“Live your beliefs and you can turn the world around.” —Henry David Thoreau
Resistance to Civil Government
In July of 1846, Henry David Thoreau was arrested for failure to pay a poll tax he believed supported the Mexican-American war and the expansion of slavery into the Southwest. In reality, it was a local tax, but Thoreau’s detention by authorities was illegal, since the law only provided that his possessions be gathered and disbursed until the tax was paid. Although an unidentified woman paid the tax shortly after Thoreau’s arrest, he was illegally detained overnight, anyway. Thoreau would later write an essay called Resistance to Civil Government (known to modern-day readers as Civil Disobedience) in order to advocate the idea of passive resistance to fight bad laws.
The Detention of Kim Davis
There is still plenty of bad law to go around, especially in these days of scofflaw judges. And a Kentucky county clerk by the name of Kim Davis has been imprisoned by a judge for her failure to marry gay couples. But her detention is unlawful, because there is no law—state or federal—on which her detention rests. A recent Supreme Court ruling that has legalized gay marriage in all fifty states has, indeed, not rewritten any of the state laws regarding marriage, nor can it do so. And, until the state of Kentucky actually writes such a law, and describes the penalty for a county clerk’s refusal to follow it, no such law exists, let alone a punishment for failure of a public official to execute it.
Obergefell v. Hodges, a Supreme Court decision issued on June 26, 2015, has held that the right to marry is a Constitutional guarantee and that same-sex couples derive this right from the Due Process and the Equal Protection clauses of the Fourteenth Amendment to the US Constitution. However, the Fourteenth Amendment’s clause that “[n]o state shall deny to any person who lives within its jurisdiction the equal protection of the laws” is a provision that is meant only to guarantee that all laws should be fairly administered, thus protecting citizens by mandating that the laws be applied equally to each of them. According to the L.A. Times, “Davis has refused to issue any marriage licenses since the high court ruled June 26 that same-sex couples have an equal right to marry.” (Read more here.) By issuing no marriage licenses whatsoever, Kim Davis injured no person, gay or straight, by unequal application of any existing law or policy.
It should be further noted that this provision of the Constitution is not a protection against a violation of law, but only a guarantee that all laws will be applied equally. There being only a law on the books within the state of Kentucky to issue marriage licenses to heterosexual couples, Ms. Davis can be found in violation of no Kentucky statute. It is also true that there is no federal law requiring the issuance of such licenses, which is appropriate, since marriage is left to the states by our Constitution—which brings us to the fact that the Supreme Court is not permitted to write a rule that gay marriage licenses be issued.
What the Court Can Do
The Court can only interpret laws that are already on the books and can only order Equal Protection according to laws already in existence; it cannot, under the Constitution, write new law! And the Supreme Court’s traditional role of declaring laws un-Constitutional is limited to what is written in the legal text of the US Constitution. The legislative function is for the Congress to execute, according to its Enumerated Powers in Article I, Section 8, of the Constitution, as well as for the state legislatures. Absence of a rule means that a county clerk cannot be penalized for not following that nonexistent rule.
It has become quite clear that the Obergefell decision, because of the Supreme Court’s overreach, is going to hurt many people. It seems certain that progressives—who are eager to find creative ways to set the Constitution against itself—will use this decision to target the religious beliefs and actions of non-Muslims. (Only non-Muslims are targeted under Obama-Administration progressivism, such as Elane Photography, Arlene’s Flowers, Masterpiece Bakery, etc. Read more here.)
Justice Thomas’s Dissent to Obergefell
Justice Clarence Thomas, perhaps the most astutely Constitutional jurist on the Supreme Court, wrote a dissenting opinion in the Obergefell case which was joined by Justice Scalia. Thomas rejected the principle of Substantive Due Process, which “invites judges to do exactly what the majority has done here—roam at large in the constitutional field guided only by their personal views as to the fundamental rights protected by that document.” Thomas believes it is fundamentally wrong for the judiciary to stray from the text of the Constitution. The judges are there to protect democracy by ruling on whether or not applications of law are in line with what is written. To do anything else is subversive of the democratic process.
Thomas argued in his dissent that the only freedom governed by the Due Process Clause is, strictly speaking, freedom from “physical restraint.” Thomas also wrote that “liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement,” such as a same-sex marriage license. Thomas also foresaw that the Court, in its Obergefell ruling, would not only subvert the democratic process but threaten religious liberty as well.
Thomas also held that the court majority was wrong to think that marriage lends dignity to same-sex couples. In Thomas’s view, dignity is a natural right, granted by natural law, that no government can grant and not even slavery can remove. (Read more on Thomas’s dissent here.)
Kim Davis’s Oath of Office
No religious test is allowed, per Article VI, Section 3, of the US Constitution, so Christians like Davis do qualify to hold county clerical offices in Kentucky. And, when Kim Davis executed her oath of office, she did so knowing—at the time—that she would not have to issue licenses to gay couples. It is also true that Davis, a Democrat, is representing her constituents in not issuing same-sex licenses, since 75% of them do not want such licenses issued.
Kim Davis’s Civil Right to Religious Freedom
The First Amendment to the Constitution says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” And, since the Supreme Court, with its Incorporation Doctrine, has extended this federal rule to the states, the states are bound by this selfsame standard. Kim Davis is allowed the free exercise of her religious conscience, and she is not limited in doing so to her place of worship, her home, or any designated place or time. Her right to the “free exercise” (as opposed to the restricted exercise) of her religious conscience means that she cannot be forced to execute same-sex marriage licenses any more than a fundamentalist Christian physician can be forced to do abortions or an Orthodox Jewish butcher can be forced to sell meat that is not kosher. A better solution by the judge might have been to direct others to issue same-sex marriage licenses and simply to excuse the county clerk from doing so.
Imperfect Office Holders: Why Checks and Balances Are Important
Lincoln, as Chief Executive, checked the Supreme Court’s Dred Scott v. Sandford ruling by ignoring it altogether. No branch of government can be perfect, as the Founders knew would be the case. This is why a system of checks and balances was instituted.
The Dred Scott decision issued from a lawsuit where a slave named Dred Scott sued for freedom. His master had died and left him as property in the free state of Illinois. Chief Justice Roger Taney found that Scott could not sue, because he was black and, thus, could not be a citizen with standing to sue. The ruling was wrong, legally and morally.
When sound rulings are made by the Supreme Court, they are universally celebrated and embraced. But egregious rulings should be nullified by the executive or legislative branch—or at the state level! But never should a ruling by a court—even if it be the highest in the land—dictate to the Congress or to the states by writing new law. This is called “legislating from the bench,” and it is illegal, under the Constitution.
In the Meantime . . .
In the meantime, while all of these issues are being hashed out, Kim Davis should be released by her jail cell. It is—both legally and morally—the right thing to do!
The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by EagleRising.com