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
http://www.newsweek.com/individual-rights-and-kim-davis-its-not-quite-what-it-seems-369871
But why is a clerk in a county and state where gay marriage is unpopular bound by a ruling of U.S. Supreme Court? It’s not the Constitution’s Supremacy Clause, whereby state law must yield to (properly enacted) federal law to the contrary. Instead, it’s because Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, while not exactly the apotheosis of legal reasoning, stands for the proposition that state laws denying marriage licenses to same-sex couples violate the 14th Amendment. So it’s not federal law that trumps state law but individual rights that trump state law.
The 14th Amendment worked a fundamental transformation in our constitutional order: As of its ratification in 1868, Americans can turn to federal courts to enforce infringements of their liberty against the states. And that principle stands whether a state infringes the right to keep and bear arms or the right to equality under the law.
To put a finer point on it, the 14th Amendment says “no state shall” violate rights to privileges or immunities, due process and equal protection. That’s a prohibition on public actions, not private ones.
In other words, states must extend to same-sex couples whatever recognition they do to opposite-sex—though I don’t see a need for government involvement in marriage in the first place—but it’s illegitimate for them to bend the will of people who have religious differences from the prevailing viewpoint. Private citizens should be free to live their lives according to their consciences. Obergefell doesn’t say that everyone now has to support same-sex marriage, just that governments have to provide for it.
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Very interesting take on the matter of what trumps state law.
Turley-
“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?”
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Perhaps not a “legal analysis”, but clearly he doesn’t seem to agree with your stance. Perhaps he will elaborate.
Annie: “You’ve been explaining things as you see them legally, but your explanation doesn’t jive with Constitutional scholars, such as Professor Turley. Your view of the matter legally also conflicts with Mike Appleton’s. So who is correct? You or Professor Turley or Mike Appleton?”
First of all, Turley did not offer a legal analysis of the Davis case:
Turley: “Below is my recent Washington Post column on Davis and how she fits within our collective social and legal iconography.”
He fails to incorporate reasonable accommodations under Title VII or KY RFRA and thus he came up with this bald (and incorrect) assertion:
Turley: “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.”
Compare:
Volokh: “5. The rule rejects the “you don’t like the job requirements, so quit the job” argument. Again, that argument is a perfectly sensible policy argument against having a Title VII duty of religious accommodation. It’s just an argument that religious accommodation law has, rightly or wrongly, rejected.”
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/
Mike Appleton has stated that RFRAs in general are barred by the Establishment Clause. If there’s any case law supporting that assertion I’d like to see it.
Bfm,
“The question of state law and state constitution has been brought up before as justification for Davis.
It seems to me that since the SC ruling in favor of SSM those laws are a nullity and cannot be used as a defense by Davis.”
Eugene Volokh:
…”if Davis has a federal constitutional duty to issue marriage licenses, she wouldn’t be able to get a religious exemption from that duty, and decline to issue such licenses at all — denying County residents their constitutional right would certainly be an “undue hardship” imposed on the County and its citizens, and requiring her to comply with the Constitution would be the least restrictive means of serving the compelling interest in protecting citizens’ constitutional rights.
Yet besides her losing claim in the federal lawsuit, it seems to me that Davis has a much stronger claim under state law for a much more limited exemption. Davis’s objection, it appears (see pp. 40, 133, and 139 of her stay application and attachments), is not to issuing same-sex marriage licenses as such. Rather, she objects to issuing such licenses with her name on them, because she believes (rightly or wrongly) that having her name on them is an endorsement of same-sex marriage. Indeed, she says that she would be content with
Now this would be a cheap accommodation that, it seems to me, a state could quite easily provide. It’s true that state law requires the County Clerk’s name on the marriage license and the marriage certificate. But the point of RFRAs, such as the Kentucky RFRA, is precisely to provide religious objectors with exemptions even from such generally applicable laws, so long as the exemptions don’t necessarily and materially undermine a compelling government interest.
