Question of the Week: September 8, 2015

The Constitution is quite clear. Article VI, paragraph 3, states that:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Kentucky county clerk Kim Davis was not required to take a religious test to take office as an officer of the court. Yet she seems to be under the impression it is permissible to impose her religious beliefs upon the citizens who elected her to office because her beliefs disagree with the law of the land as promulgated by the Supreme Court. This illustrates several legal principles in action, but perhaps none more so than the concept that “your rights end where others rights begin”. She is currently in jail for contempt of court and one can reasonably expect she will remain there until she either complies with the law or resigns her office.

About Gene Howington

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55 Responses to Question of the Week: September 8, 2015

  1. She is, apparently, so dumb that she does not understand her job. The job of any county clerk is to keep records. That’s it. Anytime an official document is filed, the clerk’s signature or seal is not an endorsement, but a certification that it has been filed.

    That’s it. Filed. At the courthouse, so it can be archived.

    I am glad most county clerks accept official documents for filing without said document having to pass their personal approval. Over the years, I have had any number of documents notarized that I am sure would not pass muster if the notary had to read it and approve the contents.

    I saw that her lawyers were even slammed by Fox News legal analysts yesterday. The panel discussion was hosted by Gregg Jarret, who is himself a lawyer. During the discussion, they cite Garcetti v. Ceballos, 547 U.S. 410 (2006).

  2. Aridog says:

    I’ve alredy run off at the mouth on another thread on this subject, so I quote myself:

    *Election* does not equal *entitlement.* Did she plainly say in her subaltern election campaign for clerk/registrar that she’d not approve any gay marriages? I doubt it. Correct me if I am wrong, with a citation. If not, she’s a hypocrite, even if I agree with the ideas she advocates. She draws her “authoritah” from popular election, and I draw mine from personal beliefs. Not the same. My agreement is for far different reasons…e.g., I do NOT cite God. I tend to favor semantics and the meaning of the word “marriage.” For my rationale, see: “Language in Thought and Action” by Prof Hayakawa…or “People in Quandaries” by Prof Johnson. Elections are NOT grounds for personal beliefs, hers or mine. Anyone who supports this lady should not be shocked when an ISIL supporter does the same things based upon their personal beliefs. I think the Judge did the right thing…let her put up or shut up. Better she do both, say her bit and resign.

    Plus she had a choice: cite the Kentucky state law prohibiting gay marriage OR cite her personal religious beliefs. She chose badly. She could have generated a state’s rights case, which IMO “marriage” certainly is in fact and the SCOTUS needs another challenge…just at did in the Dredd Scott case long ago. The SCOTUS once again decided a word meant something other than the common parlance for ages suggests…e.g., my reference to semantics. They are developing a habit of doing this…witness “penalty” = “tax” in their misguided opinion. Common parlance would say a “penalty” is a fee for non-performance, while a tax is an assessment for performance (the opposite) in the production of goods (consumption tax) or income. The SCOTUS redefined it for us, just as they have the word “marriage” … which may or may not have a religious aspect depending on your faith or lack thereof. Long ago I was “married” by the Mayor of Seoul, Korea, and subsequently appeared at the embassy before the US Vice Counsel for validation. No church involved.

    My objection to Ms. Davis’ stand is that she interposes her personal religious beliefs where it is not called for, nor tolerable, for reasons cited above….such as if a fanatic Muslim or Charismatic Christian or Hasidim Jew were to be elected then impose their personal beliefs on everyone. As we speak Ms Davis is being released from jail without resolution of the demand for accommodation of religious beliefs in an elected government position. THAT is NOT a good response.

    Welcome to the breakdown of the line between government and religion in the USA….the camel’s nose is now inside the tent flap, so to speak. Thank you Mike Huckabee…if not before, you have just now disqualified yourself from ever being the POTUS. As I said above, though I might agree with the sentiment, I don’t for religious reasons, and dislike those who would permit personal religious beliefs, or any kind, be grounds for disobeying the law or the court. Thank you Ms Davis for foreclosing a justifiable state’s rights challenge in your case. Thousands will support you (by ambivalence) until the next zealot comes along and does something similar that you don’t like..welcome to your brave new world.

  3. Bob Stone says:

    Since Davis is following the state statute, and a federal court is disrupting the status quo with an injunction to the contrary, then the federal court should be required under Title VII to provide a reasonable accommodation; i.e. simply removing her name from the license.

