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Title: Kim Davis, Prisoner of Conscience: RELEASED!
Source:
Breitbart
URL Source: http://www.breitbart.com/big-govern ... isoner-or-conscience-released/
Published: Sep 8, 2015
Author: Austin Ruse
Post Date: 2015-09-08 15:07:08 by cranky
Keywords: None
Views: 24124
Comments: 191
Judge David Bunning jailed Davis last Thursday after she repeatedly refused to grant any marriage licenses from her office as long as they had to include same-sex couples. Davis cited her religious beliefs in refusing to issue the licenses, even though the Supreme Court imposed same-sex marriage on the country last June 26. In his order issued today Bunning said, “Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples. If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered.” Bunning says he is satisfied that Davis’s staff has so far adhered to his order to issue marriage licenses to all qualified applicants. He has ordered that Davis’s office report to him every 14 days to demonstrate that the office is continuing to follow the order to grant licenses to same-sex couples. He notes that the reports so far have shown the Office of County Clerk of Rowan County no longer puts Davis’s name on marriage liceneses but instead uses “Rowan County” where her name is supposed to go. Davis’s attorney Matthew Staver of Liberty Cousel issued the following statement: “We are pleased that Kim Davis has been ordered released. She can never recover the past six days of her life spent in an isolated jail cell, where she was incarcerated like a common criminal because of her conscience and religious convictions. She is now free to return to her family, her coworkers and the office where she has faithfully served for the past 27 years. We will continue to assist Kim and pursue the multiple appeals she has filed.” There is no word on whether Davis intends to interfere with the issuance of marriage licenses in her office in defiance of the court order. 
After five days in jail, Kentucky County Clerk Kim Davis is being freed by the judge who put her there.
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Begin Trace Mode for Comment # 120.
#6. To: cranky, nolu chan, CZ82, liberator (#0)
If you could make a piece of paper 'even more' worthless the above adds to it.
The crap is in the footnote. See my #11 and #14. Kentucky Revised Statutes KRS 402.100(3)(a) requires, (a) A statement by the person performing the marriage ceremony or the clerk of the religious society performing the marriage ceremony that the ceremony was performed. The statement shall include the name and title of the person performing the ceremony, or the name of the religious society performing the ceremony, the names of persons married, the date and place of the marriage, the names of two (2) witnesses, and the following information as recorded on the license authorizing the marriage: the date the license was issued, the name of the county clerk under whose authority the license was issued, and the county in which the license was issued;
It's dicey for a federal judge to meddle quite so much in state laws like this but I expect that Bunning wrote some application of RFRA to remove her name but included in his ruling the stipulation that licenses issued with only the county name due to an RFRA exception must be granted equal standing to all other licenses issued in the state. Obviously, there are some delicate issues to tiptoe around. I bet Bunning consulted a number of experts and hit the books himself as well. BTW, this judge is Jim Bunning's son. So I suppose we have to consider that he is turning this case into a hand grenade and pulling the pin. His dad would do that on a routine basis in the Senate. It drove McConnell insane with rage. Which made old Bunning very happy and he wasn't shy about his feelings.
State law still says there is no such thing as same sex marriage. Judge Bunning ignored state law. He has no authority to order state authorities to act contrary to state law. He has authority to strike down state laws as unconstitutional. The state requirement to have the clerk's name on a license does not appear to be unconstitutional.
How about court-ordered busing? Or court meddling in districting and elections. No state laws authorized any of those or plenty of other court mischief over the years.
That was between the Federal government and a state or local government. The government entity was held to be violating the constitution or a federal anti-discrimination law. In the instant case, the Judge ordered deputy clerks, not involved in any alleged violation of state or local law, who had no authorization to issue marriage licenses, or to issue unlawfully altered licenses, to issue marriage licenses contrary to state law. I suppose he could have ordered the Governor to have the county issue marriage licenses. Of course, the Governor could have replied that it required a change of law, and he lacked authority to do that, and the state lacked the money to call the legislature back into session. Ask again in January.
