Kim Davis lost

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Kim Davis' booking photo from the Carter County Detention Center

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Kim Davis' booking photo from the Carter County Detention Center

Kim Davis' booking photo from the Carter County Detention Center

Kim Davis’ booking photo from the Carter County Detention Center

Rowan County clerk Kim Davis is entitled to rejoice that, thanks to an executive order from newly ensconsed Kentucky governor Matt Bevin, her name will no longer have to appear on the marriage license forms dispensed by her office. And — who knows? — once the state legislature gets down to business, dispensing marriage license forms may no longer even be the province of county clerks in Kentucky.

But none of this means that Davis “won,” as the Gawker headline put it.

Seeking to overturn a court order requiring her to dispense the forms after last summer’s Obergefell decision, Davis’ lawyers claimed she had a right to refuse to do so under Kentucky’s Religious Test Clause and its Religious Freedom Restoration Act as well as on free speech grounds. The claims were summarily rejected by federal district judge David Bunning, and both the Sixth Circuit Court of Appeals and the U.S. Supreme Court declined to take up the question. As of today, state officials have no religious right to stand in the way of same-sex couples’ marriages.

What made it appear as though Davis won a signal victory was the smooth transformation of her cause into a fight for an innocuous religious accommodation. Kudos to her backers for a clever maneuver. Brickbats to advocates on the other side for permitting themselves to be out-maneuvered.

After Bunning issued his ruling, Family Foundation of Kentucky executive director Kent Ostrander organized a protest at the state house in Frankfort with the goal of getting then-governor Steve Beshear to change the requirement that marriage license forms include the name of the clerk of the issuing county. “Our message today is Governor, please do your job. Don’t just point your finger at the county clerks and demand that they do theirs,” Ostrander said. “If he’ll do that, then gay and lesbians can get their marriage licenses and the county clerks can be protected. It’s that simple.”

Beshear dug in his heels, refusing either to issue an executive order or to call a special session of the legislature to change the marriage license forms. Same-sex marriage supporters and the A.C.L.U. betrayed not the slightest sympathy for Davis and her folks.

What the latter should have said is, “We understand that there are many people in Kentucky, including state officials, who personally object to same-sex marriage. So long as same-sex couples can obtain marriage licenses easily and on the same terms as opposite-sex couples, we don’t care whether whose names are on the forms. In fact, we think it’s in the interest of the all Kentuckians to provide Davis with the accommodation she says she wants as quickly as practicable. The important thing is that same-sex marriage is now the law of the land in our state.”

Instead, they chose to take their stand on the possible legal irregularity of a governor changing the signature rules on his own say-so — and they continued to do so. “The requirement that the county clerk’s name appear on marriage licenses is prescribed by Kentucky law and is not subject to unilateral change by the governor — conceded by the previous administration in court filings,” William Sharp, legal director of the American Civil Liberties Union of Kentucky, said in a statement yesterday. “Today, however, a new administration claims to have that authority.”

Does the ACLU plan to challenge the new forms in court? Of course not. Will anyone else? And put opposite-sex marriages undertaken with the same forms at equal risk? I very much doubt it. The ACLU & Co. have managed to look like losers when they’re actually big winners. Way to go, guys.

  • samuel johnston

    You bet Mark,
    This is another example of the “take no prisoners”, self righteous cause mongers in our society. Live and let live, respecting others rights to differing opinions, is not on their menu. All that said, the County clerk was wrong to refuse to do her duty, and the Courts were wrong to overrule an ancient precedent which still conforms to the wishes of the electorate. It should have been left to the legislative process, which was well under way.

  • John W

    If this is truly a win-lose situation over her deeply held religious convictions that same sex marriage is wrong, then she lost.
    Her name not being on the certificate does not prevent same-sex marriages from happening, and her office is still issuing those certificates.
    As such, she lost because if she truly held the conviction that same-sex marriage was THAT wrong, then she would refuse to issue them from her office, whether her name was on the certificate or not.

