Well, that didn’t take long. The disastrously unconstitutional same sex marriage Supreme Court decision of June 2015 has already claimed its first Christian martyr. Not that Kim Davis, the thrice divorced 30 some-odd year career government drone of a Kentucky county clerk is the ideal representative of the faith. But once she began advancing religious liberty objections to processing marriage licenses to local couples (heterosexual or homosexual) at her Rowan county office, everyone has been off to the races.
The Summer of PC Bullying Ends With a Bang
As of early September, Davis has been plopped in jail, once the gay marriage litigators instantly rolled in a federal judge to order her to “comply with the rule of law” and issue the licenses, or else be held in contempt. When she declined, instead of being fined, the “conservative” judge threw her straight into the cooler. A compromise was offered where she would be released if she allowed her deputies to issue the licenses. Translation: That’s a ‘compromise’ that says she doesn’t have to desecrate God’s law concerning the sanctity of marriage, so long as she acts as an accessory by having her subordinates do it. She refused the ‘deal,’ and as a result, she’s the first nationally known Christian in jail for exercising her belief that a marriage is between a man and a woman.
The technical legalese aspects of this are more complicated, but that is how the case feels to a lot of Christian conservatives, who are absolutely tired of the summer of PC bullying, and have accordingly rallied around Davis. Among Republican Presidential candidates, that support has included Ted Cruz, Rick Santorum, Mike Huckabee and KY Senator (as well as Tea Party/pro-liberty leader) Rand Paul, all of whom have cited the episode as a prime example of religious liberty under siege. Even an atheist acquaintance of mine supports her fight. The ever reliable, culturally PC compliant mainstream media (MSM) and pols, by stark contrast, have acted like “huh, don’t these people know how to stay conquered?” in response to the controversy. Nor did the obvious point of “why didn’t the inconvenienced couples just go to another county?” dominate the media’s discussion. As usual, the coverage takes the tack of declaring “hey, this highly divisive issue was resolved by a Supreme Court decree that turned the Constitution on its head five minutes ago, so that’s the end of it! Anyone who dissents is lawless and bigoted!” This is the same self-serving triumphalism the social left brought to the Roe abortion ruling 40 years ago. How well did that turn out, to “settle the matter?”
Which Rule, of Which Law?
The main valid-sounding point latched onto by Davis’ opponents is she is an elected official, and as such is expected to just follow though with the functions of her position (which in her case includes issuing licenses), for as long as she is receiving a government check. If she can’t deal with the conflict, she should just get another job. Gays pay taxes, after all, to get the state to force everybody to accept and accommodate them–so Christian clerks need to shut up and conform (note that this is, at best, an egalitarian argument based on equal access to licenses, not a real liberty argument for proving the clerk’s rights MUST be set aside). But Kim also pays taxes, so the protection of her exercise of her religious liberty matters too, by that logic. The Constitution says her exercise of speech shall not be abridged by Congress, not that it can be abridged because a federal court says so, nor can it be abridged because she’s working as a public clerk, instead of as a private clerk, nor abridged because of the changing whim of finger-in-the-wind politicians, etc.
Yes, rule of law should prevail, but which rule, of which law? The issue is over the application of the correct view of the rule of law, not taxes. The version most liberty people support is the original intent/constitutional one, where the states check the federal entity, not the incorporation doctrine or supremacy notion, where the federal government trumps the states. The Founders did not intend to have the federal entity enforce the Bill of Rights over the states. They were concerned with strictly limiting the size and power of the federal government, not with giving it immense, unlimited enforcement powers over every other level. If anything, it gave the states nullification powers to reject the excessive or lunatic abuses of the federal zone, as an additional check on its power. On this basis, for example, free men and states in the 1800’s refused to participate in enforcing the Fugitive Slave Act, a federal law mandating that people had to turn in escaped slaves they were harboring. Do Christian clerks now have less freedom to exercise their conscience than whole states did in the 1800’s?
A license is a privilege the government can choose to grant OR deny at its whim. Davis WAS exercising her elected duties when she decided not to grant the licenses. Her duties give her the power to choose to grant, OR to choose not to. Clerks and bureaucrats make ‘determinations’ to deny licenses and permits all the time, across the land. If people don’t like her decisions, they can vote her out at the next election. Instead, the denied applicants ran to a federal judge to immediately and needlessly escalate the matter. THEY created this standoff, but didn’t count on Davis standing her ground, or obtaining martyr status.