You're overreaching. These clerks are all authorized to issue official documents in the event of Kim's absence due to illness or compliance training or other official absences or because Kim is spending quality time with the U.S. Marshals in the local pokey. (That probably cost us a few hundred grand alone.) I think Judge Bunning was weak and hoping she'd reconsider so he tried to accommodate her objection by having them sign "Rowan County" instead of simply using her name. You may object but it is not the authority of Kim Davis that issues these licenses. It is the authority of Rowan County as authorized by the laws and jurisprudence and federal obligations of the state of Kentucky. Kim Davis is not a pope and is not a Supreme Clerk entitled to overrule the laws or rulings of the Court. She is an employee of the county who wields no authority whatsoever other than the prescribed duties of a sworn and qualified county clerk of Kentucky. It appears her lawyer is indicating now that she will try to stop her office from issuing the licenses again. So I expect she will go back to jail, probably for a much longer period. Federal judges rarely are lenient twice.
These clerks are all authorized to issue official documents in the event of Kim's absence due to illness or compliance training or other official absences or because Kim is spending quality time with the U.S. Marshals in the local pokey. (That probably cost us a few hundred grand alone.) NO THEY ARE NOT. They get any authority they have only from Kim Davis. Why were they not issuing any licenses before the Judge's order? They are issuing bastardized STATE licenses on the authority of an order of a FEDERAL judge. The State courts may find those licenses invalid. I think Judge Bunning overreached and reconsidered what he was doing. RFRA - Religious Freedom Restoration Act http://law.justia.com/codes/us/2012/title-42/chapter-21b/section-2000bb/ §2000bb. Congressional findings and declaration of purposes (a) Findings The Congress finds that— (1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution; (2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise; (3) governments should not substantially burden religious exercise without compelling justification; (4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and (5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests. (b) Purposes The purposes of this chapter are— (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government. (Pub. L. 103–141, §2, Nov. 16, 1993, 107 Stat. 1488.) References in Text This chapter, referred to in subsec. (b), was in the original “this Act”, meaning Pub. L. 103–141, Nov. 16, 1993, 107 Stat. 1488, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note below and Tables. Constitutionality For constitutionality of section 2 of Pub. L. 103–141, see Congressional Research Service, The Constitution of the United States of America: Analysis and Interpretation, Appendix 1, Acts of Congress Held Unconstitutional in Whole or in Part by the Supreme Court of the United States. Short Title Pub. L. 103–141, §1, Nov. 16, 1993, 107 Stat. 1488, provided that: “This Act [enacting this chapter and amending section 1988 of this title and section 504 of Title 5, Government Organization and Employees] may be cited as the ‘Religious Freedom Restoration Act of 1993’.” http://law.justia.com/codes/us/2012/title-42/chapter-21b/section-2000bb-1/ §2000bb–1. Free exercise of religion protected (a) In general Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. (c) Judicial relief A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution. (Pub. L. 103–141, §3, Nov. 16, 1993, 107 Stat. 1488.) http://law.justia.com/codes/us/2012/title-42/chapter-21b/section-2000bb-2/ §2000bb–2. Definitions As used in this chapter— (1) the term “government” includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity; (2) the term “covered entity” means the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States; (3) the term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion; and (4) the term “exercise of religion” means religious exercise, as defined in section 2000cc–5 of this title. (Pub. L. 103–141, §5, Nov. 16, 1993, 107 Stat. 1489; Pub. L. 106–274, §7(a), Sept. 22, 2000, 114 Stat. 806.) http://law.justia.com/codes/us/2012/title-42/chapter-21b/section-2000bb-3/ §2000bb–3. Applicability (a) In general This chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993. (b) Rule of construction Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter. (c) Religious belief unaffected Nothing in this chapter shall be construed to authorize any government to burden any religious belief. (Pub. L. 103–141, §6, Nov. 16, 1993, 107 Stat. 1489; Pub. L. 106–274, §7(b), Sept. 22, 2000, 114 Stat. 806.) = = = = = = = = = = KENTUCKY RFRA http://www.lrc.ky.gov/record/13rs/HB279/bill.doc AN ACT relating to construction of the law. Be it enacted by the General Assembly of the Commonwealth of Kentucky: SECTION 1. A NEW SECTION OF KRS CHAPTER 446 IS CREATED TO READ AS FOLLOWS: Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A "burden" shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.
