"Acceptable" is a weak word. It's not going to be acceptable to a court that has decided what the law is and ordered you to follow it, and Volokh isn't trying to say that it is. He's really only asking us to look at the Kim Davis problem from the perspective of those who think that the acceptance — there's that word again — of gay marriage is an evil on the scale of slavery or Nazi Germany.
Not that we have to agree with that view, but the question is whether the (possibly oath-based) proceduralist argument (“do your job or engage in revolution, but if you do that you have to quit, because OMG the oath”) should carry any logical weight with adherents of that view. While I think acceptable resistance against Nazis differs from acceptable resistance against liberal democratic governments, the reason I think that has nothing to do with oaths, and it’s not clear to me how an oath-based theory would successfully distinguish between the two situations.Also at Volokh Conspiracy and getting much more attention (ranking high on WaPo's most-read list), is Eugene Volokh's "When does your religion legally excuse you from doing part of your job?," which focuses on law as it is, as opposed to morality, revolution, and disobedience.
Bottom line: I’m fine continuing to criticize Davis on substantive moral grounds. And I’m fine showing why Davis’s actions are illegal under the positive law; but once you get to the point where you’re making the illegality serve a normative goal, you have to confront issues of legitimate disobedience, and I’m not sure that a purely procedural (“quit or do your job”) argument will work to exclude Davis’s “keep your job but follow your ideals” strategy of disobedience.
I'm using my tag "civil disobedience," even though Sasha Volokh eschews the adjective and speaks only of "disobedience." I think "civil" is inappropriate because Davis is not a citizen resisting the government. She's a government official. "Civil" denotes a connection to ordinary citizens. There's something much fishier about someone working within the government, not following the rules.
Should we accept (there's that word again) IRS agents resisting tax-exemption applications from groups that represent politics they think are evil? Think of resistance from the inside by police officers, teachers, judges, social workers, prison wardens, and the rest of the immense cast of characters that make up the government and against whom we, the citizens, assert our civil rights.
ADDED: For what it's worth, here's the (unlinkable) OED entry for "civil disobedience":
civil disobedience n. rebellion of the populace against a governing power; (in later use) spec. refusal to obey the laws, commands, etc., of a government or authority as part of an organized, non-violent political protest or campaign.
1579 R. Robinson Vineyarde of Vertue xiii. f. 25, That God may thereby be gloryfied, and the common wealth fortified against assaults of the deuil, inuasions of forraine enemyes against ciuil disobedyence and discorde.
1644 R. Williams Blovdy Tenent xlix. 79 Caesar (as a civill supreme Magistrate) ought to defend Paul from Civill violence, and slanderous accusations about sedition, mutiny, civill disobedience.
1716 ‘P. Freeman’ Mock Patriots 18 The Inferior clerical Tools..judicially hardened into an Habituality of Civil Disobedience also, so as..to preach Faction instead of Faith, and Rebellion instead of Peace.
1866 in H. D. Thoreau Yankee in Canada 123 (heading) Civil disobedience [1849 titile orig. appears as ‘Resistance to Civil Government’.].
1922 Ann. Reg. 1921 275 Mr. Gandhi announced that he reserved the right to continue..preparations for civil disobedience.
2002 Weekend Austral. (Nexis) 30 Mar. 21 It was barely three years since a black worker named Rosa Parks had refused to move to the back of a bus in Montgomery, Alabama—a simple act of civil disobedience.
पोस्ट्स
६६ टिप्पण्या:
You forget to consider that gay marriage was decided against the will of the people by an incoherent moron on the Supreme Court.
The law works only with voluntary compliance, which has been lost.
The law is still there but not working any longer. It's a study of a fossil.
As for morality, the law has to leave everybody no worse off than they were. A Pareto optimum, it's called. That's how you get consent. Otherwise you don't, and all bets are off.
You're outside morality, at that point.
Of course you are assuming that the ruling of the SCOTUS is based on "law", which it clearly is not. Natural law is our Original Common Law, and in natural law there is no such thing as "gay marriage". It is an abomination. It is unnatural. It serves no purpose to the greater citizenry, and in no way beneficial to the propagation of the citizenry.
