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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: 24004
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 # 124.
#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.
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. Read the earlier decision from the District Court. Below is from the August 12, 2015 court decision. Please note that this case is not, and never has been, a discrimination case. At law, it is not about teh gays. The Federal court claim to jurisdiction is the "fundamental right to marry implicitly recognized in the Due Process Clause of the Fourteenth Amendment," equally to the plaintiffs -- two gay and two straight couples. It has nothing to do with the Full Faith and Credit clause. Note that couples went to Rowan County Judge Executive Walter Blevins, and he stated he did not have that authority as Davis was not absent within the meaning of the statute. Judge Bunning sought and received a status report wherein all Plaintiffs averred that they had received marriage licenses. Judge Bunning averred that the licenses, as issued, met with the satisfaction of his Court. The case is moot. He has no continuing claim to jurisdiction regarding the case that was before him. UNITED STATES DISTRICT COURT CIVIL ACTION NO. 15-44-DLB APRIL MILLER, et al. PLAINTIFFS MEMORANDUM OPINION AND ORDER - - - - - I. Introduction This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction (Doc. # 2). Plaintiffs are two same-sex and two opposite-sex couples seeking to enjoin Rowan County Clerk Kim Davis from enforcing her own marriage licensing policy. On June 26, 2015, just hours after the U.S. Supreme Court held that states are constitutionally required to recognize same-sex marriage, Davis announced that the Rowan County Clerk’s Office would no longer issue marriage licenses to any couples. See Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Davis, an Apostolic Christian with a sincere religious objection to same-sex marriage, specifically sought to avoid issuing licenses to same-sex couples without discriminating against them. Plaintiffs now allege that this “no marriage licenses” policy substantially interferes with their right to marry because it effectively forecloses them from obtaining a license in their home county. Davis insists that her policy poses only an incidental burden on Plaintiffs’ right to marry, which is justified by the need to protect her own free exercise rights. 1 - - - - - The Court held preliminary injunction hearings on July 13, 2015 and July 20, 2015. Plaintiffs April Miller, Karen Roberts, Jody Fernandez, Kevin Holloway, Barry Spartman, Aaron Skaggs, Shantel Burke and Stephen Napier were represented by William Sharp of the Americans for Civil Liberties Union (“ACLU”) and Daniel Canon. Jonathan Christman and Roger Gannam, both of the Liberty Counsel, and A.C. Donahue appeared on behalf of Defendant Kim Davis. Rowan County Attorney Cecil Watkins and Jeff Mando represented Defendant Rowan County. Official Court Reporters Peggy Weber and Lisa Wiesman recorded the proceedings. At the conclusion of the second hearing, the Court submitted the Motion pending receipt of the parties’ response and reply briefs. The Court having received those filings (Docs. # 28, 29 and 36), this matter is now ripe for review. 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. The tension between these constitutional concerns can be resolved by answering one simple question: Does the Free Exercise Clause likely excuse Kim Davis from issuing marriage licenses because she has a religious objection to samesex marriage? For reasons stated herein, the Court answers this question in the negative. II. Factual and Procedural Background Plaintiffs April Miller and Karen Roberts have been in a committed same-sex relationship for eleven years. (Doc. # 21 at 25). After hearing about the Obergefell decision, they went to the Rowan County Clerk’s Office and requested a marriage license 2 - - - - - from one of the deputy clerks. (Id. at 25-26). The clerk immediately excused herself and went to speak with Kim Davis. (Id. at 28). When she returned, she informed the couple that the Rowan County Clerk’s Office was not issuing any marriage licenses. (Id.). Plaintiffs Kevin Holloway and Jody Fernandez, a committed opposite-sex couple, had a similar experience when they tried to obtain a marriage license from the Rowan County Clerk’s Office. (Id. at 36). Both couples went straight to Rowan County Judge Executive Walter Blevins and asked him to issue their marriage licenses. (Id. at 30-32, 36). Blevins explained that, under Kentucky law, a county judge executive can only issue licenses when the elected county clerk is absent. See Ky. Rev. Stat. Ann. § 402.240. Because Davis continued to perform her other duties as Rowan County Clerk, Blevins concluded that she was not “absent” within the meaning of the statute. (Id.). Therefore, he did not believe that he had the authority to issue their marriage licenses. (Id.). [snip] 3 - - - - -
No matter how many times you try to explain it away, her case is fundamentally one of discrimination. She never had a problem issuing licenses to straights over the years. I do note she is labeled as an "Apostolic Christian". Not entirely accurate as a Apostolic Pentacostal Christian does differ from Apostolic Christians. So that is a particular dimension that no one seems to have explored in these discussions. Their practices are charismatic and one of the few doctrine pages on their site is called 60 Questions on the Godhead, an obvious argument for modalism.
No matter how many times you attempt to force discrimination into the case, the Court itself has stated the case is about 14th Amendment Due Process. Refusing to process any and all marriage licenses is not discrimination. The action is about the right to marry and the right to obtain a license to do so. It is not about discrimination against "teh gays." This case has been carefully crafted to not present a case of discrimination.
