on neighbors. That contrast led to the column below.
County clerk Kim Davis cut a striking figure this week as she thanked the judge who found her in contempt of court and then was taken into custody. For some, Davis is the face of courage and principle as she refuses to commit what she considers an immoral act of issuing marriage licenses to same-sex couples. For others, she is a religious bigot who is using her public office to force her neighbors to adhere to her own moral values.
It is not surprising that a single act of defiance could provoke such divergent interpretations. From Dred Scott to Brown v. Board of Education to Roe v. Wade to the recent decision in Obergefell v. Hodges, we tend to see our legal values embodied in heroic or demonic figures. So when history passes judgment, will Davis be hero or villain?
There is a material difference between citizens who refuse to yield individual rights against the government and government officials who use their offices to deny rights to citizens. Defiance was heroic when Martin Luther King Jr. declared that “an unjust law is no law at all” and stood unbent before biting dogs and swinging police batons. King, Rosa Parks and Alice Paul could not accept the law without accepting second-class status for themselves.
And yet George Wallace is rightly vilified for defying the federal government and trying to block desegregation in Tuscaloosa. Government officials like Wallace and Davis are not required to accept values as individuals. They are required to follow the law, which is ultimately defined by the Supreme Court in its interpretation of our Constitution.
Davis has said that “[t]o issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.” While clerks do “sign off” on certificates, that is not a discretionary function. Their signature confirms compliance with the dictates of the law, not personal moral dictates. They cannot deny certificates to those who are legally qualified to receive them.
Davis may have had a principled position in previously declining to issue these licenses while the courts considered the merits of the question. Similarly, clerks who believed that there was a legal basis to issue such licenses based on lower court decisions would claim a principled stand. However, that debate ended the minute the box holding the Obergefell opinions was opened in the Supreme Court clerk’s office on June 26.
The only question that remains is whether clerks like Davis want to continue in office. Davis does not have to be a clerk any more than she would have to be a bus driver or a schoolteacher. If she has a moral conflict with her duties, she has a principled avenue of resolution: She can resign. Just as Wallace had no right to block the schoolhouse, she has no right to block the courthouse.
The great irony about Davis’s iconic status is that her supporters fail to see how her dissent threatens their interests, too. Religious conservatives have some legitimate concerns about the erosion of rights — particularly speech rights — in the face of anti-discrimination laws, as currently being debated in cases involving Christian bakers and wedding photographers. However, Davis is asserting the very authority that the religious community has been dreading.
If one clerk can refuse to comply with laws governing due process, privacy or equal protection, another clerk could do the same with laws related to religious rights. In other words, religious conservatives could find themselves across a counter from someone who refuses to recognize their religious practices or beliefs. When Davis was asked by a gay couple what authority she had to refuse their license, she responded “Under God’s authority.” Would her supporters feel the same way if God meant Allah or Yahweh?
That distinction seems to be missed by protesters such as Flavis McKinney, who told the New York Times that he came to the courthouse this week “to stand up for God and his word, and to stand up for our clerk.” Indeed, McKinney referred to another iconic figure in noting that “[God] delivered Daniel from the lion’s den. So I trust he will deliver her.”
Actually, the story of Daniel is precisely the point. Daniel was a government official who was thrown into the pit with the lions by his master, Darius the Mede, for violating the law (by praying to his God rather than to Darius). It might look like Davis, who was ordered to jail Thursday, is surrounded by critics, with only her faith to protect her. However, Davis is no Daniel.
Daniel did not jump into the den to await divine intervention. Whereas Davis has not only called forth the lions but declined various exits offered by the court, including simply instructing her clerks to issue the licenses. The divine lesson is the same as the legal one: leave the den and the lions behind.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
Washington Post – September 3, 2015
“The wealthy control government and are they not often times the largest corporate welfare beneficiaries?”
Bernie Sanders has a good take on that.
http://www.sanders.senate.gov/top-10-corporate-tax-avoiders
http://www.ontheissues.org/2016/Bernie_Sanders_Corporations.htm
LOL! OK that’s funny. Hildy, I am a heterosexual mother of four and grandmother of four. I was married to a man for 20 years. While I have no issue with homosexuality I am not attracted sexually to those of my own gender. Why is it so difficult to imagine that there are people out there in the big world that actually are in favor of civil rights for everyone? I am most definitely a Progressive liberal Democrat.
Kim Davis is a born again Christian who is being used by religious right organizations. She is probably sincere in her beliefs, but that doesn’t give her the authority to deny others their civil rights under the authority of the supreme law of the land, the Constitution, Fourteenth Amendment. That’s my take on it and you don’t like it, oh well.
It is good to see that we have finally agreed on something.
Civil rights are good. So how do I know which rights you will help me protect and which rights you will not?
I have often asked this question of people and one women from eastern Europe who was in law school got the answer I believe is correct. I asked it in a different manner. “When should I be willing to acquiesce an inalienable right for the public good and when should I fight for a specific individual rights?
She answered never and we should always fight for our individual rights. Where I believe socialists, or as you like to call them progressive liberals are wrong is that you think this would preclude people from voluntarily participating in the public good. That the public good is always contrary to an individuals interests. That people acting in their own interest would never do something for the common good.
If I am a major shareholder in a huge company that owns vast amounts of property and wealth, would I and my other shareholders not be more inclined to voluntarily be willing to pay for national security then a poor person living on the streets.