Black robed legislators have created a new "right". Acceptance of that new "legislation" is legality. We the people have repeatedly turned away gay marriage in many states, only to have the black robed thugs slap us in the face. We the people do not accept the laws forced on us by black robed judicial activists.
It is time to say NO--- No More.
As for an obligation to obey the orders of the government, ask Reinhard Heydrich how that worked out.
"Think of resistance from the inside by police officers, teachers, judges, social workers, prison wardens, and the rest of the immense cast of characters that make up the government."
The long march through the institutions.
One difference is Kim Davis's disobedience is open, honest, direct. She's not hiding it, lying when confronted, sneaking around trying to find ways to obstruct and hassle gay marriage applicants while pretending to serve impartially.
If the question is whether we overall support our "system" of government (as opposed to the substantive actions of our government, which most of us will from time to time disagree with) then I think it boils down to government officials must follow the rules or quit, and if there's a problem with the substance of a rule then we have to work through the process to change it. It's exactly what we'd demand of our opponents--and otherwise we'd be seeing government officials constantly abusing their power for their own ends (which is bad enough when it happens--e.g., Lois Lerner). It's the same reason everyone should be bothered when a president tries to overshoot his authority by using "executive agreements" instead of treaties, regardless of whether we agree with the substance of the agreement.
For the Nazi example to hold weight, we would have to agree that the Nazi system of government is worth preserving, which I presume we do not.
A lot of Kim Davis' defenders point out (correctly) that leftist politicians often break the rules (e.g., sanctuary cities, not enforcing immigration laws) too, but this does not absolve Davis. Nowhere should we tolerate goverment officials doing this sort of thing, and if we don't reject it when those officials are on "our side" then all we really stand for is unrestricted power to do what we want.
"As for an obligation to obey the orders of the government, ask Reinhard Heydrich how that worked out."
Can we draw a distinction between American government (as faulty as it is) and the Nazi government?
I think the bridge Sasha is trying to cross was built by Martin Luther King--you have an obligation to break unjust laws, but you also have an obligation to submit to punishment. If you argue there should be no punishment because the law is unjust, then you are not challenging a law, you are challenging the rule of law.
Should we accept (there's that word again) IRS agents resisting tax-exemption applications from groups that represent politics they think are evil?
The IRS agents who did so suffered no ramifications, mind you.
So, apparently, yes.
Only when the government official causes problem with a Progressive ideal should we be outraged. Otherwise, it's a "few bad apples" and they cannot be punished...for reasons.
Same sex "marriage" is not "law," as the commenters above say. It's just false, fleeting Anthony juming onto a current fad.
However, it is the Supremes, so we have to live with it, for a while, at least.
So Kim Davis is wrong. As County Clerk, that is her privilege, but then she must be dealt with. This should not be much of a problem - even Davis herself has suggested ways that could be done without difficulty or much of a public fuss - but the most expedient ways involve the Federal government working with the State government to defuse the situation, and that this judge does not want to do.
Probably does not want to put the Governor on the spot in a state where such "marriage" is very unpopular, and in any case, the Democrats want an "issue."
But to my mind, this Federal judge has created a much larger issue, when he took over the County Clerk's office and started ordering the employees to disobey the state constitution and bylaws.
"You forget to consider that gay marriage was decided against the will of the people by an incoherent moron on the Supreme Court."
No, I didn't. The "will of the people" refers to democracy, and the Supreme Court's decision is based on constitutional law, which gives rights to individuals and minorities against the majority. The will of the people is trumped when it comes to constitutional rights. This is such a basic proposition of constitutional law that I don't repeat it every time it is foundational to other points.
The Supreme Court has the authority to find the meaning of the Constitution and announce it in opinions that bind all other courts, including the court that found Davis in contempt. This authority does not depend on whether the opinions are well-written or soundly reasoned.
The decisions are made by a majority on the Court, not by one person, moron or no. And the possible moronity of the Justices is irrelevant. They were nominated by the President and confirmed by the Senate. The "will of the people" came into play in electing the President and voting for the Senators.
