"INSPIRING HOPE and FAITH" Informing and Addressing Current Issues From a Biblical Perspective
THE KIM DAVIS SITUATION; A FLAGRANT VIOLATION OF THE CONSTITUTIONALLY-MANDATED SEPARATION OF POWERS
Perhaps the single most important issue in the Kim Davis situation (the County Clerk in Rowan County, Kentucky, who was jailed for refusing to issue same-sex marriage licenses) -- an issue about which most observers and commentators have been completely silent -- is the flagrant violation of the constitutionally-mandated separation of powers.
By way of background, Federal Judge David Bunning ruled that Davis was in contempt of court, which a court can legitimately do. But he then ordered federal marshals enforce his decision and take her into custody, which he cannot do. Federal marshals are part of the Executive Branch, not the Judicial Branch; he has absolutely no authority to order any federal marshal to do anything.
Significantly, the Founders -- and thus the Constitution -- did not give power to the Judiciary to enforce any of its decisions -- they deliberately made it powerless in this regards. They made the Executive Branch alone responsible for enforcement.
So while Judge Bunning can (and did) issue his personal opinion regarding Kim Davis, his personal opinion does not have the force of law. (By the way, check any civics book: a law must originate as a measure proposed in the House or Senate, be passed by both, and then signed by the president. Only then and by this means does anything become law.) Bunning must thus ask (not order) the Executive Branch to enforce his opinion, and if it agrees, it can order its marshals to do so, but the Judicial Branch may order no such thing.
Sadly, not only did the Judicial Branch first take on itself the role of the Legislative Branch by issuing its ruling in the homosexual-marriage decision, but now it has assumed the role of the Executive Branch by attempting to enforce its own opinion. The Founding Fathers vehemently objected to this practice. As George Washington warned:
"[T]hose entrusted with its [the nation’s] administration [must] confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism."
James Madison similarly charged:
"The preservation of a free government requires not merely that the metes and bounds which separate each department of power be universally maintained but more especially that neither of them be suffered to overleap the great barrier which defends the rights of the people. The rulers who are guilty of such an encroachment exceed the commission from which they derive their authority and are tyrants. The people who submit to it are governed by laws made neither by themselves nor by an authority derived from them and are slaves."
Samuel Adams agreed:
"In all good governments, the Legislative, Executive, and Judiciary powers are confined within the limits of their respective departments. If therefore it should be found that . . . either of the departments aforesaid should interfere with another, it will, if continued, essentially alter the Constitution, and may, in time, . . . be productive of such convulsions as may shake the political ground upon which we now happily stand."
Thomas Jefferson thus admonished that we must "cleave to the salutary distribution of powers which that [i.e., the Constitution] has established" and that if we ever move away from its separation of powers that "we shall be in danger of foundering."
Perhaps political philosopher Charles de Montesquieu -- a favorite of the Founders, and the most-cited human source in the political writings of the Founding Era -- said it best when he declared:
"There is no liberty if the power of judging be not separated from the legislative and executive powers."
So while the Kim Davis travesty continues, perhaps the most dangerous aspect of the entire controversy is that Judge Bunning personally ordered her to jail, thus blatantly violating one of the Constitution's most important provisions for securing the liberty of the entire people.
KENTUCKY CLERK KIM DAVIS TAKEN INTO CUSTODY
A defiant county clerk rejected a proposal that would have allowed her deputies to grant same-sex marriage licenses, hours after she was sent to jail by a federal judge for disobeying a court order.
Through her lawyer, the clerk, Kim Davis of Rowan County, said she would not agree to allow the licenses to be issued under her authority as county clerk. Had she consented, the judge would have considered releasing her from custody.
Five of the six deputies told Judge David L. Bunning of Federal District Court that they would issue the licenses, though some of them said they would do so reluctantly. The lone holdout was Ms. Davis’s son, Nathan.
Ms. Davis had argued that the Supreme Court order that she issue marriage licenses to same-sex couples infringed upon her religious beliefs and liberties. But after a hearing, Judge Bunning said that “her good faith belief is simply not a viable defense,” and ordered Ms. Davis to jail.
“The court cannot condone the willful disobedience of its lawfully issued order,” said Judge Bunning, who was appointed by President George W. Bush. “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”
The clerk’s stance has put her at the center of political storm that has divided the country.
The White House press secretary, Josh Earnest, said he had not discussed the developments with President Obama. But he said Ms. Davis should not defy the Supreme Court.
“Every public official is subject to the rule of law,” Mr. Earnest said. “No one is above the law. That applies to the president of the United States and it applies to the clerk of Rowan County, Kentucky, as well.”
Rand Paul, the Republican presidential candidate and a senator from Kentucky, said it was “absurd to put someone in jail for exercising their religious liberties.”