I think Judge Bunning overreached and reconsidered what he was doing. Don't be silly. Sodomy marriage was imposed, ultimately, as a result of the Supremes declaring a fundamental right to marry and that states that did not recognize sodomy marriage must comply under the full faith and credit clause, namely, that states recognize each other's marriages (and other legal instruments) as valid. On that basis, Kentucky's marriage laws were altered, just as the Court struck down Kentucky's miscegenation laws that dated back to the 18th century. If you get married in Kentucky and divorce (or receive benefits or rights) in another state, it is the state of Kentucky whose marriage authority is involved, not the Supreme Clerk of Rowan County (who may have left office or died in the meantime). But Kim Davis is the one who is withholding benefits (fundamental right to marry) from Teh Gays and even from the normal couples that she had been issuing licenses to for years, in the thousands. This actually compounds her offenses with the courts in that she is depriving all persons of a right to marry including those she had never had a problem issuing licenses to previously. It is refusing to issue to the straights that is most likely to really hang her. You are insisting that Kim Davis has a right to refuse marriage licenses on any religious whim. What if she doesn't like race mixing? Or Asians? Or Catholics? Will those be the next excuse she uses to refuse to do her job and issue licenses? At some point, she'll lose her office and, likely, be required to pay back her salary for having refused to perform her job. And possibly serve time in prison. I know people don't like to be reminded of other similar "heroic stands" but how well did this work out for a Lt. Col. Lakin, a military doctor, when he refused to deploy after receiving orders from his superiors because he wanted to challenge Oblowme's birth certificate? ABC: 'Birther' Dismissed from Army for Refusing Deployment, Sentenced to Six Months in Prison I suppose this current outbreak of obstinate and pointless dumbassery will continue with all the True Believers ready to do-or-die for the Supreme Clerk of Rowan County until the hammer falls on her. Then, just as with Lakin, they will all disappear as soon as anyone mentions that person they egged into ruining their lives in a pointless quest to frustrate the federal leviathan. Because that is certainly what happened to Lakin when he tried to refuse lawful orders from his superiors because he wanted to challenge Obama's BC. And that is likely to happen in short order to Kim Davis.
As an elected official, she should have the exclusive power to decide whether to issue licenses or not issue them. Since she's not issued them to anyone, it's not legally defined as discrimination. As such, the judiciary has extended it's power into the executive realm by ordering and elected officer to perform certain duties, which I feel is a violation of separation of powers. The proper remedy, if the conduct of Davis should be found lacking, is her being voted out of office or impeached according to KY constitutional law. That's simply the right way to do it. Sure it will take months or years, but that is the legal remedy, if one is to be had, that I see. And if KY is happy with her stand and wants her to continue, then the matter is settled.
And if she doesn't want to issue licenses to Catholics or interracial couples, that's fine too? Where does the authority of the Supreme Clerk of Rowan County end? It is her legally prescribed duty to issue those licenses and record those marriages to qualified applicants. And the Supreme Court has dictated that no state or agency can discriminate (or even recognize) any difference between same-sex and opposite-sex couples. BTW, she has no problem recording the marriages, only to putting her signature on the licenses. But this mostly shows how stupid she is because it is not the license being issued that is the marriage. It is the recording of the marriage that gives it legal significance once the marriage vows are legally solemnized in a ceremony by a recognized officiator with two witnesses present. She could get re-elected for decades as the Supreme Clerk. Kentucky has a lot of obstinate voters. So you're saying the Supreme Clerk should have the right to refuse licenses to anyone (or everyone) for any reason at all during all those decades and still receive her full salary as a county clerk ($80K)?