Our history is full of great things being done voluntarily. Why must I pay off government to get their permission every time I want to build or produce something or even do something for fun? I’m must have a passport to enter and exit the country. I must have a license to be a professional. To fish, to boat, to buy and sell air to dive. I must not deposit in a bank more than $10,000 without filing out forms as to where the money came from etc. etc etc.
Is government really protecting the public or are they just sticking the money into their and their cronies pockets? The wealthy control government and are they not often times the largest corporate welfare beneficiaries?
I’m not too sure why you’re lol-ing. You state “I am most definitely a Progressive liberal Democrat.” Okay so I got that right.
“Kim Davis is a born again Christian who is being used by religious right organizations. She is probably sincere in her beliefs, but that doesn’t give her the authority to deny others their civil rights under the authority of the supreme law of the land, the Constitution, Fourteenth Amendment. That’s my take on it and you don’t like it, oh well.”
And I totally agree with that, so what’s so funny? We agree and you are thinking we don’t? Perhaps you’re not reading for comprehension? Isn’t this just more buying into the polarization that’s been stoked by the media? Just because I’m not wearing the “social democrat” or “progressive liberal” label we can’t even comprehend that we might agree on something?
I’m thinking Annie is either gay herself or a what is called a Progressive Democrat/Liberal and she (and others) is really wanting to convince us all that Kim Davis is VILLAIN. To some of us this is not an either/or, black/white, gay/homophobic, liberal/conservative, hero/villain situation.
Personally I could not care less if gays are LEGALLY married. Believe it or not, I have friends (I would name them, but would rather not) who are a married lesbian couple. They are GREAT people. I love them dearly. They’ve been to my home many times and I’ve been to theirs. I have gay and lesbian neighbors who are really nice. Here’s a news flash; no one cares if they’re gay! We have a large gay bar in our neighborhood. Everyone loves that place. I could go on and on.
My opinion is Kim Davis would be a HERO if she refused to give marriage licenses to ANYONE!!! But barring that fantasy she should give them to EVERYONE or find another job. Simple, eh? So assuming a person must be anti-marriage licensing only because gays can legally get them does not apply in my case or even all cases.Why do you think these issues have the effect of dividing us into “camps”? Why do we get continually sucked into an “us or them” mentality? Divided we fall and it’s a long way down.
The government (federal or state) should NOT be issuing marriage licenses AT ALL. At this point though, so many are convinced that without MORE government control, we would fall into a state of utter chaos and anarchy. Isn’t that what we’re seeing NOW? Wake up people. Our country is getting more and more infantile by the minute as we keep expecting more of the same is going to get us a different result.
http://www.westernjournalism.com/clerk-kim-davis-just-fired-back-in-a-big-way-against-a-high-level-target/
Davis is suing the governor after he met not with her–as the head of the Rowan County Clerk’s office–but with her son, who is one of her underlings.
In her lawsuit, Kim Davis says that Beshear’s “order” was illegal because he has no power over her as an elected official and further says that his actions violate her First Amendment rights.
With all this, Davis and her legal team say she is “facing immediate and substantial harm and consequences for exercising her individual constitutional and statutory rights.
For his part, Beshear is demanding that the court dismiss Davis’ case.”
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Yet more high strangeness.
Inga – she is right, the governor has no legal authority over her office. She is an elected official, just as he is. He should have meet with her, not her son. She is the duly-elected Clerk of the Court.
I find it interesting that only after the subject of same sex marriage really got to be a mainstream topic did we hear ‘complaints’ about the government being involved in issuing marriage licenses.
Still not worth it. You’re welcome.
That’s good, thank you.
I cannot even believe we’re having this argument. She’s neither villian nor hero. She’s just a very average human being. The government has ZERO business licensing marriages in the first place. If the government would stay out of it, this entire media circus would have been avoided. If people want to exchange rings, have a ceremony and say they’re married, and someone has a problem with it, who cares? Let the court of public opinion work it out. If they are personally attacked, that’s another matter, but do we seriously NEED the Federal Government crawling up our asses 24/7? Are people really that inept and helpless that they can’t defend themselves AT ALL? Do we need the government to work out all of our niggly little differences?
Ben Carson had a problem when he moved into a mostly white neighborhood. One of his neighbors (a KNOWN racist) put up a huge Confederate flag (his first amendment right) and the other neighbors got him to take it down. THAT’S how adult human beings are supposed to deal with things. It’s not that we don’t need laws to protect people’s INDIVIDUAL RIGHTS, but this is SO stupid. By the way did you know that we’re on the verge of WWIII? Look at how many comments are on this ONE idiotic topic and not one person besides myself is even asking, “Should the government even be issuing marriage licenses?”
Hildegard wrote: “… not one person besides myself is even asking, “Should the government even be issuing marriage licenses?”
Government should regulate marriage because marriage is more than a contract. It is an institution of natural law. In marriage between a man and a woman, a new unit comes into existence: the family. The family is the smallest political unit. It is the foundation of civilized society. In marriage we have new relationships formed, and new people. We have husband and wife, father and son, mother and daughter. Such creates new duties and obligations between the parties involved. Disputes over property, inheritance, and children arise. The courts are the place for adjudicating these issues. Deadbeat dads are forced to live up to their obligations. If the States did not license marriage, it is all too easy to claim no marriage existed in these disputes. So as a civilized society, we need to properly define marriage as between a man and woman, and same sex unions should be defined as a domestic partnership with the duties, obligations, and rights that arise from that relationship. Domestic partnerships should come under contract law and not have divorce as the method of dissolving the relationship. To have the perspective that government not be involved is to invite injustice.