  • AST

    Whew! I’m glad the governor has decided she can go to heaven and God is probably breathing a big sigh of relief. He was really caught between a rock and hard place on this one. 🙂

    Merry Christmas and Happy Holidays, everyone.

  • Ben in oakland

    Since no heterosexuals are refused marriage, no ancient precedent has been overruled. And an appeal to tradition is basically saying you don’t have an argument.

    Does it conform to the wishes of the electorate? Not according to the polls. But it is not so important if it conforms to the “wishes” of the electorate. segregation and antisemitism also conformed to those wishes. What matters is conformance to the constitution, and the Supreme Court– and a lot of judges, and increasingly the electorate– have decided it does.

    While the legislative process is underway, families and individuals are harmed, all according to an ancient, vicious and TRADITIONAL prejudice. We have determined as a country that prejudice is not a sound basis for public policy. This prejudice is no different, just more viciously and deeply engrained.

    Personally, I’m not willing to wait for antigay people to decide whether they should give up their prejudices, or wait for the legislative process.

  • samuel johnston

    Hi Ben,
    You and I will have to agree to disagree, which is not usually the case.
    To keep the length of this argument manageable, I will only give one example. In Roe v. Wade, a new judicial ruling similarly overturned ancient precedent, or prejudice, if you will. Also similarly, many states had already openly legalized abortions. I lived in a state where the prohibition was still on the books, but safe abortions were performed at the local University Hospitals under the “health” of the mother exception. It was not perfect, but it was better than the situation now. The bitter repercussions of this “judge made law” are still very much with us.
    All clever people are frustrated with the rate of “progress”, and they always will be.

  • Jack

    The Supreme Court ruling on gay marriage is the law of the land, so Kim Davis’ initial breaking of the law by refusing to issue marriage licenses to gay people was certainly just if not exactly merciful. She also had the option of resigning from her job.

    But as for the decision itself, it’s one of many example throughout the history of the Supreme Court, going all the way back to the 19th century, where judicial activism won over honest constitutional interpretation. As with Roe v. Wade and many prior SCOTUS rulings, one can favor a thing being legal while at the same time believing that this is up to the people of each state to make that happen. Since Roe was decided, for example, plenty of pro-choice lawyers have continued to oppose it, because they felt that it was for the people and states to decide, not the Court.

  • Doc Anthony

    Kim Davis won the entire thing, the moment she made up her mind and took her stand.

    She showed American Christians that it was actually okay to fight Goliath if one’s circumstances permitted doing so (even if only for a few weeks or months), instead of automatically bowing and kowtowing to Goliath like a whipped dog.

    Legalized gay “marriage” is always wrong, always damaging, always corrosive to the moral and spiritual fabric of an entire nation. This will be true even if the Obergefell decision lasts 100 years. There will ALWAYS be a need for Christians to fight back and pay the price like Kim Davis did.

  • samuel johnston

    @Doc,
    Please enlighten me as to how “Legalized gay “marriage” is always wrong, always damaging, always corrosive to the moral and spiritual fabric of an entire nation.” I can see that it was be condemned by ancient Jews and later the Christians, but the ancient Greeks had no such view and produced one of the most creative and productive societies that has ever existed. Before you ask, I also think that their religion eventually evolved to be superior to Christianity, and much of their thought was incorporated into Christian theology and thought, but unhappily, their social/religious tolerance was not.

  • Larry

    Holding deeply held views that marriage equality is wrong is not permission to harm the ability of others to engage in it. Especially when one is a government official. A moral and reasonable person with such views would step down from a position of issuing such license. But Kim Davis and her supporters are neither. They wanted to maliciously prevent others from exercising their legal rights. There is nothing moral about such behavior.

  • Larry

    Ancient tradition is no legitimate reason for any laws. So a decision which upends one is of little consequence. Laws require a rational and secular purpose to avoid running afoul of the Establishment Clause.

    “Judge made law” has been intrinsic to our legal system since before the formation of our nation. It is the essence of the British Common Law system we inherited as their colony. It is an important check of the judiciary to the legislature. To keep our lawmakers from voting our rights away.

