From "Letter From a Birmingham Jail", April 16, 1963. Emphases mine:
One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."
Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.
...
There was a time when the church was very powerful--in the time when the early Christians rejoiced at being deemed worthy to suffer for what they believed. In those days the church was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society. Whenever the early Christians entered a town, the people in power became disturbed and immediately sought to convict the Christians for being "disturbers of the peace" and "outside agitators." But the Christians pressed on, in the conviction that they were "a colony of heaven," called to obey God rather than man. Small in number, they were big in commitment. They were too God-intoxicated to be "astronomically intimidated." By their effort and example they brought an end to such ancient evils as infanticide and gladiatorial contests. Things are different now. So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church's silent--and often even vocal--sanction of things as they are.
But the judgment of God is upon the church as never before. If today's church does not recapture the sacrificial spirit of the early church, it will lose its authenticity, forfeit the loyalty of millions, and be dismissed as an irrelevant social club with no meaning for the twentieth century.
...
Never before have I written so long a letter. I'm afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he is alone in a narrow jail cell, other than write long letters, think long thoughts and pray long prayers?
Read his whole Letter from a Birmingham Jail, here.
Nice.
ReplyDeleteI really like his take on the law and I really like his gift for preaching civil change through non-violence with the gospel message. I just wish he would have had different views on family planning and population control, and never would've been the recipient of that Margaret Sanger award. Alas. What a gifted man, anyway.
I can sympathize here with his frustrations in your post. So many spiritual gifts available, but not to the same degree for each person; and perhaps that is what makes it seem like the Church is too weak to accomplish God's will. Not so in the end. His work is often hidden.
Nubby, if only the problem was that Christians simply had "quieter" gifts. Most of the Christians I know don't even know that they have gifts. I never heard of such a think growing up. We don't know who we are.
ReplyDeleteAnd yes, he was a fallible man, for sure, and lived in a Protestant paradigm. And yet he still understood more than most Catholics do today.
Leila,
ReplyDeleteMost Christians don't even know how to be Christian, while most Catholics don't even do the bare minimum to be Catholic. My biggest frustration as a Catichist.
Leila, let me guess.. You may have used this letter to voice your opinion about the Kentucky clerk case. Am I right? If this is what it is I personally don't understand why the clerck didn't simply resign.
ReplyDeletePax,
ReplyDeleteWhy did the couples take the clerk to court? They could go to the next county and receive a marriage license.
From a legal standpoint they had the right to receive the license in their own county. Let's say you are a gynecologist working at a clinic. The clinic changes ownership and they start promoting abortion. Would you resign? Would you rather expect patients to go to a different clinic to get abortion? Would you expect the new clinic owner to change policy just to accomodate you?
ReplyDeleteMaybe that was their motivation...or maybe they were trying to make an example out of her. And in turn she used the opportunity to become an example for others.
ReplyDeleteThey could have, but if one district can get away with refusing to grant marriage licenses, so can others. It wouldn't be a big deal in most places, but it's not unlikely that some regions could exist where one would then be unable to marry for miles and miles around, which would significantly interfere with people's lives and defeat the entire purpose of having officials who can grant marriage licenses in every county. The rule of law must prevail.
ReplyDeleteBut to your gynecologist example, I would continue to work, but not perform abortions. I would state that I was performing the tasks I was hired to perform.
ReplyDeleteAnd we cannot challenge laws we deem unjust? Did the GLB community not do just that to have the law changed?
ReplyDeleteShe didn't discriminate, she just stopped issuing them all in order to challenge the government's infringement on her first amendment right. And for breaking the law she was jailed.
ReplyDelete"The rule of law must prevail."
ReplyDeleteAnd, as Augustine, Aquinas and MLK make clear: An unjust law is no law at all.
As for who is following the law in the Kentucky case:
http://www.afa.net/the-stand/christian-persecution/clerk-the-only-one-obeying-the-law/
^^There is a case to be made that the clerk is the only one following the law.
Seems like rule of law was abandoned long ago, and we have legislation from the bench (not allowed under our Constitution). But if the article has it wrong, where?
I think there's a difference between following your conscience and failing to perform your duties as a government official. Why should Davis hold an office when she won't perform the associated duties? Remember, she was denying everyone licenses, not just gay couples.
ReplyDeleteAn law that's unjust is no law at all. A worker who won't work is no worker at all.
Why aren't her defense lawyers all over that?!
ReplyDeleteMy client did not break the law... What even...!
That's like getting jailed for stopping at a red light. That's the law. You stop out of obedience. Even if her reason was violation of conscience, she still stopped Holy smokes.
ReplyDeleteAn law that's unjust is no law at all. A worker who won't work is no worker at all.
ReplyDeleteSo don't hire the worker. This isn't analogous.
Dismiss the worker. Davis has every right to exercise her conscience as a citizen of the United States. She does not have a right to continued employment.
ReplyDeleteHer only fault was stopping service to all people. At the end of the day, what was she even jailed for?!
ReplyDeleteShe has a right to employment. She especially has a right to ask that her name not be on those licenses. She is also upholding the law by asking such a thing, being that, you know, Kentucky only recognizes marriage as between one man and one woman.
The question is what was she even jailed for?? Help someone?
"She does not have a right to continued employment."
