June 29, 2015

Huckabee incites civil disobedience to the Supreme Court's same-sex marriage decision and the Texas attorney general takes the cue.

From yesterday's "This Week" show:
STEPHANOPOULOS: So what exactly are you calling on people to do right now? You say resist and reject this judicial tyranny. Spell out exactly what that means?

HUCKABEE: George, judicial tyranny is when we believe that the courts have a right to bypass the process of law and we've really seen it this week in two cases, in both the Obamacare case, which Justice Scalia called it - said we not - should call it SCOTUScare because they have rescued it twice, ex cathedra to the law, and then in the same-sex marriage ruling in which -
Huckabee avoids the interesting part of the question and concentrates on the criticism of the court. It's tyranny, blah blah blah. Stephanopoulos interrupts to pin him down (and make some news!):
STEPHANOPOULOS: So are you calling for civil disobedience?

HUCKABEE: I don't think a lot of pastors and Christian schools are going to have a choice. They either are going to follow God, their conscience and what they truly believe is what the scripture teaches them, or they will follow civil law. They will go the path of Dr. Martin Luther King, who in his brilliant essay the letters from a Birmingham jail reminded us, based on what St. Augustine said, that an unjust law is no law at all. 
But MLK and St. Augustine didn't anything about judicially declared rightsextra rights for the people, found (perhaps in error) by a court, displacing laws on the theory that those laws were unjust.

Huckabee makes that problem harder to see by getting us to look only at those who feel compelled by religion to resist the Court's decision. But the case the Court just decided doesn't require "pastors and Christian school" to do anything. It only presents an occasion for disobedience to government bureaucrats who find themselves bound to issue marriage licenses. These people can quit their jobs if their religion prevents them from doing what government is now required to do to avoid violating the rights of the citizens they have a duty to serve. No law violation is required.

Huckabee continues:
And I do think that we're going to see a lot of pastors who will have to make this tough decision. You're going to see it on the part of Christian business owners. You'll see it on the part of Christian university presidents, Christian school administrators. If they refuse to...
Huckabee is trying to steer the conversation into things he's predicting will happen, requirements that might befall private citizens. It's not wrong to worry about these things. There are conflicts to come that will need to be resolved, but Huckabee is off the path Stephanopoulos invited him down, and Stephanopoulos knows it and asks exactly the right question:
STEPHANOPOULOS: What about county clerks? Should they issue same-sex marriage licenses?

HUCKABEE: If they have a - a conscientious objection, I think they should be excused. I'm not sure that every governor and every attorney general should just say, well, it's the law of the land because there's no enabling legislation...
Huckabee doesn't really want answer to that question. He won't call outright for resistance from the bureaucrats on the front lines of the marriage licensing function of government. The word "excused" suggests a benevolent reassignment of clerical workers with religious objection so they don't need to quit their jobs to avoid participating in what they view as a sin.

But Texas attorney general Ken Paxton steps into the breach and goes big:
Clerks can refuse based on religious objections, Paxton told the Austin American-Statesman, and because the clerks will probably be sued, "numerous lawyers stand ready to assist clerks defending their religious beliefs," he said....

53 comments:

Michael said...

People wishing to marry should be able to apply on line. Certify they have the blood tests and are good to go. Print out the certificate after they use PayPal. Easy.

sinz52 said...

A whole lot of conservatives who claim to revere the Constitution have never familiarized themselves with the Supremacy Clause in Article 6, Clause 2:

"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, anything in the constitution or laws of any state to the contrary notwithstanding."

No state's judges can override the decisions of the Federal government. (And since Marbury v. Madison, that included the Supreme Court's power of judicial review.) That's one big thing that distinguishes the Constitution from the earlier Articles of Confederation.

Attorney General Abbott is too smart not to know that. He's just posturing to mollify the furious social conservatives.

sean said...

How fascinating. I had no idea that Prof. Althouse was an Augustine scholar. What passages is she explicating, exactly?

Henry said...