    Moaning about “judicial activism” when SCOTUS doesn’t go their way. It is nothing more than sour grapes whining. All discriminatory laws are passed by a majority vote. In order to uphold civil liberties, the judicial check on legislative power is absolutely necessary. People who claim such things are unconstitutional are just ignorant.

    Besides, not one critic of the Obgergfell decision can cough up rational and secular purposes behind gay marriage bans.

  • “Ancient tradition is no legitimate reason for any laws.”

    For Catholics, Tradition is as valuable as the Bible for deciding dogma.
    Since the Council of Trent.

  • Larry

    If we lived in a Catholic based theocracy, that would mean something. However it is not relevant to this discussion.. In our secular democracy, which values religious freedom, we need far more than “that is the way it is always done”. Tradition is nothing more than begging a question as to why things are permitted. In of itself, tradition is not worthy of being given color of law.

    The Establishment Clause precludes having laws based entirely on religious concerns. Laws must have a rational and secular purpose to avoid running afoul of it.

  • Richard Maus

    I totally agree. Tradition is worthless.
    I was just pointing to how serious the catholics take tradition.

  • Jack

    Wrong, Larry. Words have meaning, and their meaning is ascertained by discerning the intent of those uttering them. You wouldn’t like it if when you said something, others displayed a cavalier disregard for what you meant when you said it.

    Judges are judges, not legislators. If judges wish to make their own laws, they should quit the bench & run for legislative office.

    Being a judge involves, among other things, not making laws but deciding whether the laws that legislatures make pass constitutional muster.

    This goes to the heart of the distinction between rule of law and rule of man. Simply put, the Constitution rules, not judges. Judges are under the Constitution, not above it. If a law violates the Constitution, judges should toss it. If not, they must leave it alone. If the law is constitutional but bad policy, the people must press legislators to overturn it.

  • Jack

    Samuel, you’re flatly wrong on your historical assessment of same-sex marriage.

    You are confusing two very different things — tolerance of homosexuality and redefining marriage.

    The Greeks, Romans, and other ancients not only tolerated homosexuality; they celebrated it. If that were your point, you’d be correct.

    But your point is that gay marriage was recognized in those societies. And on that matter, you’re mistaken. Gay marriage was not even an issue in any society in history until about a generation ago. It is a peculiarly late-20th-century, western redefinition that has no connection to anything that went before it.

    Throughout history, we find monogamy and many variations of polygamy or polyandry. We also find people rejecting marriage altogether. What we don’t find is marriage redefined to include same-sex couplings, even, again, in societies that celebrated homosexuality.

  • Larry

    Spoken like a person who has no clue how our judicial system works. Judges have been making laws in Common Law legal system since the 13th Century.

    People don’t get to create meaning of laws and statutes out of thin air. We have a judiciary whose job it is to interpret such things in light of actual conflicts which require resolution.

    We have checks on the powers of the legislature to keep them from creating laws which destroy fundamental civil liberties. It is the nature of the Bill of Rights and 14th Amendment. The branch whose job it is to interpret those laws and apply those checks on the legislature is the judiciary.

    Majority will is never absolute in our system. It if were, we would descend into the kind of voter inspired dictatorship seen when Wiemar gave rise to Nazis. All discriminatory laws are passed by majority will. It does not make their power supreme.

    Still no rational and secular purposes for gay marriage bans. Oh well.

  • Larry

    Even Wikipedia thinks you are full of it
    https://en.wikipedia.org/wiki/History_of_same-sex_unions
    “A same-sex union was known in Ancient Greece and Rome,ancient Mesopotamia,”

    It still is an irrelevancy. Tradition in of itself is not a purpose for laws. Laws require legitimate purposes behind them. None were served by gay marriage bans except for giving animus against gays color of law.