You used the word “should” 3 times in your comment. Are you an Enneagram personality type One? Anyway, back to the subject. You are assuming that none of the protections you cite would be available unless the government issued marriage licenses. Please see my other comment.
David, I see marriage as a right to contract and thus the nation state should not be involved in it’s regulation. There would be no need for this discussion. You do believe it is a right? Our rights are supposed to be protected from the encroachment of government. I don’t understand why you want to acquiesce a right in favor of some alleged common good, unless you are really interested in forcing your beliefs on others.
By the way the family is not a political unit. Government requires the use of force thus marriage being voluntary, does not require government. We don’t even require government to mitigate any aspect of marriage. You probably however prefer government courts to private, except when they do not rule in favor of your beliefs. Every couple could contractually agree to use a court of their choice. Binding Arbitration is an example of a private judicial system.
Skip wrote: “Government requires the use of force thus marriage being voluntary, does not require government.”
I have seen too many single moms and deadbeat dads to think that marriage is not a public institution subject to court jurisdiction.
Let’s see, women file for the divorce between 75% to 80% of the time and unemployment is as high as 35% in some communities. So you are telling me that government is going too solve the problems it creates? Government has relegated the marriage license to some arbitrary judicial determination depending on how much money the attorneys can pry from their client’s hands often times splitting the proverbial baby in half. The government has taxed and regulated the lower and middle class to such a high decree that it is impossible, because of the lack of disposable income for them to ever have any hope of getting out of object poverty. We then call them Dead Beat Dads after the woman gets pregnant on purpose to get away from their mothers, they divorce the father because he doesn’t provide her the life style she deserves and because they think the grass is greener over the septic tank. We than force the fathers to pay obscenely high child support payments they cannot afford and put them in jail when they cannot. Forced child support actually give women an incentive to file divorce, look for another provider, keep it secret and we wonder why there are so many single mons. David you remind me of most politicians who give 30 second soundbites without telling the people how the system really is. Just keep telling people what they want to hear and they will eventually believe you?
Like or not you make some valid points, and I should know having been the recipient of child support and alimony.. Personally I decided to refuse 3 years of alimony payments because I didn’t want to become dependent on them for such a long period of time. If it makes you feel any better, I know a man who’s ex kept taking him to court for more child support and every single time she ended up with less. I wonder if MEN have the same right to renegotiate child support and/or alimony payments when if their income drops. Of course the PC police will say it’s sexist to use the terms men and women because it could be a woman paying alimony and child support these days.
Everything you say is valid. In many cases what you outline happens exactly that way and it’s a real ‘crime’ that there isn’t more fairness in our administrative court system, but that IS the nature of the beast. I believe common law courts/grand juries could help us go a long way toward putting these issues before common everyday people who don’t have a vested interested in supporting the state bureaucracy/agenda. When you get a state marriage license that’s what you’re subjecting yourself too. There are ways to protect yourself such as personal contracts.
Thanks for the back up. It good to see the courts backing up the Constitution on the Davis case. That’s the problem though, they are not consistent. On cases like this, that in all fairness is rather trivial in an overall sense, based on the actual ramifications to society, they will rule correctly. Try getting justice in an IRS case, or taking down one of the central banksters on mortgage fraud and you will see an entirely different court.
I’m told in 1903, Congress passed an Act relating to the creation of the National Guard. What they say it did was to void the militia component of the 2nd amendment and placed the control over the administration of grand juries in the hands of the courts. I am waiting on the Act to be sent to me from a friend to read it for myself. I believe our founding fathers were brilliant, not perfect, but I must say the ruling class has slowing and brilliantly overthrown their constitutional intent until we have awoken today under a fascist oligarchy. It is so complex and difficult to explain stuff like this to people especially with the main stream media, basically being the mouthpiece for the oligarchy.
I’m wondering how far the rabbit hole you’ve gone. Many here are still living in their childhood dreams where there are no conspiracies except in the imaginations of Hollywood and conspiracy theorists are put in tiny little boxes and discounted as simple minded fools.
I came across this 5 min. video today that concisely outlines our constitutional predicament. It sounds like you may already be on to it or would certainly be open to receiving the information. You might be interested in the site I found the link on. It gets a bit airy fairy (in my opinion) at times, but also has some really good stuff. https://jhaines6a.wordpress.com/
https://www.youtube.com/watch?v=lVsMUpPgdT0
A quote from Carl Jung ““Only an infantile person can pretend that evil is not at work everywhere, and the more unconscious he is, the more the devil drives him.”
The central bankers meet in Basil Switzerland every two months. They control the Bank of International Settlement (BIS) in Basil, the UN, World bank, IMF, most of the sovereign funds, the exchange banks and the central banks of each country. This is not a conspiracy, this is a reality. Nothing any business or government does, because of their monetary controls and influence, goes without their approvals/disapprovals. If you fight back you end up like Omar Kaddafi or the voluminous number of other leaders that have disposed of. “The Confessions of an economic Hitman”, go into some of the operations in South and Central America.