How about "Clerks can reassigned based on religious objections"

or "Clerks can quit based on religious objections"

Sorry, but this isn't remotely flowercakephotography territory. Functionaries don't get to pick and choose when they function.

Rusty said...

Are you saying, Althouse, that their concerns are baseless?

The Godfather said...

Here in NC, well before the Supremes stepped in, the legislature enacted a law -- over the Republican governor's veto -- to give clerks, etc. the right not to participate in gay marriages, if they have religious objections. The idea is that the particular clerk can recuse him/herself, and then another clerk, who doesn't have such objections, will issue the license or perform the ceremony or whatever.

Much of what Huckabee SAYS, as distinct from the message he's trying to send, doesn't even seem like civil disobedience. He talks about pastors, and presumably they have the right not to perform gay marriages. Presumably they have the right not to recognize a gay couple as a married couple, for example, by not listing them as such in the church directory. Presumably they can treat such a couple as open sinners (like adulterous heterosexuals) not eligible for church office. I assume that everyone who is acting in a non-commercial capacity has the right to treat a gay couple, or anyone else, with disapproval.

The big issue is in the commercial sphere, including employment. As a pro-gay marriage libertarianish conservative, I think bakers should be free not to bake a gay wedding cake, etc. But I think we can see where that issue is going, and it's not in favor of the bakers. Maybe some civil disobedience in favor of conscientious bakers would be a good idea.

Oso Negro said...

Oh Henry! What about functionaries who prefer not to enforce immigration law? Or functionaries who prefer not to recognize Federal drug laws?

MadisonMan said...

IMO, County Clerks have to follow the law. You don't like what the law forces you to do, as a functionary of the Government? Then find another job.

MadisonMan said...

People wishing to marry should be able to apply on line. Certify they have the blood tests and are good to go. Print out the certificate after they use PayPal. Easy.

That's great for people who follow the law, yes. Very easy.

I can see how that simplicity might be abused, however.

It's unfortunate that laws have to fall all the way down to the lowest common denominator.

J. Farmer said...

Religious objections? These people are paper pushers. If some clerk somewhere gets a bug up his or her ass about divorce, can they start refusing to provide the public with divorce paperwork, too?

Unknown said...

Why do they need blood tests for the State to license? Whose business of anyone else's is it?

I Huckabee is concerned about the next step, where because marriage is a right then SSM is a protected class.

MayBee said...

Remember when Gavin Newsome was celebrated as the Mayor of San Franscisco for allowing clerks to issue marriage licenses for gay couples, even though it wasn't legal?

I said then, why celebrate lawlessness just because you like the cause? And now here we are, the shoe on the other foot.

Clayton Hennesey said...

Like SCOTUS decisions on gay marriage, I don't think civil disobedience is required to be either legal or logical, only civil and disobedient. Yep, that's about it.

MadisonMan said...

Why do they need blood tests for the State to license?

Only one state requires couples intending to get married to get a blood test as one of their marriage license requirements: Montana

Rick said...

sinz52 said...

No state's judges can override the decisions of the Federal government.


I notice we haven't heard this complaint often regarding legalized pot (excepting only from Althouse) so I find the circumstantial outrage amusingly disingenuous.

Maybee made a great point also. Ultimately MM is correct: if your conscience prevents you from performing the requirements of the job your choice is to resign.

Humperdink said...

10th Amendment anyone?

Monkeyboy said...

Normally I would say that a clerk that does not wish to follow the law should resign, but as Maybee has pointed out (and add sanctuary cities) that is not the world we live in anymore.

JSD said...

Gay marriage is about the legal and most importantly, financial implications. While civil rights was a moral issue, gay marriage was about access to the legal and financial benefits of marriage. Including tax benefits of inheritance and the joint filing tax rate, access to family health insurance plans, transfer of social security benefits. Maybe these benefits should be extended to gay couples. But I think it’s arrogant to equate this as a civil rights issue – or alternatively a religious issue.