ReplyDeleteEven if she is following the Kentucky law? She has to go by statutory authority.
Legislating from the court is never desirable, but it is binding. The SC found gay marriage must be protected by the 14th amendment, as I recall, and struck down all contrary laws. Presumably, this simply means preexisting Kentucky law concerning marriage must be applied to gay people as well.
ReplyDeleteWhat would happen if a Texan official tried to enforce one of those sodomy laws that are still on the books?
No kidding Nubby! I would love to see the networks covering the police loading ALL her deputies into the jail house with their mug shots all over the nightly news.
ReplyDeleteAnd at any rate, she wasn't discriminating. She was failing to perform her job for all parties, and even disallowing her assistants from issuing the licenses in her stead. She was jailed for little to no reason, but this does not mean her actions should go without repercussions.
ReplyDeleteChris, I had a long, long, long debate on this on my Facebook page, but here is one of the comments from there, by my husband, who has worked in or with state legislatures for 24 years:
ReplyDeleteThe Kentucky Legislature will have to "fix" the marriage licensure statutes. At this point, they don't address the Supremes' ruling. We are a nation of laws, not court rulings, and state government workers who issue licenses and permits get explicit authority from the statutes not the federal government. This is a state issue, not a federal one, unless Obama wants to federalize the licensing of marriage. If that is the case, then Congress would still have to pass the requisite laws to implement a system. I have run a state agency that regulates public service corporations and issues permits and licenses to businesses and people in the securities industry. With respect to the licensing, my agency obtained the authority to license from the AZ Legislature. We could not issue a new license or charge a new fee without a new law.
And from an attorney friend:
Courts do not "make" law. They make decisions and are supposed to apply the law to specific facts and circumstances. At the federal level, courts are to apply federal law to certain factual situations in order to protect and preserve those rights which individuals and other entities have under the Constitution. It is not the perogative of the court to act as a super legislature. It is also not the role of the court to write new law. Judicial review is just that. The court is to review the particular statute in question and determine if that law is consistent with the Constitution. the court is not supposed to make up things out of whole cloth. Unfortunately this is what they do too much of the time. The sad truth is that unconstitutional decisions by the Supreme Court has remained in effect because certain elements within our society wanted them to remain in effect. Further there were not enough organizations, groups, or individuals with the courage to stand and challenge these unconstitutional actions. In 1973 various states should have told the Supreme Court that they were not going to no longer protect unborn children. Had the various states continue to enforce the anti-abortion laws on the statute, it would have provoked a national constitutional crisis. That would have been turned of the focus on the point and purpose of the laws that protect unborn children. But everyone wrung their hands, cried woe is me, and did nothing. Governors and legislatures should have challenged this invasion of their state authority.
Forgive the bad grammar/syntax of my lawyer friend. He was talking into his phone, and Siri is illiterate.
DeleteThanks for sharing those comments. I certainly don't know much of the ins and outs of this stuff. Still, I would intuitively think that Kentucky law is already sufficient to marry gay people, as long as the heterosexual-only stipulation is considered unenforceable.
ReplyDeleteAlso, (please don't take this as me playing the race card, I only make the comparison so far as the arguments are similar), what are your thoughts on Brown v. Board of Education? I recently learned about the Southern Manifesto for the first time and it seems to have involved a similar line of reasoning about the SC's power.
Legislating from the court is never desirable, but it is binding.
ReplyDeleteChris,
It's not binding, Chris. It's called case law. It is a ruling that shows new interpretations of law. It sets precedents. It can be cited in future cases. It's only binding in that particular case. It's not a statutory or regulatory law.
Chris,
ReplyDeleteThe US Constitution is above every operating branch (which all operate on equal footing), otherwise we’ll have an oligarchy by our Sup Court. That’s also called, “judicial supremacy” and is a threat to a free republic.
The Court cannot legislate. They are bound by an operating Constitution. They need to correctly interpret it. This gay marriage decision has no basis in the Constitution nor in the Sup Court’s precedent.
Their decision was 5-4. It was fought tooth and nail. Don’t you think it needs to be reconsidered on these facts alone?
I think our founders messed up by choosing to combine:
ReplyDeleteA) A single document that sits above all US law
and
B) One small bunch of unelected people that get to be its only meaningful arbiters.
If the Court's word is final then judicial supremacy is inevitable. If the Court's word only applies when other people (who?) decide they're correctly interpreting the Constitution, then the Supreme Court is useless, and serves to protect no one and nothing.
This could only be fixed, maybe, but only by radically restructuring the system.
The gay marriage decision wasn't the best way to go about things, but it also wasn't unprecedented, and reflects both a standard interpretation of the Fourteenth Amendment and the will of the American people.
The gay marriage decision was most definitely unprecedented. Sexual preference as a basis for defining (or re-defining) marriage is found nowhere in Supreme Court decisions before this decision came down. That's what legal precedent means, right. Also, how they weighed due process is faulty.
ReplyDeleteJudicial supremacy is not inevitable at all. And that is a good thing. The Supreme Court has reversed previously erroneous decisions. They need to glance at the Constitution and re-interpret it.
We need to guard against the small bunch of non-elected people ruling the land. I agreed 100%. This is why we need to fight erroneously handed-down decisions. RvW is right up there with this one.