Another defeat for Kim Harris.
https://docs.google.com/viewerng/viewer?url=http://files.eqcf.org/wp-content/uploads/2015/09/103-ORDER-denying-injunction-pending-appeal.pdf
“In her Motion, Davis suggests that the Court could easily stem the tide of litigation by simply ordering Governor Beshear and Commissioner Onkst to remove her name and authorization from the marriage license form. While this is a seemingly simple request, it is not consistent with principles of federalism. Under the Eleventh Amendment, as interpreted by Pennhurst, the Court simply does not have the authority to order Governor Beshear or Commissioner Onkst to alter the marriage license form or amend KRS §402.100 based on alleged violations of Davis’ rights under the Kentucky Constitution and Ky. RFRA. Davis’ claims brought under state law should therefore be brought in Kentucky state court. To the extent that she seeks relief in the form of such an accommodation for violations of Kentucky state law, only the state court can grant such relief.”
“The Oath Keepers, the anti-government “Patriot” group that mounted an armed standoff with the Bureau of Land Management at the Bundy Ranch, stationed armed guards outside of military recruitment centers after the Chattanooga shooting, and unsettled Ferguson protestors when they showed up carrying assault rifles, is now offering anti-gay Kentucky clerk Kim Davis a “security detail” to protect her from further arrest if she continues to defy the Supreme Court’s marriage equality ruling.”
Update:
http://oathkeepers.org/oktester/kim-davis-legal-team-declines-oath-keepers-offer-to-protect-her against-unlawul-arrrest/
“Oath Keepers has been contacted by Kim Davis’ legal team at Liberty Counsel, and they have, on her behalf, declined our offer of assistance in protecting her from a possible repeat incarceration by Federal District Court judge David Bunning. We will, of course, respect her wishes, and are hereby issuing a stand-down for our security volunteers who were planning on deploying to Morehead, Kentucky on Monday.”
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Comical relief.
I was going to comment on your comment but it’s not even worth it…..
That good Hildy, thanks,
Mike Appleton: “I am not aware of any case invalidating a RFRA statute.”
Then you acknowledge that the law as written makes Ms. Davis’ position is sustainable?
RFRA statutes fail the test in Lemon v. Kurzman from the starting gate because they are obviously not enacted for a secular purpose. They also invite excessive government entanglement in religion by compelling judges to discern what constitutes “religious belief,” a phrase which has never been defined (and probably cannot be).
When you say “secular” do you mean ‘mundane’ or not being allied with or furthering a particular religion? Because RFRA is certainly the latter.
My opinion is that RFRA statutes impermissibly advance religion because they afford special treatment to those persons who identify themselves as religious believers while denying the same consideration to those who may share similar concerns over a particular course of action based upon moral principles not bound to religious belief.
Once again, almost all of the objections I’ve heard in this case can be boiled down to a refusal to acknowledge the nature and reality of deeply held religious beliefs. In one sentence you’ve tossed aside any need for a Free Exercise Clause.
In order to appreciate the value of affording reasonable accommodations under RFRA, perhaps a glimpse of what I mean by “the nature and reality of deeply held religious beliefs” is in order.
Here’s an excerpt from: “The Undiscovered Self” (Chapter on ‘Religion As The Counterbalance To Mass-mindedness’) by C.G. Jung:
“In order to free the fiction of the sovereign State – in other words, the whims of those who manipulate it – from every wholesome restriction, all sociopolitical movements tending in this direction invariably try to cut the ground from under the religions. For, in order to turn the individual into a function of the State, his dependence on anything beside the State must be taken from him. But religion means dependence on and submission to the irrational facts of experience. These do not refer directly to social and physical conditions; they concern far more the individual’s psychic attitude.
But it is possible to have an attitude to the external conditions of life only when there is a point of reference outside them. The religions give, or claim to give, such a standpoint, thereby enabling the individual to exercise his judgment and his power of decision. They build up a reserve, as it were, against the obvious and inevitable force of circumstances to which everyone is exposed who lives only in the outer world and has no other ground under his feet except the pavement. If statistical reality is the only reality, then it is the sole authority. There is then only one condition, and since no contrary condition exists, judgment and decision are not only superfluous but impossible. Then the individual is bound to be a function of statistics and hence a function of the State or whatever the abstract principle of order may be called.
The religions, however, teach another authority opposed to that of the “world.” The doctrine of the individual’s dependence on God makes just as high a claim upon him as the world does. It may even happen that the absoluteness of this claim estranges him from the world in the same way he is estranged from himself when he succumbs to the collective mentality. He can forfeit his judgment and power of decision in the former case (for the sake of religious doctrine) quite as much as in the latter. This is the goal the religions openly
aspire to unless they compromise with the State. When they do, I prefer to call them not “religions” but “creeds.” A creed gives expression to a definite collective belief, whereas the word religion expresses a subjective relationship to certain metaphysical, extramundane factors. A creed is a confession of faith intended chiefly for the world at large and is thus an intramundane affair, while the meaning and purpose of
religion lie in the relationship of the individual to God (Christianity, Judaism, Islam) or to the path of salvation and liberation (Buddhism). From this basic fact all ethics is derived, which without the individual’s responsibility before God can be called nothing more than conventional morality.