Also amused at the Obama Care decision. The court declared ACA was a tax. Then the court declared that the ACA rules are found in the regulations written by Treasury (and HHS). Sounds exactly like how the tax code is administered. Duh?? Of course, constitutional attorneys have provided fertile ground for tax deniers who claim the income tax is unconstitutional.

These days, its all about the money, death and taxes.

jr565 said...

I would think that the clerk could not refuse to give out the license. He works at govt. But if you own a business you have a right to refuse serivce.
The clerk in the hypothetical might be reassigned to a different area, or let go for refusing to do his work. But someone will give out the license.

When it comes to your business though, you should have more freedom since it's YOUR business.

rhhardin said...

Objectors are a much wider class than social conservatives.

The rule of law has fallen to media frenzy and the Supreme Court goes along.

Peter said...

The only remedy provided in the constitution for judicial over-reach on the Supreme Court is impeachment.

mccullough said...

So today we believe government should follow the law? What a novel idea. Someone tell Obama.

William said...

I think if a few good Christians were willing to douse themselves with gasoline and immolate themselves during gay weddings, then many people would rethink the morality of the ceremony. I would, however, not recommend Muslim suicide bombers disrupt the festivities. That's not my definition of non violent protest. I think if there were a suicide bomber at a gay wedding, there would be a backlash against the Muslim community. Best that Islamic fanatics restrict their murderous ways to British tourists in Tunisia. That doesn't cause any ill will among the left.

mccullough said...

So Texas clerks won't issue marriage licenses and liberal cities won't issue gun licenses. But Strphanopoulous will only report on one of them.

Birkel said...

Blood tests? (first comment above)

What is the rational basis for requiring blood tests between homosexuals?

Rusty said...

sinz52 said...

I'll see your 6.2 and raise you a 8.18

T Rellis said...

Do we have immigration law? Is it being followed?

Lawlessness begets

Peter said...

We seem to think we're so much more enlightened and wise than our predecessors, yet it's not hard to see how they sometimes handled it far better than we seem to be able to.

Perhaps the greatest sin of the original U.S. Constitution was it's implicit acceptance of slavery, yet this was fixed not by judges finding a fundamental right to liberty but by passage of the 13th Amendment.

Similarly, judges did not invent a right to female suffrage but permitted The People to fix this flaw in the constitution via the 19th Amendment.

Are we to believe that "gay marriage" was more compelling, more fundamental to human liberty, than even slavery or female suffrage? Perhaps so essential to human dignity that five Justices apparently felt the need to engage in an act that might reasonably be described as "constitutional nullification" in order to rectify it as they saw fit?

Larry J said...

County clerks, as government functionaries, should have to follow the law, no matter how poorly decided. The question is how long will it be before a church* that refuses to conduct a gay marriage is sued and threatened with losing their tax exemption? My guess is that will happen within a matter of weeks. Just like those bakers and photographers, in some places the government will step in and try to force the churches to support gay marriages. The free exercise clause of the Constitution won't be any more valid than the rest of the Constitution that gets ignored. My guess is that it'll take a few years before the supreme court (I no longer see any reason to capitalize its name) rules against the churches but that it'll happen within 5 years or so.

*I also predict that no one will have the balls to try and force a mosque to conduct a gay wedding.

Rick said...

Larry J said...

*I also predict that no one will have the balls to try and force a mosque to conduct a gay wedding.


I wouldn't have thought this likely either. But recently there was a gay pride march in Turkey. That's admirable, astonishing, and much riskier than arranging a gay marriage in a US mosque.

Saint Croix said...

A whole lot of conservatives who claim to revere the Constitution have never familiarized themselves with the Supremacy Clause in Article 6, Clause 2

The free exercise clause is specified in the Constitution. When Justice Scalia and the other conservatives negated free exercise, they did something evil and wrong. A unanimous House and an almost-unanimous Senate rebuked them, passing a Religious Freedom Restoration Act.