The single document is an ingenious idea because all powers that be are bound to it, and not above it.
I think precedent would include other cases with similar reasoning, such as other uses of the 14th amendment to establish rights that had never been legally guaranteed before (I think this has happened more than once). Not just cases involving sexuality. But I may be misusing the term.
ReplyDeleteChris,
ReplyDeleteThere was no previous precedent set for this decision. That was part of the uproar when the decision came down. There was no referral to previous case law at this level, redefining what marriage means (basically now it just means we have a legally recognized Rolodex of relationships called marriage, which will, in turn, dismantle the family unit, harm children, and dissolve society's foundation), that's because the US Constitution is mute on marriage. Mute.
I think our founders messed up by choosing to combine:
A) A single document that sits above all US law - you said.
It's not a document that sits above the law. It is the law. It is the law that needs interpretation by the judicial system. Not re-writes or activism from the bench, right? That's not their role.
Somewhere earlier in this thread someone asked why she was jailed. When she refused to issue licenses, those seeking licenses notified the local court. The court issued an order requiring her to issue the licenses. She still refused, which was also a refusal to comply with the court's order. When the court was notified of this, it issued an "Order to Show Cause," which requires he r to appear before the court and "show cause" why she should not be held in contempt of court for disobeying a court order. She did not show cause and was held in contempt and jailed. She was freed because in her absence the assistants in her office followed the court's order and there was no fuehrer risk of it being disobeyed. Standard procedure.
ReplyDeleteI wasn't speaking against the idea of the Constitution itself. It's the way in which our form of government requires it to be interpreted. Many articles and amendments probably should've been written more clearly. And even those that are written clearly tend to get abused quite a bit (the commerce clause pretty infamously ended up meaning whatever anyone wanted it to mean). Overall, I think finding the proper balance between judicial power and judicial restraint is difficult. If only there were some way to make filling court seats less of a political game.
ReplyDeleteJust saw this in a Center for Medical Progress email:
ReplyDeleteFreedom of Conscience Defense Fund (FCDF) Advisory Board Member Robert P. George has recently spoken out in support of Kim Davis, the elected Rowan County, Kentucky Clerk who is courageously refusing to comply with the Supreme Court’s immoral edict redefining marriage. In a stunning move, a Federal Judge imprisoned Ms. Davis for her refusal to issue same-sex “marriage” licenses, and revealed the hypocrisy of a federal judiciary which had no problem with other elected officials who refused to fulfill their duties and defend the people’s definition of marriage. And there is no question that Ms. Davis’ civil disobedience is the proper reaction to the Supreme Court’s ruling – which is not law so much as an act of violence against the law. (See Msgr. Charles Pope, Kim Davis is Right to Fight This Despotic and Shameful Law, Sept. 7, 2015, National Catholic Register.) Although Ms. Davis was released from custody on September 8, her week-long imprisonment was nothing more than the fulfillment, just on time, of G.K. Chesterton’s prediction from 83 years ago that the example of St. Thomas More, in refusing to comply with an unjust marriage law, will become relevant in our time: “Thomas More is more important at this moment than at any moment since his death, even perhaps the great moment of his dying; but he is not quite so important as he will be in about a hundred years’ time.”
Wow!
Very prescient.
Chris, it's my understanding that she couldn't be fired because she's an elected official. She could only be impeached at this point in time.
ReplyDeleteYes, that's my understanding as well. I was just comparing her to an ordinary worker.
ReplyDeleteProACA-
ReplyDeleteIt was more of a rhetorical question based on the logic in the article Leila posted. The logic of this whole situation reads that the court issued an order for her to break the law written in Kentucky's Constitution. That's bizarre, huh?
My real question is, if the logic in that article is sound, then why wasn't her defense lawyer all over that, like white on rice? That's confusing to me. It sounds clear,and there is nothing in law beyond the ruling of the Sup Crt, nothing enacted in law to obligate her to that ... so? The laws are being rewritten as we speak, many, many laws. But that doesn't mean they're in place. We go by law, not ruling, as Leila's husband said above.
Where are the lawyers at? Can someone tie this together in a neater explanation, because there are so many components to law and to certain clauses, it would benefit us reading if a lawyer can flesh this out. It reads like a major debacle, and to my brain, I like to see the concrete reasoning so that I can better understand.
Leila, what does your attorney friend say about the whole legal logic here?
The United States Supreme Court's decision in Obergefell directly addressed the Kentucky statutes and Constitution because it addressed several consolidated cases at once. The Bourke v. Beshear and Love v. Beshear cases from the U.S. District Court of Kentucky and the Sixth Circuit were "stayed" until the U.S. Supreme Court accepted review of Obergefell and then granted review on these cases as consolidated cases. So . . . the Governor of Kentucky and the Attorney General agreed that after Obergefell was decided, the court directly ruled on the Kentucky statute and Constitution and struck them down - hence no impediment to same sex marriage licenses because there was no longer a statute or Constitutional provision with language preventing them. The counsel for the clerk relied solely on religious liberty because that is the only argument they had. There was no basis for the argument raised by Leila's husband because the court had already struck down those existing legal provisions. Here is the summary of the consolidated cases:
ReplyDeleteOn January 16, 2015, the U.S. Supreme Court consolidated this case [Obergefell] with three other same-sex marriage cases challenging state laws that prohibited same-sex marriage – Tanco v. Haslam (Tennessee), DeBoer v. Snyder (Michigan), and Bourke v. Beshear (Kentucky) – and agreed to review the case. It set a briefing schedule to be completed April 17. The Court ordered briefing and oral argument on the following questions:
1.Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2.Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The Court also told the parties to each of the four cases to address only the questions raised in their particular case. Thus, Obergefell raises only the second question, the recognition of same-sex marriages from other jurisdictions.