Since they are compromises with mundane reality, the creeds have accordingly seen themselves obliged to undertake a progressive codification of their views, doctrines and customs and in so doing have externalized themselves to such an extent that the authentic religious element in them – the living relationship to and direct confrontation with their extramundane point of reference – has been thrust into the background. The denominational standpoint measures the worth and importance of the subjective religious relationship by the yardstick of traditional doctrine, and where this is not so frequent, as in Protestantism, one immediately hears talk of pietism, sectarianism, eccentricity, and so forth, as soon as anyone claims to be guided by God’s will. A creed coincides with the established Church or, at any rate, forms a public institution whose members include not only true believers but vast numbers of people who can only be described as “indifferent” in matters of religion and who belong to it simply by force of habit. Here the difference between a creed
and a religion becomes palpable.
To be the adherent of a creed, therefore, is not always a religious matter but more often a social one and, as such, it does nothing to give the individual any foundation. For support he has to depend exclusively on his relation to an authority which is not of this world. The criterion here is not lip service to a creed but the psychological fact that the life of the individual is not determined solely by the ego and its opinions or by social factors, but quite as much, if not more, by a transcendent authority. It is not ethical principles, however
lofty, or creeds, however orthodox, that lay the foundations for the freedom and autonomy of the individual, but simply and solely the empirical awareness, the incontrovertible experience of an intensely personal, reciprocal relationship between man and an extramundane authority which acts as a counterpoise to the “world” and its “reason.”
This formulation will not please either the mass man or the collective believer. For the former the policy of the State is the supreme principle of thought and action. Indeed, this was the purpose for which he was enlightened, and accordingly the mass man grants the individual a right to exist only in so far as the individual is a function of the State. The believer, on the other hand, while admitting that the State has a moral and factual claim, confesses to the belief that not only man but the State that rules him is subject to the overlordship of “God” and that, in case of doubt, the supreme decision will be made by God and not by the State. Since I do not presume to any metaphysical judgments, I must leave it an open question whether the “world,” i.e., the phenomenal world of man, and hence nature in general, is the “opposite” of God or not. I can only point to the fact that the psychological opposition between these two realms of experience is not only vouched for in the New Testament but is still exemplified very plainly today in the negative attitude of the dictator States to religion, and of the Church to atheism and materialism.
Just as man, as a social being, cannot in the long run exist without a tie to the community, so the individual will never find the real justification for his existence, and his own spiritual and moral autonomy, anywhere except in an extramundane principle capable of relativizing the overpowering influence of external factors. The individual who is not anchored in God can offer no resistance on his own resources to the physical and moral blandishments of the world. For this he needs the evidence of inner, transcendent experience which alone can protect him from the otherwise inevitable submersion in the mass. Merely intellectual or even moral insight into the stultification and moral irresponsibility of the mass man is a negative recognition only and amounts to not much more than a wavering on the road to the atomization of the individual. It lacks the driving force of religious conviction, since it is merely rational. The dictator State has one great advantage over bourgeois reason: along with the individual it swallows up his religious forces. The State has taken
the place of God; that is why, seen from this angle, the socialist dictatorships are religions and State slavery is a form of worship. But the religious function cannot be dislocated and falsified in this way without giving rise to secret doubts,which are immediately repressed so as to avoid conflict with the prevailing trend towards mass-mindedness. The result, as always in such cases, is overcompensation in the form of fanaticism, which in its turn is used as a weapon for stamping out the least flicker of opposition. Free opinion is stifled and moral decision ruthlessly suppressed, on the plea that the end justifies the means, even the vilest. The policy of the State is exalted to a creed, the leader or party boss becomes a demigod beyond good and evil, and his votaries are honored as heroes, martyrs, apostles, missionaries. There is only one truth and beside it no other. It is sacrosanct and above criticism. Anyone who thinks differently is a heretic, who, as we know from history, is threatened with all manner of unpleasant things. Only the party boss, who holds the political power in his hands, can interpret the State doctrine authentically, and he does so just as suits him.
When, through mass rule, the individual becomes social unit No. so-and-so and the State is elevated to the supreme principle, it is only to be expected that the religious function too will be sucked into the maelstrom.”
And vice versa.
statutes – oops
http://www.buzzfeed.com/chrisgeidner/kentucky-clerk-asks-for-order-allowing-all-couples-to-marry?utm_term=.irp2eKEQ#.mgVYvGDXR
“On Sept. 3, Judge David Bunning expanded his order that Rowan County Clerk Kim Davis end her “no marriage licenses” policy to cover all couples — not just the plaintiffs in the case. Davis’s lawyers say that was inappropriate and are asking the appeals court to put the expanded order on hold.
Lawyers for Rowan County Clerk Kim Davis asked a federal appeals court on Friday to effectively end the requirement, currently in place under an order from the trial judge, that all couples be allowed to marry in the county.
In a new request to the 6th Circuit Court of Appeals, Davis’s lawyers took aim Friday at a Sept. 3 ruling from Bunning that expanded the Aug. 12 ruling to include “other individuals who are legally eligible to marry in Kentucky.”