Former Gov. Mike Huckabee of Arkansas, another Republican candidate, said the jailing of Ms. David “removes all doubt of the criminalization of Christianity in our country.”
“We must defend religious liberty and never surrender to judicial tyranny,” Mr. Huckabee said, adding that “the Supreme Court is not the Supreme branch and it’s certainly not the Supreme Being.”
Judge Bunning’s ruling also drew sharp condemnation from one of Ms. Davis’s lawyers, Roger Gannam.
“Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman, and she’s been ordered to stay there until she’s willing to change her mind, until she’s willing to change her conscience about what that belief is,” he said. “This is unprecedented in American law.”
But a lawyer for the couples who sued, William Sharp, said the ruling signaled that “religious liberty is not a sword with which government, through its employees, may impose particular religious views on others.”
Two couples who had previously been denied licenses by Ms. Davis’s office said they would seek the licenses on Friday.
Earlier Ms. Davis, an Apostolic Christian, tearfully testified that she had not hesitated to follow her religious beliefs and defy the courts. “I didn’t have to think about it,” she said. “There was no choice there.”
Ms. Davis was asked how she defined marriage.
“Marriage is between one man and one woman,” she replied, before a lawyer asked her whether she had “the ability to believe marriage is anything else
Ms. Davis offered a terse response: “No
 |
| Embattled county clerk Kim Davis in her offices prior to being taken into custody. |
Five of the six deputies told Judge David L. Bunning of Federal District Court that they would issue the licenses, though some of them said they would do so reluctantly. The lone holdout was Ms. Davis’s son, Nathan.
Ms. Davis had argued that the Supreme Court order that she issue marriage licenses to same-sex couples infringed upon her religious beliefs and liberties. But after a hearing, Judge Bunning said that “her good faith belief is simply not a viable defense,” and ordered Ms. Davis to jail.
“The court cannot condone the willful disobedience of its lawfully issued order,” said Judge Bunning, who was appointed by President George W. Bush. “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”
The clerk’s stance has put her at the center of political storm that has divided the country.
The White House press secretary, Josh Earnest, said he had not discussed the developments with President Obama. But he said Ms. Davis should not defy the Supreme Court.
“Every public official is subject to the rule of law,” Mr. Earnest said. “No one is above the law. That applies to the president of the United States and it applies to the clerk of Rowan County, Kentucky, as well.”
Rand Paul, the Republican presidential candidate and a senator from Kentucky, said it was “absurd to put someone in jail for exercising their religious liberties.”
Former Gov. Mike Huckabee of Arkansas, another Republican candidate, said the jailing of Ms. David “removes all doubt of the criminalization of Christianity in our country.”
“We must defend religious liberty and never surrender to judicial tyranny,” Mr. Huckabee said, adding that “the Supreme Court is not the Supreme branch and it’s certainly not the Supreme Being.”
Judge Bunning’s ruling also drew sharp condemnation from one of Ms. Davis’s lawyers, Roger Gannam.
“Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman, and she’s been ordered to stay there until she’s willing to change her mind, until she’s willing to change her conscience about what that belief is,” he said. “This is unprecedented in American law.”
But a lawyer for the couples who sued, William Sharp, said the ruling signaled that “religious liberty is not a sword with which government, through its employees, may impose particular religious views on others.”
Two couples who had previously been denied licenses by Ms. Davis’s office said they would seek the licenses on Friday.
Earlier Ms. Davis, an Apostolic Christian, tearfully testified that she had not hesitated to follow her religious beliefs and defy the courts. “I didn’t have to think about it,” she said. “There was no choice there.”
Ms. Davis was asked how she defined marriage.
“Marriage is between one man and one woman,” she replied, before a lawyer asked her whether she had “the ability to believe marriage is anything else
Ms. Davis offered a terse response: “No
Later, one of the women who has unsuccessfully sought a marriage license in Rowan County, April Miller, told Judge Bunning that Ms. Davis’s stand “marginalizes us again.”
Judge Bunning left little doubt about his thinking, and said Ms. Davis’s explanation for disobeying his order was “simply insufficient.”
“It’s not physically impossible for her to issue the licenses,” he said. “She’s choosing not to.”
Lawyers for the same-sex couples seeking licenses had asked Judge Bunning to fine Ms. Davis and not send her to jail, but the judge said he thought that a fine would not be enough to prompt the clerk’s compliance.
As marshals led her from the courtroom, Ms. Davis said, “Thank you, Judge.”
The hearing Thursday was the first since the Supreme Court on Monday turned down Ms. Davis’s appeal of an Aug. 12 ruling by Judge Bunning directing her to issue marriage licenses. The justices’ decision was expected to clear the way for same-sex marriages in Rowan County. But on Tuesday, the clerk and her employees again refused to issue licenses in Morehead, the seat of Rowan County.