    Also, since the fourteenth amendment’s due process clause protects employment under an implied promise of continuation and the takings clause applies to contracts of employment, the fed forcing her to resign by not affording her a reasonable accommodation would amount to a regulatory taking.

    Also, where is the state in all this?

    • Bob,

      I’m pretty sure the 14th conflict is not going to end up allowing her reasonable accommodation when she seeks to discriminate against a now recognized protected class under said amendment. Her free exercise and employment rights are not infringed when she has simply refused to follow the law of the land (which I remind you is a contingent condition of said employ).

  4. Bob Stone says:

    Aridog,

    She took the office of clerk before the Fed came in and imposed a regulation that conflicted with her religious sensibilities. The Fed interfered with the property rights she had in her expected continued employment as clerk. If the Fed doesn’t afford Davis a reasonable accommodation, i.e. removing her name from marriage licenses, then it will have effectuated a taking of her employment.

  5. Bob Stone says:

    “Her free exercise and employment rights are not infringed when she has simply refused to follow the law of the land (which I remind you is a contingent condition of said employ).”

    See above.

    And why would she not be allowed the reasonable accommodation of having her name removed from the license?

  6. Bob Stone says:

    What cost is that?

  7. I looked at the Kentucky statutes. KY Rev Stat § 402.110 requires that marriage license forms, in entirety, be uniform throughout the state. Seems pretty clear to me that a single clerk cannot alter the form without legislative action.

    Additionally, KY Rev Stat § 61.035 says that any act performed legally by the clerk may be performed by a legally appointed deputy.

    http://law.justia.com/codes/kentucky/2011/

  8. Bob,
    My sources in the Commonwealth of Kentucky say that a special session of the legislature runs about $60,000 per day.

  9. Bob Stone says:

    Chuck,

    Since every county has a different Clerk, and clerk name, the uniformity consists in the fact that it’s issued by the offices of the clerks.

  10. Bob Stone says:

    N.C. Legislature Overrides Veto, Allows Government Employees to Not Do Gay Marriages

    http://dailysignal.com/2015/06/11/n-c-legislature-overrides-veto-allows-government-employees-to-not-do-gay-marriages/

    Kentucky Clerk Not Issuing Gay Marriage Licenses Causes Uproar. North Carolina Shows Better Way.

    http://dailysignal.com/2015/09/01/kentucky-clerk-not-issuing-gay-marriage-licenses-causes-uproar-north-carolina-shows-better-way/

  11. Yeah. Permissible discrimination is certainly a “better way”. 🙄

    How about if the clerks object to the Chinese?
    Or the elderly?
    Or the ill?
    Or Mormons?

    Better ways’ ass, Bob.

  12. A Corp. is a government contractor. They entered into the relationship voluntarily. A Corp. has a “hetero-only” bent as a closely held corporation (ala Hobby Lobby). Now that the Federal government cannot discriminate based on sexual orientation, should A Corp. be allowed an exemption to continue their voluntary relationship?

    Not really.

    If upholding the law after the law changes is an onus on a corporation (as legal fiction) or a natural person, then they have the same options.

    Do their business elsewhere and for someone else.

  13. 1. The statute must not result in an “excessive government entanglement” with religious affairs. (also known as the Entanglement Prong)

    Factors.
    Character and purpose of institution benefited.
    Nature of aid the state provides.
    Resulting relationship between government and religious authority.

    2. The statute must not advance nor inhibit religious practice (also known as the Effect Prong)
    3. The statute must have a secular legislative purpose.

    Exemption creates excessive government entanglement, advances one religious agenda over all others and denies a statue with secular legislative purpose.

  14. Bob,
    The uniformity issues from the fact that all public documents must bear the name and title of the elected official responsible for the proper disposition of said documents within each jurisdiction.

    As that Green fellow is wont to say, “Agreement is not required.” :mrgreen:

    New printings showing any changes are authorized only if the official leaves office for any reason.

  15. Jeff says:

    wtf happened to this place?

  16. mhbtest says:

    @Jeff si’

  17. Aridog says:

    Bob Stone … said…

    Since Davis is following the state statute…

    If only she had said it that way rather than citing her new found religion. She did not do so…and even yesterday upon her release from jail her first words were to go blabbering on about “God” etc. If anyone can find me an election job description that says you will “faithfully carry out your duties unless God tells you not to…” please cite it for me.