Agreed with damikesc: If you want Kim Davis fired/resigned/imprisoned for what she did, FIRST agitate toward firing/resigning/imprisoning the people in office who have been blatantly, flagrantly violating the law the last 6 years. Until then, your complaints and rationalizations about officeholders not following the law are obviously nothing more than will to power.
On one comment board (Reason, I think), I saw a guy repeat over and over, as if he were getting paid for each time he used the phrase, that this argument is one "made by third graders". Well, yes. Even a third grader can easily and correctly understand the ethical problems with selective enforcement of the law. But our "betters" in the legal profession apparently can't figure it out.
OK, Law is law in a Consttutional Republic. But a Judge's discovery of a long hidden double secret redefinition of the nature of reality itself that takes advantage of existing legal categories is just too silly to be to profoundly declared to be The Law that must be obeyed. It has made the law a cartoon joke.
Therefor a demand at gunpoint that the civil populace participate in that redefinition of reality itself or else seems to be Nazi like.
This stubborn Holiness church lady has manovered the Federal guys into her jail far more they have her sitting in their jail. They need to release her with an apology. But I fear their fear of Gay Power has them stuck.
"The Supreme Court has the authority to find the meaning of the Constitution"
Even when they are "finding" a meaning that was obviously never even remotely contemplated by the people who wrote it, or who voted for the amendment?
If so, then you're not following the Constitution, you're just twisting it into Newspeak to mean whatever you want it to mean. Those of us who refuse to respect such shredding of the actual text and obvious intent are now the ones accused of disrespecting it's authority. Same as it ever was.
Kennedy, Souter, etc. et.al. swore an oath to protected and defend the US Constitution against all enemies, and then became enemies of the US Constitution when they stomped all over it, imposing their personal desires on the rest of us.
If they're not going to obey their oaths, you can not honestly demand that of anyone else, either.
Question to Althouse: Every amendment to the Constitution required a vote of a large majority of the population and the States. I'm pretty sure the gay marriage ruling was based on the 14th, but whichever it was: When those people voted, were they informed that their vote would mean gay marriage would be legalized? Was there ever any inkling to that effect? Did the people of the time think that the plain text of the Constitution could ever be twisted so wildly as to reach that conclusion? Would it have gathered more than 10 votes if they had known?
THAT is where the will of the people has been ignored.
I'll second what Bob Boyd said. One would expect people who feel they are fighting evil to be proud of their accomplishments or, if they are that humble, at least feel a need to alert us to the activities of evil doers. That they feel the need to dissemble and hid their actions behind fake email accounts and document shredders says volumes about their motives.
I would rather have an openly political class of civil servants than the current regime that can cloak their activities in supposed non-partisanship.
Look, only an imbecile or a liar would actually claim that the US Constitution created a right to same sex marriage, or even that it creates a "right" to engage in homosexual behavior. You want to talk about respect for a liberal democratic republic? Then you're talking about respect of the rule of law, democracy, and in the US case for the written US Constitution. None of which received the slightest bit of respect from the 5 black robed thugs who decided to force their personal beliefs on the rest of us.
That, BTW, is oligarchy, a junta, dictatorship. The diametric opposite of a liberal democratic republic.
You want to embrace fraud and dictatorship? Fine, we can't stop you.
But you can't force us to pretend that your dishonest behavior is in fact honest. You can't force us to pretend that your contemptible sleaze is in fact respectable behavior.
"Society's mores have changed"? If you actually believed that, you'd push for the change to come through the democratic process. At least, you would if you had even the slightest shred of respect for the principles of the liberal democracy you claim to value. Since you didn't, since you didn't scream from the top of your blog that SSM is not provided for by the US Constitution, and the Supreme Court shouldn't try to impose it on the US, well, we know what you really believe.
What we really believe is you are beneath our contempt, that the 5 thugs who are attempting to force SSM on America are also beneath our contempt, and that nothing you have to say on the subject has any value.
You want rule of law? Follow it yourself.
Should we accept (there's that word again) IRS agents resisting tax-exemption applications from groups that represent politics they think are evil?
As damikesc says, apparently the answer is yes.
Now I don't agree with this woman. I think sh should do her job or step aside.
But, her job changed while she was in office. And I think that is worthy of extra consideration.