And allowing all marriage licenses and certificates — for opposite-sex marriages or same-sex ones — to include a deputy clerk’s name or just the notation “Rowan County Clerk” [UPDATE: see below] wouldn’t jeopardize any compelling government interest. To be sure, it would have to be clear that this modification is legally authorized, and doesn’t make the license and certificate invalid. But a court that grants Davis’s RFRA exemption request could easily issue an order that makes this clear.
Indeed, Kim Davis has filed a federal complaint against state officials under, among other things, the Kentucky RFRA. And, as I noted, one of the proposed accommodations that she herself has suggested, albeit in the federal stay application, is the simple removal of her name. But that sort of accommodation based on the Kentucky state RFRA is not a remedy that’s likely to be available in federal court.
But if Davis sues in state court, seeking a declaration that she can issue licenses and certificates without her name — as a Kentucky RFRA-based exemption from the Kentucky statutory requirements for what must go on her license — I think she’d have a good case.”
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/
Bob, I am trying to understand it. I actually used a question mark and put my comment in the form of a question, because I’m not sure I’m understanding it correctly. You’ve been explaining things as you see them legally, but your explanation doesn’t jive with Constitutional scholars, such as Professor Turley. Your view of the matter legally also conflicts with Mike Appleton’s. So who is correct? You or Professor Turley or Mike Appleton?
Annie,
Might I suggest taking the time to understand a concept before citing it as justification for your position.
https://en.wikipedia.org/wiki/Federal_preemption
Supremacy Clause?
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/preemption.htm
Article VI of the Constitution makes federal law “the supreme law of the land,” notwithstanding the contrary law any state might have. In the important 1958 case of Cooper v Aaron, in which the Court considered the efforts of state authorities to block integration of Little Rock’s Central High School, the Court unanimously declared, “No state legislator or executive or judicial official can war against the Constitution without violating his undertaking to support it….If the legislatures of the several states may at will, annul the judgments of the courts of the United States and destroy the rights acquired under those judgments, the Constitution itself becomes a mockery.” Federal law, not state law, is “the supreme law of the land.” Despite the efforts of some states, even today, to “nullify” federal laws they disapprove of, few things in constitutional law are any clearer than the fact that any such efforts are grossly unconstitutional. What remains a much more difficult question under Article VI is when a state law or action, which is at least arguably consistent with federal law, in fact creates sufficient conflict so as to justify finding it “preempted.”
Preemption
The preemption doctrine derives from the Supremacy Clause of the Constitution which states that the “Constitution and the laws of the United States…shall be the supreme law of the land…anything in the constitutions or laws of any State to the contrary notwithstanding.” This means of course, that any federal law–even a regulation of a federal agency–trumps any conflicting state law.
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Wouldn’t the supreme law of the land, the Constitution, the Fourteenth Amendment preempt any state law? These state laws prohibiting same sex marriage were determined to be unconstitutional.
Annie wrote: “Wouldn’t the supreme law of the land, the Constitution, the Fourteenth Amendment preempt any state law? These state laws prohibiting same sex marriage were determined to be unconstitutional.”
Several problems.
First, the Fourteenth Amendment is vague and open to interpretation. While 5 members of the court consider the Equal Protection Clause violated if marriage is not redefined to include same sex unions, other minds do not acknowledge that at all. No person was ever rejected from a marriage license because of their sexual orientation or because of their sexual practices. Therefore, the law has always applied equally to all. What is being mandated by the court here is an actual redefinition of marriage, which actually deconstructs marriage into something else entirely. If the opinion of these 5 unelected Justices are followed, there is no longer an institution of marriage based upon gender diversity, coitus, reproduction and the creation of new family relationships. The court’s opinion actually tramples on the equal protection and due process rights of people like Kim Davis. Why should any person be incarcerated without ever being charged with a crime? This is absolutely lawless behavior by the federal court and there is no other way of looking at it. No same sex couple seeking to have their questionable sexual relations validated with the appellation of marriage were ever subjected to jail.