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Insane.
davidm:
I meant to add that Ms. Davis’ concerns over signing a marriage license are misplaced. When she signs the license, she is acknowledging only that the applicants have satisfied the legal requirements for issuance. She is not making a judgment about the wisdom or morality of their decision to marry, nor does she have a right to do so. Scrupulosity is not evidence of an informed conscience; it is an emotional and psychological disorder that members of the public should not be expected to endure or accommodate.
I might add to Mike Appleton’s recent comment. There is no constitutional or ethical argument compelling enough to allow an agent of government the ability to set arbitrary standards in the issuance of licenses or to judge the suitability for a couple to marry. To do so would open up the floodgates to discrimination and create a balkanization of counties where standards vary and individuals will be forced to travel out of their home county to find a sympathetic official that will perform a duty that should otherwise be uniform.
An analog of what is occurring with this, that might give some of the conservative elements insight, is the fact that many states have Shall Issue firearms permit laws. The impetus for this is it prohibits government officials, such as sheriffs and chiefs of police, from using any excuse to deny a firearms license to those individuals who are not statutorily prohibited from receiving such licenses. These states tend to have constitutions that guarantee the individual right to bear arms prior to the federal case law allowing.
It would be unfortunate in that the Commonwealth of Kentucky would be forced in light of Ms. Davis’ theatrics to enact Shall Issue laws to at least give a greater impression of state repercussions should officials take the laws into their own hands. But given the support she is unfortunately garnering it might be necessary.
Darren Smith wrote: “There is no constitutional or ethical argument compelling enough to allow an agent of government the ability to set arbitrary standards in the issuance of licenses or to judge the suitability for a couple to marry. To do so would open up the floodgates to discrimination and create a balkanization of counties where standards vary and individuals will be forced to travel out of their home county to find a sympathetic official that will perform a duty that should otherwise be uniform.”
Note that prior to Lawrence v. Texas and then Obergefell v. Hodges, the Constitutional understanding of marriage was very clear and the laws were uniformly applied in a fair manner. Until a decade ago, there were never any complaints. Only now after Obergefell do we have chaos and civil unrest concerning marriage. Thank the Act Up Homosexual Activists for the current state of affairs, and, of course, thank the activist homophile judges on the Supreme Court. They have confused the minds of the common man.
Darren Smith wrote: “It would be unfortunate in that the Commonwealth of Kentucky would be forced in light of Ms. Davis’ theatrics to enact Shall Issue laws to at least give a greater impression of state repercussions should officials take the laws into their own hands. But given the support she is unfortunately garnering it might be necessary.”
So your response to the sincere moral conviction of citizens like Kim Davis is to make government more draconian and use greater force concerning the approval of sexual immorality.
Because marriage is a public institution with the imprimatur of government, this issue will never go away. It will haunt us like Roe v. Wade has haunted our civilization for the last 40 years.
Mike – if Ms. Davis states the couple complies with the state statues, she is stating the couple is one man and one woman.
You are correct. She is not wanting to sign only to make a political/religious statement. I personally will never place myself in a position of having to put someone to death other than in self defense. If she is apposed to doing her job than she should resign and let someone who is not.
It is the same with working on Saturday the Sabbath. If I am not willing to work on the Sabbath, my employer should not have to fire me, I should resign. I should not be able to force my religious convictions on someone else, especially the entire Citizenry. I wish I could but sadly that is not how the system is supposed to work. We are supposed to be tolerant of one another’s religious convictions and protect their individual rights. Nothing more or nothing less.
That is why I am a libertarian. If something can’t be done by people cooperating in their private capacity, under voluntary participation, then I don’t care if it is not done. If I believe a road or sewage system needs to be built than I will work to build one and use my logic and influence to convince others to help me. If I do not believe that my community has enough arms to provide for the common defense than I will work towards securing better arms and I will use my influence to encourage others to join me.
The Green Mountain Boys were started because the Governor of York was attempting to take back the land from the people that are now in Vermont, who had purchased the land from the Governor of New England Bennington Wentworth. The City of Bennington was named by my grandfather, Capt. Samuel Robinson in his honor. GMB was a militia as enumerated in the 2nd Amendment and played an integral part of winning the our revolution.
One of the reasons our country has never been invaded is because we have an armed citizenry. A militia is a voluntary association of Citizens formed specially for the protection of that community. Other militia groups fought along side the Green Mountain Boys working in a cooperative manner with them along with the Continental Army. The Continental Army would be coined a terrorist group today as would the Green Mountain Boys. In addition Native American also fought along side the GMB.
Mike Appleton wrote: “I meant to add that Ms. Davis’ concerns over signing a marriage license are misplaced. When she signs the license, she is acknowledging only that the applicants have satisfied the legal requirements for issuance. She is not making a judgment about the wisdom or morality of their decision to marry, nor does she have a right to do so. Scrupulosity is not evidence of an informed conscience; it is an emotional and psychological disorder that members of the public should not be expected to endure or accommodate.”
I understand your perspective, but her conscience is determined by her knowledge and understanding, not yours. She views her name on the license as her authorizing and giving permission for them to marry. A license is basically giving permission for the couple to marry.
As for your latter concept. the Bible actually addresses the conscience issue and would perhaps characterize her as having a weak conscience concerning people eating meat that has been offered to idols. In light of that teaching, your perspective might be the strong conscience position. However, in no way should it be considered an emotional and psychological disorder. Nobody should force her to violate her conscience, especially if it is the weak conscience position.