The above summary explains how the Kentucky Constitution and statutes were before the court. The Supreme Court then ruled that "The challenged laws [Kentucky, Ohio, etc.] burden the liberty of same sex couples."
The laws were struck down and therefore the clerk's only basis for her actions was religious liberty, and that will continue to be litigated. But here incarceration for contempt of court for openly and intentionally violating a direct court order to issue licenses was soundly based.
The Supreme Court struck down a part of Kentucky's Constitution by saying it violated the U.S. Constitution. The Supreme Court has that authority. Whether or not they exercised that authority correctly and whether or not their legal reasoning is sound is a completely different question.
ReplyDeleteKim Davis is an elected official. If I remember correctly Rowan County's laws regarding the issue of marriage licences is the Clerk MAY issue them. Not shall. If that is the wording, then it is up to Davis as to whether or not she issues the license. The Supreme Court's decision states she can't issue them to straight couples but not gays. So she refused to issue them at all.
What should happen here....is for the people to decide. They can have a recall election because they feel Davis is not doing her job. If they boot her out, they can elect someone new and that person has the right to issue the license.
What actually happen is somehow Davis ended up in front of a Federal Judge (I'm still trying to figure out how. I'm guessing this only worked because the other state officials in KY allowed it to happen.) And the judge threw her in the pookey for contempt of court. Now her deputies are issuing licenses because they were bullied by a federal judge. They don't have the right to issue the licenses without Davis's approval. This calls the legality of all of those licenses into question.
To me, this isn't really about freedom of religion. It is about Federalism. Our legal system is set up so the Feds are in charge of some things and the States get to be in charge of everything else. We have some elected officials and we have some appointed officials. All these things are meant to balance each other out as much as possible.
This should have gone before a state judge to resolve. Let's say Davis had an affirmative duty to issue licenses and refused. If you wanted a license and she wouldn't give you one you'd have to sue to the State Court. The State would then review the county and state laws, including the state constitution. Now in interpreting the State Constitution relevant US Supreme Court ruling are technically binding. In so far as the states allow it to be.....
If the states refuse to comply with the US Supreme Court ruling. Well, you get some nasty fights between the state and the federal government and in extreme cases you might get some conflict like the Civil War.
So there are a lot of questions here-
1.) Does Davis have an affirmative requirement to issue a marriage license?
2.) If Davis does have an affirmative requirement to issue a marriage license and refuses- what court has the jurisdiction to grant relief? (What court can force Davis to act or boot her out.)
3.) The US Supreme Court overturned part of the KY Constitution- Does KY accept this. (There are a number of reasons why KY might not.)
4. If the KY accepts the US SP Ct ruling, does Kim have the right under the 1st amendment to refuse to grant licenses based on her religious beliefs?
We are jumping to question 4 when I don't think a lot of people have been paying attention to 1-3.
Now, I haven't done a ton of research on this so my reason can be faulty. Please correct me if I am wrong.
"her incarceration for contempt of court for openly and intentionally violating a direct court order to issue licenses was soundly based."
ReplyDeleteThat's hotly debated, even among attorneys.
State law says if the Clerk is unavailable another official (I cant remember which one) can act in her stead.
What if the Clerk is unavailable because she is raising a valid legal question about whether or not she must issue the licenses?
They need to issue a stay on the licenses until they decide if Kim has the right to not issue those license.
They didn't throw her in jail to make her comply (the reason for jailing due to contempt of court.) They threw her in jail so they can go ahead and issue the licenses and hope all this blows over. Even if Davis wins, it won't matter. Because by the time her case is resolved there will be a number of licenses issued and no judge will overrturn them. The public backlash would be far too fierce.
It isn't about Davis.
https://verdict.justia.com/2014/06/20/california-legislature-cant-simply-repeal-judicially-invalidated-proposition-187
ReplyDeleteThis article is not about the Kentucky case, but it clearly explains how judicial review works.
"While initially appealing, the “code-cleaning-on-account-of-unenforceability” view reflects a fundamental misconception of judicial review and what it means when a court “invalidates” or “strikes down” an enactment. A judicial declaration that a statute is unconstitutional (accompanied by an injunction against the statute’s enforcement) is in reality simply a statement that that court—and all courts that are bound by that court—will refuse to allow implementation of the statute as of that time. When a statute is struck down, it is not literally stricken from the statute books; it is simply held unenforceable for the time being—until and unless something changes. If something does change to undo the court’s invalidation, then the statute can be enforced without having to be reenacted, since it remained on the statute books all along. (Indeed, SB 396 would not be needed except for the fact that Proposition 187 remains on the statute books.)
