Confusion Reigns over the Kim Davis Affair
First allow me to recap the issue. The Supreme Court on June 26, 2015 issued a ruling designed to make homosexual marriage a constitutionally protected right within the borders of the United States. The elected Kentucky, Rowan County Clerk, Kim Davis, a committed Christian, refused, as an expression of her religious liberty, to issue marriage licenses to homosexuals seeking to wed in Rowan County. To avoid equal protection claims, Davis, whose office of County Clerk is charged with issuing marriage licenses, suspended issuing any marriage licenses. Federal District Court judge, David Bunning, ordered Davis jailed, without bail, for contempt. After 6 days of incarceration, judge Bunning released Davis because, in Davis’s absence, the County Clerk’s office resumed issuing marriage licenses. Now the ACLU is involved. It is likely this issue is far from concluded.
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The Confusion:
First: media pundits and even elected officials have suggested that they find another position for Kim Davis in Rowan County government. Kim Davis is an elected official employed by the people of Rowan County, not by the government of Rowan County. Her job is to represent the people in the discharge of her duties and from what is known of people from Kentucky, Davis is doing just that. Only the people could find another position for Kim Davis. There has been no movement by the people to do this.
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Second: the claim that “the court has spoken and it is now the law of the land” is made by media pundits and elected officials who definitely should know better. God’s Law was spoken into being. American law requires a few more steps. According to the US Constitution, only the United States Congress can make law. Law does not emanate from the court.
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Third: a reasonable interpretation of the US Constitution would hold that there is no mention of marriage within the text. And a reasonable interpretation of the Tenth Amendment to that Constitution informs us that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This is actually the entire unambiguous text. States determine the definition of marriage within their borders. Only the Supreme Court is capable of finding a camel in a tea cup. It is foolishness on our part to believe it or to act as if it is so.
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Fourth: the use of the First Amendment’s Free Exercise Clause may be of some limited use to Kim Davis but it will do nothing to address the issue of homosexual marriage. The preceding three points of confusion merit articles of their own, but most thinking people are capable of reasoning out the details. I will devote most of my time to a proper alternative to First Amendment remedies.
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Fifth: the use of the Equal Protection Clause of the Fourteenth Amendment is misapplied in this case. The Fourteenth Amendment is poorly written and should be repealed. I will spend some time on this issue as well.
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The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .” this later italicized part being the Free Exercise Clause. Understand this is an individual protection. This allows you personally to pray at public events, in schools and certainly in your own private spaces. It does not allow you to force others to pray or to force them to engage in any other religious practices. It protects you individually and means that some individual accommodation needs to be found for Kim Davis. But we, as a nation, will find no remedy for the homosexual marriage debate in the Free Exercise Clause.
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How is it the secular world can demand things be done their way? The baker has to bake the cake. The florist must arrange the flowers. The photographer will take the pictures. The minister better conduct the service. These are all examples of public accommodation.
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The legal concept of public accommodation is found in the Civil Rights Act of 1964. This was seen by most as a positive blow for Civil Rights. Innocent blacks denied seats in restaurants and on buses were sympathetic. As a nation, we experienced a visceral reaction to this apparent unfairness. But a visceral reaction emanates from the limbic brain. Little thought or reason goes into it. So reacting to the situation emotionally, we passed public accommodation laws with little regard to their impact on individual property rights. We thought it unfair of the restaurant owner and the bus line operator to discriminate, so without thought or fanfare, we, as a society, violated the sacred notion of property rights and imposed our will on a business owned by others. But it is this same concept of public accommodation which justifies forcing the baker to bake the cake. How do we rationalize having the same visceral reaction to the plight of blacks forced to the back of the bus and the plight of a baker being enslaved to a political position he finds repugnant? The solution for the one is the problem for the other.
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The legal concept of public accommodation is a full frontal attack on property rights which are as fundamental to civil society as is monogamous heterosexual marriage. Public accommodation is used as a regulatory device. All regulation assumes the public (i.e. some government agency) has a right to regulate which is superior to the individual’s right to property. There may be cases where this is true. You may be relieved to know that your angry neighbor is not allowed to possess a thermonuclear device. But for the most part, the good created by private ownership, lightly regulated, resulted in the industrial revolution whose detractors become eerily silent when you list all that they would have to give up to eradicate it from our history. But the purpose of a regulator is to regulate and regulations quickly become onerous. The Founders strove to limit (i.e. regulate) regulation by the federal government.