  18. Aridog says:

    Bob Stone said …

    She took the office of clerk before the Fed came in and imposed a regulation that conflicted with her religious sensibilities. The Fed interfered with the property rights she had in her expected continued employment as clerk.

    So what? She’s hardly unique for having to deal with “Fed” surprises. I had to do so for years in an appointed and selected federal position, and when I could no longer do so I resigned and retired early. It’s what you do.

    And just what “property rights” does elected office hold? Elected office is not “property” … it is a public selection to perform a specific set of tasks and if one cannot do that they need to resign (or be discharged)…they do not”own” the position. That is amply demonstrated by requirements for periodic elections and re-elections as the case may be.

    The reason that this case is troubling to me is that I agree with Ms Davis’ sentiments, but for semantic reasons, but not her right to impose religion on her elected office. Why haven’t others been jailed like the Mayor and Sheriff of San Francisco? Good question. I’d jail them as well. Same for Hillary Clinton. For non-performance and for malfeasance in office. No one is supposed to be a “special flower” in elected office. I’m sure there’s a long list of insiders getting a pass…but that is not a justification for everyone and anyone blatantly refusing to abide the law…and as I said earlier, if she had chosen the cite Kentucky State law, not God, she’d have had a better case. The June SCOTUS ruling deserves a vigorous challenge…but Ms Davis made it personal and all about her. Sorry. Wrong.

  19. Bob Stone says:

    Gene,

    All of your examples lacked the following key factors:

    *A deeply held religious belief

    i.e. like the one Obama had http://www.politifact.com/truth-o-meter/statements/2012/may/11/barack-obama/president-barack-obamas-shift-gay-marriage/

    *A governmental intrusion on that belief

    *A governmental refusal to provide a reasonable accommodation under Title VII

  20. Bob Stone says:

    Aridog,

    I can’t argue that Davis has not carried herself well; in fact her antics make my skin crawl.

    As far as property rights are concerned, there’s a strong argument that the federal government’s refusal to afford a reasonable accommodation under Title VII, having changed the law of the state AFTER she took office, amounted to something akin to a regulatory taking of her term of employment as clerk; should the lack of accommodation force her to step down.

  21. Bob Stone says:

    Aridog,

    BTW, I agree with you about Clinton. The use of that server as her ONLY means of email should serve as the predicate for numerous violations of federal law; especially those requiring only gross negligence.

  22. Bob Stone says:

    I just heard on CNN that Rowan County issued 7 same sex marriage licenses in the absence of Kim Davis and not one of them had her name on it.

    Her attorney is stating that the deputy clerks lacked the authority to change the certificate and that “everyone knows” that the Rowan County Clerk is Kim Davis; thus he wants the office of the county clerk removed as well.

    Since any reasonable accommodation would enable her to wash her hands of the entire process of issuing same sex marriage licenses while retaining her job as clerk, I fail to see how the state’s implied decision to accept those certificates as valid doesn’t solve Davis’s problem.

  23. Bob,
    It’s my understanding that the clerk’s name and title is printed on the form. You have filed enough forms to know the elected clerk does not have to actually sign those forms As I pointed out above, KY Rev Stat § 61.035 empowers any legally appointed deputy to sign for the clerk.

    She wanted new forms printed up with her name removed. There is no point in that, other than her ego. She is a keeper of records, and her agreement with any document is not required.

  24. Aridog says:

    My primary dislike for Ms Davis’ position is her citation of her newborn Christianity. That has no place in US governance. What will the next religious advocate, of sundry kinds, demand as accommodation?

    I disagree that under any purview the SCOTUS action amounts to a “taking”…she was elected, she did not own any part of the position. If she did there’d be no law calling for periodic elections. Ms Davis’ actions amount some delusional form of a “divine right.” Last time checked we don’t have that in the USA.

  25. Bob Stone says:

    When does your religion legally excuse you from doing part of your job?
    By Eugene Volokh

    Excerpt:

    There’s a lot of appeal to the “you take the job, you follow the rules — if you have a religious objection to the rules, quit the job” approach may be. But it’s not the approach that modern American federal employment law has taken, or the approach that the state religious exemption law in Kentucky and many other states has taken.

    Muslim truck drivers who don’t want to transport alcohol, Jehovah’s Witnesses who don’t want to raise flags, Sabbatarians (Jewish or Christian) who don’t want to work Saturdays, and philosophical vegetarians who don’t want to hand out hamburger coupons can take advantage of this law. Conservative Christian county clerks who don’t want to have their names listed on marriage certificates and licenses likely can, too.