I'm pretty much with Brando on this one. However, impartial law enforcement is a bad joke,* and Kim Davis in jail vs. Lois Lerner not in jail is a powerful metaphor for which side of the fence power lies in America today. Law provides a patina of respectability to the exercise of power.
* - perhaps it was always such and I only dreamed of a more principled time.
...or John Yoo for that matter.
She is all over Facebook, all over the news, and has become a meme.
But people are moving to Colorado to smoke pot. And San Fransisco believes in its sanctuary city status. And DC won't issue gun permits. And Obama says not enforcing immigration law is "prosecutorial discretion".
Is Kim Davis, Democrat, is following long-established Democrat precedent in acknowledging that the law exists for others but not for her, because Democrat?
Funny the tack coming out here among Davis' defenders that we can't put her in jail because all these other people aren't in jail. These "other people" are obviously chosen because the defender would like to see them in jail instead. Which shows how far the lunacy goes--instead of trying to use this as precedent to see justice done elsewhere, they want the entire concept dropped--it is so important that this law breaker not be punished that they are willing to throw the rule of law out the window and see no law breaker punished.
Machine, Thanks for inadvertently strengthening my case.
Tim, that is the precise opposite of what ive been arguing. Ive repeatedly stated that we can discuss whether or not Kim Davis should be in jail AFTER Lerner, etc. Are in jail. So far, no takers.
Kim Davis stopped being a citizen because she is a government employee.
Ann Althouse has agreed, on this principle, that she has no civil rights?
Sloppy, Althouse. Sloppy.
"Should we accept (there's that word again) IRS agents resisting tax-exemption applications from groups that represent politics they think are evil?"
No. But "we" have little to say about it. "We" did not vote for a 14th amendment that entailed SSM. "We" for the most part didn't pass laws that authorized SSM. "We" have no power to make Barry and Lois follow the actual law. "We" are simply told by our betters that because Tony found a "right" not contemplated by anyone until the day before yesterday, "we" must now follow the rule of law.
"We" face a dilemma: "we" like the rule of law, "we" despise its actual perversion.
Soooo... Public officials aren't citizens?
Since firefighters aren't citizens we can throw out those rulings that prevent fire departments from discriminating against women who don't have the strength to control a hose or carry a grown man out of a burning building?
Lois Lerner doesn't have a right to a trial before sentence?
Commanders don't have to inform UCMJ defendants of their rights?
Law professors at public universities don't enjoy freedom of speech at the individual level?
All you public officials are just drones?
Tell me more about this fucked up conception you have of individual liberty, and commitment to natural rights doctrine you have that is so casual you'd throw it all away for the sake of the first pair of swinging penises to drive in all the way from out of state to the one county in Kentucky not issuing same sex licenses.
Try to square it with Thomas Jefferson's Religious Freedom Law of Virginia, hitch became the basis for the First Amendment.
Try to square it with Washington's statement "when we assumed the soldier, we did not lay aside the citizen."
Point out where there was ever some exception carved out for public employees in the First Amendment. Or in RFRA, for that matter.
Not long ago you were fond of citing Saint Thomas More. Do you recall why he was imprisoned? Because he refuse to sign a document in violation of his religious conscience. Clearly he was bullying Kng Henry the VIIIth and imposing his religion on the citizenry. Amirite? Was More a public employee? Why yes. Yes he was.
This idea that we are criminalizing a refusal to affix one's own name to a document that offends anyone's religious conscience is dangerous indeed. This is the technique of the Stalinist, the Maoist, the Nazi. Particularly so where the document flies in the face of thousands of years of recorded history and directly against clear scriptural teachings. (Yes, libtards are fond of arguing that Jesus never mentioned homosexuality. That's because they are illiterate idiots.)
It's obvious there is no founding principle you wouldn't throw overboard for the sake of the gay penis. It overrides all other concerns for you. You would allow it to poison and destroy everything. Think of it: you would drive families to penury and put people in jail indefinitely for the sake of the gay penis. I didn't believe it before the Pink Terror but it's obvious now: it's a mental illness and delusion, like pederasts who have convinced themselves they are doing their victims a favor. And it's absolutely destructive to the fabric of society. They were right! Because look at the results! It's even got you betraying the memory of Thomas More!
