Pick Wayne's Brain

September 5, 2015

How The Right Gets Religious Freedom Wrong – Kim Davis Edition

Filed under: Commentary — Tags: , , , , , , — Wayne A. Schneider @ 3:24 PM

Article VI of the United States Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Immediately after that it says:

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.

Kim Davis, a Democrat, was elected County Clerk of Rowan County, KY, in November 2014 and took office in January 2015. She succeeded her mother who had retired from that position. Prior to taking office as County Clerk, Davis served as Deputy Clerk for 27 years. According to a press release from her lawyers, Liberty Counsel, Kim Davis only wanted to have her name removed from the marriage license forms. She was willing to file any form without her name on it, but because marriage licenses stay in the records permanently, she said, “I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.” That’s where she first went wrong. You see, it really makes absolutely no difference what “God’s definition of marriage” is because that’s what her particular religion tells her. What she fails to grasp is that the rest of us are not in any way, shape, or form, bound by her religion’s rules and dictates. We do not have to put her God before all others. In fact, we do not even have to acknowledge her God exists, let alone let His rules govern us. The United States government, and all State Governments below it, and all local levels of government below that, are officially secular. To have it any other way would violate the Establishment Clause of the First Amendment. I don’t believe that Conservative Christians understand that yet. They operate under the misconception that if you don’t let them force you to live by their Christian rules, that this is somehow oppressing their religious freedom rather than oppressing your own. If they were told they had to follow Sharia Law in all of their government duties, you can bet everything you own they’d be fighting that as a violation of their own religious freedom. Yet they are incapable of seeing how what they’re doing to the rest of us is the same exact thing.

I do want to jump in and point out that her statement starts with something very hard to believe. “I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage.” She’s only been a born again Christian for about four years. Prior to that, she was married four times (the second and fourth times to the same man, her current husband, whom I like to call “Grover Cleveland.”) Six months after getting divorced from her first husband, she fathered twins by her eventual third husband. So before she was elected County Clerk, she herself violated those very teachings of Jesus himself regarding marriage. Plus I refuse to believe that in her 27 years of being a Deputy Clerk, she never once issued a license to “sinners like herself.” God did not like divorce. Did she issue her own license to herself? It’s a public document, so someone in the media can find out. Or did her own mother give the licenses to her sinful daughter? It’s not a critical question; I’m just being nosy. Anyway, there’s a good article in USA Today that runs down the timeline of what happened when.

So, what other strange arguments are her supporters making? Well, Rena Lindevaldsen, one of her Liberty Counsel lawyers, says that God’s Law is superior to Man’s Law. To understand this truly insane legal argument, it helps to know that Liberty Counsel is all about defending God and his followers in court. Now, I would never want Liberty Counsel to be my lawyers not just because I’m an atheist (and damn proud of it), but because they are terrible lawyers who are bound to be disbarred some day, especially when they advise their clients to break the law. Not advise them what will happen IF they break the law, but to actually advise them to break the law. I’m not sure lawyers are supposed to do that.

Deacon Keith Fournier of Barbwire claims that since she took office before the SCOTUS ruling in Obergefell that she is not bound by it, and is only bound by the laws that were in effect at the time she took office. This one is laughably wrong. As Right Wing Watch so perfectly stated it

If this would be the case, then anyone who was elected to office before the Loving v. Virginia case, which struck down state bans on interracial marriage, would then be able to refuse to issue marriage licenses to such couples, or allow officials to block the integration of schools because they took office before Brown v. Board of Education was handed down by the courts.

But, of course, that’s not how the law works. Nor does the office belong to Kim Davis personally, it belongs to the People of Rowan County.

The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.

Besides, Kim Davis was not elected to enforce God’s Law, she was elected to follow KY and Rowan County Law. How can she possibly believe that it is constitutional for her to subject the people of her county to the laws of her personal God? What if a Muslim were elected to that office (okay, suspend your disbelief for just a moment and pretend it could happen in KY), would it be proper for the new County Clerk to say he or she would only follow Allah’s Law? I think everyone, including Liberty Counsel, would agree that this would be unacceptable. But they wouldn’t agree that it would be unacceptable for the exact same reasons Kim Davis’ actions were unacceptable.

Former weight loss success story and current presidential wannabe Mike Huckabee claims that Kim Davis is the only clerk following “the law.” Apparently he meant God’s law, not the supreme law of the land (as determined by the SCOTUS.) He also demonstrated that he doesn’t understand much about how the Constitution works by saying

“Kim is asking the perfect question: ‘Under what law am I authorized to issue homosexual couples a marriage license?’ That simple question is giving many in Congress a civics lesson that they never got in grade school,” Huckabee added. “The Supreme Court cannot and did not make a law. They only made a ruling on a law. Congress makes the laws. Because Congress has made no law allowing for same sex marriage, Kim does not have the constitutional authority to issue a marriage license to homosexual couples.

First of all, Mikey, Congress doesn’t define marriage one way or the other. Second, when the SCOTUS says a law is unconstitutional, you operate as if it weren’t in place. The SCOTUS says that the 14th Amendment requires equal treatment under the law, which means that you can marry any other person you wish. (No, not your pets, and not your lawnmower, but another person.) Also, when the SCOTUS says a law is unconstitutional, they are not “making law.” They are saying that the law made cannot be allowed to stand because it violates some part of the federal Constitution. (You remember that thing, don’t you, Mikey? You took an oath to support and defend it.)

Kim Davis and her lawyers also say that to comply with her personal religious beliefs (something she was not elected to enforce), the residents of her county, the ones who pay her salary, can just drive to another county to get a license. While it is true that a marriage license given in any county can be used anywhere in the state of KY, that’s not the way it’s supposed to work. And since she improperly and unconstitutionally instructed her clerks to not issue licenses to same sex couples, it was no longer a case of her being forced to violate her personal beliefs, it became a case of her forcing her staff to violate her constituents’ civil rights. That is also something no elected official has the authority to do. If the duties of your public sector job conflict with your personal religious beliefs, then your only recourse is to resign from that job. Suppose a Catholic priest was elected President? Does he have the constitutional authority to have all sinners (according to his religious beliefs) jailed? Of course not. It’s no different for Kim Davis.

Lastly, Liberty Counsel lawyers made the delusional claim that by saying “So help me God” when she took her oath (which, BTW, is not and can not be a requirement to hold public office, since it would be imposing an unconstitutional religious test), Davis was swearing to put God’s law above the law of the United States and of the Commonwealth of Kentucky. Bullpuckey! The only thing “So help me God” is supposed to mean is that you really, really meant it when you said it. As many others have pointed out, when she took that oath she put her hand on a Bible and swore to support and defend the Constitution (something all public officials are required to do), she did not put her hand on a copy of the Constitution and swear to uphold the version of the Bible her local church uses. (There is no such thing as THE Bible, since there are hundreds of variations. Why is that, BTW? How can “The Bible” be the “inerrant word of God” when so many denominations of Christianity use slightly different versions of it?)

In the end, Kim Davis and her lawyers have no rational, legal, constitutional argument to make to support her refusal to obey the SCOTUS (and the federal judge who jailed her) just because those orders conflict with her religious beliefs and still keep her job!. She is absolutely free to resign her office and continue practicing her religion. She’s just not free to do it on the public’s dime. And Liberty Counsel lawyers ought to be disbarred (or, at the very least, have their privilege to argue before the SCOTUS revoked) for telling Kim Davis to violate the courts’ rulings (all of them, which have gone against her every step of the way.) This is, as the Conservatives like to say when Hillary Clinton is involved, a nation of laws. Maybe it’s time they started practicing what they preach.

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