So, Rowan County Clerk Kim Davis is in jail for refusing to issue a marriage license for a gay marriage. She says it is against her religion to do so.
In her absence (she's been in jail for a day) the marriage licenses were issued by a deputy clerk. From jail, she proclaimed that those licenses weren't worth the paper they ere printed on, because she is the only one who has a right to issue the licenses, and she's not going to do it.
The question it raises for me is not whether a person can choose not to comply with a law they find to be inappropriate, but whether a person in a position which provides a public service can choose to gum up the works.
I took a QUICK look at the concept of civil disobedience. I discovered that one of the earliest written expressions of the concept is in Sophocles' play Antigone, written around 441 BC. In the play, the woman Antigone chooses to flagrantly disobey King Creon's order to leave her dead brother unburied, even if it costs her life. There are all kinds of tricky Greek issues, if I remember correctly from discussion in philosophy class in 1971-2, but the idea here is one of 'who should we obey? The law of man, or the law of the gods?'
Now, it was pretty evident (to me) that the context of those philosophy lectures was primarily one of promoting resistance to the draft. As college freshmen, we were particularly tuned in to the draft lottery; it was all we could think about or talk about. I lucked out; my number was something ridiculous, like 356. Others in my dorm were not so lucky. It became a moot question for me, personally, as after a year I had worn out my welcome with the institution, and they invited me to discontinue my enrollment. I looked at other options, and in a fit of contrariness, I enlisted in the Army. It was a good choice for me.
But, I had a year of campus rebellion and a philosophical foundation, and so the concept of civil disobedience stayed with me. Fortunately, I came of age after the primary legal and judicial barriers to civil rights had been breached, and my protests were limited to picketing the Georgia Farm Bureau for migrant farm worker's rights, and another protest at a nominating convention for the Georgia Democratic delegates to the '72 convention. Ummm....I really don't know why I was in that last one...
But in neither case was I ever at risk of arrest, because what I was doing was protected under the laws of our country.
My civil disobedience activity since then has been limited to an article in the veteran's newspaper at the junior college I attended after discharge from the army. In the article, I stated that not only did we have a right, we had a responsibility to disobey laws we found to be unjust. And, of course, I referred to Thoreau. (I'm going to ignore the work by Shelley, because I think he was a jerk.)
Here's what Thoreau advocated, in part: you must refuse to support the laws which are immoral, and that includes non-payment of taxes, which go to the government which instituted and carries out those laws. Furthermore, you have an obligation to clog the system. Make them put you in jail.
Now, here's the government's position: "That's all well and good, Henry, but we have a country to run. You see, Henry, you and your fellow man are endowed by the Creator with certain inalienable rights., and to secure these rights, governments are instituted, deriving just powers from the consent of the governed. So, when you refuse to pay yer frakken taxes, you are preventing us from securing the rights of yer fellow man. So shut up. Go to jail? If you MUST, but get out of the way, in any event."
So, how does this apply the the Rowan County Clerk? You cannot DEFY the government and be a PART of the government at the same time. The options for you are these: do the job you were elected to do, or resign. No one is MAKING you issue those permits. You don't HAVE to. BUT: you do NOT have the right to overturn the positions established by duly appointed judges, appointed by duly elected officials. If the matter is that offensive to you, then raise up a standard, get a constitutional amendment, but do not abuse your position.,
And have a nice day.
I believe her argument against issuing marriage licenses to gay couples goes something like this: Marriage laws are clearly not a federal matter, being covered by the 9th and 10th amendments. Therefore, no federal judge at any level, to include the Supreme Court, has standing to make a ruling on the issue of whom a State may or may not allow to marry. Therefore, the judge's decision was outside the law, and his orders were clearly illegal.
ReplyDeleteIllegal orders are not to be followed - that is clearly established case law (most significantly from the Nuremberg trials).
The judge also explicitly prohibited any mention of religion in the case -which I have a real problem with, as it is rather crucial to the case. Outside the lack of standing of the court, of course.
Now, as to her decision to not issue any marriage licenses - she was clearly in the wrong.
The judge then ordering the assistants to sign the licenses, when that is specifically against the State law - I have a problem with that. I also have a problem with the judge dismissing his opinion after the clerks started issuing licenses, but keeping her in jail for a couple of extra days after that to teach her a lesson. That's simply an abuse of power. (Assuming I read the reporting on that correctly, and that the reports bore some resemblance to reality.)
This entire case is the perfect example of the Federal Government, in the form of the courts, massively overstepping its constitutional limits - ignoring the 1st, 9th, and 10th amendments entirely.