The RFRA obviously applies to all federal laws. But I also believe it applies to state laws as well. The 14th Amendment gives explicit authority to Congress to protect our religious freedom (and other rights) from state tyranny.

Suppose California wants to lock up Christians who refuse to perform gay marriages. Do these religious people have any legal recourse? Of course!

Mark said...

So, when you are wrong LarryJ, I assume you will act like you didn't say this? You know, just like you always do.

So many people here forecast doom and gloom and the end of society, over and over, and they are wrong every time. Do they realize what clowns they are?

I would love Althouse to revisit your claim that churches will be sued within weeks every couple of weeks for the next few years. Sadly it is clear that Althouse considers your lawsuit claim to be so stupid it's not worth adressing.

Larry, I will enjoy laughing the next decade as this fails to happen. Get a grip dude.

cubanbob said...

MadisonMan said...
IMO, County Clerks have to follow the law. You don't like what the law forces you to do, as a functionary of the Government? Then find another job.

6/29/15, 7:43 AM

I suggest you send your memo to the fellow residing at 1600 Pennsylvania Ave.

Rusty said...

Mark said...
So, when you are wrong LarryJ, I assume you will act like you didn't say this? You know, just like you always do.

So many people here forecast doom and gloom and the end of society, over and over, and they are wrong every time. Do they realize what clowns they are?

I would love Althouse to revisit your claim that churches will be sued within weeks every couple of weeks for the next few years. Sadly it is clear that Althouse considers your lawsuit claim to be so stupid it's not worth adressing.

Larry, I will enjoy laughing the next decade as this fails to happen. Get a grip dude.

People who disagree with this law are already being called traitors.
Want to make a bet?
In the next six months a gay couple is going to try and sue a church.

As I mentioned in another thread. Being a homonazi got them what they wanted. That being the case. There is no incentive to stop being a homonazi.

Mark said...

Yes, I would love to bet on the chances of that lawsuit.

Wonder what Ann would forecast the odds at, lol

Larry J said...

Mark said...
So, when you are wrong LarryJ, I assume you will act like you didn't say this? You know, just like you always do.


Are you talking about my prediction that within 5 years or so, the supreme court will rule that churches that refuse to conduct gay marriages will no longer qualify for tax exempt status? I stand by that prediction with the proviso that court cases sometimes take longer than that. Still, when article in Time magazine by a New York Times columnist call for stripping religious organizations of their tax exemption status, it does show movement in that direction. If a bakery can be sued out of business for refusing to bake a cake for a gay wedding, how long will it be before a church is sued for refusing to conduct a gay wedding? My guess is that will happen within a year and likely before this year is out. If that happens, will you admit that you were wrong? Somehow, I doubt it.

Mountain Maven said...

Huck is a running a pure vanity campaign, safe to ignore him, unless you want to rile up the lib base.

Mark said...

Larry, you didn't say 5 years above in the thread ... of course now that you are called on it you try to dissemble.

You said within WEEKS. Do you even read what you post?

"The question is how long will it be before a church* that refuses to conduct a gay marriage is sued and threatened with losing their tax exemption? My guess is that will happen within a matter of weeks. "

I sure don't see 5 years mentioned there ... I will be generous, you have a month.

bbkingfish said...

Bet Huck makes a big move in the next Winthrop poll of SC primary electorate. He has been hitting all the right notes in the last two weeks.

Edmund said...

So, is it time for a Writ of Mandamus to be issued by a federal court to the clerks that refuse to issue licenses?

damikesc said...

Has George ever asked for such specifics from Dems?

J. Farmer said...

@Peter:

"The only remedy provided in the constitution for judicial over-reach on the Supreme Court is impeachment."

The Constitution can be amended.

Joe said...

Clerks can refuse based on religious objections

Assuming we are talking about Christian clerks, the New Testament makes it very clear that Christians are to live their person lives as an example (a candle on a hill), but to still function within society and by society's rules. Then we get to the "do unto others" and "love they enemy" stuff. In short, being an in-your-face asshole, even to non-Christians and those you despise, is not being a Christian.