Suppose Judge Pfaelzer’s ruling had been appealed to, and affirmed by, the Supreme Court. Would the analysis be different then? Not really. Even a Supreme Court ruling invalidating a statute does no more than indicate a current unwillingness by a majority of the Justices to permit enforcement, but that too could change. Some of the most important (and righteous) decisions by the Supreme Court have involved overruling past Supreme Court decisions that we now think were wrongly decided, so we know that no ruling by the Supreme Court is truly permanent. While it is rare for the Court to overrule a past decision that had recognized an individual right or limited state power—it is more common, as in Brown v. Board of Education, to overrule a past ruling that had rejected, rather than embraced, limits on state power—there is nothing that prevents the Court from undoing past rulings that impose limits on government. For example, if the Justices were to overrule Roe. v. Wade and declare no constitutional protection for abortion rights, then states that had abortion regulations on the books that were adopted prior to Roe could begin to enforce those regulations without the need to reenact anything."
So, in the case of the Kentucky statute, and all other State statutes, the holding in Obergefell invalidated statutes and constitutional amendment which held void marriages between people of the same sex as a violation of due process under the 14th amendment of the constitution. Those provisions are unenforceable by ruling of the Supreme Court.
Thank you for all the good information above. The issue I see (and I'm a layperson, but hubby has run a large state agency and also worked in the writing and implementing of state laws and statutes for 24 years) is first, that the marriage licensing laws in KY speak of gender in more than one place, and one cannot simply "cut out words" here and there, because then the statute does not make sense. Until there is a legislative remedy, there may well be a void in the law and all licensing should be suspended till then. Second, the thing here is that licensing, permits and fees are not a federal issue. They are a state issue, and the state employees need statutory authority in order to act. Does Obama want to federalize marriage licenses now? Do we want the feds to take over licenses, permits and fees?
ReplyDeleteI do think there comes a time that the state needs to stand up to the feds. If enough states did that, we might actually see some sanity restored, and some accountability and balance again.
Anyway, I am not a lawyer, but this is a quagmire. I hope there are some really bright and logical and right-thinking attorneys on this whole issue. Because right now we have a judiciary run amok, and making laws (not allowed) and making up "rights" out of whole cloth. Oligarchy comes to mind. Will Americans stand for it? Maybe. Who knows? America is just an experiment, and some experiments don't end well even if they seem promising at first. Human nature gets in the mix and all bets are off.
Marriage laws, generally, are a state issue. That's why there aren't too many federal decisions about them. However, those few federal cases which do exist involve a federal question. Here, in the most recent case, like so many others, the issue was whether or not the law violated due process under the 14th amendment. The Court weighed its opinion and issued a ruling. You may disagree with that ruling, but the ruling stands and its effects are applied to all the states.
ReplyDeleteYour friend Ken Pack tried to explain how our American System of jurisprudence worked. You seem to fail to understand how the statutory system is not the end of the line. We follow the common law system, not the civil law system. State statutory authority does not supersede federal case law where there is a federal question involved in the application of a state law.
PRG, thank you! This is embarrassing but I completely forgot about the due process clause of the 14th amendment. Which is amazing considering my Con Law professor tortured us for half a year on it. Maybe I was avoiding the flashbacks.
ReplyDeleteSo . . . the Governor of Kentucky and the Attorney General agreed that after Obergefell was decided, the court directly ruled on the Kentucky statute and Constitution and struck them down - hence no impediment to same sex marriage licenses because there was no longer a statute or Constitutional provision with language preventing them.
ReplyDeleteIf that’s true, that was their first mistake. Because in the other cases you listed, the laws involved were not relevant to change the very definition of marriage. So why would they consolidate cases that aren’t 100% similar? Disjointed reasoning.
They all want government recognition of their relationship. So as it stands, the Supreme Court projected its own power (erroneously) by deciding it should be able to grant notice of the choices people make in this regard, and to what degree. This is the error in how Justice Kennedy weighed due process in the gay marriage decision. This is one of the major critiques of the decision by the justices who dissented.
Help me connect the dots, anyone, intellectually:
ReplyDeleteThe Supreme Court struck down a part of Kentucky's Constitution by saying it violated the U.S. Constitution. The Supreme Court has that authority. - StarfireKK said.
How does it have authority when this is case law and not statutory law?
Now in interpreting the State Constitution relevant US Supreme Court ruling are technically binding.
How is this binding? A ruling is not a law. It’s a judicial opinion handed down. How is it binding on the lawful implications that aren’t even yet fully in place? It’s a matter of what policy is already in place, isn’t it? Not on what the majority of the opinions of the justices are, right?
All these previous comment tell me (if these are accurate) is that we definitely need the First Amendment Defense Act in law. No question. Because no citizen should be strong-armed, compelled, or pushed into complying with a policy they don't agree with, based on their religious convictions.
We need to be saved from the headache and injustice of having to use the legal system every time our liberties come under fire- from the govt itself! This act would manage that.
Supreme Court justices shouldn't wax activist and suppose what a policy change should look like, especially as pertains to marriage -- of which the US Constitution says nil.
Still, what power lies in the state's hands at this point? The state has constitutional power of its own, and yet states are being forced to change policy by ignoring gender as it relates to marriage.
The Court projected what it wanted to see onto the Constitution. What they came away with wasn’t even present in the document. How is this justice? How is this fair or logical interpretation?