Second, the Constitution clearly limits powers granted to the federal government. Any authority not listed in the Constitution as belonging to the federal government belongs to the States and the people. Therefore, the Supreme Court is the authority that is acting in an unconstitutional manner. The Court has no authority to order the States to redefine marriage. The States and the people do not have any obligation or duty to comply with the lawless demands of the Supreme Court on marriage.
The State laws are still binding because the Constitution and the Supreme Court (in Windsor) have recognized that the States are the proper authority to define and regulate marriage. It really is as simple as that.
“Annie
1, September 11, 2015 at 1:08 pm
Paul, as usual, you just jabber away in honor of your contrarian nature, making no cogent points. Conversation is over, it’s always a waste of precious time.”
Annie, I stopped reading his comments long, long ago. As you rightly said, “…it’s always a wast of precious time.” I love the scroll bar.
“she is following the state law and the state constitution. You have yet to find the heart of the matter.”
The question of state law and state constitution has been brought up before as justification for Davis.
It seems to me that since the SC ruling in favor of SSM those laws are a nullity and cannot be used as a defense by Davis.
Perhaps one of the lawyers reading this blog can enlighten us regarding SC decisions and laws that are clearly at variance with the decisions.
Finally we should realize that the issue of accommodation is separate from the issue of whether state laws provide any legal cover for Davis.
bfm – even the SC said it should not be legislating from the bench but then went ahead and did it. At that point, is the decision correct. The minority judges ripped the decision.
Dixon asked for a clarification of the state law and Constitution, which she took an oath to uphold. Nobody gave her one.
bigfatmike wrote: “It seems to me that since the SC ruling in favor of SSM those laws are a nullity and cannot be used as a defense by Davis.”
This is the general assumption by those who favor same sex marriage, but there is nothing in the Constitution that says a Supreme Court decision must be followed the instant an opinion is rendered.
The debate concerning the doctrine of Judicial Supremacy goes back to our country’s founding. Hamilton and the federalists argued for it, while Jefferson and Madison argued against it.
— Some quotes against the American Doctrine of Judicial Supremacy —
“As the courts are generally the last in making the decision [on laws], it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper.” James Madison, Oct. 15, 1788.
“I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments. … nothing has yet been offered to invalidate the doctrine that the meaning of the constitution may as well be ascertained by the legislature as by the judicial authority.” James Madison, recorded in Elliot’s “Debates,” vol. iv, p. 354, House of Representatives, June 16, 1789.
“In a republican government, the legislative authority necessarily predominates.” James Madison, The Federalist #51.
“To consider the [Supreme Court] judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. They have,
with others, the same passions for party, for power and . . . privilege. Their power is the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal.” Thomas Jefferson, Letter to William Jarvis, Sept. 28, 1820
“The opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action but the legislature and executive also in their spheres, would make the judiciary a despotic branch..” Thomas Jefferson, Letter to Abigail Adams, Sept. 11, 1804.
“. . . [T]he candid citizen must confess that if the policy of the government upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in civil actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.” Abraham Lincoln, First Inaugural Address, March 4, 1861.
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Article III of the Constitution gives the Supreme Court the power to settle matters between a State and citizens of another State. Therefore, its opinion between the parties involved in Obergefell certainly are binding. But when the Supreme Court goes beyond the powers granted to it by the Constitution, and issues an opinion that the States must change their definition of marriage to accommodate same sex unions, that is judicial activism. That is the court manipulating the people through judicial tyranny, and the people have a duty to resist it. Their decision was an emotional one, not a rational one. It is based upon a decade old fad perpetuated by homosexual activists and the media that has redefined terms of the English language, and redefined the meaning of civil rights to include the fundamental right to hedonistic behavior. They made a mistake and we have a legal and civil duty to straighten out the crooked path they set us upon. Nowhere in the Constitution is power given to the federal government to order the States to define marriage in a way that will satisfy their desire for government sanctioned approval of their sexual hedonism.