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/

  26. Aridog says:

    Bob Stone … all of the cases cited by Volokh, except certain “Sabbatrians” if they are elected officials, are private sector matters and can be resolved within the private sector. I know it must be wearying to some that I keep at this issue of elected government officials not having such protection & accommodation, but given where I live and with whom I live around, it is a significant matter. We are always under a potential threat that some elected official may go off on a religious tangent that none of us, even others of the same religion, could accept.

    I was a federal DOD & DA employee, a ranking civil servant, subsequent to my uniform service, which is not elected, but none the less there is an obligation to comply with rules, regulations & laws that you accept upon employment. When I reached the point where I could no longer do that, I resigned and retired…at a significant cost to me ($400/month) in monthly income because it was simply the right thing to do and my action improved the lot of my subordinates and primarily the best subordinate I ever had, one who deserved my position, when she was on the RIF chopping block…for no good nor legal reason, because they were leaving a position in our unit empty. I don’t regret it, I am proud of it in fact. Once I quit smoking and drinking like a fish the money part sort of evened out 🙂

    It was neither legal nor ethical that she was at risk, so I had no choice but to “call” as they say in poker. I was lied to repeatedly by both DOD people and OPM people vis a vis the law. It wasn’t 24 hours after I quit before I received offers, one after the other, to stay on for $100/hour and continue in my role…but I had to say “no” because it would not have protected the people I owed most, those who did their best for me. I’d hope given my experience that my distaste for Ms Davis’ self-serving antics is understood.

    It was not the first time I had to “call” others on malfeasance, in and out of uniform,but the only one that cost me my job, by my own choosing. I fully understand Ms Davis’ aversion to authorizing certain “marriages,” but I have no respect for her solution.

  27. Bob Stone says:

    Aridog,

    From Volokh’s article:

    “First, a technical but important legal point: Title VII expressly excludes elected officials. But Kentucky, like about 20 other states, has a state Religious Freedom Restoration Act (RFRA) statute that requires government agencies to exempt religious objectors from generally applicable laws, unless denying the exemption is the least restrictive means of serving a compelling government interest. The federal government also has a RFRA, which may apply to federal court orders issued to state elected officials.

    Such RFRAs are narrower than Title VII (they apply only to the government) but also broader (they apply not just to employment but to all government action). Nothing in them exempts accommodation claims by elected officials.”

    Note also that it was the Federal government creating new law AFTER Davis took office in a state that prohibited same sex marriage.

    Thus there’s an argument to be made that a refusal to afford her a reasonable accommodation under Title VII and KY RFRA would amount to a regulatory taking of her term of employment as clerk.

  28. It’s just not a very good argument. She isn’t in danger of losing her job because of her religious beliefs. She’s in danger of losing her job because she refuses to do it properly. The why of that refusal is ultimately immaterial as she runs the risk of removal for cause.

  29. bron98 says:

    Bob:
    I still don’t understand this, is she refusing for the local jurisdiction to grant same-sex marriage licenses or is she just refusing to do so? If she is just refusing to do so, then throwing her in jail is totally ridiculous.

  30. Bron,
    She had forbidden any of her deputy clerks from issuing licenses. That means she was, in effect, placing the entire county in violation of the SCOTUS ruling.

    I wonder if anyone deprived of services by any of the handful of scofflaw public officials around the country has thought of suing them on the basis of a 1983 violation?

  31. Aridog says:

    This whole Ms Davis thing is getting silly. She has been and is elected country clerk, in essence the registrar. Her personal agreement or preferences should have no bearing on simply recording documents & licenses. She has no right, religious of otherwise, to not carry out the actions of a registrar…the job she sought and was elected to now and previously. Her new found reborn faith has no bearing on her job., Her job is to record not pass judgments. If she were an orthodox Hasidim Jew would she be righteous in denying marriage licenses to a Jewish woman marrying a non-Jewish man? Just where do we draw a line…an unnecessary line at that for the job she holds.

    Before I just give up, once more I will caution those who feel she has some right to be judgmental, even though not a judge per se, is to be careful what you wish for…it can bite you in the backside.

  32. Bob Stone says:

    Aridog,

    As I’ve been saying, 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.