Is Kentucky going to be strong-armed into re-writing the definition of marriage in their state Constitution? No, but it makes their document meaningless (pertaining to marriage laws) from the sounds of it. That leaves no power to the state.
If they don't rewrite the definition, then why would any clerk be forced, by law, to put his/her name on the state document (marriage license)? Let’s hope no one is forced to comply with bad policy.
If a person does not want to be part of any policy change that brings new "rights" (which the recent decision brought) based on violation of their conscience, don't they have a right to say they won't be part of that?
Here's the rub: the Supreme Court, in at least a dozen previous cases, identified the freedom to marry as a fundamental right under the due process clause of the 14th amendment of the U.S. Constitution. The issue in the most recent case really came down to whether or not that freedom could be abridged by the state due to the sex of the spouses being the same. The majority found that marriage is now simply an institution of domestic companionship, and the State has not met their burden to restrict that domestic companionship to members of the opposite sex. The dissent's position was that the issue did not implicate the 14th amendment because marriage between people of the same sex was a redefinition of marriage, and not marriage as understood in the previous court cases, and that the issue (defining marriage) should have been left to the states.
ReplyDeleteYes. I understand that.
ReplyDeleteSo basically in the states where the decision doesn’t bind immediately, motions can be filed against this decisions and should be. It’s a reality now that when states want to protect their people by defining what marriage is, they’re trumped. Not democratically, mind you. Which leads me to ask: Why not democratically?
And why didn't two of the justices recuse themselves? They voted after they performed same sex marriages. They were not impartial enough to vote.
PRG, I understand that. But what I kept telling my friend Ken Pack is that I was not trying to predict what would happen in the future (obviously, in this new oligarchy, the Court and gay "marriage" would/will prevail in KY). I was speaking of the now. When a statute no longer makes sense, a legislative remedy is required to see to it that the Court's decision is reflected in the law (as illegitimate as that decision is). Right NOW there is a void. State employees go by the statutes on the books.
ReplyDeleteAnd, here is how another attorney (not Ken) put it, especially about the lack of backbone of the states in all this:
Courts do not "make" law. They make decisions and are supposed to apply the law to specific facts and circumstances. At the federal level, courts are to apply federal law to certain factual situations in order to protect and preserve those rights which individuals and other entities have under the Constitution. It is not the perogative of the court to act as a super legislature. It is also not the role of the court to write new law. Judicial review is just that. The court is to review the particular statute in question and determine if that law is consistent with the Constitution. the court is not supposed to make up things out of whole cloth. Unfortunately this is what they do too much of the time. The sad truth is that unconstitutional decisions by the Supreme Court has remained in effect because certain elements within our society wanted them to remain in effect. Further there were not enough organizations, groups, or individuals with the courage to stand and challenge these unconstitutional actions. In 1973 various states should have told the Supreme Court that they were not going to no longer protect unborn children. Had the various states continue to enforce the anti-abortion laws on the statute, it would have provoked a national constitutional crisis. That would have been turned of the focus on the point and purpose of the laws that protect unborn children. But everyone wrung their hands, cried woe is me, and did nothing. Governors and legislatures should have challenged this invasion of their state authority.
Nubby, I absolutely agree with your assessment, and I second all of your questions.
ReplyDeleteNubby and Leila, your analysis is based upon the US Supreme Court decision being faulty and wrong - that it overstepped its authority, etc. Many lawyers and citizens agree with you. But when state Constitutions and state statutes ARE STRUCK DOWN BECAUSE THEY VIOLATE THE 14TH AMENDMENT OF THE UNITED STATES CONSTITUTION, there is no "VOID." The United States Supreme Court RULED that the Kentucky Constitution and the Kentucky statutes are INVALID to the extent they prohibit same sexes from obtaining marriage licenses. Certainly those will be rewritten, but there is NO VOID in the meantime. The US Supreme Court says that they are invalid and must be analyzed as if the prohibitions on issuing licenses to same sex individuals were not there. Thus, there is an obligation to issue them. It is basic Constitutional jurisprudence. The lawyer statements that Leila is citing are lawyers that say that the US Supreme Court decisions in Roe v. Wade and Obergefell were wrong. Fine. That's their opinion. But these US Supreme Court decisions are enforced every single day everywhere in this country.
ReplyDeleteNubby,
ReplyDeleteThe US Supreme Court has the authority because we are the _United_ States. When we formed this country the State governments agreed to be bound by the U.S. Constitution.
If a state passed a law stating Catholicism is outlawed the US Supreme Court would be correct to rule that law is unconstitutional and cannot be enforced.
Court rulings are binding and enforceable. The court interprets the law on the books and often "fills in the blanks" on a case by case basis. It is their job to "fill in the blanks" because no one writing the laws can think of every situation or circumstance. The court then uses that decision and other court decisions to decide future cases so we have a consistent, logical legal system. The court rulings are law....until a court makes a decision to overturn that ruling or the legislators make a new law that overturns the ruling. This is called Case Law and it is the basis of a common law system.
We've been living off judge-made law for hundreds of years. This is how our system works.
Kentucky is bound by the decision because they are part of this country. The Supreme Court interprets the Constitution.
Kentucky (and the other states) have four choices: (1) comply, (2) play politics and make enough of a stink it isn't worth it for the Feds to enforce the decision, (3) find a loophole or (4) Say no- which last time that happened it ended in war.