  • Christians lost to Kim Davis. Christians are directed to keep Biblical Law and Government Law separate. This would mean unless Gov Law requires one to participate, ones Bib Law is not harmed. So unless Ms Davis was required to marry someone of the same sex her religious beliefs were not injured. The Gov Law did not require her to change her PRIVATE beliefs. It did require her to do her job. The bible is very clear on this subject as their were many different religious beliefs and if Gov. Law didn’t force a change in belief, one could do Gov.Law. Believing something is wrong and being forced to do what ever the law said is wrong. Hence being forced to marry a person of the same sex would be wrong. However issuing a marriage license in no way changes or forces a change on Ms. Davis beliefs. She has every right to disagree but cannot let her opinion crossover to her job. Separation of Church and State. Read letters from Paul.

  • @Doc
    Why is it states that have Gay Marriage the divorce rate for straights has lowered 20% overall. The state with the lowest divorce is Mass. and they have had legal gay marriage since 2004.

  • ben in oakland

    Again jack, marriage was not redefined. People who did not have access to it were granted it. Granting women the vote did not redefine voting, but instead, redefined women– as no longer the inferior chattel of men.

    What was redefined was not marriage, but gay people: as no longer the moral, sexual, familial, legal, religious, marital, constitutional, and human inferiors of heterosexuals.

    that this was a brand new concept is not entirely true. we have some evidence, despite millennia of suppression. But in any case, it doesn’t matter because tradition and “newness” are not the defining characteristics. Women being equal to men in all aspects of life was also a new concept 100 years ago. It is now accepted in every civilized country. It’s worth noting that it is not accepted in the uncivilized ones.

    Gradually, the equality of gay people is also being accepted, at least in the civilized world. But not in Russia, Uganda, or Iran.

  • ben in oakland

    Kim davis did not give a small goddam about what the bible said when she was lying, cheating, fornicating, and adulterizing. But even though she is still living in unrepentant sin in her fourth marriage, she is defended by the bible beaters as somehow representing god’s will.

    Josh Duggar did not give a small goddam about what the bible said when he was lying, cheating, fornicating, molesting and adulterizing. But he had plenty of time to attack gay people for this somehow unforgiveable sin that threatens everything, including his parents’ income stream.

    Newt gingrich is on his third adulterous fornicating marriage. Pat Robertson is still rich and still making it up as he goes along. Catholic priests– well, do we need to repeat 1000 years of coverups?

  • Jack

    Straw man alert, courtesy of the board’s usual culprit — Larry of course.

    To assert the presence of separation of powers between the legislative and judicial branches is obviously not the same thing as supporting a runaway majoritarian legislature. It’s to assert a balance between legislative and executive, not an absolute supremacy of one over the other.

    Larry, if you don’t know or appreciate what separation of powers means or implies, they shouldn’t have let you graduate high school.

  • Jack

    Ben, my point, in response to Samuel, was that throughout history, tolerance or even celebration of homosexuality in societies was not akin to endorsing gay marriage, as such endorsement occurred, even in such societies. If we found a way to time-travel and go to an ancient Greek city state or to Rome, and have a chat with groups of literate, thoughtful people, heterosexual and homosexual alike, they would all have had a good laugh at our expense if we asked them what they thought about gay marriage.

    That wouldn’t make them correct, of course. But it does suggest that complete tolerance and hearty approval of homosexuality does not automatically lead to gay marriage…..for the simple reason that for that to happen, people would have to agree on, yes, a “redefinition” of marriage. And that is precisely why, until a generation ago, it was not an issue in any society. Nobody, gay or straight, was interested.

  • Jack

    Sorry for the typos, ….this is without them:

    Ben, my point, in response to Samuel, was that throughout history, tolerance or even celebration of homosexuality in societies was not akin to endorsing gay marriage, as such endorsement failed to occur even in such societies. If we found a way to time-travel and go to an ancient Greek city state or to Rome, and have a chat with groups of literate, thoughtful people, heterosexual and homosexual alike, they would all have had a good laugh at our expense if we asked them what they thought about gay marriage.

    That wouldn’t make them correct, of course. But it does suggest that complete tolerance and hearty approval of homosexuality does not automatically lead to gay marriage…..for the simple reason that for that to happen, people would have to agree on, yes, a “redefinition” of marriage. And that is precisely why, until a generation ago, it was not an issue in any society. Nobody, gay or straight, was interested.