Because oaths.
YOSSARIAN! GET YOUR ASS IN HERE!!
I used to think that the people who couldn't let go of Bush v. Gore were the worst.
They have now been topped by the Kim Davis acolytes. If I hear 'black robed thug' again it will set a personal record for idiocy witnessed.
Ann Althouse said...
The Supreme Court has the authority to find the meaning of the Constitution and announce it in opinions that bind all other courts.
This was not in the Constitution itself but was declared by the Supreme Court as a power of the court in Marbury v. Madison (1803). Was that in fact a constitutional decision or a massive power grab by the court?
"Look, only an imbecile or a liar would actually claim that the US Constitution created a right to same sex marriage, or even that it creates a "right" to engage in homosexual behavior...."
Where does it forbid same sex marriage or homosexual behavior? Where, in fact, does it address the subject of marriage at all? What about all that blather about the ninth amendment? Does it become moot when legal rights are granted to people you disapprove of?
Althouse: No, I didn't. The "will of the people" refers to democracy, and the Supreme Court's decision is based on constitutional law, which gives rights to individuals and minorities against the majority. The will of the people is trumped when it comes to constitutional rights.
Look at yourself, prattling on and on with your mind so poisoned by the Pink Gestapo that you forgot that individual religious liberty is one of those very rights.
In fact, it's kind of a biggie.
Why does the favored intelligentsia get to pick and choose which parts of the law are following and enforced through holding a democratically elected official in contempt and imprisoned for failing to execute a law she in her discretion does not find worth enforcing?
Are state prosecutors jailed for failing to prosecute an offender? Are judges jaed for failing to order the death penalty or mandatory minimum?
"Should we accept (there's that word again) IRS agents resisting tax-exemption applications from groups that represent politics they think are evil?" Bad strawman. Yes, it burns easily -- but it is not a good analogy. The Constitution does not protect "freedom to not participate in evil politics," it does say something vaguely about freedom to practice religion without government interference.
"Where does it forbid same sex marriage or homosexual behavior? Where, in fact, does it address the subject of marriage at all? What about all that blather about the ninth amendment? Does it become moot when legal rights are granted to people you disapprove of?"
Robert Cook proudly displays his ignorance of American history. The constitution is not the Ten Commandments, for Christ's sake.
"This idea that we are criminalizing a refusal to affix one's own name to a document that offends anyone's religious conscience is dangerous indeed."
That's not what is happening. This is punishment for refusing to do one's job and refusing to comply with a court order.
Particularly so where the document flies in the face of thousands of years of recorded history and directly against clear scriptural teachings. (Yes, libtards are fond of arguing that Jesus never mentioned homosexuality. That's because they are illiterate idiots.)"
Since when must US law abide by scriptural teachings? How do you know what "thousands of years or recorded history" may include among acceptable marital practices? Have you looked at every society over these thousands of years to ascertain what every culture has permitted? Since when may public employees refuse to to their jobs because of their personal religious beliefs and expect not to be sanctioned in some way? (Yes, some laws are unjust and immoral, and public employees who refuse to obey them or enforce them are brave...but they must still expect to be sanctioned.)
"Robert Cook proudly displays his ignorance of American history. The constitution is not the Ten Commandments, for Christ's sake."
What does this even mean?
Kim Davis is not a public employee; she is an independently elected local official.
When she chose to take the stand she did, the thing to do was to go around her; there was no need to go through her,
Hagar,
If she is not a public employee, she is certainly a public servant. Her role is to perform her function as it serves the public.
That aside, how do you suggest they might have gone around Ms. Davis?
FACT: Davis is in jail because she refused to affix her name to a document she found objectionable.
JASON: We shouldn't be jailing people for withholding their names from documents to which they hold a principled or religious objection.
COOKIE: "that's not what's happening."
Fuck off, libtard. It's precisely what's happening.
"This is punishment for refusing to do one's job and refusing to comply with a court order."
Hey, Jason...learn to include the part of my statement that is most pertinent. That Ms. Davis has a "principled or religious objection" to performing an aspect of her job is irrelevant and does not permit her to refuse to perform her duties without consequences. She is not being jailed for her religious views, she is being jailed for violating a court order to do her job.