The laws of Kentucky (which favor the historic/traditional/preponderant understanding of marriage) are the relevant law controlling the clerk’s action. A government license is a privilege, not an inalienable right (regardless of what an absurd court ruling says), so the clerk’s decision not to issue a license should be supercedent, especially if it’s based on her exercising her first amendment rights. Technically, the Supreme Court’s June decision only has binding relevance to the parties in the specific case, and only serves as a basis for individuals suing a given state in order to win another specific case. And believe it or not, Gov. Huckabee actually has a point when asserting that without the legislative rules, also known as implementing regulations, the law (or in this case, a ruling about the law) arguably has no force.
The Real Answer, and Real Politics
The purist in me says, “no marriage licenses should be issued by the state at all, problem solved. Let’s be libertarians here, and stop playing into the statist’s hands.” That’s all well and fine, and the cleanest liberty position–until of course, somebody decides to sue, or otherwise assert that the federal government must block states even from electing not to issue marriage licenses. The promoters of central tyranny ultimately think whole states can be treated like the poor clerk, if they don’t fall in PC line. So at some point, we do have to instinctively stand up for tough broads who resist federal tyrants and bullies, and their MSM enablers. Given this hostile setting, a pro-liberty response requires both a principled answer (keep government and marriage separated), and a tactical approach that grows its base.
The main points to make to fight back with are indeed to end all government licensing and the states rights arguments, but more importantly, to lead with emotion, ala pushing the victim framework with regards to people of faith or conscience. The plaintiffs who called for the county clerk to be held in contempt were visibly not happy that the judge moved to put her in jail (and not simply fine her), because they knew it created a high profile martyr in public perception. The PC forces prefer to attack or silence the religious right in the dark, away from media scrutiny. The clerk’s religious liberty argument is shaky (given her conflict of interest as an elected government official), but it provides an opening for supporters to advocate for people in her situation to be covered by a broader Religious Freedom Restoration Act (RFRA) in each state.
An expanded RFRA would prevent such workers from being threatened with jail or suits for standing up for original-intent federalism, cultural tradition or historic moral law. The current case has exposed that the cultural left is clearly intent on criminalizing or litigating into oblivion any public exercise of religious or traditional speech regarding gays, just as they have done to censor school prayer, abortion protests, and on other fronts. Once protected by RFRA, people in all states could more easily exercise their liberty without the immediate threat of jail or financial ruin, resulting in a lot more people acting as protestors after the example of Kim Davis.
One other emotional trigger Rand and others could use to carry this issue (instead of using technical and historical reasons that would probably bore the masses) is to simply point out the hypocrisy of the cultural left whenever they talk about officials complying with the rule of law. They could say “I’m sure you would be saying the same thing if the Supremes had ruled 5-4 the other way, right?” Or point out, why haven’t they complained when elected officials in sanctuary cities defied the federal immigration laws, or officials in states legalizing marijuana defied the federal war on Drugs? What about Obama’s Dept of Justice refusing to abide by the DOMA federal law during the first six years he was in office? Are only Christian officials supposed to be fined or jailed when they defy the feds?
What it Means
“We, the enlightened, can ignore or violate laws passed by Congress, but you evangelicals have to shut up and take it, or even quit your jobs when five Supreme Court social liberals issue decrees.” This realization that the whole “rule of law” canard is a one-way scam to pistol whip and punish the cultural right, but never, ever, the PC factions for stressing states rights, is part of what is fueling a rebellion by the “little people” against the whole establishment racket, as displayed in the current Presidential primary season. Kim Davis will not be the last rebel, but more like the first of a new wave of resistance to this latest edition of case law tyranny. As with abortion, this culture war battle will be going on for decades, if not longer.
For every action there must be an equal and opposite reaction, in politics as in physics. With all the ‘summer of PC bullying’ going on, it has caused the public (in reaction) to now embrace a guy who does not appear to back down, his history of positions and personality issues be darned. Hence the emergence of Donald Trump as the American hero of the summer, for standing against the mainstream. The MSM is aghast at this, as it doesn’t like a person who doesn’t bend a knee to their shaming games on race, sex, or other cultural divides. Accordingly, Trump comes off to them as having the ‘wrong’ tone, and worse, to have sided with the peasants out of sheer run amok ego. Worst of all, he’s energizing the rabble too much, as a fabled libertarian remarked years ago:
“It is important to realize that the establishment doesn’t want excitement in politics, it wants the masses to continue to be lulled to sleep. It wants kinder, gentler; it wants the measured, judicious, mushy tone, and content, of a James Reston, a David Broder, or a Washington Week in Review. It doesn’t want a Pat Buchanan, not only for the excitement and hard edge of his content, but also for his similar tone and style.” –Murray Rothbard