The case of Kentucky Clerk Kim Davis, who yet refuses to follow Federal Supreme Law in the issuing of marriage licenses to gay couples or any couples due to her religious beliefs, has gone a step further, with Federal Judge David Bunning finding Davis in contempt of court, and jailing her until she complies with her duties under the Law. Judge Bunning, a Bush appointee to the Federal Bench, declined to simply issue a fine, as he correctly sensed that anti- gay marriage groups would pay them for her rendering such a penalty meaningless.
Republican Presidential Candidates Mike Huckabee and Ted Cruz have already indicated that the June Federal Supreme Court decision has no power over someone’s personal religious liberty. But Kim Davis is not merely a private citizen, with her religious opinions and political ones. She is sworn to uphold the law in the issuance of marriage licenses. She is not upholding the law she has already sworn she would.
Huckabee argues that the First Amendment’s protection of religious liberty extends beyond an individual citizen, and allows Davis to claim First Amendment grounds to defy the rule of law, and the Supreme Court of the United States; that each citizen can interfere with anyone’s religious liberty to protect their own. The argument is nonsensical, as religious liberty means nothing if anyone can use their own beliefs to invade and deny yours. Still worse is denying your civil rights as well, as is the case with this clerk.
It is unconstitutional when the person doing so is a government official invested with the power to make marriages official or deny rendering them legal in her county. She was elected to have fidelity to the law and not to her religion as a public official. Huckabee and Cruz are calling this judicial tyranny. Supreme Court decisions we disagree with are still the law of the land. Public officials take on an awesome responsibility when being elected to office or serving in a government position with real authority. They have to follow the law. No one is above it or below it.
Were Kim Davis merely a private citizen, she could even go to the level of civil disobedience in the fine tradition of those opposing laws under good conscience, and paying the penalty to arouse in the public knowledge of the wrong the law does, as Dr. King argued and acted in his personal life.
Huckabee invests all public officials the right to pick and choose what laws they will obey and be true to. He argues for State’s Rights to do the same for any State in the Union. He says that the Supreme Court and the Federal Court system have no funding to enforce its decisions; that there must be enabling legislation for that first.
Federal Courts have the ability to call on Federal Marshalls to take a person into custody, if necessary, should they fail to come to court when demanded. And they have the full power to find citizens and public officials in contempt of the court. Kim Davis’ behavior since the Supreme Court ruling in June is contemptuous of our Federal Courts and Supreme Law in the extreme.
Let’s take Huckabee and Cruz to school. Cruz is Harvard Law and knows better. Huckabee is trained as a Christian minister of the Gospel. So far as I know he is not a Constitutional scholar. He has served as a Governor of a Southern state in this Union. He says that 9th grade civics should tell everyone he is right.
No, Governor Huckabee, a lot of people either are ignorant of their civics lessons on the Constitution of the United States, or they intentionally misunderstand the Constitution and its legal application, telling others things that are factually untrue or just plain wrong about what “is.” This is the disease that Fox News has so much of.
As to the authority of Federal law over that of the States, a horrible civil war and a later Supreme Court decision reinforces what has always been in the Constitution of the United States:
Article VI, Section 2:
“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.”
So Kentucky’s State laws which prohibit gay marriage, its State judges and all officials must bow to this June decision of the U.S. Supreme Court—period.
The case of Marbury vs. Madison in 1803 had John Marshall writing the majority opinion for the court and declaring that:
“It is, emphatically, the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. . . Those, then, who controvert the principle that the Constitution is to be considered in court, as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law.” (Common acts of legislation)
Yes, this was what appears to be the Supreme Court deciding for itself they have the power to interpret the Constitution when that rulebook is in need of clarification. Since 1803, though tried by some, this decision has NOT been reversed, nor has the Constitution itself been amended to prohibit the original Constitution’s grant of authority to the Federal courts as being “The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Alexander Hamilton in Federalist Essay #78 commented on why the Supreme Court ought to have the power of judicial review with this:
“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”
Hamilton here is saying that judicial review belongs to the courts. Marshall got it right.
Huckabee has pointed to several U.S. presidents as defying Supreme Court decisions and is getting big soundbites on his assertion that Lincoln defied the Dred Scott Decision of 1857. Huckabee is right in part, but totally wrong historically, in fact, when it counts.
Lincoln in the 1858 Galesburg debate with Stephen A. Douglas, and elsewhere, did indeed say he defied that Supreme Court decision, and even points to Jefferson and Jackson to win his point about spreading slavery to the territories and being one Supreme Court decision away from permitting it in the Northern States. Here he was yet a private citizen providing his opinions on the decision as he saw it and as the Republican Party saw it in Illinois. He was running for a Senate seat in Illinois and had yet to take public office; something Kim Davis HAS done.
As President of the United States of America, Lincoln did NOT defy the Dred Scott decision but faithfully carried it out whenever he had to. That ruling applied until the new Chief Justice of the Court, Salmon P. Chase led a new court that overturned the decision entirely in 1864. After that, until his death, Lincoln was no longer bound to honor it.
Lincoln best expressed why he would carry out laws he disagreed with so faithfully Lincoln scholars will tell you that he held to a fundamental view that his duty to carry out the law was paramount. On so important an issue as slavery, as President Lincoln explained to A.G. Hodges via letter in 1864 that:
“I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I cannot remember when I did not so think, and feel. And yet I have never understood that the Presidency conferred upon me the unrestricted right to act officially upon this judgment and feeling.”
Here Lincoln was saying that his duty to carry out the law as it was, while acting in his official capacity as President, did not confer upon him any right to act on his feelings on a moral issue alone or in the abstract..
Huckabee, you are dead wrong about Abraham Lincoln. Your suggestion is not only historically wrong, but it is a slander upon one of our two greatest Presidents.
Andrew Jackson defied the U.S. Supreme Court in a decision favoring the Cherokee Indians on the claim that he had as much power as the courts in interpreting the laws of the land. He was President at the time. Huckabee just loves this one too.
But Jackson had the Executive Authority invested in him and not the Judicial Authority as the Supreme Court has as I’ve already quoted in this piece. Jackson was wrong, but as a historian of the period I must say that no one in Congress gave a hoot about Indians. They were savages and inferior beings—maybe even to slaves, and not worth bothering about in those days. At least that was then the common view of these white people at the time. The big goal was clearing them out of the way of white settlement. Hence, the Trail of Tears.
It would be the Congress’ job to impeach the President. Georgia land was too tempting to whites who wanted that land as well. Economic forces were also a reason nothing was done. This is the very worst high crime and misdemeanor by a President and both parties should have removed Jackson from office. Just because he got away with it does not mean he did not commit a “high crime” or “misdemeanor” here.
Franklin Roosevelt attempted to pack the court with justices—more of them then the Constitution and Congress allowed and those favorable to his New Deal initiatives. He was turned back and his image suffered as a result. He was wrong here despite being a very excellent President. The system worked. Public disapprobation had as much to do with it as anything else. The Court would not permit it.
This case ought not be enmeshed in Presidential politics when the laws of the land and this decision of the court have spoken with such clarity. Any political candidate for President who takes Ms. Davis’ view are just plain wrong. Ms. Davis has a personal civil right to her opinions as a private citizen, but not as the County Clerk in her county.
Huckabee ought not get anywhere near the oval office. Do we want a President, unlike Abraham Lincoln, who is not only ignorant of 9th Grade Civics, but who has such disrespect for the rule of law and the Supreme Court and Judicial Branch of the Government of the United States of America?
Governor Huckabee, you are in contempt of court and you flunk 9th grade civics, which I taught for 25 plus years at the high school level.