Kim Davis, Outlaw and Martyr
Vincent J. Curtis
9 Sept 15
Kim Davis is the County Clerk of Rowan County, Virginia, who
was sent to jail for her refusal to issue marriage licences. Davis is a Christian, and refuses place her
name in sanction for an act that is an abomination in the eyes of God. So as not to discriminate, she refuses to
issue marriage licences of any kind. If
someone wanted a marriage license, they had get one in a neighboring county.
My criticism is of the conservative commentators who tut-tut
about the rule of law and observe how it was wrong for Davis to thwart the
law. These people, on this issue at
least, are moral cowards. They take an
act of judicial lawlessness as an act of the rule of law, out of cowardice. They don’t want to face up to the real
challenge to the rule of law before them.
In a classic example of left-wing straw cases, first used in
the Birmingham bus desegregation matter involving Rosa Parks, semi-organized
couples, both gay and heterosexual, attended at the Rowan County Clerk’s office
and were filmed loudly demanded marriage licenses. They were denied. They then turned to the ACLU, and together went
to court to demand that Kim Davis be “ordered” issue them marriage licenses.
The court so ordered, and when she refused to obey the court
“order”, it sent her to jail for contempt of court, without bail. On Tuesday, September 8th she was
released after the court intimidated her staff into issuing licenses against
her consent, and lawful authority. In
Davis’s opinion, such licenses are void.
The moral cowardice of conservatives on this issue was
palpable. The “law” of which they speak
is the law of tyrants. And the law of a
tyrant is a sham of a law deserving no respect whatsoever. Conservatives’s love for order seems to have
overcome their moral scruples about the merits at issue, and rather than erect
the flag of rebellion, they caved.
How did America get to his pass where the exercise of
Christian religion produces “illegal” activity in the form of passivity? It came about because of persistent
law-breaking by the other side, the side that wants nothing to do with the rule
of law until it suits their agenda.
If homosexuals had obeyed the laws on sodomy, America would
not have reached this pass. But what
happened was that law enforcement authorities lost their heart in enforcing the
laws of sodomy. Then came the wave of
state constitutional amendments defining marriage as between one man and one
woman, and the passage of the federal Defense of Marriage Act. Lawless issuing of marriage licenses by
County Clerks in violation of State constitutions caused a loss of heart by
those who ought to have defended the law as it stood.
Then came the court cases against the state constitutions
and the Defense of Marriage Act. Lawless
refusal by state and federal authorities, who were in the tank for gay
marriage, presented no defense in court and no outside group was granted
standing to fight the government’s fight.
Thus, by judicial fiat and connivance, gay marriage become “law.”
And this product of a sequence of lawlessness conservatives
fecklessly defend under “rule of law.”
The word law belongs in quotes because judges do not make
law. Legislatures make law, and courts
simply decide what the law is in particular cases. Hence it is wrong to say that gay marriage is
the law of the land in the United States when state constitutions and state law
still declare otherwise.
When the courts struck down the state amendments declaring
what marriage was, that in itself was not to legislate what marriage now was to
be. Courts can act in a nugatory manner,
but since gay marriage was never legal and never recognized in law prior, there
was no status quo ante to return to.
Okay, say it is discriminatory not to allow gays to marry, but until the
legislature passes the law to govern the matter, the state authorities have
only natural law and custom to understand what marriage is. And those two hold that marriage is between
one man and one women. Hence, a court
ruling striking down a law defining marriage did not in itself lay down a new, positive
definition of marriage in law. It might merely
have stated what it ought to be, not what it actually was.
After the courts struck down state constitutional amendments
declaring what marriage was, it simply opened the door for the state
legislature to pass new legislation itself, since there was now no valid constitutional
declaration on the subject. But a court
cannot order a legislature to act in a particular way, nor posit it’s will in
substitution for a legislature’s act.
Conservatives ought to be in rebellion against the lawless
actions of courts if they are true to their belief in the rule of law. But they don’t, and so their mumbling about
“rule of law” is just a cop-out.
Exercises of raw judicial power is not a rule of law.
A Tennessee court recently refused to grant a divorce to a
heterosexual couple on the grounds that the Supreme Court had taken the issue
out of the hands of the states and so confused what marriage actually was that
he could not consent to dissolving something he no longer understood. This is the route of rebellion. Throw whole issue of marriage into the hands
of the Supreme Court.
Since only the Supreme Court knows what a marriage is, let
them issue licenses, and let them perform marriages, and let them deal with
divorces. Overwhelm the Court with the
consequences of their lawlessness.
The Supreme Court created this mess, and now conservatives
ought to force them deal with it. In the
meantime, they should stop mumbling about the rule of law when it comes to gay marriage.
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