The Rule of Law

I’m going to get a little political here, so bear with me.

Kim Davis belongs in jail.  She should stay there until one of two things happens, she agrees to issue marriage licenses to gay couples, or she resigns.  I really don’t care which one happens.

I don’t care that Ms. Davis is claiming that issuing gay marriage licenses violates her religious beliefs, not one iota.  If she were a private citizen, engaged in private business, I believe that she has the right to decide who she wants to deal with and who she wants her customers to be.  That is her business, literally.

But she is a government official, her duty is to uphold the law, and government officials cannot willfully violate the law.  Let me say that one more time so that it sinks in.  GOVERNMENT OFFICIALS CANNOT WILLFULLY AND CONSCIOUSLY VIOLATE THE LAW JUST BECAUSE THEY DON’T AGREE WITH IT.  If she doesn’t agree with the law, and can’t in good conciseness abide by it, she has recourse, to quit, to resign, to stop being a government official.  To allow a government official to violate the law because they don’t like it, is to end the rule of law and begin the rule of man.  That is now how our system is set up.

You can say whatever you want: “the SCOTUS decision was judicial activism” or “where is gay marriage in the Constitution?” The answer is: that is totally irrelevant.  SCOTUS decisions are final.  They have been sine 1803 with Marbury vs. Madison.  If you don’t like them, petition Congress to make new law.  Wait until there is a change in justices and go back to court.  But don’t think that you can disobey a law you disagree with, especially if you have sworn an oath to uphold the law as part of your job.

This is something, that watching the news, conservatives and most of the GOP candidates running for President just don’t get.  YOU CAN’T BREAK THE LAW JUST BECAUSE YOU DON’T LIKE IT.  Especially since the same conservatives defending Davis have been accusing Obama of doing the exact same thing for the last 6 years.

But if you think I’m picking on Davis, I’m not.  It’s just that her (conservative) defenders have missed the big picture.  If Davis can not hand out marriage licenses she disagrees with because she thinks the SCOTUS decision was out of control judicial activism than guess what?  There is a whole mess of antis who think that Heller, McDonald, and Moore v. Madigan (appeals) were judicial activism too, and that an out of control SCOTUS made up individual gun rights out of whole cloth.  They are totally happy denying CCW permits every chance they have.

If you defend Davis, you have to defend them too.  I don’t.  I want Davis to go back to jail, and I want every California county Sheriff, every clerk in Maryland, the Chief of Police in DC, and every other government official who operates in a “shall issue state on paper but no issue in effect” state to be her cell mates.

You can either have the rule of law or the rule of man.  Rules that apply equally to all or rule by arbitrary and capricious officials.  You can’t cherry pick and want the rule of law when you agree with it and not when you don’t, there is room for only one standard here.  I vote for the rule of law.

15 Replies to “The Rule of Law”

  1. As someone who still opposes gay marriage, I agree almost completely with your sentiment. I also would oppose attempts to reverse the SCOTUS decision right now(or any time in the next decade, really). The problem isn’t one that can be solved by making laws regarding who can and can’t get married, the problem is a much deeper societal one, which made anybody think that passing laws regarding who can and can’t marry whom is a solution to anything.

    Besides which, with the Democrats no longer able to offer any more appeasements and the Republicans having a near-monopoly on self-defense, I see this as a prime opportunity to pick up some gay Republican voters. All we have to do is not give them something to fight against.




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  2. I believe you are mistaken. In fact, I think you have it exactly the wrong way around. So-called “private” businesses are not private at all, they’re state-licensed. Because they’re state licensed, the licensee must perform as his or her license requires. If that means the business owner can’t discriminate, then the business can’t discriminate. The licensee, by applying for and accepting the license, tacitly agrees to follow the rules established by the licensing authority (the state). (This is different from what a person can do in his or her private life, and with his or her own – truly – private property. Throw a party at your house – invite and exclude whomever you please.) If the state demands that the business do something that the business owner believes is unlawful or morally wrong, the owner can always surrender his or her business license.

    On the other hand, the government employee can only do that which is authorized by the Constitution (meaning that enabling statutes must conform with the Constitution in order for them to be valid). Individual government employees are responsible for making their own determinations concerning what is, and what is not, acceptable under the law. The excuse, “I was only following orders” was summarily rejected at Nuremberg. In fact, government employees have a responsibility to refuse to do acts not authorized by the law (Constitution) as they understand it. Yes, “as they understand it.” No government employee is beholden to the moral authority of any other. For instance, those who take oaths do not swear to follow orders, obey the president, or abide by SCOTUS decisions. What, then, guides them? Their own moral sense guides them, and they are personally responsible for NOT following unlawful orders (Nuremberg again – imagine if no government employees followed the order given them to attack the Branch Davidian compound). The government employee who takes an action that is not authorized by the law is, in fact, operating under color of law and not exercising government authority at all.