  • Jack

    Ben, I followed you diligently in your tour of the pantheon of hypocrites until you reached Pat Robertson, whom, you say, is…..um…..rich.

    Rich.

    Call me a sybarite if you wish, but I think it’s okay to be rich.

  • Larry

    The concept of checks and balances between government branches eludes Jack as well as the definition of rhetorical fallacies. A strawman is arguing a false unrelated point allegedly made by an opponent.

    How can a legislature be balanced if it is not answerable to another government branch for its Constitutional oversteps? Of course it can’t. 200+ years of Judicial review provides just that check to legislative power.

    So whose job is it to ensure laws pass Constitutional muster? The judiciary. They have the power the sole interpretive authority and the power to strike down laws which cannot be justified by Constitutional arguments. That is the nature of having a Common Law legal system.

    All you are telling me is you don’t understand how our courts work. Duly noted.

  • Jack

    A “same-sex” union is different from a “marriage,” Einstein.

    If you don’t believe that, ask Ben if he thinks gay people should have settled for same-sex-union recognition as opposed to marriage.

    It’s a significant difference….which is exactly why gay-marriage advocates did not settle for it…..and it’s exactly why there was such a thing to begin with. It was a clear attempt to make a distinction between that and marriage.

    Or am I detecting in you, Larry, a belief that gay people should have been willing to settle for recognition of same-sex unions?

  • Larry

    Complaining about “redefinition” is still not an argument. You have to explain why such definitions needed to be upheld in the first place and why changing it would be somehow wrong. The people stumping for gay marriage bans could do neither. You can’t.

    Just because something is novel, doesn’t mean it has to be banned. There has to be a first time for everything. To limit activities under color of law you need to justify why it must be so, using rational and secular reasons.

    “What we don’t find is marriage redefined to include same-sex couplings, even, again, in societies that celebrated homosexuality.”

    So what? We do now and we don’t have any compelling reason not to.

  • Jack

    Larry, read the progression of posts more carefully.

    The immediate question was not about the relevancy of a particular historical fact. It was about whether it was a fact.

    Again, read….Don’t just post or you’ll end up with the same outcome every time — shoe leather in your mouth.

    Trust me — food tastes better.

  • Larry

    Not according to the ancient cultures which had it.

    Modern day versions of the term involved a status which was deliberately discriminatory. One not recognized as a marriage or legal equivalent in all aspects.

    Plus the anti-gay bigots didn’t even want to budge on same sex unions. So why compromise with an incomplete status when the other side is in no mood to compromise on anything? The anti-gay crowd only talked about civil unions as they started to lose badly in courts and polls.

    The development of marriage equality in this country was largely propelled by anti-gay bigots. Had they been more reasonable, it would take another decade or so for gay marriage to be legal. But in their malicious zeal to prevent people from even voting in gay marriage, they got many unconstitutional bans put in place legislatively. If not for those bans, the judiciary would not have been capable of pronouncing marriage equality on a national level.

  • Jack

    Az Jack, I hate to break it to you, but all states have gay marriage.

    I presume you mean states that passed gay marriage on their own.

    Somehow, I doubt that whether a state did so or not has anything to do with the divorce rates for heterosexuals.

    The states with the lowest divorce rates tend to be those that have people who come from cultures where community matters much and rugged individualism little.

    Also, states with extremely high regulation of the housing industry, leading to inflated housing prices, tend to have a smaller percentage of divorced people…..Divorced people, when they become single parents, can’t afford such states, in which you need both parents working to afford to buy a house. So they move to less regulated places where one can buy a house on one income. And those are the same places where a high percentage of residents are already divorced.

  • Larry

    My comment got bumped to a different thread so save your bile for something else.

    Tradition, whether something is novel, all of that means absolutely nothing in this context, unless you can point out why it should be so. You have never, nor will ever do so.

    Nobody has to care how society did something before. If a new way is more equitable and there are no rational and secular reasons against doing it, then it is OK.