Note that I had warned of this kind of civil unrest before the Obergefell decision. People scoffed and mocked me, claiming this was a non-issue and people would forget about it promptly. If the government continues to ignore the conscience of millions of people in this decision and the Roe decision, it will be the eventual end of our Republic. People will line up in different ways, some arguing government has no right to regulate marriage at all and their children will no longer obtain marriage licenses. Others will simply treat government as the enemy. Religious institutions will increasingly call government The Beast and war against government. The right response of government is to yield to the consent of the governed.
She is neither. Right now she is the victim of a tyrannical judge denying her due process… this is a good read:
http://www.infowars.com/video-oath-keepers-vow-to-guard-kim-davis-from-further-imprisonment/
Paul, as usual, you just jabber away in honor of your contrarian nature, making no cogent points. Conversation is over, it’s always a waste of precious time.
Inga – Run away, run away. Typical. Ad hominem and then run away. Just your style.
anonymous – maybe you could use some of your precious time learning to spell.
Paul, the circumstances of employment change all the time in all sorts of employment situations. If you can’t perform the essential functions of the job, you have the right to resign. My examples touch on the heart of the matter. Your example is ridiculous.
Inga – she is following the state law and the state constitution. You have yet to find the heart of the matter.
Such accommodations are not reasonable and isn’t that what an accomodation being granted is based on?
Inga – the key is the word ‘reasonable.’ Although it would be possible to accommodate a nurse in a baby killing factory by having her take care of the women post-op.
Suppose a Quaker worked at a governmental office that issued gun permits and he refused on the basis of his belief in non violence?
Inga – Quakers have often been exempted from military service. Both Sgt. York and Richard Nixon had the option, but did not take it.
If a nurse worked at an abortion clinic and refused to assist in the abortion she would be fired. Davis works at a governmental office that issues marriage liscenses and she refuses to issue them, what should happen to her? Should a person with those religious convictions work at either an abortion clinic or an office that issues marriages licenses to gay people? Seriously? How ridiculous to think a nurse would get an accomodation, she shouldn’t either.
Annie – your examples are silly. Here the circumstances changed after she was elected to the job.
Let’s say you are a nurse and have been for 15 years at a hospital and suddenly the hospital goes into the euthanasia business. You are required to assist in in the killing of all children under 5 who are disabled.
Do you think, if you were a religious person, you could get an accommodation?
Mike Appleton: “In my view, RFRA statutes violate the Establishment Clause. And since there is no constitutional right to religious accommodation, I do not believe that Ms. Davis’ position is sustainable.”
Come on Mike, that’s an argument that goes nowhere fast. Just as there’s no constitutional right to religious accommodation there’s also no Article III power to amend the constitution and dictate how states police themselves.
Nonetheless, if you say that state RFRA’s violate the Establishment Clause, then perhaps you can cite a few cases that held as such.
“her obligations with respect to marriage licenses are purely ministerial; she does not exercise discretion or make subjective judgments. Were we able to teach chimpanzees to read, they could perform her function in issuing licenses.”
If you were simply spelling out how the elements of a writ of mandamus would apply to this case, (despite her being an elected official), that would be fine. But what you’re really doing is setting up some serious question begging.
As I said earlier, 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. And what’s the quickest way to arrive at your conclusion? Simply remove the religious sensibilities of the clerk from the equation by deeming her nothing more than a ministerial chimpanzee.
“In her case, she is asserting a religious preference on behalf of the State of Kentucky, a clear violation of the Establishment Clause and the Equal Protection Clause of the Fourteenth Amendment.”