Anonymous said...

Mark, Larry J mentioned "5 years" (to a Supreme Court decision) in the exact same post where he mentioned "a few weeks" (for the first lawsuit to be filed). The real objection to that prediction is that it's neither vary ambitious nor very interesting-- there are people who will sue over just about anything. A better question is: when (if ever) will such a suit win, at least in the trial court?

Larry J said...

Mark said...
Larry, you didn't say 5 years above in the thread ... of course now that you are called on it you try to dissemble.


Mark, I guess your reading comprehension is as weak as your reasoning ability. Go back to the post and you'll see this statement:

My guess is that it'll take a few years before the supreme court (I no longer see any reason to capitalize its name) rules against the churches but that it'll happen within 5 years or so. (emphasis added)

hombre said...

It is unfortunate that Huckabee's is seen as a spokesman for Christians. He's very political and not very bright.

As to the underlying question, we have a new field of opportunity for dirty shirt lawyers and secular progressive judges. Expect many lawsuits and anti-Christian rulings.

hombre said...

Sinz52: "Attorney General Abbott is too smart not to know that. He's just posturing to mollify the furious social conservatives."

Abbott is Governor.

Are you seriously arguing that a clerk deferring on the issue of a SSM marriage license violate the Supremacy Clause?

Brando said...

I think a lot of GOP politicians (e.g. Graham) correctly sense that while solid majorities favor the state allowing gay marriage (or at least oppose the states banning gay marriage) the pendulum swings back a bit when the question is whether religious people and organizations should be required to do anything that their religion opposes. Changing the nature of the debate is one way to recover some of that ground.

We may see some cases to that effect in the Supreme Court next year.

Jack Wayne said...

Ann, where are you going to stand when 2 gays in San Francisco sue a Catholic priest for refusing to marry them? It is not a freedom of religion case. It will involve the legal hand-off from the State to the Priest to perform a marriage. The Priest makes the license legal. You know that Scotus will order the Priest to perform the marriage as he does not have the right to invoke religious objection when performing a state function. Think there will be some civil disobedience? Or are people going to allow the government to hijack their religious beliefs? I predict that in just a few years every state will withdraw the legal function from religious people and turn to a pre-nip contract as the only legality required. It is about all that is left to them. Then you can be triumphal when the federal government has completely consumed another state function. Central control is the spice in your life.

Coupe said...
This comment has been removed by the author.
Goju said...

Getting married in a Catholic Church is not as easy as just showing up at the door. First, you have to be Catholic. My wife's church also required at least one of us (her) to be an active, practicing member of the parish and that we agreed to abide by the tenets and teachings of the Church. Since the Church's position on SSM is to be opposed to it,Gays cannot logically agree to abide by Church teachings and ask to get married in a Catholic church. I have no idea what other denominations require of those seeking marriage in their institutions. SSM ceremonies in a mosque will be highly looked forward to. Tho I believe the the LGBT community will choose the cowards way out on that particular point.

Didn't SCOTUS rule in the DOMA case that marriage was the purview of the States and therefore a federal law - DOMA - on marriage was unconstitutional. IANAL,so maybe it just appears that this decision overrules the DOMA decision. Some legal analyse would be appreciated.

Kirk Parker said...

A whole lot of 'sinz52' have never familiarized themselves with the Ninth and Tenth Amendments...

Anonymous said...

Recently some elderly woman in Greece whined, why did no one tell us this was coming?

If you can't see the writing on the wall here, you're that old Greek woman.

POTUS is lawless. SCOTUS doesn't even pretend anymore. States make Marijuana legal in complete disregard of federal law. And people think we Christian Conservatives are just going to bow out heads, say Yes Master, and do what we are told?

Good luck with that. Kennedy has done us a favor. And all those rainbows on Facebook? Althluse? Mead being a jerk?

We know what's coming. You have no clue.