    Dr. Silk gets antsy when you go all “flame war” in his posts. I have said all that needs to be said here. Your ignorance, dishonest and unpleasant demeanor is duly noted. Adios.

  • Jack

    Larry, all you just did is repeat the fallacy you committed in your initial post: Anyone who disagrees with your nonsensical view that allows judges to make law rather than rule on it is somehow endorsing an unchecked legislature. Not even the most activist of judges would dare to articulate publicly your ludicrous view of the judicial branch’s role. If such a judge were foolish enough to do so, even the most docile of legislatures, be it state or congressional, would be forced to censure or impeach such an individual. Even the most sympathetic of legislators would be moved to impeach due to the combination of monumental incompetence and sheer idiocy on display through such a bluntly articulated contempt for constitutional governance.

  • Jack

    Larry, marriage is marriage. Same-sex unions alone are not marriage. You know that. I know that. Everyone knows that.

    There’s been no known instance of gay marriage being institutionalized in any society in any time or place besides our own time and place.

    Right you are that this tells us nothing about whether we are right and all other times and places wrong, or vice versa.

    But you’re banging your head against a wall if you think you can convince anyone who’s historically literate that gay marriage has any precedent. For better or for worse, it is unprecedented. And to argue otherwise is fruitless.

  • Jack

    To clarify, allowing same-sex unions is not the same as allowing gay marriage…..again, any gay marriage supporter will rightly make this point.

  • Jack

    The problem with the gay marriage decision is the same as the problem with the Roe v. Wade abortion ruling.

    Just ask constitutional scholars who are pro-gay-marriage and pro-choice yet oppose both rulings on constitutional grounds.

    If a person is one-issue or a two-issue fanatic who couldn’t care less about the Constitution and constitutional process and doesn’t give a hoot how one arrives at gay marriage or abortion on demand so long as one arrives, then this is all academic.

    But for people who believe that preserving the Constitution is of greater importance than their own views on any given issue, it is far from being academic.

  • Jack

    Larry, follow the progression of posts. I am not making any such argument either way. I am simply responding to Samuel’s erroneous historical contention.

  • Jack

    Larry, you’re essentially having a conversation with yourself because you’re refuting contentions that were never made.

    Maybe if you bothered to read posts rather than react to them, you’d waste less time flailing away at nothing.

  • Larry

    So rather than address the substance of my posts, you fling poo:
    1. Judicial activist complaints bemoan either ignorance or willful misrepresentation as to how a Common Law legal system with judicial review of constitutionality of laws works. It ignores the obvious. Not one of those arguments is capable of overturning the effects of SCOTUS precedent and interpretation. Never happened before, will never happen.

    2. Tradition is not a legitimate goal for laws in of themselves. Neither are arguments of redefinition. One must explain why such things are relevant in a rational and secular fashion, otherwise it is simply begging the question.

    3. You and every other critic of Obergfell can’t cough up a single rational and secular purpose behind a gay marriage ban. Hence you have no legitimate argument against the decision. Hence the collateral attack on SCOTUS authority.

  • samuel johnston

    Jack, I am sorry to report that you are correct :
    “You are confusing two very different things — tolerance of homosexuality and redefining marriage.”
    I was going after Doc for “always wrong, always damaging, always corrosive to the moral and spiritual fabric of an entire nation.”

  • samuel johnston

    “In of itself, tradition is not worthy of being given color of law.”
    Might be a good time to review the Seventh Amendment which incorporated English common law, including jury trials, into American Law.
    It might also be useful to review the origins of the Jury trial itself in English history. I sypathize with your point, but Conservatism cannot simply be dismissed, any more than can Liberalism (or even on occasion- radicalism). The most important issues are held in the tension between important, but opposing ideas. Our Constitution contains many examples. The outstanding one being the Bill of Rights.

  • Well Jack, you have a better information port then we(husband&myself)do. It is Jan14th and we can’t find the information to support your statements. Also you were correct about states approving before Supreme Court. That is where I referenced my comment on hetrodivorce. As time goes on we are finding the totally straight marriage seems to be shrinking.