The clerk stopped issuing marriage licenses altogether; thus no preference was made.
davidm:
Please note the following:
1. RFRA was enacted by Congress precisely because Smith (and many cases before it) rejected the claim that religious exemptions are constitutionally mandated. In many respects the Verner and Yoder cases are outliers. Nevertheless, the decisions in those cases were the basis for the RFRA formulation. Smith has never been overruled. RFRA, on the other hand, is being used to extend the width and breadth of religious freedom beyond what was ever contemplated. Organizations such as Liberty Counsel are strong opponents of the doctrine of separation of church and state.
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2. There were indeed arguments over the scope of religious liberty at the founding. I mentioned the disagreements over establishing a religious exemption from the duty to participate in war. And there were others. John Jay, for example, rather aggressively lobbied for the elimination of Catholicism from the protections of religious liberty. However, no group of which I am aware ever proposed a general exemption from civil laws predicated upon “rights of conscience.” The final product was a compromise between those who favored religious establishment and those who did not.
Mike Appleton wrote: “… no group of which I am aware ever proposed a general exemption from civil laws predicated upon “rights of conscience.” The final product was a compromise between those who favored religious establishment and those who did not.”
Nobody is asking for an exemption from civil laws. She is asking for an accommodation that she not be coerced by government to violate her conscience by putting her imprimatur, her approval and authorization, for same sex couples to marry.
Your perspective on the historical writings about conscience and the law are bewildering. If someone listened only to you, they would think that these issues had not been debated before by legal minds.
Following is link to an article from an associate professor at Duke University, Laura Underkuffler, published in the DePaul Law Review, that in my opinion better acknowledges the relationship between conscience and law:
Individual Conscience and the Law
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1847&context=faculty_scholarship
An excerpt:
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The destruction of the individually defined conscience… may well result in a loss to law. How…? … the notion of conscience, in law, involves more than religious belief … First, it refers to principles that transcend politics … it is .. “of God.” To that extent, it is similar to any religious belief; but this is only the beginning point. Second, it implicates the use of reason. One cannot have recourse to conscience without some use of reason. It may be a flawed use in the eyes of others, but there must be some use nonetheless. Third, … conscience involves an element of compulsion. A particular religious practice in a particular religious scheme might be optional under some circumstances, but the meaning of conscience is different. Conscience is, in its essence, inalterable and compelling. And finally, because of its inalterable, compelling nature, … conscience is one of the rare instances in the law where there is recognition of individual responsibility. …
…
What is the benefit to law from all of this? I agree with many of the articulate spokesmen of the American founding era, whose works I have been studying in connection with this question, who believed that the notion of individually defined conscience is one of our few hopes and few protections against the possibility of governmental tyranny. …
Isaac Backus wrote, “The free exercises of private judgment, and the unalienable rights of conscience, are of too high a rank and dignity to be submitted to the decrees of councils…”
Thomas Jefferson wrote, “We should … moralise for ourselves, follow the oracle of conscience…”
John Adams referred to the “Liberty of conscience” as “the right of free inquiry and private judgment.” He wrote: “Morals are attributes of spirits only when those spirits are free as well as intelligent agents, and have consciences or a moral sense, a faculty of discrimination not only between right and wrong, but between good and evil … This freedom of choice and action, united with conscience, necessarily implies a responsibility to a lawgiver and to a law…”
Conscience, or “moral respectability,” was therefore ‘necessary to [the people’s] own safety, and to orderly government. Only conscience, rooted in transcendent moral or religious values and imposing a sense of responsibility upon freely reasoning persons, provided the restraint on human conduct necessary for the survival of government by the people.
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Where is a citizen Right to live freely without the scrutiny of religion carving out secular law?
Again, to think that religion takes precidence over Federal Law is, quite simply, UNAMERICAN!
Don’t you know Max, we must accommodate all religion beliefs even if they take way our rights.
Why was such legislation not thrown out by the courts. Answer, the courts have always been a rubber stamp to those in power, and the various churches have often been behind that power.
There is nothing more dangerous then when the church and state are in collusion. Thank God our founding fathers saw this and ratified especially the first amendment. If you study history, until that time religious persecution was still quite rampant and it has not yet ceased.