Within hours lawyers for the couples who had initially sued Ms. Davis asked Judge Bunning to hold her in contempt.
Legal experts said it was uncertain how long Ms. Davis could kept in jail.
“Civil contempt is not supposed to be punitive, it’s supposed to coerce the person to obey the judge’s order,” said Adam Winkler, a law professor at the University of California, Los Angeles. “Once she promises to obey, or once the judge determines that more jail time will not encourage her to obey, they’ll let her out. But she could be in there for a year, it’s conceivable. Judges really don’t like it when people disobey their order.”
The standoff in Kentucky, many law professors said, is reminiscent of the 1960s civil rights battles, with Ms. Davis in the role of George C. Wallace, the segregationist Alabama governor who stood in the doorway of the University of Alabama to block two black students from registering.
“In a way, she’s out George Wallace-ing George Wallace,” said Howard M. Wasserman, a law professor at Florida International University. “It does now feel like the civil rights era, with people ignoring court orders, taking a stand and being held in contempt.”
Judge Bunning left little doubt about his thinking, and said Ms. Davis’s explanation for disobeying his order was “simply insufficient.”
“It’s not physically impossible for her to issue the licenses,” he said. “She’s choosing not to.”
Lawyers for the same-sex couples seeking licenses had asked Judge Bunning to fine Ms. Davis and not send her to jail, but the judge said he thought that a fine would not be enough to prompt the clerk’s compliance.
As marshals led her from the courtroom, Ms. Davis said, “Thank you, Judge.”
The hearing Thursday was the first since the Supreme Court on Monday turned down Ms. Davis’s appeal of an Aug. 12 ruling by Judge Bunning directing her to issue marriage licenses. The justices’ decision was expected to clear the way for same-sex marriages in Rowan County. But on Tuesday, the clerk and her employees again refused to issue licenses in Morehead, the seat of Rowan County.
Within hours lawyers for the couples who had initially sued Ms. Davis asked Judge Bunning to hold her in contempt.
Legal experts said it was uncertain how long Ms. Davis could kept in jail.
“Civil contempt is not supposed to be punitive, it’s supposed to coerce the person to obey the judge’s order,” said Adam Winkler, a law professor at the University of California, Los Angeles. “Once she promises to obey, or once the judge determines that more jail time will not encourage her to obey, they’ll let her out. But she could be in there for a year, it’s conceivable. Judges really don’t like it when people disobey their order.”
The standoff in Kentucky, many law professors said, is reminiscent of the 1960s civil rights battles, with Ms. Davis in the role of George C. Wallace, the segregationist Alabama governor who stood in the doorway of the University of Alabama to block two black students from registering.
“In a way, she’s out George Wallace-ing George Wallace,” said Howard M. Wasserman, a law professor at Florida International University. “It does now feel like the civil rights era, with people ignoring court orders, taking a stand and being held in contempt.”
MIKE HUCKABEE CALLS FOR KIM DAVIS'S RELEASE SIGN PETITION
MIKE HUCKABEE OFFICIAL STATEMENT ON THIS ISSUE
Free Kim Davis Now
Free Kim Davis Now
Having Kim Davis in federal custody removes all doubt of the criminalization of Christianity in our country. We must defend religious liberty and never surrender to judicial tyranny. Five, unelected Supreme Court lawyers did not and cannot make law. They can only make rulings. The Supreme Court is not the Supreme branch and it's certainly not the Supreme Being.
I am proud of Kim for standing strong for her beliefs. Who will be next? Pastors? Photographers? Caterers? Florists? This is a reckless, appalling, out-of-control decision that undermines the Constitution of the United States and our fundamental right to religious liberty.
I'm headed to Kentucky on Tuesday to stand with #KimDavis. We must end the criminalization of Christianity!
There is nothing I would like better than to let Kim know on Tuesday that 250,000 Americans have signed a Free Kim Davis petition. Today I need you to sign this new petition and then please ask your friends and family to do the same by going to www.FreeKimDavisNow.com. Time is of the essence so please sign and be responsible for asking friends and family to join you today.
God bless America,
Mike Huckabee
P.S. Sign this Free Kim Davis petition here: www.FreeKimDavis.com.
OR GO HERE
http://www.mikehuckabee.com/FreeKimDavis
Mike Huckabee for President
Huckabee for President PO Box 3357 Little Rock, AR 72203
Phone: 1-844-780-6785
I am proud of Kim for standing strong for her beliefs. Who will be next? Pastors? Photographers? Caterers? Florists? This is a reckless, appalling, out-of-control decision that undermines the Constitution of the United States and our fundamental right to religious liberty.
I'm headed to Kentucky on Tuesday to stand with #KimDavis. We must end the criminalization of Christianity!