Mike – when Kim Davis signs the marriage certificate she is attesting that the couple consists of one male and one female.
davidm:
I know what theism is, and I do understand people holding sincere religious beliefs. However, I disagree with your position that your own beliefs are without doctrinal content. Indeed, I find your comments illustrative of what I call “dominionism light,” a view that religious beliefs, whatever they may be, are entitled to some sort of undefined preference in statutory policy and that religion-based nullification is a legitimate response to disfavored judicial decisions.
Mike Appleton wrote: ” I disagree with your position that your own beliefs are without doctrinal content.”
I have never said that my own beliefs were without doctrinal content. Everybody, whether religious or secular, create doctrines because every rational person will organize their knowledge into understandable teaching.
Mike Appleton wrote: “Indeed, I find your comments illustrative of what I call “dominionism light,” a view that religious beliefs, whatever they may be, are entitled to some sort of undefined preference in statutory policy and that religion-based nullification is a legitimate response to disfavored judicial decisions.”
I do not hold to the opinion that religious beliefs get favoritism in law. My perspective is that government should be sensitive to the conscience of individuals. Government must rule with the consent of the governed. Government should not disrespect deeply held moral convictions just because they might be religious in nature. The fact that a conviction is religious in nature does not invalidate it for recognition by law. Secular convictions do not trump religious convictions. Reasonable accommodations should be made whenever possible.
My perspective about nullification of the Supreme Court’s decision in Obergefell is not about religion. As I have argued many times on this blog, my perspective about homosexuality and same sex unions being substantially different from opposite sex unions is based upon biology and natural law theory. I have no need to refer to religious texts or creeds on this issue. The basis for nullification comes from my understanding of common law and precedence, as well as the intention of the Constitution not to create an oligarchy of unelected officials to be the Supreme Rulers of our nation. Common law is not determined by a single court decision. History has shown us that the Supreme Court makes mistakes, as it did in Dred Scott when it declared African Americans could not be citizens and could not have standing in our courts of law. This decision in Obergefell is every bit as dreadful as the Dred Scott decision. The people should not bind themselves to it because it is irrational and it violates the Constitutional powers granted to the federal government.
As for you calling my comments “dominionism light,” that is nothing but a pejorative that you constantly throw at me because you cannot make your case from a rational basis.
Bob Stone:
LOL. I am not aware of any case invalidating a RFRA statute. And I will be the first to acknowledge that I have a great deal of difficulty ascertaining the distinction between laws intended to accommodate religion and those intended to advance it.
My opinion is that RFRA statutes impermissibly advance religion because they afford special treatment to those persons who identify themselves as religious believers while denying the same consideration to those who may share similar concerns over a particular course of action based upon moral principles not bound to religious belief.
Secondly, RFRA statutes fail the test in Lemon v. Kurzman from the starting gate because they are obviously not enacted for a secular purpose. They also invite excessive government entanglement in religion by compelling judges to discern what constitutes “religious belief,” a phrase which has never been defined (and probably cannot be).
There is also suggestive case law on the matter of neutrality. Estate of Caldor v. Thornton, for example, found an Establishment Clause violation in a Connecticut statute prohibiting any employer from requiring an employee to work on that person’s chosen Sabbath. Similarly, a statute creating a sales tax exemption solely for religious publications was tossed out in Texas Monthly v. Bullock. It is misleading to suggest that Kim Davis avoided an establishment dispute by denying marriage licenses to all persons; she elected to impose the constraints of her religious faith on all persons seeking a license, rather like a school teacher who keeps everyone after class because Timmy threw an eraser.
RFRA laws also introduced the “least restrictive means” test, a concept without any antecedent in the history of free exercise jurisprudence and a ridiculous burden (this raises separation of powers concerns as well).
The latest Pew Research reports show that there are literally thousands of different religious sects in the country and that increasing numbers of persons are becoming “unaffiliated.” The accommodation goals of RFRA statutes are an invitation to anarchy.
Mike Appleton wrote: “I have a great deal of difficulty ascertaining the distinction between laws intended to accommodate religion and those intended to advance it.”
Your trouble perhaps lies in not distinguishing between “religion” (anything that has to do with God) and a particular establishment of religion. The way I read the Constitution, government may advance religions, but it may not show favoritism toward a particular establishment of religion. I realize that for the last 75 years, the Supreme Court has been lining up cases with a different interpretation, but it is an interpretation that is not based in our actual Constitution.
Mike Appleton wrote: “My opinion is that RFRA statutes impermissibly advance religion because they afford special treatment to those persons who identify themselves as religious believers while denying the same consideration to those who may share similar concerns over a particular course of action based upon moral principles not bound to religious belief.”
You make a good point here, but the reason for this is because the judiciary has interpreted the law in a way that is hostile toward religion. In other words, the exact same has been happening in reverse. If something is deemed “religious” because of a Godly motivation or identifier, then it is dismissed on so-called “establishment grounds.” Similar concepts that lack any religious connotations get a free pass.
Mike Appleton wrote: “Secondly, RFRA statutes fail the test in Lemon v. Kurzman from the starting gate because they are obviously not enacted for a secular purpose.”
The Lemon test is another of those Judicial mistakes of the court. They drag out the Lemon Test when it suits them, and ignore it in other situations. The fact that it does not apply properly to protection of the free exercise clause demonstrates the ineffective nature of the Lemon Test. The Lemon Test puts undue emphasis on the Establishment Clause while totally ignoring the Free Exercise Clause.