"'The Supreme Court has the authority to find the meaning of the Constitution'/Even when they are 'finding' a meaning that was obviously never even remotely contemplated by the people who wrote it, or who voted for the amendment?"
Absolutely. Part of the authority is authority to decide what methodologies of interpretation to use. Notice how Mick, supra, said that "natural law" ought to govern. Natural law is something other than what the people who wrote the amendment contemplated. Part of deciding is deciding how to decide.
"If so, then you're not following the Constitution, you're just twisting it into Newspeak to mean whatever you want it to mean."
No, it isn't. And originalism can also be twisted to get where you want to go. The Court is saying what the Constitution means, and that's not easy to do, but the problem of getting where you want to go will always be there, and in the end, the Court has the authority to say and the bindingness of those decisions is clear. If you don't like it, seek an overruling, but you won't get that on this one. Or try to amend the Constitution, but that is extremely unlikely to work. Your only hope is to win enough election cycles with strongly anti-ssm candidates and over time get new Justices who will do want you want. But Justices who do what you want is, ironically, exactly the problem you are complaining about.
"Those of us who refuse to respect such shredding of the actual text and obvious intent are now the ones accused of disrespecting it's authority. Same as it ever was."
Part of the text you purport to respect is the authority of the Court in saying what the law is. Do you really respect the text or are you just saying that with respect to outcomes you want?
"You forget to consider that gay marriage was decided against the will of the people by an incoherent moron on the Supreme Court."
No, I didn't. The "will of the people" refers to democracy, and the Supreme Court's decision is based on constitutional law, which gives rights to individuals and minorities against the majority. The will of the people is trumped when it comes to constitutional rights. This is such a basic proposition of constitutional law that I don't repeat it every time it is foundational to other points.
It's not foundational any longer if a charade takes over. Instead, your system breaks. Law doesn't work any longer.
The will of the people turns up as correction instead of foundation, when the system breaks down. That's how you fix the system.
If it didn't have this power, you wouldn't have a system in the first place.
The maxim is that successful systems are systems designed to run downhill.
(John Gall, _Systemantics_)
See also Pareto optimum, which is how you get consent. Consent is downhill.
Power is famously a confused word, separating out as auctoritas, imperium, potestas and officium.
How you develop any of these depends on sociological stuff, which, in the end, rules.
You've got to get the herd going the same way.
People agree to the system because it leaves them better off.
When it no longer leaves them better off, they don't.
Obama has pretty much squandered away all the goodwill on the balance sheet, and here we are.
"Part of the text you purport to respect is the authority of the Court in saying what the law is"
Where does it say that? And where does it say that the Court has the only and exclusive authority to "say what the law is"?
Here, I'll cite the actual, you know, Constitution:
"Article III.
Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make"
I know, I know, you tout an old party line, and yes, I have studied Marbury, and so on and so forth. But there is a text in this class.
And originalism can also be twisted to get where you want to go.
Think of originalism as finding what people thought they agreed to.
Not the original people, but people today, not that there isn't a connection.
Tradition is an imposition plus the choice of people today.
Part of the text you purport to respect is the authority of the Court in saying what the law is. Do you really respect the text or are you just saying that with respect to outcomes you want?
Was Plessy vs Ferguson a correctly judged case? Because there is more justification for it Constitutionally then there is for SSM.
And the "uintended consequences" will come out, just as opponents noted, and the supporters will be stunned, as per usual. Just like how people said "no fault divorce" will ruin marriage and they were pooh-poohed.
"How would a marriage affect you?" A single marriage one. The societal change attached to it will vastly impact others.
Professor, aren't you concerned that it's gone from "My marriage won't harm you" to "Support what we do or else?" so quickly?
And, on a pure scale of practicality, if the majority really don't support something and they are ignored and repressed --- if the ballot box won't give them what they want, people have pursued their desires by OTHER means. What will happen if that occurs here? Few people will die on the hill that is SSM. But I bet far more will die on the hill to oppose it.
If the First Amendment was suddenly ruled as making, say, tenure illegal (freedom of assembly, we'll say) ... would you be OK with it if the SCOTUS signed off on it?