    Proper legal analysis is sidetracked by:
    *firmly held opinions about the evils of organized religion;
    *firmly held opinions about the non-existence of God and how silly religion is;
    *firmly held opinions that anyone who argue to the contrary is simply a religious fanatic, etc., etc.

    And then there’s the tactic of dehumanizing Davis, i.e. by deeming her as nothing more than a ministerial chimpanzee, so as to avoid the problem of deeply held religious beliefs entirely.

    And wouldn’t you know those complaints always come from those claiming to be “tolerant.”

    “Tolerance” means more than just being exceedingly tolerant of one’s own viewpoints. Furthermore, strongly held opinions are neither legal arguments nor license to disregard the law or the opposing point of view.

    Like it or not, there is a strong argument under KY RFRA for Davis to obtain a reasonable accommodation in the form of having her name, and the clerk’s position itself, removed from marriage licenses.

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/

  33. Bob Stone says:

    Aridog,

    As I’ve been saying, 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.

    Proper legal analysis is sidetracked by strongly held opinions:

    *about the evils of organized religion;
    *about the non-existence of God and how silly religion is;
    *that anyone who argue to the contrary is simply a religious fanatic, etc., etc.

    And then there’s the tactic of dehumanizing Davis, i.e. by deeming her as nothing more than a ministerial chimpanzee, so as to avoid the problem of deeply held religious beliefs entirely.

    And wouldn’t you know those complaints always come from those claiming to be “tolerant.”

    “Tolerance” means more than just being exceedingly tolerant of one’s own viewpoints. Furthermore, strongly held opinions are neither legal arguments nor license to disregard the law or the opposing point of view.

    Like it or not, there is a strong argument under KY RFRA for Davis to obtain a reasonable accommodation in the form of having her name, and the clerk’s position itself, removed from marriage licenses.

  34. A non-profit group, Planting Peace, has purchased billboard space in Morehead, Kentucky. That is Kim Davis’ home town. Here is the billboard her townspeople will be seeing for however long the sign is rented for.

  35. Aridog says:

    Bob Stone .. no where have I made any of those arguments you cited vis a vis religion. My sole point is that religion should not be imposed on elective office or other government offices. I am equally opposed to politics being foisted into religion. Think the current Catholic Pontiff…he’s out of his gourd. Allowing religion and politics to be mixed is a mistake that if allowed to spread wide can and will destroy us. Our choice…be ambivalent or be cognizant….I fear we’re more the former than the latter.

    Further I have said simply that if one’s religious beliefs makes them incapable of performing the tasks of office, a politician or a “Fed” should resign and say why. I did it…Ms Davis didn’t…so I cannot support her…she has no more “title” to a clerks position than she does to the moon. Her integrity is lacking, to say it nicely. There are reasons for elections…e.g.,the office holder does not own the position. In Ms Davis case, her job is/was to record transactions, licenses, deeds, titles, et al…not to pass judgment on them based upon her personal beliefs, let alone order subordinates to comply with her personal religious beliefs and not step up to do the recording for her…. I happen to agree with her beliefs, for different reasons, but not her means of demonstrating them. It is the “means” that is problematic for me. Who does she think “owes” her squat? She seeks the cake and the right to eat it too, to be cliché’ about it. The correct procedure would be to bring another case to the federal courts on a state’s rights basis….simply saying it’d be too hard or won’t work is not an excuse for not trying. That said, I am not certain she had the where-with-all to bring such a case….still she could have resigned honorably. As I said…I did it…and she is no dang better than me.

    Going beyond this “accommodation” in office issue…what will happen when the LGBT activists demand that your church marry gays? Even if against the doctrines of said church. There are already churches who gladly do so….but the activists want yours to do so, just because? Some churches already do and that is fine by me if fine by their memberships. Forcing it is shoving politics in to religion which I am equally against.

    At this point, in the discussion, I really do give up. I doubt my viewpoint will carry any day…sad to say.

  36. Aridog,
    There are reasons she has not resigned. 80,000 of them per year. IMHO, mammon trumps principled faith in this case.

    From the 2010 census for Rowan Co., KY:

    The median income for a household in the county was $33,081.
    Male median income $26,777′
    Female median income $20,104.
    Per capita income is $13,888.
    15.90% of families, and 21.30% of the population were below the poverty line as of 2010.

    She is being paid four times what the average woman in Rowan County is making and more than three times what men make.