The abruptness of her decision to stop issuing marriage licenses immediately after the Court decision, having issued thousands of licenses before the Court decision, allows no other conclusion than that her motive is directly related to the legalization of sodomy marriage. Unless you expect other county clerks in huge numbers to similarly refuse to issue licenses, I'm not sure what you hope to achieve. Let's say she prevails. So Rowan County, KY will simply issue no more marriage licenses to residents as long as she is the county clerk, maybe for years to come? Is this your desired outcome?
Kim Davis cannot be charged with TooConservative's speculative conclusions about her actual actions. Regardless of why she did what she did, what she did was not discriminatory. I do not hope to achieve anything. What do you hope to achieve? Rowan County will issue marriage licenses. They may change the form, the law, or the Clerk. Do you think it is long passed the time the legislature should have gone back to work and addressed the issue and the laws that were struck down?
Perhaps your ideal outcome is that county clerks (or deputies like her son who is 1 of five deputy clerks in Kim Davis's office) would have the right to refuse to issue marriage licenses entirely and other deputy clerks who do not have religious objections will issue the marriage licenses and this will be the situation there for years to come. This seems to me like another Schiavo or Bundy case, to name a few examples. People are very fired up that this is a fight worth having.
My ideal outcome would be the U.S. Supreme Court not going where it does not belong.
Of course. That doesn't answer what to do since they did go there.
#134. To: TooConservative (#124)
The have not figured out what to do with Roe yet. When SCOTUS short-circuits the political process, we get dissent. Justice Thomas explicitly forecast what would happen in his dissenting opinion. http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf [All Obergefell opinions at link.] Obergefell, THOMAS, J., dissenting at 2-3: Id. at 7: Id. at 9: Petitioners cannot claim, under the most plausible definition of "liberty," that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. Id. at 10: Id. at 13: Id. at 15-16: The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation's tradition. Religious liberty is about more than just the protection for "religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice. Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court's constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority's decision short-circuits that process, with potentially ruinous consequences for religious liberty. IV Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the "dignity" of same-sex couples. Ante, at 3, 13, 26, 28. The flaw in that reasoning, of course, is that the Constitution contains no "dignity" Clause, and even if it did, the government would be incapable of bestowing dignity. Human dignity has long been understood in this country to be innate.
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.
#100. To: TooConservative, buckeroo, redleghunter (#81)
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.
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.
Case: 0:15-cv-00044-DLB Doc #: 43 Filed: 08/12/15 Page: 1 of 28 - Page ID#: 1146
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT ASHLAND
vs.
KIM DAVIS, individually and in her official capacity, et al. DEFENDANTS
#105. To: nolu chan (#100)
(Edited)
On June 26, 2015, just hours after the U.S. Supreme Court held that states are constitutionally required to recognize same-sex marriage, Davis announced that the Rowan County Clerk’s Office would no longer issue marriage licenses to any couples. See Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Davis, an Apostolic Christian with a sincere religious objection to same-sex marriage, specifically sought to avoid issuing licenses to same-sex couples without discriminating against them.
#109. To: TooConservative (#105)
No matter how many times you try to explain it away, her case is fundamentally one of discrimination.
#113. To: nolu chan (#109)
(Edited)
No matter how many times you attempt to force discrimination into the case, the Court itself has stated the case is about 14th Amendment Due Process. Refusing to process any and all marriage licenses is not discrimination.
#117. To: TooConservative (#113)
The abruptness of her decision to stop issuing marriage licenses immediately after the Court decision, having issued thousands of licenses before the Court decision, allows no other conclusion than that her motive is directly related to the legalization of sodomy marriage.
#119. To: nolu chan (#117)
Rowan County will issue marriage licenses. They may change the form, the law, or the Clerk.
#123. To: TooConservative (#119)
Perhaps your ideal outcome....
#124. To: nolu chan (#123)
My ideal outcome would be the U.S. Supreme Court not going where it does not belong.
Replies to Comment # 124. Of course. That doesn't answer what to do since they did go there.
By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue "beyond the reach of the normal democratic process." Brief for Petitioners in No. 14-562, p. 54. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a "bare majority" of this Court, ante, at 25, is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only "due process" is but further evidence of the danger of substantive due process.
Even assuming that the "liberty" in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.
Whether we define "liberty" as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.
Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of "liberty," they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State's imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of "liberty" that the Framers would have recognized.
In a concession to petitioners' misconception of liberty, the majority characterizes petitioners' suit as a quest to "find . . . liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex." Ante, at 2. But "liberty" is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment. The majority's "better informed understanding of how constitutional imperatives define . . . liberty," ante, at 19,—better informed, we must assume, than that of the people who ratified the Fourteenth Amendment—runs headlong into the reality that our Constitution is a "collection of 'Thou shalt nots,'" Reid v. Covert, 354 U. S. 1, 9 (1957) (plurality opinion), not "Thou shalt provides."
Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will "have unavoidable and wide-ranging implications for religious liberty." Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today's decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
End Trace Mode for Comment # 124.
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