If it is discrimination, I could see that. But it's not discrimination since she's refusing to all. It's an important legal point that Nolu pointed out and I agree with. As far as salary goes, if this is what the voters in her county vote for, by what right would you or I not allow it? Again, this is an elected office. If the county clerk duties required no real judgement, why is it not just some employee hired job instead?
No, it's a stupid point that dismissed immediately in any federal court. She issued thousands of licenses for years as required. The moment a same-sex couple shows up, she suddenly refuses all licenses on religious grounds. I won't even bother to examine this further. And no judge will either. Her motives and coy attempt to avoid discrimination charges are patently obvious. In attempting to avoid charges of discrimination, she refuses to issue licenses to straight couples now even though she has issued thousands previously. So she is depriving those straight couples of their right to marry which she does support so she can avoid signing a same-sex couple's license. No one is fooled by this. Not you, not nolu, nobody. We know exactly what she is doing and why. Are you seriously suggesting that county clerks should be allowed sole arbitrary authority to grant (or withhold) marriage licenses (and therefore the state and federal benefits attached to them) solely on the basis of their personal religious whims? Nothing in Kentucky law suggests she has such power. She is not the Supreme Clerk. So you would have no problem if Kim Davis decided tomorrow that only members of her own church should be allowed to have a marriage license because only her church is legitimate? And that would be fine as long as she keeps getting re-elected in Rowan County?
She issued thousands of licenses for years as required. The moment a same-sex couple shows up, she suddenly refuses all licenses on religious grounds. I won't even bother to examine this further. And no judge will either. Her motives and coy attempt to avoid discrimination charges are patently obvious. In attempting to avoid charges of discrimination, she refuses to issue licenses to straight couples now even though she has issued thousands previously. So she is depriving those straight couples of their right to marry which she does support so she can avoid signing a same-sex couple's license. No one is fooled by this. Not you, not nolu, nobody. We know exactly what she is doing and why. I know exactly whay you are trying to do. But it is not a case of discrimination, no matter how you contort and contrive your argument. There has not even been an an attempt to bring a case of discrimination. The court only has jurisdiction over CASES. Until a case is brought, a court has nothing to rule upon. No discrimination suit will be considered by the court because none exists. No court will not examine it further because there is no case of discrimination to examine. The court cannot make up its own cases. Nobody is fooled by anything about this. The Kim Davis case has been carefully crafted by lawyers to eliminate any viable claim of discrimination. That is precisely why the case was brought and considered only as a case of due process regarding the right of all to marry. The case is only about her actions, and her actions are not discriminatory. They are a failure to perform her duties, and a violation of the right of all to marry. The court stated the issues: You would like it to be a case of discrimination. That would be so much easier to argue. It is no accident that it isn't.
Any court examining the timeline of when her refusal began will fail to discern her motive. I don't think this is a case about high legal principle. Of course, no one was ever expecting the Westboro Baptist clan to win their funeral protest case at the Supreme Court but they did win, representing themselves in court. So you never know. But I don't think she is just going to be allowed to refuse to issue all marriage licenses as long as she is Rowan County clerk.
Are you going to charge her with impure motives? Or are you going to charge her with something she actually did?
Lawsuits and charges will come if she stops issuing licenses again. At present, her office is issuing them in her absence and will continue after she goes back to work tomorrow.
#122. To: TooConservative (#120)
Not for discrimination.
Top • Page Up • Full Thread • Page Down • Bottom/LatestHe notes that the reports so far have shown the Office of County Clerk of Rowan County no longer puts Davis’s name on marriage liceneses but instead uses “Rowan County” where her name is supposed to go.
#15. To: redleghunter, cranky, CZ82, liberator (#6)
If you could make a piece of paper 'even more' worthless the above adds to it.
(3) A certificate to be delivered by the person performing the marriage ceremony or the clerk of the religious society performing the marriage ceremony to the parties married. This certificate shall provide for the entering of:
#18. To: nolu chan (#15)
(Edited)
and the following information as recorded on the license authorizing the marriage: the date the license was issued, the name of the county clerk under whose authority the license was issued, and the county in which the license was issued;
#19. To: TooConservative (#18)
It's dicey for a federal judge to meddle quite so much in state laws like this but I expect that Bunning wrote some application of RFRA to remove her name but included in his ruling the stipulation that licenses issued with only the county name due to an RFRA exception must be granted equal standing to all other licenses issued in the state.