Max-1 wrote: “… to think that religion takes precidence over Federal Law is, quite simply, UNAMERICAN!”
Religion does not take precedence over federal law, but God does. All governments of men and laws of men are subject to their Creator.
Sorry, davidm, but I find your comment absurd. I have found nothing in my readings to support the contention that the Free Exercise clause contemplates judicially created exemptions from the obligation to comply with laws of general application. In fact, there were unsuccessful efforts to incorporate a conscientious objection exemption into the Bill of Rights. Furthermore, the decision in Smith has not been overruled. Were your position correct, there would of course be no need for enactment of RFRA. All that statute does is place the courts in the position of making judgments about religion. Bad policy and an impossible task.
I will have more to say on this subject later, but I will offer a few thoughts on the Kim Davis matter, truly a tempest in a teapot. First, her duties are conducted on behalf of the State of Kentucky. She does not issue marriage licenses in her own right.
Second, her obligations with respect to marriage licenses are purely ministerial; she does not exercise discretion or make subjective judgments. Were we able to teach chimpanzees to read, they could perform her function in issuing licenses. When she determines to reject an applicant, she is taking state action. That means that when she denies a license to a same-sex (or opposite sex) couple, she is acting as an agent of the State of Kentucky. Her personal feelings or religious beliefs are wholly immaterial to the execution of her ministerial duties. However, the denial of a license to persons lawfully entitled to them is also an action of the State of Kentucky. In her case, she is asserting a religious preference on behalf of the State of Kentucky, a clear violation of the Establishment Clause and the Equal Protection Clause of the Fourteenth Amendment. That people are unable to grasp this fact is unfortunate, but it is attributable to both ignorance and a strong push by the Dominionist element that has taken effective control of the Republican Party. Mr. Staver is using Ms. Davis as a sacrificial lamb on the Dominionist altar.
Finally, I have followed your comments on many issues for several years. Despite your frequent protestations that you are a theist (whatever that means), all of your comments fall safely within the fundamentalist dogma that denies separation of church and state and insists upon the subservience of government to a particular brand of Christian belief. It is a brand, I might add, that is theologically intolerant and constitutionally insupportable.
Mike Appleton wrote: “I have found nothing in my readings to support the contention that the Free Exercise clause contemplates judicially created exemptions from the obligation to comply with laws of general application.”
Mike, either you are being forgetful here, or you never read the federal RFRA. The RFRA says that government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability. It specifies an exception being the furtherance of a compelling governmental interest as long as the least restrictive means of furthering that compelling governmental interest is implemented.
Religious Freedom Restoration Act of 1993:
SECTION 1. SHORT TITLE.
This Act may be cited as the “Religious Freedom Restoration Act of 1993”.
SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSES.
(a) FINDINGS.—The Congress finds that—
(1) the framers of the Constitution, recognizing free exercise of religion as an inalienable right, secured its protection in the First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
(b) PURPOSES.—The purposes of this Act are—
(1) to restore the compelling interest test as set forth in Sherbert v. Vemer, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
(a) IN GENERAL.—Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION.—Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest;
and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) JUDICIAL RELIEF.—^A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution
http://www.gpo.gov/fdsys/pkg/STATUTE-107/pdf/STATUTE-107-Pg1488.pdf
Mike Appleton wrote: “In fact, there were unsuccessful efforts to incorporate a conscientious objection exemption into the Bill of Rights. ”
You are not telling the whole story here. Here is the Amendment that passed the House but failed in the Senate:
“No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”
Notice that this Amendment concerned the STATES, not Congress. James Madison, the father of our Constitution and the author of the Bill of Rights, had added this Amendment as a way to extend the protections of the First Amendment and the jury trial right of the Sixth Amendment to all the states. As you know, until about 75 years ago, most of the First Amendment applied only to Congress and not to the States. James Madison felt these two inalienable rights were so important, that all the States should be bound by them. The Senate disagreed.