Mike Appleton wrote: “They also invite excessive government entanglement in religion by compelling judges to discern what constitutes “religious belief,” a phrase which has never been defined (and probably cannot be).”
These RFRA laws concerns religious exercise, not religious belief. There is no need to discern what a religious belief is.
Mike Appleton wrote: “RFRA laws also introduced the “least restrictive means” test, a concept without any antecedent in the history of free exercise jurisprudence and a ridiculous burden (this raises separation of powers concerns as well).”
Least restrictive means has a huge historical context. It comes about by identifying the free exercise of religion clause as being a fundamental right requiring strict scrutiny. Under strict scrutiny, the judicial analysis requires the following:
1) the law must be justified by a compelling governmental interest.
2) the law or policy must be narrowly tailored to achieve that goal or interest.
3) The law or policy must be the least restrictive means for achieving that interest.
Mike Appleton wrote: “The accommodation goals of RFRA statutes are an invitation to anarchy.”
Actually, it is just the opposite. If the law runs roughshod over the free exercise of religion, people will lose respect for the law and its authority. That leads more towards anarchy, like the occupy wall street movement of recent times.
Personally I think there should be a rebellion in the traditional religious community to refuse to become LEGALLY married. If they believe that marriage can only be GOD sanctified, why go to the STATE to “legitimize” the union of man and woman? Yes, they would be denying themselves about 1,000 advantages to being legally married. Just the economic benefits include:
Access to a partner’s Social Security benefits
The right to inherit property even if your spouse dies without a will
Tax breaks on estate taxes
Tax breaks on inheritance taxes
Exemptions from penalties on IRAs that unmarried people pay
Spouses can give each other huge monetary gifts (over $12,000) without paying taxes, and together, they
can give twice that amount to a recipient and the recipient won’t have to pay taxes
Income tax breaks (for married couples filing jointly compared to solo single people)
Worker’s compensation benefits
“Unmarried people have many different kinds of people in their lives they consider to be important. The philosopher Elizabeth Brake suggested that the State should recognize relationships such as “Two single female friends [who] cohabit, raising children together” or “elderly friends [who] cohabit.”
Clare Chambers, also a philosopher, believes we should think about extending rights to “unmarried cohabitants, property-holders, parents, carers, dependents, people who wish to designate each other next-of-kin.”
Writing in the Guardian, Hugh Ryan asked, “Why shouldn’t two elderly siblings, who care for one another in a long-term way, receive financial incentives to keep doing so? Or – as in my case – three men who love each other very much?”
English Professor Michael Cobb, author of Single: Arguments for the Uncoupled, raised these questions in his op-ed in the New York Times: “Why can’t I put a good friend on my health care plan? Why can’t my neighbor and I file our taxes together so we could save some money, as my parents do? If I fail to make a will, why is it unlikely a dear friend would inherit my estate?”
http://www.unmarried.org/featured/now-its-really-time-for-unmarried-equality/
This debate needs to be brought to a MUCH higher level of intelligence rather than this sensationalism the media stokes 24/7.
Extrapolating the views of a god is by it’s very nature, religious. For god to take precedence over federal law, religion has to. Religion, is the working process by which humans try to figure out whether a god exists and what it’s views might be.
craigmuldavin64 wrote: “Extrapolating the views of a god is by it’s very nature, religious. For god to take precedence over federal law, religion has to.”
You are defining ‘religion’ here in a very generic, philosophical sense. I don’t think any institution of religion (establishment of religion) should have precedence over federal law. This is my understanding of separation of church and state. If a particular institution of religion had precedence over federal law, it would violate the establishment clause. But government should see religious institutions as partners with separate powers. The government punishes lawbreakers, and institutions of religion persuade people to live right. If the government acts hostile toward religion, or favors a particular religious establishment, then it becomes dysfunctional.
“The Establishment Clause is about not respecting a particular sect of religion, not about government being unsupportive of religion. One does not establish a religious sect by acknowledging God; therefore, government and employees in government are free to acknowledge God.”
They can acknowledge God all they want, but that acknowledgement cannot be acted upon to deny others their civil rights. “Your rights end where my nose begins”.
Annie wrote: “They can acknowledge God all they want, but that acknowledgement cannot be acted upon to deny others their civil rights.”
Nobody is denying anybody their civil rights. Your statement that is like the public saying, “Look at the emperor’s beautiful clothes,” when in fact he is naked.
April Miller and Karen Roberts were in a same sex union for 11 years before asking Kim Davis to authorize their marriage. None of their civil rights were violated prior to the Obergefell decision, and they could have easily driven less than an hour to get a marriage license from another office. They didn’t do that because they want standing to sue the Christian Kim Davis. Just as the homosexuals hijacked the word ‘gay’ to make their relationships seem happy, they seek to hijack the word marriage to make themselves feel better. This is obvious when in California the Domestic Partnership gave all the same legal rights as marriage to same sex couples. That was not enough. You people and 5 U.S. Supreme Court Justices have been fooled by a worldwide propaganda campaign. People support gay marriage out of emotional response to accommodate someone’s desires rather than from a rational analysis of what marriage is and why government has an interest in regulating it.