    This is different from activism (like judicial activism) because it doesn’t permit the government employee to DO something not authorized by law, but only to REFUSE to do that which he or she believes is NOT authorized by law. It is a principle that only permits INACTION. Although this principle will sometimes result in an employee not doing that which is lawful, this occasional inconvenience is necessary in order to assure the government employee has the ability to refuse to do an act in the name of government that is, in fact, unlawful.

    Our entire system of government is one of successive rights of negation – the Senate can negate the work of the House, the president can negate the work of Congress, the courts can negate the work of both; the people can negate the work of politicians, both at the polls and as jurors; and government employees, cops, and soldiers are all able to refuse orders to commit acts that they believe are unlawful or immoral. The whole idea was to make it as difficult as possible to over-govern, in the spirit of “the government that governs least, governs best.”

    A free people can’t afford to have government of amoral employees, willing to do everything and anything they’re ordered to do. Sometimes an employee must stand on principle, personal moral conviction, or their personal understanding of the law in order to prevent the government from doing that which they believe is (and which very well may be) wrong. It’s difficult to say that such an employee should be punished and replaced by one more malleable or less caring about morality and the law, for obvious reasons.

    These principles can be used to refuse to follow unlawful orders for, say, firearms confiscation. In fact, some sheriffs and other police are now refusing to enforce some firearms registration and universal background check laws. These principles are at the core of organizations like “Oath Keepers.” The idea is to obstruct government, not people.

    However, this does create a problem when government is involved in processes it shouldn’t be involved in. Clerks and other officials can refuse licenses (for marriage or concealed carry), and that’s a problem (if you’re gay and want to get married, or if you want to carry a concealed weapon w/o being arrested). The solution is to get the government out of regulatory activities it shouldn’t be involved with, then it can’t interfere with freedoms and the only laws that a government employee could refuse to operate are those which will only prevent government acts without infringing upon personal liberties. It’s only because the government is involved in regulating liberty that the Davis problem exists.




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    1. First of all, it is why I said “I believe” when it comes to private practice discrimination. I disagree with business anti-discrimination laws when it comes to the issue of gay marriage. If you don’t want to bake a cake for a gay couple, that’s your business. Economic competition and the free market will sort that out.

      On the other hand, the government cannot be a party to discrimination. Which is exactly what Davis is doing. Don’t confuse this with “I was just following orders” because it is not the same thing. Those Nazi officers could have resigned their officership, they could have left the military, they could have surrendered to allied forces. That is the redress of a government employee, to quit. If she can’t do her job, than leave it. But to use her conscience as a justification for discrimination is awful. Second, in no way is granting gay marriage licenses (expanding a right) equivalent to gassing Jews (actually killing people), that is a total false equivalency.

      You want an equivalent situation for this as a though experiment? A Muslim county clerk has a religious objection to the consumption of alcohol. She unilaterally denies all liquor license application and renewals, effectively turning her county dry. Do these people defend her right to use her religious beliefs to bar other people from their freedoms OR do these people do what I think they would do, and become hysterical and claim that “Sharia law is not the law of the land” and demand that the Muslim clerk get fired and perhaps go to Gitmo?




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  3. My .02

    The law prohibiting sodomite marriage in Kentucky was voted in by a majority of voters. It says marriage is between one man and one woman.
    Scotus issues OPINIONS. They don’t make laws. They can render their OPINION why this clerk is violating the law all they want. Then it’s up to the Kentucky voters and/or legislators to fix the law. Period.

    In closing, it would be better if she didn’t issue ANY licenses; then they couldn’t say she was discriminating.




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    1. Just because the people vote to pass a law doesn’t mean that law is good. That is the point of a Constitutional Republic. The people just can’t vote to take away somebody else’s constitutional rights.

      Who decides what is Constitutional? Ultimately SCOUTS. Yes, they present their opinion, but a SCOUTS opinion is law. Has been since 1803.

      The SCOTUS opinion, in a nutshell, is that in the issuance of a government license, equal protection applies as per the 14th Amendment, and the government cannot deny a license based on sexual orientation. SCOTUS made the same decision regarding interracial marriage in Loving v. Virginia in 1967.

      Keep in mind here what we are talking about is a license. Right now, the government can’t force a church to marry two people, and SCOTUS willing, it never will be able to. That is a marriage in the eyes of god, if you believe in that sort of thing. The government just gives you a piece of paper that says “these two people are entitles to some tax breaks together.” It is no different than a drivers license or CCW permit. It is a government document.