Mike Appleton wrote: “Were your position correct, there would of course be no need for enactment of RFRA.”
If everyone agreed with my position as being correct, then you are right, there would be no need for RFRA. But the problem is that the courts inject their own bias and change what Congress meant when passing the law. Since the Warren Court, the trend of interpretation has been sliding toward making our government entirely secular and hostile toward religious conviction. As the RFRA says within itself, its purpose is to resurrect the First Amendment’s protections for the people.
As recently as 1952 in Zorach v. Clauson, the Supreme Court opined in the following manner:
“We are a religious people whose institutions presuppose a Supreme Being. … When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. … we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. ”
Clearly many legal minds today, such as your own, are not anywhere close to this understanding of the First Amendment.
Mike Appleton wrote: “All that statute does is place the courts in the position of making judgments about religion. Bad policy and an impossible task.”
Religious judgments are not necessary. Courts do not need to decide what religious views are correct. They only need to recognize a deeply held conviction and not coerce people to violate their conscience. Quakers and other religious pacifists have a deep conviction that fighting wars is immoral. The government should not force those people to kill others in the name of the government. Some people have a deep moral conviction that abortion is murder. Government should not force those people to authorize or fund abortions. Like Thomas Jefferson wrote, “To compel a man to subsidize with his taxes the propagation of ideas which he disbelieves and abhors is sinful and tyrannical.” Yet here we are with a runaway Supreme Court telling us that we must approve of, and put our imprimatur upon, the lawless act of sodomy, and that we must legitimize homosexuality with the appellation of marriage. Thomas Jefferson would not approve.
Mike Appleton wrote: “First, her duties are conducted on behalf of the State of Kentucky. She does not issue marriage licenses in her own right.”
She is required to authorize them for the State using her name. The license has her imprimatur upon it, saying that she, Kim Davis, authorizes the same sex marriage.
Mike Appleton wrote: “… her obligations with respect to marriage licenses are purely ministerial; she does not exercise discretion or make subjective judgments.”
Then the State should have no problem in removing her imprimatur authorizing the marriage. That is a very small accommodation.
Mike Appleton wrote: “When she determines to reject an applicant, she is taking state action.”
She has never rejected an applicant. Her office stopped issuing licenses until the legal squabbles were resolved about removing her imprimatur from the licenses that make it look like the person Kim Davis approves of and authorizes same sex marriage.
Mike Appleton wrote: “Her personal feelings or religious beliefs are wholly immaterial to the execution of her ministerial duties.”
That is not exactly true. You just do not understand her deeply held conviction. Suppose a nurse objected to abortion and believed it was contrary to her hippocratic oath. Now a State doctor comes along and insists she authorize and facilitate an abortion. You can claim all you want that her personal feelings and religious beliefs are immaterial to her helping murder an unborn child, but it simply is not true. You are forcing her to act contrary to her conscience.
Consider another situation with a Quaker who believes taking the life of another is immoral. Suppose he finds himself in a situation of being forced by government to pull the trigger and kill someone. You cannot argue that the State bears all the responsibility. That person knows he is taking a life, and his personal beliefs and convictions are all bound up in that.
Mike Appleton wrote: “In her case, she is asserting a religious preference on behalf of the State of Kentucky, a clear violation of the Establishment Clause and the Equal Protection Clause of the Fourteenth Amendment.”
Asserting religious preference on behalf of the State? What are you talking about? She is communicating to her State that she has deep convictions about the immoral (criminal) nature of same sex relationships. She cannot in good faith put her name and imprimatur on same sex unions. Exactly how does that violate the Establishment Clause? It doesn’t. The Equal Protection Clause is irrelevant because gays have always been treated equal in marriage. Nobody in history has ever been denied a marriage license because they were gay. Thousands of gays have married throughout history. What has not been considered a marriage relationship are same sex unions because they are not marriage.