    Changing the format of official forms requires legislative action, according to the law. That means a special session of the state legislature. The governor says special sessions cost the taxpayers about $60,000 per day.

    Hubris, thy name is Kim Davis.

  37. Aridog says:

    Chuck Stanley … I presume you’ve heard Ms Davis this morning doubling down on hubris and stupidity. She actually seems to believe she has entitlement to her position and thus entitled to demand the requirements be modified or outright changed to suit her.

  38. Aridog,
    I was working on some papers, but heard part of it. I suppose my response would be to point her in the direction of the door. That press conference was worth a double facepalm. Yet, it is all very familiar. There are those who refuse to accept the inevitable. Sometimes even after decades have passed. Around here, some of the locals haven’t gotten the memo that the civil war is over.

    When a racist homophobe loses the Westboro Baptist “Church” they have managed to cause hell to freeze over.
    http://www.huffingtonpost.com/entry/kim-davis-westboro-baptist-church_55eef2c2e4b002d5c0769a82

  39. HuffPo reports:

    Rowan County clerk Kim Davis of Kentucky suffered another legal setback Tuesday when a federal appeals court denied her request to be exempted from a gubernatorial directive to comply with the Supreme Court’s June decision on same-sex marriage.

    In a short order, the U.S. Court of Appeals for the 6th Circuit noted that “Davis has not demonstrated a substantial likelihood of success on her federal constitutional claims.”

    This dispute — which is separate from Davis’ legal challenge to an August court order instructing Davis to issue marriage licenses to gay couples — stems from a countersuit she filed against Gov. Steve Beshear (D), whom she has argued is partly responsible for her present court troubles.

    The ruling is only procedural, but it adds to a string of losses for Davis at all levels of the federal judiciary, including the Supreme Court.

    In court documents filed while Davis was incarcerated for contempt of court, her lawyers had charged that Beshear failed “to take elementary steps to accommodate Davis’ undisputed, sincerely-held religious beliefs about marriage” when he issued a directive in June asking that all county clerks in Kentucky comply with Obergefell v. Hodges, which legalized gay marriage nationwide.

  40. Gene,
    If I were the Judge, I would be most unhappy with her pronouncements on the courthouse steps that all licenses are null and void without her signature, and there was no way her name would appear on those licenses. That treads very close to the bright line of contempt of his order.

    As for her lawyer’s mewling about the same thing, advising the public at a press conference on national television that no license is valid without her endorsement, I believe the State Bar Association should look at his qualifications and ethics.

    I don’t understand why she is not in jail, unless the judge doesn’t want to make her any more of a martyr.

  41. Chuck Stanley and Gene Howington, I am in favor of same sex marriage being legal. I am only opposed to using force of law to mandate that a judge grant marriage licenses to same sex couples if it causes a conflict of interest for the clerk due to religious beliefs. The job of the U.S. Supreme Court is to interpret the U.S. Constitution, not legislate from the bench.

  42. Fuck the clerk.

    They have no right to force their religious views on others using the mechanisms of government. The only interest government has in marriage is in the rights and duties that surround it as a specialty contract. Hetero, Homo? God? Doesn’t figure into the deal as far as legitimate state interests go.

    If the clerk can’t service all citizens with equity then they can always go to work at WalMart.

    Also, if you don’t understand that “interpreting the Constitution” is a function that has a net legislative effect, then you don’t understand the English Common Law system that forms the bedrock of our Judiciary. If the Legislature has an issue with case law? They can always propose new legislation. It’s that whole checks and balances thing in action.

  43. Gene Howington, the judge, the clerk-regardless of who has the say in the matter of refusing to grant marriage licenses to gay or lesbian couples, I don’t think an issue should be made out of it. Not an issue worth involving the American Civil Liberties Union or any country that has an equivalent to that. Religious and political views aside, what are your thoughts about same sex marriage personally?

    • Well it’s a good thing your opinion doesn’t impact the possibility and ripeness of adjudication or standing to bring suit.

      As far as my views on the subject, one only need read this blog to see my views on the valid state interests and their limits in re marriage.

  44. Gene Howington, I am in favor of marriage, be it between a straight couple or a gay or lesbian couple. Of course, some people may argue that children raised by same sex parents lack a male-female dynamic. What are your views regarding same sex parenting? Also, what about religious liberty?

    • Being a good parent is a skill. Orientation aside, you either have the skill (more accurately skill set) or you don’t. As for religious liberty, I’m pretty much a Jeffersonian. I don’t care what a person believes so long as it does not harm others. I do have some issue with proselytizing but that is more of a manners issue than a legal issue.

