Saturday, September 05, 2015

Free Kim Davis

By Jack Cashill
September 5, 2015

Kimberly Davis (Carter County Detention Center)

"I'm glad the court sent a strong message that you have to follow the law," said Timothy Love of Kentucky, one of the plaintiffs in the Supreme Court case that legalized gay marriage. The strong message that U.S. District Court Judge David Bunning was to send Kim Davis to prison.  Davis, the county clerk of Kentucky’s Rowan County, boldly refused to issue a marriage license to a gay couple.

Love’s comment raises at least two interesting questions.  One is this: when did the left develop this affection for following the law?  Regarding drugs, immigration, debt repayment, occupying stuff, shutting down stuff, and even burning down stuff, progressives have proudly and openly defied the law and encouraged others to do the same.

Classify this sudden outbreak of good citizenship as routine leftist hypocrisy.

The second and more salient question is one that Davis herself has raised: “Under what law am I authorized to issue homosexual couples a marriage license?”

In a letter to his supporters, Republican presidential candidate Mike Huckabee clarified the decision by Democrat Davis.  “The Supreme Court cannot and did not make a law,” said Huckabee.  “They only made a ruling on a law. Congress makes the laws. Because Congress has made no law allowing for same-sex marriage, Kim does not have the Constitutional authority to issue a marriage license to homosexual couples.”

In the Federalist Papers, Alexander Hamilton referred to the judiciary as the least dangerous branch of government.  He argued that under the Constitution, judges would possess “neither force nor will, but merely judgment.”  The Tenth Amendment of the Constitution further restrained the judgment of the federal judiciary.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” reads the amendment in unmistakably clear prose.  The Founding Fathers obviously made no provisions in the Constitution for same-sex marriage.  In fact, they made no provisions for marriage at all.  Laws on marriage age, eligibility, blood tests, witnesses, divorce, and the like were reserved to the states.

The impasse in Rowan County developed because the United States Supreme Court dramatically exceeded its mandate.  In Obergefell v. Hodges, the decision that legalized same-sex marriage, Judge Anthony Kennedy all but acknowledged as much.  “While the Constitution contemplates that democracy is the appropriate process for change,” he observed, “individuals who are harmed need not await legislative action before asserting a fundamental right.”

The Constitution does more than “contemplate.”  Article 5 spells out the process for amending the Constitution with commendable precision.  Given that the full-scale legalization of same-sex marriage would do something unprecedented – namely, undermine, even criminalize, the traditional practice of the nation’s dominant religion – a constitutional amendment would have seemed the way to go.  As bad as Roe v. Wade is, it did not make anyone do anything that violated his or her faith.

As I argue in my new book, Scarlet Letters: The Ever-Increasing Intolerance of the Cult of Liberalism, undermining faith is the driving impulse of the same-sex marriage movement.  The progressive activists pushing it have no real interest in gays and even less in marriage.  Their interest is in subverting the traditions that undergird America, none more consequential than Christianity.

In his greater wisdom, Kennedy cared not to know this.  He thought the gay marriage issue too urgent “to await further legislation, litigation, and debate.”  He worried about the “pain and humiliation” gay couples would suffer if denied a right that even President Obama opposed as recently as three years ago.

While running for president, in fact, Obama championed not only traditional marriage, but also the Constitution.  As he argued in Audacity of Hope, that august document “encouraged the very process of information gathering, analysis, and argument that allows us to make better, if not perfect, choices, not only about the means to our ends but also about the ends themselves.”

As to people of faith like Kim Davis concerned about “the ends themselves,” Kennedy told them not to worry.  “The First Amendment,” Kennedy wrote, “ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

A federal judge has sent Kim Davis to prison for sticking to the principles Kennedy promised to protect.  However, since no relevant legislature has codified any sex marriage laws, no legislature has had the chance to codify any exceptions for people of faith.

So Judge Bunning did what the left and the media expected of him: he improvised by sending Davis to prison.
One would think, though, that if the Fourteenth Amendment safeguards gays from suffering the “pain and humiliation” of being denied marriage, the First Amendment should certainly protect practicing Christians, Muslims, and Jews from the pain and humiliation of being denied their very freedom.

“Further legislation, litigation, and debate” just might have sorted this all out.

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