Mike Appleton wrote: “That people are unable to grasp this fact is unfortunate, but it is attributable to both ignorance and a strong push by the Dominionist element that has taken effective control of the Republican Party. Mr. Staver is using Ms. Davis as a sacrificial lamb on the Dominionist altar.”
This case has nothing to do with Dominionism. The Dominionists hate Mat Staver and this entire case with Kim Davis. Obviously you have read nothing about what they are saying about this case. Do you really think a Dominionist would fight for some mere religious accommodation of taking the Clerk’s name off the marriage license? They see this as a distraction to the real cause that Christians should fight for. They see no value in her case whatsoever.
Mike Appleton wrote: “Despite your frequent protestations that you are a theist (whatever that means), all of your comments fall safely within the fundamentalist dogma that denies separation of church and state and insists upon the subservience of government to a particular brand of Christian belief. It is a brand, I might add, that is theologically intolerant and constitutionally insupportable.”
Really, you don’t know what a theist is?
You read me all wrong. I don’t protest the fact that I am a theist. People often assume that I belong to a particular religious establishment because I am friendly toward religions, even as government should be friendly toward religions. I have to point out from time to time that I am not religious so they can understand that there is no religious creed or set of religious rules to which I have committed myself. Otherwise, they wrongly think that I support their particular brand of religion or theocracy or dominionism or fundamentalism or whatever, etc.
I believe in the separation of church and state the way Thomas Jefferson did. I believe it is about government acknowledging freedom OF religion, not freedom FROM religion. 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.
As far as I can tell, you finished up your argument with an ad hominem style argument, so I’m sure you know already how I interpret that fact.
In my view, RFRA statutes violate the Establishment Clause. And since there is no constitutional right to religious accommodation, I do not believe that Ms. Davis’ position is sustainable.
Mike Appleton wrote: “In my view, RFRA statutes violate the Establishment Clause. And since there is no constitutional right to religious accommodation, I do not believe that Ms. Davis’ position is sustainable.”
As usual, Mike, you are ignoring the Free Exercise clause of the Constitution. The Free Exercise Clause includes the right to religious accommodation. The Establishment Clause is about not allowing government to favor a particular religious sect, like the Baptists over the Presbyterians. The Free Exercise clause is about making accommodations so that government does not prohibit the free exercise of religion. Furthermore, the free speech clause includes government not forcing individuals to speak a certain way, such as showing their approval and agreement with homosexual marriage.
The truth is that the people retain rights not mentioned in the Constitution. So even if there were not a listed Constitutional right, she still has the right not to be forced by government to give her imprimatur to something she considers abhorrent and evil. Under anybody’s definition, this is government tyranny to force a public official to act in a way that approves and sanctions something that person considers evil.
“The Free Exercise Clause includes the right to religious accommodation.” That’s what David actually wrote. A linguistics manipulator at it’s purest. Now to make it look like he is being a purist, what does he write.
He wrote “When the Supreme Court becomes so lawless and irrational as to do what they did in Obergefell, the States and the people have a duty to disobey the court and put it back in its place.”
Bob Stone trust the courts when it is in his agenda. ““4. The rule accepts the risk of slippery slopes, and counts on the courts to stop the slippage. Once some people get a religious exemption, others are likely to claim other religious exemptions; indeed, some people who before managed to find a way to live with their religious objections without raising an accommodation request might now conclude that they need to be more militant about their beliefs. Here too, the law accepts this risk, and counts on the courts to cut off the more expensive accommodations.”
Yea Bob, we do need to be more militant. But for individual rights, not religious accommodations.
So David and Bob, how many cases does it take for a law to become valid? It appears that only the number that fits your agenda is the right number. 10, 25 , 2 or 15. Let’s exile Thomas Paine because two legislatures passed a law under the Crown and the Church of England.
And you’re really going to rely on the courts to determine monetary damages and attorneys fees?
And people wonder why I do not believe the Bible is the word of God nor respect the rule of law that government allegedly provides.