The governors who stated they are granting their employees and citizens the right to object based on religious beliefs are sending out the first volley of the next showdown. The 14th Amendment's right to marriage vs. 1st Amendment freedom of religion and the practice thereof.
I understand that, ProACA. It's not lost on me that there is absolutely zero democratic policy driving all of this. That's the kicker. Why are you shouting?
ReplyDeleteThe whole reasoning is faulty. They consolidated cases to arrive at a conclusion to strike down state constitutional law re: marriage. My point to that was that the cases they tied together (besides the latest) say nothing of a redefinition of marriage. They're taking this and that and making mud pie and saying, "This is really logical." No.
And what authority does the Supreme Court have to say anything about immediate policy? This is the catch. We have non-elected justices (only 5 of them) who want this policy effective immediately. They bind it to several cases/states, even though those cases aren't logically representative of their proceedings. And the rest of the country is either resisting or complying right now. For the resistant ones, they are filing motion against the decision.
So you can't say there's no void. There is a brand new necessity for a ton of rewritten laws and only certain binding principles at play in the here and now. That is what Leila's point is.
No, I get it, StarFireKK. Thanks. I totally get the idea of case law and the immediate binding therein, etc.. I was being rhetorical for the sake of logic. ;)
ReplyDeleteProACA, except that there is a void. If a law or statute does not make sense anymore (not just this law or statute, but any law or statute) because of a Court ruling, then the state employee has to wait. Wait till there is statutory authority to move. You are assuming that the KY law makes sense with the gender definition part taken out, but there are other parts of the law that speak of registering in "the female's" county. So, if two "males" come to register? Then what? The law on the books was written and passed by the Legislature, and must have a legislative remedy.
ReplyDeleteStarFireKK, I hear you. Give me your honest opinion: How does a populace rein in this out-of-control judiciary? There is a legislative remedy for that, but in the climate we are in, the judiciary would strike it down or just rule anything that they did unconstitutional! So, what is the remedy, aside from revolt? I'm curious, truly. It worries me.
Just curious where all of you stand on Griswold v. Connecticut, where the US Supreme Court struck down a Connecticut statute that made it a crime for a doctor to prescribe artificial birth control. The US Supreme Court found that the statute violated a right to privacy of intimate practices. The whole idea of this decision (later expanded to other situations) is that the Government cannot intrude on areas of privacy. There are many non-Catholic Christians, Jews, Muslims and Catholics who do not follow the Magisterium that are citizens of our Nation. Many of them choose to use artificial birth control. Leila, Nubby and others, do you believe that this is an issue that should be part of the democratic process and if the citizens want such a statute in a particular state, they can have it? And that the US Supreme Court went too far in recognizing a right of privacy? So that a particular community or State can adopt such a statute and enforce it? I'm curious as to your views on this.
ReplyDeleteLeila, Nubby and others, do you believe that this is an issue that should be part of the democratic process and if the citizens want such a statute in a particular state, they can have it? And that the US Supreme Court went too far in recognizing a right of privacy? So that a particular community or State can adopt such a statute and enforce it? I'm curious as to your views on this.
ReplyDeleteTo your comment on the decision itself: They absolutely went too far. This decision is probably more heinous that RvW. Why?
Let’s see the logic: The Court gave its blessing in this decision, somehow for some reason, as if it needed to recognize the idea that married people wanted to control family size thru contraception.
Then it trickled to contraception for unmarried people… and lo and behold, down to contraception for teenagers. Then, look… didn’t take long for RvW. Right? No surprise, right?
It started the immoral snowball we have today, through the decisions of justices (there’s that oligarchy at work again) forcing ambiguous meanings onto the Constitution and fabricating a "right to privacy" (found exactly nowhere in the Constitution, right? And the justices couldn’t even point to which Article of the Constitution provided this right. Are you kidding me?) to mean a right to birth control.
It is not about any “right to privacy”, it’s about lauding this control and blessing of the government as a great and noble thing. Control, control, control, blessed by the government. Was it really necessary to get the Sup Crt blessing on privacy? Oh, yes, Planned Parenthood would have it no other way. They were always coming against the law, since day 1.
To your question about the state’s power: Give the power back to the people, yes.
Why are there newly created Constitutional laws, on a federal level, about all of these things?
We need to get rid of all of this creation of law and let the people of the state have the choice. The Court should not just create law from thin air (from the bench!) that has no logical basis in the Constitution and, therefore, the Court should not take away the right of the state to make these calls.
The less laws, the better; in a virtuous society that would work just fine. But, look, we’re so un-virtuous and yet we’re so constrained by laws… we have neither virtue nor real freedom. Both are supposed to stretch human beings to their highest possible potential. To live the ideal. Nope. Not even close anymore. It’s very backward, dismal, and bleak.
Power to the people, right? Why so much federally created law all the time?
I completely agree with Nubby.
ReplyDeleteThere is no "right to privacy" anywhere in the Constitution. That is a crock, made up. And it led to the murder of 55 million children.