There is nothing I would like better than to let Kim know on Tuesday that 250,000 Americans have signed a Free Kim Davis petition. Today I need you to sign this new petition and then please ask your friends and family to do the same by going to www.FreeKimDavisNow.com. Time is of the essence so please sign and be responsible for asking friends and family to join you today.
God bless America,
Mike Huckabee
P.S. Sign this Free Kim Davis petition here: www.FreeKimDavis.com.
OR GO HERE
http://www.mikehuckabee.com/FreeKimDavis
Mike Huckabee for President
Huckabee for President PO Box 3357 Little Rock, AR 72203
Phone: 1-844-780-6785
HUCKABEE CELEBRATES KENTUCKY CLERK'S REFUSAL TO ISSUE MARRIAGE LICENSE TO GAY COUPLES
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| Republican presidential candidate Mike Huckabee |
The Kentucky county-clerk saga and the clash between gay marriage and religious freedom has entered the national political stage.
Former Arkansas Gov. Mike Huckabee, a 2016 GOP presidential candidate, came to the defense Wednesday of Rowan County Clerk Kim Davis, who has defied the Supreme Court by refusing to issue marriage licenses because of her religious objection to gay unions.
Mrs. Davis has refused “under God’s authority” to issue licenses to any couples — gay or otherwise — in the wake of the June Supreme Court ruling in favor of same-sex marriage, though her efforts to seek relief in federal court have failed.
She says issuing marriage licenses to gay couples would make her complicit in sinful action and this is a “heaven or hell” matter for her.
In an email blast, Mr. Huckabee said he “visited” with Mrs. Davis, a Democrat, over the telephone Wednesday to offer “my prayers and support.”
Mr. Huckabee, a former Southern Baptist pastor, said Mrs. Davis is “standing strong for religious liberty” and said the Supreme Court “cannot and did not make the law” on marriage.
“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,” Mr. Huckabee said.
Mr. Huckabee is running ninth in national polls, and eighth in Iowa, which opens the nomination contest and is seen as crucial to Mr. Huckabee’s chances of winning the Republican presidential nomination next year.
The 60-year-old rode the support of religious and social conservatives to victory in the 2008 Iowa caucuses, but faces stiff competition this go-round for that powerful slice of the GOP electorate, including from Sen. Ted Cruz of Texas, Louisiana Gov. Bobby Jindal and former Sen. Rick Santorum of Pennsylvania, winner of the 2012 caucuses.
A spokeswoman for Mr. Jindal said her boss approves of Mrs. Davis’s action, but would not go so far as to call for clerks to refuse court rulings.
Mr. Jindal thinks “every person should be able to follow their conscience, and clerks who cannot in good conscience participate in same-sex marriage should not be forced to violate their beliefs,” campaign spokeswoman Shannon Bates told The Associated Press.
On the other side of the issue, both businesswoman Carly Fiorina and Sen. Lindsey Graham said that while they back religious-liberty concerns in private disputes, Mrs. Davis is a government official who must abide by a law she is refusing to carry out.
“The rule of law is the rule of law,” Mr. Graham said Wednesday on the show of conservative talk-radio host Hugh Hewitt.
“I appreciate her conviction, I support traditional marriage, but she’s accepted a job in which she has to apply the law to everyone,” Mr. Graham said. “[She] should comply with the law or resign.”
In a Tuesday appearance on the same show, Mrs. Fiorina said that while “it’s clear religious liberty is under assault in many, many ways,” this case is “a very different situation for her than someone in a hospital who’s asked to perform an abortion or someone at a florist who’s asked to serve a gay wedding.”
“This woman now needs to make a decision that’s [about] conscience: Is she prepared to continue to work for the government, be paid for by the government, in which case she needs to execute the government’s will … [or] sever her employment with the government and go seek employment elsewhere where her religious liberties would be paramount,” Mrs. Fiorina said.
The dispute itself dragged on Wednesday in Kentucky, with Mrs. Davis again refusing requests for marriage licenses by several couples and her lawyers asking for another stay in the order by U.S. District Judge David Bunning that she issue marriage licenses to gay couples.
The Davis team’s argument this time, according to legal papers filed Wednesday, is based on a dispute over Gov. Steve Beshear’s order that she issue the marriage licenses.
Barring a stay, Mrs. Davis will appear in court Thursday in which Judge Bunning will decide whether to hold her in contempt of court for refusing to carry out his order.
Mr. Huckabee applauded Mrs. Davis for her stand Wednesday, using both the Christian language of martyrdom and the Declaration of Independence’s wording about the source of rights.
“Kim is a person of great conviction,” Mr. Huckabee said. “When people of conviction fight for what’s right they often pay a price, but if they don’t and we surrender, we will pay a far greater price for bowing to the false God of judicial supremacy.”
“Government is not God. No man — and certainly no unelected lawyer — has the right to redefine the laws of nature or of nature’s God,” Mr. Huckabee said.
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