If you argue there should be no punishment because the law is unjust, then you are not challenging a law, you are challenging the rule of law.
I think this is at the heart of her moral case which is winning for all the objections of "law professors" and leftists. She is accepting the punishment , just as Martin Luther King did.
The gays went too far with their attack on bakeries and photographers. They went beyond tolerance which is pretty common in this society. All sorts of leftist and counter culture groups have gone beyond tolerance and will now see a backlash they should have anticipated.
What is going on in Europe, and will be here before too long, is going to create a firestorm.
Obama has let loose the Dogs of War. The USSC has helped.
Cookie,
Ms. Davis herself has suggested that the State just authorize a new format for the marriage license form, such that her name would no longer appear on it.
I do not know if the governor actually has the explicit power to do so without the legislature, but I think the people of Kentucky would be happy to let that pass without much objection in these times.
This might have been the easiest way out.
The straightforward "legal" way, would be for the governor to call a special session of the legislature for the purpose of impeaching her and removing her from office. That would, of course, take some time.
The laws of Kentucky must have some provisions for what to do when a serving County Clerk for some reason becomes incapacitated. I would think the Governor and A.G. of Kentucky ought to be able to cook up some scheme, that would appear halfway legal on the surface anyway, to declare Ms. Davis incapacitated and replace her with a more pliable candidate.
And so on.
"lawprof" said
"No, I didn't. The "will of the people" refers to democracy, and the Supreme Court's decision is based on constitutional law, which gives rights to individuals and minorities against the majority. The will of the people is trumped when it comes to constitutional rights. This is such a basic proposition of constitutional law that I don't repeat it every time it is foundational to other points".
Of course that nonsense, because the case invented a "right" that does not exist in the Constitution. The fact that the court has become a political entity as biased as a political party has undermined its authority to "say what the law is", especially when dykes at the SCOTUS have performed "gay weddings" and did not recuse themselves.
"Law prof" said,
"Absolutely. Part of the authority is authority to decide what methodologies of interpretation to use. Notice how Mick, supra, said that "natural law" ought to govern. Natural law is something other than what the people who wrote the amendment contemplated. Part of deciding is deciding how to decide".
I am sure you would agree that the Declaration of Independence is part of the founding documents and is a source of the law:
"and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them...." Declaration of Independence
There is no "gay marriage" in the laws of nature and nature's god. It is a fiction, and an abomination. Polygamy has more validity in the laws of nature than "gay marriage", and your view is colored by the existence of the gay son--- so your opinion is slanted and self serving.
Are the people who think she should either do her job or resign opposed to a reasonable accommodation, like taking her name off of marriage certificates?
And if opposed to this- is the opposition because this particular request seems unreasonable, or is it a more general opposition to accommodation of religious conscience in the performance of government service?
There is no principle behind it at all, CStanley. All they want is a scalp.
BURN THE JESUS WITCH!!
In 2nd Amendment issues, "may issue" states have sheriffs or mayors or clerks sign carry or owenership licenses for gun buyers, or concealed carry licenses, on a subjective basis. In NY, that means Trump has a license to carry a handgun but most cab drivers don't.
The replacement of "may issue" with "shall issue" laws about guns made objective criteria the basis for approval of requests for permits to carry or licenses to own. The next step in 2nd Amendment Civil rights is the removal of permits for ownership or carry, as has been done successfully in Arizona and is underway elsewhere.
This marriage license issue is similar. The law is "shall issue" and Davis refused to issue the license. She will lose in any court in the land.
The correct next step is to take the county clerk out of the marriage licensing operation entirely. A certificate should be able to be obtained online by the marriage partners, without any approval or disapproval from the state, meeting objective requirements for a legal marriage.
The rights of the people are the foundation. That's why a majority of votes can be trumped by the Bill of Rights.
But who defines the "rights of the people."
In colleges the Bill of Rights has been revoked for individual men in cases of alleged sexual assault but that's OK with liberals. Yet the Bill of Rights is supposedly sacred when it means that Kim Davis wrong to live by the religion she does and hold an office in the state.