Here's part of what I wrote about how contraception leads to abortion:
Roe v. Wade was the 1973 Supreme Court decision that legalized abortion nationwide. A "right to privacy" legal argument was used as the basis for that tragic decision. However, most Americans are unaware that the "right to privacy" (words not found in the Constitution) did not originate with Roe v. Wade, but with Griswold v. Connecticut in 1965, and Eisenstadt v. Baird in 1972. What were those cases? Griswold was the case that legalized the sale of contraception to married people, and Eisenstadt was the case that extended the same "right" to unmarried people. The "right to privacy" regarding contraception cleared the way for the "right to privacy" regarding abortion. The legal road from contraception to abortion was natural and easy.
But contraception and abortion don't have to be connected, right?
Well... not exactly.
Even the liberals justices on the Supreme Court of the United States (Casey v. Planned Parenthood, 1992) understood clearly that acceptance of contraception requires abortion as a back-up. That Court ruling stated that Roe v. Wade could not be overturned because
"...for two decades of economic and social developments, [people] have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."
Did you get that? We have organized our entire society around access to abortion, which is the fail-proof back-up for contraception!
The Casey ruling also states: "In some critical respects abortion is of the same character as the decision to use contraception" [emphasis mine].
So, the pro-abortion liberal Supreme Court justices have seen and understood the symbiotic relationship between contraception and abortion.
Leila, it is entirely possible to have a right to privacy but no right to kill your children. "Privacy" may have been used to justify bad things but the reasoning used is often faulty.
ReplyDeleteIf you have the time, could you answer my earlier question about the Court's authority in Brown v. Board of Education?
But look at where the logic leads, Chris.
ReplyDelete"Right to privacy", take that for granted that it really mean right to private property, right to own certain things.
The Court found a loophole - no, rather it created a loophole. Ahhh! Yes, yes. Let's just skew this and contort it in order to make this addition: the right to privacy in the bedroom, the right to contraception for marrieds.
To RvW: Ahhh! Yes, look at these previous cases. Let's just throw mother's right to privacy over her body in there, too. Kind of a neat little template already created there. Loophole haven. So, indeed, there is a "right to kill your child" now. What was a crime is now a right. Wooowwwww.
Why did they even need to bless that decision from the bench?
This is a state issue. The Sup Crt upheld the lower court's ruling. Was this just? Why would this be just, Chris?
Loopholes are/were created, there was no actual Constitutional reference to really point to. No Article. Of which amendment? Fifth? 14th? Which one? There were several to consider and they couldn't really even agree to act in concert with this reasoning.
I mean, my house may be my private property, but I can't just invite someone in and then kill them. There's clearly a logical limit. It's the Court's fault for taking it too far in RvW.
ReplyDeleteThere's no right to life in the Constitution either, as I recall (though it does appear in the Universal Declaration of Human Rights), but we still support that right.
The 4th amendment also seems to guarantee a certain degree of privacy rights, although not to the extent that many people would like.
ReplyDeleteThere's no right to life in the Constitution either,
ReplyDeleteThat's right. Because it was a declared right, so it would not be in the Constitution (which consists of rights voted upon by judiciaries). But look what it has become, indeed! A right now voted upon. How? How? How? Why? Why? Why?
* running from room straight to liquor cabinet *
It's Friday. I need to praise God for some goodness. 'Bye ya'll.
Chris, honestly, I haven't studied it at all. I have no answer for you, other than that to discriminate among human beings according to skin tone is against natural law. Therefore, the very words of MLK in this post would apply. That's what he was talking about. The moral law and the natural law hold that all men are created with equal dignity. There is no difference, in essence, between a white man and a black man. A man is a man.
ReplyDeleteNubby, amen!!
Leila, Roe v Wade did not lead to the killing of 55 million babies. It isn't as if there would be zero babies killed without the decision. The law of numerous states at the time permitted abortion and presumably, even if Roe v Wade did not exist, abortion would be legal in many states. That is the point I was making in my last comment. If the Supreme Court stayed out of this and did not "overstep," as many criticize it for doing, then the issues such as contraception and abortion and same-sex marriage would be resolved by the people and the power would be with the people and their state legislators. If that is how it should be - as you and Nubby are arguing it should - you realize that there will indeed be legal contraception, legal abortion and legal same sex marriage in many states? There would likely be less abortions, but certainly more than zero.
ReplyDeleteIf that is how it should be - as you and Nubby are arguing it should - you realize that there will indeed be legal contraception, legal abortion and legal same sex marriage in many states? There would likely be less abortions, but certainly more than zero.
ReplyDeleteThe point is, the power to decide would rest with the people, not with a group of judges on a federal level.
The argument is a political one, not a religious one.
Would it be super if no person used birth control? Would it be ideal if there were no abortions? Of course, in our Catholic understanding of truth, love, and life, of course we'd love that.
But that's not what the argument is about. It's about the alarming reality that the power to decided legal issues (or whether there even needs to be a new law created!) doesn't rest with the voter. It comes from the bench of a Court. That's not how the country's democratic process was constructed to operate.
So your last sentence doesn't have relevance to the actual argument at hand, which is a political one.
Pro ACA, I never argued that there would be zero abortions without Roe v Wade. Where are you getting that?
ReplyDeleteAnd to deny that the floodgates to abortion were opened with that decision is naïve. But yes, we can agree that subsidiarity, and more control and decisions at the state level, by the people who were elected by the people, is best.