    • Peer reviewed research published in authoritative psychology journals do not show any difference among children raised in homes with same-gender parents, than if the parents were opposite-gender. The overarching requirement for a good home for kids is good parenting. That’s it in a nutshell.

      As for religious liberty, anyone is free to attend the church, synagogue, temple, or any other place of worship they wish. Or not attend any. That has nothing to do with the formal legal obligations of the marriage contract. We no longer burn people at the stake or hang them for the “crimes” of heresy or blasphemy.

  45. Gene Howington, you make a good point. Insofar as same sex parenting goes, what are your thoughts about that? Do you support it? Do you object to it? Have no view in either regard? Chuck Stanley, in your opinion, as long as the parenting is good, would it matter one way or another if it was same sex parenting or opposite sex parenting? My question about religious liberty extends to include churches that choose to perform marriage ceremonies for same sex couples or not to as well as bakers electing to bake a cake for a same sex wedding or not. Also, what are your respective views regarding the hypocrisy of people like Newt Gingrich who advocate a defense of marriage and has been married multiple times? Some people go as far as to claim that the U.S. Supreme Court’s ruling on the legality of same sex marriage is intended as an attack on traditional marriage.

  46. Jeffery,

    Closer to one view in either regard. Either one or both partners regardless of gender are good parents or they are not with the caveat that perfection is an unreasonable standard outside the realm of mathematics. As I said, it’s a skill set. As Dr. Stanley stated (more or less), it is not a skill set that is neither gender or orientation specific nor gender or orientation exclusive.

    • Gene,
      Not even mathematics knows perfection. As an example, I give you the fine-structure constant. The only trouble with the integer 137 is that it won’t hold still. :mrgreen:

  47. Chuck Stanley and Gene Howington, I am of 2 minds regarding same sex marriage. On the one hand, I am all for it. On the other, I believe that people who do not wish to perform a ceremony for a same sex couple should not be mandated to do so by force of law if it happens to conflict with their religious beliefs. There seems to be a degree of Totalitarianism on the part of the political Left in the U.S. where they think bakers should be mandated to bake cakes for same sex couples even if it conflicts with their religious beliefs. It also galls me to no end the hypocrisy of people like Newt Gingrich, a man who advocates a defense of marriage, however, his being married 3 times effectively destroys his credibility. Talk about talking out of both sides of your mouth. As far as marriage in the U.S. is concerned, as long as the couple is of legal age and they are consenting adults, sexual orientation should not matter. Same sex marriage will never devalue the role of traditional marriage in society. What is the gripe that some people have regarding same sex marriage if it has no real affect on them? What about equal protection under the law? Since in the U.S. there was no specific reference to the matter of marriage, be it same sex marriage or traditional marriage in the U.S. Constitution, there should not be a Constitutional Amendment that defines marriage one way or another. Let Churches have the say or have a civil union performed. Get the government out of the marriage debate. I say keep federal recognition in place, however, in other areas, I say let churches have the say about performing a marriage ceremony for same sex couples or not.

    • Jeffrey,
      The church issue is a non-issue. Churches and ministers are free to do whatever they want. Perform ceremonies, or not. The state provides for clergy to be licensed to perform marriage ceremonies and register the marriage at the courthouse. You can become a ordained minister by signing up with one of the online ordination services. Once ordained, you can get the appropriate license to perform marriages and register them.

      However, an elected official whose job description includes certain duties is required to perform those duties. That is why any clerk who refuses to issue a license is in violation of the law. Not just Federal law, but State and local laws and ordinances as well. If Kim Davis did not want to perform the state mandated job description, she should not have run for the office. If some Judge or other authorized person is not comfortable performing a marriage ceremony, it should be easy enough to ask another judge or person licensed to perform the ceremony to do it. However, it is NOT acceptable or legal to turn people away from a public building just because one person (Judge, Clerk, etc.) objects for non-secular personal reasons. Any public official, elected to the office, who refuses to do his or her job should be impeached or recalled. They can also be subject to a Writ of Mandamus.

      The Writ of Mandamus comes from old English Common Law. It provides for citizens to get court orders to have the Sheriff order the King to do his job.

  48. Chuck Stanley, in the U.S. there are supporters and opponents of same sex marriage. I have no personal objection to it.

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