The Constitution is just a rag doll the liberals are playing with. They are using its sacredness to others to coerce others to act against the true meaning of the United States just as Southern Senators from 1786 to 1860 used the threat of secession from the Union to defend laws like the Fugitive Slave Act which were actually the deepest possible violation of the Union.
This country is about political and moral freedom. If the gays want "marriage" they have to start working to make sure political and moral freedom lasts for all. If their "civil rights movement" is just going to be about them, then it speaks very poorly for them as a group. And it won't last.
Religious objectors vs. gun control advocates.
One of these is a protected class. The other is not.
Kim Davis was elected by by her county’s voters as their representative in the County Clerk’s office.
Acting on her conscience, informed by her Christianity, this people’s representative was put in jail for her resistance to the new state-imposed same-sex marriage law; a law created after she took office by the Supreme Court in a ruling aimed to replace the primorial human institution of marriage.
The longer they keep her in jail, the more likely Km Davis will become a historic figure of civil disobedience for Christians.
The Supreme Court has the authority to find the meaning of the Constitution and announce it in opinions that bind all other courts, including the court that found Davis in contempt. This authority does not depend on whether the opinions are well-written or soundly reasoned.
Ann, on the entire theoretical Constitutional Law front, you are probably correct.
On a practical front, it is hard to justify any respect for the Supreme Court in particular and the Constitution in general if this is the standard. This is literally "we can make stuff up if we feel like it" standard. When you apply this standard, we have the most undemocratic branch making up law on a whim.
This is not Rule of Law.
Do remember that the practical front is the one that ultimately matters. It tends to be better armed than the average law library.
But on the plus side, maybe the Supremes could order us all to wear our underwear on the outside of our pants. They can declare all of us superheroes! Because reasons!
Ann Althouse said...Should we accept (there's that word again) IRS agents resisting tax-exemption applications from groups that represent politics they think are evil? Think of resistance from the inside by police officers, teachers, judges, social workers, prison wardens, and the rest of the immense cast of characters that make up the government and against whom we, the citizens, assert our civil rights.
Should we is at best a mildly interesting question, since I'd bet nearly everyone will say no. Do we is a more interesting question, since to me the answer is clearly YES but I'd bet there are a large number of people (I'm guessing mostly on the Left) who will say no, we don't. I've been using the IRS example of Lerner since the Davis story broke, but there are many, many others--ATF, EPA, local sheriffs & cops...but very few of those instances where public servants have bent, violated, or ignored the law in ways that just happen to coincide with their ideological leanings have garnered much attention nor inspired widespread outrage/protests. Hell, abuse of the John Doe law in your own state seems like a pretty good example! But how much coverage do those instances get in the Media? If we agree it's bad behavior (which is what the should means) and we agree that bad behavior should be deterred, why haven't we seen any calls for punishment in the Media?
Undermining the rule of law is dangerous and harmful to our nation's health. The Media screamed bloody murder about signing statements, the idea of a unitary executive, etc. for 8 years when an R was President, but doesn't seem to care about abuse of executive orders/power/unprecedented use of "prosecutorial discretion" to avoid following the law, etc, now that a D is in office. Citizens are learning that the government doesn't have to follow the rules, and that when people they disagree with are in power citizens of the other political persuasion are in danger from the state--they can be abused, harassed, and punished and not only won't are they unlikely to receive protection from the law itself (de facto), but also no one in the Media will give a shit. We're not quite to the Blues vs Greens stage yet, but this kind of thing puts us a little bit closer every day.
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""Why isn’t undermining one’s job from the inside, in the service of a larger moral goal, an acceptable form of revolution?""
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Professor, weren't you just prating about this the other week or month, but then it was something to do with college students and employees being encouraged to suborn their institution?
The Constitution was amended by a process not allowed by the Constitution. The Courts just did it on a whim.
They made the law as though they were the legislature.
Now they are enforcing it. These people could have been married any number of ways, by going to another county, by getting a judge to bless their marriage. But instead they want to make sure everyone knows that the Courts are in charge of us.
I find this oppressive power grab to be unamerican and frightening.
The Roberts Court is squandering the legitimacy of our judicial branch.
Now, when the shooting starts, will it be a war of all against all, or will it start with assassinations of people like this judge?
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