The Watering Hole, Saturday, September 5, 2015: How The Right Gets Religious Freedom Wrong – Kim Davis Edition

Article VI of the United States Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Immediately after that it says:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Kim Davis, a Democrat, was elected County Clerk of Rowan County, KY, in November 2014 and took office in January 2015. She succeeded her mother who had retired from that position. Prior to taking office as County Clerk, Davis served as Deputy Clerk for 27 years. According to a press release from her lawyers, Liberty Counsel, Kim Davis only wanted to have her name removed from the marriage license forms. She was willing to file any form without her name on it, but because marriage licenses stay in the records permanently, she said, “I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.” That’s where she first went wrong. You see, it really makes absolutely no difference what “God’s definition of marriage” is because that’s what her particular religion tells her. What she fails to grasp is that the rest of us are not in any way, shape, or form, bound by her religion’s rules and dictates. We do not have to put her God before all others. In fact, we do not even have to acknowledge her God exists, let alone let His rules govern us. The United States government, and all State Governments below it, and all local levels of government below that, are officially secular. To have it any other way would violate the Establishment Clause of the First Amendment. I don’t believe that Conservative Christians understand that yet. They operate under the misconception that if you don’t let them force you to live by their Christian rules, that this is somehow oppressing their religious freedom rather than oppressing your own. If they were told they had to follow Sharia Law in all of their government duties, you can bet everything you own they’d be fighting that as a violation of their own religious freedom. Yet they are incapable of seeing how what they’re doing to the rest of us is the same exact thing.

I do want to jump in and point out that her statement starts with something very hard to believe. “I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage.” She’s only been a born again Christian for about four years. Prior to that, she was married four times (the second and fourth times to the same man, her current husband, whom I like to call “Grover Cleveland.”) Six months after getting divorced from her first husband, she fathered twins by her eventual third husband. So before she was elected County Clerk, she herself violated those very teachings of Jesus himself regarding marriage. Plus I refuse to believe that in her 27 years of being a Deputy Clerk, she never once issued a license to “sinners like herself.” God did not like divorce. Did she issue her own license to herself? It’s a public document, so someone in the media can find out. Or did her own mother give the licenses to her sinful daughter? It’s not a critical question; I’m just being nosy. Anyway, there’s a good article in USA Today that runs down the timeline of what happened when.

So, what other strange arguments are her supporters making? Well, Rena Lindevaldsen, one of her Liberty Counsel lawyers, says that God’s Law is superior to Man’s Law. To understand this truly insane legal argument, it helps to know that Liberty Counsel is all about defending God and his followers in court. Now, I would never want Liberty Counsel to be my lawyers not just because I’m an atheist (and damn proud of it), but because they are terrible lawyers who are bound to be disbarred some day, especially when they advise their clients to break the law. Not advise them what will happen IF they break the law, but to actually advise them to break the law. I’m not sure lawyers are supposed to do that.

Deacon Keith Fournier of Barbwire claims that since she took office before the SCOTUS ruling in Obergefell that she is not bound by it, and is only bound by the laws that were in effect at the time she took office. This one is laughably wrong. As Right Wing Watch so perfectly stated it

If this would be the case, then anyone who was elected to office before the Loving v. Virginia case, which struck down state bans on interracial marriage, would then be able to refuse to issue marriage licenses to such couples, or allow officials to block the integration of schools because they took office before Brown v. Board of Education was handed down by the courts.

But, of course, that’s not how the law works. Nor does the office belong to Kim Davis personally, it belongs to the People of Rowan County.

The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.

Besides, Kim Davis was not elected to enforce God’s Law, she was elected to follow KY and Rowan County Law. How can she possibly believe that it is constitutional for her to subject the people of her county to the laws of her personal God? What if a Muslim were elected to that office (okay, suspend your disbelief for just a moment and pretend it could happen in KY), would it be proper for the new County Clerk to say he or she would only follow Allah’s Law? I think everyone, including Liberty Counsel, would agree that this would be unacceptable. But they wouldn’t agree that it would be unacceptable for the exact same reasons Kim Davis’ actions were unacceptable.

