Thursday, September 03, 2015
Free Kim Davis!
I am skeptical of the SCOTUS ruling in Obergefell, because it was based not on law or the Constitution but, according to Justice Kennedy, the weird notion that marriage is a "freedom." That's nonsensical. Regardless of what one thinks of same-sex marriage (I'm for it) the SCOTUS ruling was incoherent. If we can apply "that's a freedom" indiscriminately to any "popular" (i.e. PC) cause of the day and thus claim it is protected by the Fourteenth Amendment, there are no limits to government power. One could claim, for example a desire to be free from neighbors who own guns, or who practice a religion you don't like, or have political beliefs you believe should be suppressed, and if five members of SCOTUS agree, why, you have a "Constitutional right" that the Founders enshrined from the start. Good grief.
But regardless of this, SCOTUS ruled, that's law, and Davis, as a government official, must follow it, right? Well, no. SCOTUS ruled that it is unConstitutional to discriminate on the basis of sexual preference. Davis has not done that. She issues no licenses to anyone. She cites her inalienable right to practice her religion, protected by the First Amendment. I'm skeptical of this argument, because it could be argued that her job is incompatible with her religious beliefs, and she has no inalienable right to this particular job. I would make this argument myself, except that, as everyone ought to know, government officials have no legal obligation to provide particular services to anyone. For example, the courts, including SCOTUS, have repeatedly ruled that the police have no duty to protect any person. This is not a small point. If you obtain an injunction against someone, the police have no legal obligation to enforce it. SCOTUS says so. If that failure results in, say, the murders of your children, too bad. You cannot demand they "do their duty," because no such duty to perform exists.
So explain to me where, in the U.S. Constitution, the Supreme Court or anyone else in the federal government is given power to demand a county clerk provide services. They claim they have no authority to tell the police to protect you from a murderer, but they can demand a county clerk issue you a marriage license? Bah! I cry "hoax!" It's a fraud.
That's damning, but it's a minor point. Here's the real problem with the persecution of Davis.
SCOTUS ruled that discrimination against same-sex couples is unConstitutional. OK. Davis did not discriminate -- she issued no licenses. Heterosexual couples did not receive licenses. Furthermore, nothing in Kentucky law permits her to issue licenses to same-sex couples,* because 1998 Ky. Acts ch. 258, sec. 4 reads:
402.005 Definition of marriage
As used and recognized in the law of the Commonwealth, "marriage" refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.
Let that sink in. Nothing in Kentucky law, or any other law, permits Mrs. Davis to issue marriage licenses to same-sex couples. And SCOTUS says she is forbidden by the U.S. Constitution to discriminate on the basis of sexual preference. Never mind her religious convictions, she took an oath to uphold both the U.S and Kentucky Constitutions and laws. Frankly, there's no argument that she failed to do so. In fact, any Kentucky clerk who issues a license has violated their oath, and the law. Davis, on the other hand, did not.
Don't forget, your semi-faithful correspondent favors same-sex marriage, sufficiently that he (er, I) donated 200 USD to the ill-fated effort to defeat California's Proposition 8 that outlawed same-sex marriage. I think the public needs to be persuaded to accept, as a legal matter, same-sex relationships. The idea that it must be imposed by judges, and by means of legislating from the bench, is utterly unacceptable.
That Mrs. Davis should be incarcerated for following the law, instead of political fashion, is tyrannical. The judge involved, Judge Bunning, ought to be impeached, prosecuted, convicted, and imprisoned...after having been tarred and feathered, of course...although I'm sure legal "experts" can construct explanations as to why that's improper and impossible and judges can and should do any damn thing they please without repercussions of any sort.
Well, they are wrong. Free Kim Davis!
*Credit where it's due: The point about Kentucky law is from Mike Huckabee. I don't often agree with Huckabee, but this is an extremely important observation from him.