      If you, or Davis, or anybody else has a problem with the government legislating morality in marriage, than I agree, the government shouldn’t be issuing “marriage” licenses but sexual orientation neutral civil permits and leave the marriages to the churches.

      But what this woman did was thumb her nose as 212 years of US history because the idea of issuing a government document to two people offends her. That is a massive amount of arrogance on her part, not to mention a willful violation of the law.




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  4. Her job was to execute the policies of her employer, which in this case was the government. If any of us chose to not execute the policies of our employers, we’d be out of a job in short order and have no legal recourse to get it back. It’s really that simple.

    Unfortunately if she disagreed with her employer’s policies, it’s not as simple as if you and I disagreed with our employers’ policies. If we disagree with the boss, we can have a sit-down with him and maybe work something out in an afternoon. With her, it’s the law, and changing that takes a bit longer.

    Which is why at the end of the day, the government needs to be out of the business of marriage and all personal affairs. The government is too intrusive and inefficient to be involved. Personal decisions and beliefs are, well, personal…




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    1. I’m personally torn on the issue because while she’s a government official (and therefore charged with abiding and following all applicable laws), she’s an elected official, which means her “employers” are ultimately the people of the county.

      And the people of her county overwhelmingly support her.

      So while she’s not following the law herself (she has indicated that she will not forbid her deputies from signing same-sex “marriage” certificates, so they are still, in name at least, available from her office), her “boss” has no problems with it.

      Her opponents have a larger moral issue, I think. The certificates are available from her office, but same-sex “marriage” activists will not be satisfied until certificates are issued with the personal signature of Kim Davis. Availability isn’t enough; dissenters must now be silenced.




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  5. Having grown up and being married into a very Baptist family, I understand, but don’t agree, with her views.

    What others are saying here about the Supreme Court issuing an Opinion is correct as far as it goes. The Judge handling this case basically said that KY’s law was unlawful based on that opinion. We all may not agree with how the judicial system works, but that’s the way it’s been going for a looonnnggg time.

    The lady should have resigned once the judge held her in contempt. She made her point…and hanging on tells me she’s trying to be a martyr to a cause when Jesus himself said, “Render unto Caesar that which is Caesar’s.” I personally take that to mean “follow God’s law for yourself…and leave others to God for judgment.” Of course, I’m sure other see it differently. 🙂

    You can’t legislate morality, and I personally don’t think the federal government (or states for that matter) have any business in the marriage business. Should be up to churches or justices of the peace who they want to marry.




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  6. I wish there was this much “outcry” by entire cities violating federal immigration law. We now have several states violating federal drug laws as well. I suppose it comes down to what is in vogue at the moment…




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    1. I like Eugene Volok, and this article is lays out the issue very well but missed one important point. Davis made no effort to accommodate the county to allow marriage licenses to be issued with her as clerk. She and her lawyer went so far as to say that licenses issued by subordinates are invalid. She is undue burden on two legs. She has gone out of her way to be a martyr.

      But this has really devoled because I don’t care about gay marriage either way. I care about civil rights. That’s why I posted. For a government employees to say “my adherience to my beliefs requires that I deny you your Constitutionally protected civil liberties” is such an act of overt tyranny it puts me beside myself. That was my point.




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  7. First, I can’t address the issue of the Law in her state. Can you, truthfully, or are you just making assumptions.
    Second, when was she charged with a crime?
    When was she tried?
    A Supreme Court decision is not a law in itself. She was imprisoned without due process, basically on the whim of the Judge
    As to the premise that she , as a public official should be jailed for not performing her duties, if those duties are established BY LAW, then yes. But why not start with someone whose failure to carry out their legally mandated duties are far more significant to the future of the Nation? Hasn’t the refusal of any court or legislative body to address any of the established what is in effect a precident?




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  8. Miguel, I must have missed your earlier posts. I apologize. I missed it when you demanded that then San Francisco Mayor Gavin Newsom go to prison for forcing city clerks to issue illegal same sex marriage licenses. Please send me the link as I am eager to read your comments.

    Likewise with our open borders, obamacare, and our government agents refusing to issue concealed carry permits. Barack has his phone and his pen and simply makes laws as he sees fit.

    I ask for a simple reason. When liberals refuse to obey the law in their capacity as government agents, then why should conservatives bother to obey it? I submit they would be foolish to do so. It would be unilateral surrender. We are in a culture war and conservatives have take up pacifism. We should obey the law once both sides agree to do so. Trust, but verify.

    Your answer should be fascinating.




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