Former weight loss success story and current presidential wannabe Mike Huckabee claims that Kim Davis is the only clerk following “the law.” Apparently he meant God’s law, not the supreme law of the land (as determined by the SCOTUS.) He also demonstrated that he doesn’t understand much about how the Constitution works by saying

“Kim is asking the perfect question: ‘Under what law am I authorized to issue homosexual couples a marriage license?’ That simple question is giving many in Congress a civics lesson that they never got in grade school,” Huckabee added. “The Supreme Court cannot and did not make a law. 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.

First of all, Mikey, Congress doesn’t define marriage one way or the other. Second, when the SCOTUS says a law is unconstitutional, you operate as if it weren’t in place. The SCOTUS says that the 14th Amendment requires equal treatment under the law, which means that you can marry any other person you wish. (No, not your pets, and not your lawnmower, but another person.) Also, when the SCOTUS says a law is unconstitutional, they are not “making law.” They are saying that the law made cannot be allowed to stand because it violates some part of the federal Constitution. (You remember that thing, don’t you, Mikey? You took an oath to support and defend it.)

Kim Davis and her lawyers also say that to comply with her personal religious beliefs (something she was not elected to enforce), the residents of her county, the ones who pay her salary, can just drive to another county to get a license. While it is true that a marriage license given in any county can be used anywhere in the state of KY, that’s not the way it’s supposed to work. And since she improperly and unconstitutionally instructed her clerks to not issue licenses to same sex couples, it was no longer a case of her being forced to violate her personal beliefs, it became a case of her forcing her staff to violate her constituents’ civil rights. That is also something no elected official has the authority to do. If the duties of your public sector job conflict with your personal religious beliefs, then your only recourse is to resign from that job. Suppose a Catholic priest was elected President? Does he have the constitutional authority to have all sinners (according to his religious beliefs) jailed? Of course not. It’s no different for Kim Davis.

Lastly, Liberty Counsel lawyers made the delusional claim that by saying “So help me God” when she took her oath (which, BTW, is not and can not be a requirement to hold public office, since it would be imposing an unconstitutional religious test), Davis was swearing to put God’s law above the law of the United States and of the Commonwealth of Kentucky. Bullpuckey! The only thing “So help me God” is supposed to mean is that you really, really meant it when you said it. As many others have pointed out, when she took that oath she put her hand on a Bible and swore to support and defend the Constitution (something all public officials are required to do), she did not put her hand on a copy of the Constitution and swear to uphold the version of the Bible her local church uses. (There is no such thing as THE Bible, since there are hundreds of variations. Why is that, BTW? How can “The Bible” be the “inerrant word of God” when so many denominations of Christianity use slightly different versions of it?)

In the end, Kim Davis and her lawyers have no rational, legal, constitutional argument to make to support her refusal to obey the SCOTUS (and the federal judge who jailed her) just because those orders conflict with her religious beliefs and still keep her job!. She is absolutely free to resign her office and continue practicing her religion. She’s just not free to do it on the public’s dime. And Liberty Counsel lawyers ought to be disbarred (or, at the very least, have their privilege to argue before the SCOTUS revoked) for telling Kim Davis to violate the courts’ rulings (all of them, which have gone against her every step of the way.) This is, as the Conservatives like to say when Hillary Clinton is involved, a nation of laws. Maybe it’s time they started practicing what they preach.

This is our daily open thread, even if it is very late. Feel free to make fun of any of the people mentioned in this post, or discuss any other topic you wish.

35 thoughts on “The Watering Hole, Saturday, September 5, 2015: How The Right Gets Religious Freedom Wrong – Kim Davis Edition

  1. Well said, Wayne, Great post.

    I can only add the FACT that Emily Dickinson’s question has definitely been answered in Rowan County KY, also by Liberty Counsel dimwits. “Can the Dumb — define the Divine?”

    Nope. Clearly not. No way. No. No. NO!!🙂

  2. Temple just tied Penn State with a field goal, about 6:30 to go third quarter. That’ll keep Cats and Nonewhere excited for a while longer.