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Additionally, the Court’s application of the Equal Protection Clause is wrongly applied. The Equal Protection Clause of the Fourteenth Amendment in Section 1 states, “No State shall make or enforce any law which . . . deny(denies) to any person within its jurisdiction the equal protection of the laws.” Notes from the authors of the Fourteenth Amendment indicate that they intended for the Amendment to say something quite different from what it actually says in a number of places. It is in many ways a flawed Amendment and should be repealed. However, dealing with the current reality of the Fourteenth Amendment, we should focus on Section 1 quoted above and ask which laws are the laws?
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It makes perfect sense that the federal government would want to ensure that federal laws are applied equally to all citizens. Otherwise, the states could effectively change the application of federal law within their borders, fundamentally change the requirements and protections of various laws within their borders and even institutionalize discriminatory practices. It might also make sense that they are referring to the laws made by the State. This would indicate that the federal government has an interest that all its citizens are treated equally within the state where they reside and a state law is enacted.
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What would make absolutely no sense is that the laws refers to the laws of each state. This would have the effect of federalizing the foolishness of all state laws and applying them equally to every state. Every state legislature would become a franchise of the US Congress writing laws which would be in effect in every state. Would Texans welcome the application of New York or California tax law to their state? The notion that this is equal protection, or any kind of protection, would stick in the craw of all citizens.
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Yet this latter interpretation is exactly the interpretation the court has applied. This is absolute madness whimsically applied to whatever state law the Supreme Court wishes to nationalize, forcing it down all our throats. Thomas Jefferson warned us of a tyrannical judiciary and it is for this reason the courts were intentionally made to be the weakest branch. The judiciary is constitutionally removed from the legislative process and is given no enforcement mechanism. It relies on the US Congress for the former and the Executive branch for the latter.
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But short of rewriting our laws and our history, what can be done to stem the tide of this judicial tyranny? This brings us back to Kim Davis. I salute her for her courageous stand. As an elected official she takes an oath to defend the Constitution of the United States. By refusing to issue licenses to homosexual individuals intending to marry, she was upholding the right of the State to define marriage. When Davis was elected County Clerk, homosexual marriage was not allowed. As proof, note that marriage licenses and applications for same in Rowan County require gender specific information from the Bride and the Groom, not spouse one and spouse two. Had it been otherwise, I doubt committed Christian Kim Davis would have run for office.
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By taking a stand for the constitutionally protected right of the State to define marriage within its own borders, Kim Davis was inviting local law enforcement to do the same. The Framers intentionally made the judiciary the weakest branch. This allows the legislature the opportunity to write laws which correct the direction of Court decisions. This allows executives the prerogative of not enforcing judgments of the court which the executive finds to be outside the courts constitutionally prescribed limits. Local law enforcement should have ignored the order to place Kim Davis in Jail. This is an example of how law enforcement protects and serves. By design, no enforcement power is granted the judiciary.
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It is the local sheriff or constable who enforces the edicts of the court and up to their sole discretion. Checks and balances exist not only among the three branches of the federal government, but also among the various levels: federal, state and local. Otherwise local government becomes nothing more than a field office of the federal government. It is a failure of our education system that few people know this today. This article is written as a corrective so that you might inform others.
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Elected officials take an oath to protect and defend the Constitution of the United States, not the Courts tortured interpretation of it. The US Constitution is a short Document, written in plain English and easily understood. It‘s just 4,543 words; 7,591 with all 27 Amendments. Elected officials across the country and even school children have no trouble understanding this document. They find no camel in this teacup. The document is so clear it is expected that the elected official who took the oath is capable of protecting and defending it in an unambiguous way which will be consistent across the land. Kim Davis did just that.
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Be sure that your elected law enforcement officers understand this concept. As fellow victims of the public education system, it is unlikely they have any previous exposure to this concept. It is the local sheriff and constable who enforce the Constitution within their jurisdiction. Visit your sheriff and constable. Vote only for candidates for these offices who understand this. Let them know that, as citizens, we will stand with them against court justices and even federal agencies which overstep their constitutional limits.
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It should be apparent by now that the people we elect to the federal government are, with rare exception, immediately corrupted by it. If our country is to be placed back onto a constitutional footing, it will be done by the local government, closest to a people fed up with being dictated to. Either the ball is in our court or we are forever doomed to be victims of an elite political class. The choice is ours. This is a time for personal courage if we are up for it.