#36. To: nolu chan (#19)
Judge Bunning ignored state law. He has no authority to order state authorities to act contrary to state law. He has authority to strike down state laws as unconstitutional. The state requirement to have the clerk's name on a license does not appear to be unconstitutional.
#43. To: TooConservative (#36)
How about court-ordered busing? Or court meddling in districting and elections.
#49. To: nolu chan (#43)
In the instant case, the Judge ordered deputy clerks, not involved in any alleged violation of state or local law, who had no authorization to issue marriage licenses, or to issue unlawfully altered licenses, to issue marriage licenses contrary to state law.
#59. To: TooConservative (#49)
You're overreaching.
RELIGIOUS FREEDOM RESTORATION - 42 U.S.C. § 2000bb (2012)
RELIGIOUS FREEDOM RESTORATION - 42 U.S.C. § 2000bb-1 (2012)
RELIGIOUS FREEDOM RESTORATION - 42 U.S.C. § 2000bb-2 (2012)
RELIGIOUS FREEDOM RESTORATION - 42 U.S.C. § 2000bb-3 (2012)
UNOFFICIAL COPY AS OF 09/08/15 -- 13 REG. SESS. -- 13 RS HB 279/VO
#81. To: nolu chan, buckeroo, redleghunter (#59)
NO THEY ARE NOT. They get any authority they have only from Kim Davis. Why were they not issuing any licenses before the Judge's order? They are issuing bastardized STATE licenses on the authority of an order of a FEDERAL judge. The State courts may find those licenses invalid.
Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A "burden" shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.
#86. To: TooConservative (#81)
You are insisting that Kim Davis has a right to refuse marriage licenses on any religious whim.
#89. To: Pinguinite, nolu chan (#86)
As an elected official, she should have the exclusive power to decide whether to issue licenses or not issue them.
The proper remedy, if the conduct of Davis should be found lacking, is her being voted out of office or impeached according to KY constitutional law. That's simply the right way to do it. Sure it will take months or years, but that is the legal remedy, if one is to be had, that I see. And if KY is happy with her stand and wants her to continue, then the matter is settled.
#90. To: TooConservative, Nolu Chan (#89)
And the Supreme Court has dictated that no state or agency can discriminate (or even recognize) any difference between same-sex and opposite-sex couples
So you're saying the Supreme Clerk should ..... still receive her full salary as a county clerk ($80K)?
#91. To: Pinguinite (#90)
If it is discrimination, I could see that. But it's not discrimination since she's refusing to all. It's an important legal point that Nolu pointed out and I agree with.
Again, this is an elected office. If the county clerk duties required no real judgement, why is it not just some employee hired job instead?
#112. To: TooConservative, Pinguinite, Nolu Chan, redleghunter, stoner, A K A Stone (#91)
No, it's a stupid point that dismissed immediately in any federal court.
At its core, this civil action presents a conflict between two individual liberties held sacrosanct in American jurisprudence. One is the fundamental right to marry implicitly recognized in the Due Process Clause of the Fourteenth Amendment. The other is the right to free exercise of religion explicitly guaranteed by the First Amendment. Each party seeks to exercise one of these rights, but in doing so, they threaten to infringe upon the opposing party’s rights.
#116. To: nolu chan (#112)
The Kim Davis case has been carefully crafted by lawyers to eliminate any viable claim of discrimination.
#118. To: TooConservative (#116)
Any court examining the timeline of when her refusal began will fail to discern her motive.
#120. To: nolu chan (#118)
Are you going to charge her with impure motives? Or are you going to charge her with something she actually did?
Replies to Comment # 120. Lawsuits and charges will come if she stops issuing licenses again.
End Trace Mode for Comment # 120.
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