  3. So, a question for the Hive Mind: I occasionally get emails that include tags about “this email might contain proprietary information.” This strikes me as an attempt to unilaterally impose a contractual obligation of privacy upon the recipient. Now, I’ve never had any reason to make an email I’ve received a matter of public record, but I can imagine a low-probability situation that could arise, especially if I were incautious in remarks at my own blog.

    Does anyone have any insights on this subject? (Thanks in advance!)

    • I’m not trained in the law, but it strikes me that you can’t be obligated to treat information in an e-mail as confidential if you had no reason to expect that before you opened it.

      OTOH, if there is good reason to believe you knew, or should have known, that the e-mail you were opening had confidential information, that immunity might not apply. You could choose not to open it.

      That’s just my uneducated thoughts.🙂

        • Well, for example, you’ve received 24 previous e-mails from that person, to which you sent a read receipt, and all of which contained confidential or proprietary information. That might make a court believe you had a reason to believe you’d see confidential info in the 25th.

          • I volunteer with my local Planned Parenthood and at the end of every communication they send:

            The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure, dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this communication in error, please contact the sender by reply email and destroy all copies of the original message. Thank you.

            I’m figuring it must have some legal implication. Perhaps one of the PP hate groups can’t use whatever was in the text of the e-mail?

            [NOTE: HTML edited by admin.]

    • I asked a colleague of mine who was involved in extended legal disputes with a certain organization. This was his reply:

      I do know something about this. X attempted to do this with his standard sig file. I asked my lawyer about it. Your sense of it is correct. You send the e-mail, you got no right to impose terms. I was advised to make one explicit statement in response to his e-mail that I did not regard his statement as binding and that it had no legal standing, and that no communication sent to me would be confidential unless I agreed to it in writing.

      • hmmm…”this email might contain proprietary information….”

        Let’s assume, for sake of argument, you forward said email, and the sender sues you for disseminating proprietary information. He’s going to have a problem, well, more than one problem. 1. The proprietary information in the email is not specified. 2. The ‘warning’ is hopelessly vague as to alert the recipient that he/she is receiving a particular bit of information that is to be kept confidential. 3. The nature of the proprietary information is not disclosed. Is it a trade secret? A trademark? A family recipe handed down through the ages? 4. By disseminating the ‘proprietary information’ the sender may well have waived any privileges as to that information.

        And finally, email is not the way to maintain legal privileges. It is now known that all of our emails are monitored by NSA and Homeland Security. (& likely the Chinese and Israelis, too.) If you want to keep a secret, don’t use emails. or text messages. or telephone calls. or facebook.

  4. Oh crap! Tim Tebow got cut again and the Psychochristians have another martyr. First what’shername got thrown in the pokey for refusing to do her job and now Tebow got cut, again, because he can’t do his job. It must be the final sign of the apocalypse. Now. Where did I put that fine mesh landing net? I haven’t had frog legs in years and if I’m going to cash in on the amphibian precipitation I want to be able to catch them before they hit the ground and get bruised.

    • According Twitterati, the Eagles may have interest in Christian Ponder. So they may have cut Tebow for a Christian.

      • That would be rather humorous but WTF is wrong with Philly? As a Vikes fan I am all too familiar with Ponder and the Raiders seem to agree that he’s not even good enough to be a 3rd QB on a team that’s won, what, about 15 games in the last 5 years? Heck! Tebow has, in fact, actually taken over and won games when he was in Denver. Ponder? Not so much. He’s one of the many who is afflicted with that weird malady that makes his brain slow down when the game speeds up. Tebow has only seen success when his instincts overcome his ability but Ponder has no instincts that I have ever seen.

  5. Now that football season has started, where are they going to put all the xtians being rounded up?
    And where are Lions (four footed)?

    • And there are tens of millions of people who will believe every word the despot says. Too bad there’s not an easy way to rescue his new heart — it clearly hasn’t been of much help. He’s still a heartless bastard.

  6. His name is Derrick Henry. He’s 6’3″ tall, weighs 242, and the Wisconsin DBs can’t stay with him when he breaks into the secondary.

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