Stephanie
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- Jul 11, 2004
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Another look at all this. what do you all think?
SNIP:
Kim Davis And The Rule Of Law
Kim Davis views her stand as simply one of conscience rights, but it implicates many more questions about the rule of law and the democratic process.
By Richard Samuelson
September 10, 2015
.
When a public official cannot enforce the law in good conscience, he or she should resign and work to change the law through regular channels. That is my first instinct with regard to Kentucky clerk Kim Davis’ refusal to issue marriage licenses. Charles Cooke made
essentially that argument in National Review. Having read and reflected further on the case, I am starting to wonder if the question is actually much more interesting.
Davis is an elected official. When the people elected her, she had no objection to the law of marriage as it existed. A couple of months ago, the Supreme Court changed the legal definition of marriage in Kentucky—or, at least, asserted its right to do so. (One could argue that the Supreme Court, in fact, only asserted that it is unconstitutional not to allow people of the same sex to marry, but since we have separations of power, it is the duty of the legislatures of our states to change their laws to comply with the court’s demands).
Since the key practical fact is that the law has been changed since Davis was elected, the logical reaction is not simply to resign, but to resign and to campaign for re-election. If the people want to elect someone who disagrees with either the Supreme Court’s power to change the definition of marriage or simply with the new definition of marriage, then she should, with the people’s blessing, continue to follow the law of the land as her district understands it, and be willing to suffer the legal consequences on behalf of her constituents.
Davis views this matter as simply one of her rights of conscience, but it, in fact, implicates many more questions about the rule of law and the democratic process. Were American civil education stronger, that element of the story would getting much more play in the press.
It Would Be Easy to Accommodate Kim Davis
The most interesting analysis of the question is Eugene Volokh’s account. Volokh is one of America’s leading experts on religious liberty, and his account of the case is enlightening and fascinating. Volokh reminds us that religious exemptions to generally applicable laws are common in the United States—from Quakers who refuse to fight, to a “philosophically vegetarian” bus driver who refused to hand out free hamburger coupons. (Note that, in this case, our courts agreed that the word “philosophy” used in this sense means religion—our fundamental moral beliefs, values, or practices.)
Religious exemptions to generally applicable laws are common in the United States.
Moreover, he points out that what Davis wants is an accommodation that would entail nothing more than changing the legal form of marriage licenses in a small way. He points out that she would be content with, in the words of her legal briefs: “Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.”
Volokh argues that she might actually win such an exemption under Kentucky law, although not federal law. If Davis turns to Kentucky courts and wins such a change, that would conclude the matter. In response to the argument that such an “accommodation” is, in reality, a legislative change that would require an act of the legislature, Volokh finds that Kentucky law already provides for such an accommodation.
What’s Really Happening Is the End of Law Itself
That opens up a whole second set of questions. It is one thing for a religious-freedom law to require accommodations or work-arounds that would, for example, exempt a religious Muslim or Jew from head-covering laws or facial-hair requirements, and another for one law, as if by autopilot, to change the wording of a legal form. But if courts are allowed to, in effect, dictate the content of our legal code rather than, as they traditionally did, simply reject unconstitutional law, that might not be so unreasonable.
More and more of the laws under which we live are not legislation passed by our legislatures.
That Volokh’s interpretation may very well be correct shows us how far the very idea of legislation has been degraded in the United States. After all, more and more of the laws under which we live are not legislation passed by our legislatures. Instead, they are rules created by unelected bureaucrats or, as in this case, unelected judges—and in both cases they usually have jobs for life, making them, in effect, a postmodern form of robe-nobility.
How to fight against such intrusions upon the rights of we, the people? As in all other fights, we need to fight intelligently. Moreover, we also need to do our best to see the full contours of the fight we are in.
What Do Kim Davis’s Constituents Think?
ALL of it here:
Kim Davis And The Rule Of Law
SNIP:
Kim Davis And The Rule Of Law
Kim Davis views her stand as simply one of conscience rights, but it implicates many more questions about the rule of law and the democratic process.
By Richard Samuelson
September 10, 2015
.
When a public official cannot enforce the law in good conscience, he or she should resign and work to change the law through regular channels. That is my first instinct with regard to Kentucky clerk Kim Davis’ refusal to issue marriage licenses. Charles Cooke made
essentially that argument in National Review. Having read and reflected further on the case, I am starting to wonder if the question is actually much more interesting.
Davis is an elected official. When the people elected her, she had no objection to the law of marriage as it existed. A couple of months ago, the Supreme Court changed the legal definition of marriage in Kentucky—or, at least, asserted its right to do so. (One could argue that the Supreme Court, in fact, only asserted that it is unconstitutional not to allow people of the same sex to marry, but since we have separations of power, it is the duty of the legislatures of our states to change their laws to comply with the court’s demands).
Since the key practical fact is that the law has been changed since Davis was elected, the logical reaction is not simply to resign, but to resign and to campaign for re-election. If the people want to elect someone who disagrees with either the Supreme Court’s power to change the definition of marriage or simply with the new definition of marriage, then she should, with the people’s blessing, continue to follow the law of the land as her district understands it, and be willing to suffer the legal consequences on behalf of her constituents.
Davis views this matter as simply one of her rights of conscience, but it, in fact, implicates many more questions about the rule of law and the democratic process. Were American civil education stronger, that element of the story would getting much more play in the press.
It Would Be Easy to Accommodate Kim Davis
The most interesting analysis of the question is Eugene Volokh’s account. Volokh is one of America’s leading experts on religious liberty, and his account of the case is enlightening and fascinating. Volokh reminds us that religious exemptions to generally applicable laws are common in the United States—from Quakers who refuse to fight, to a “philosophically vegetarian” bus driver who refused to hand out free hamburger coupons. (Note that, in this case, our courts agreed that the word “philosophy” used in this sense means religion—our fundamental moral beliefs, values, or practices.)
Religious exemptions to generally applicable laws are common in the United States.
Moreover, he points out that what Davis wants is an accommodation that would entail nothing more than changing the legal form of marriage licenses in a small way. He points out that she would be content with, in the words of her legal briefs: “Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.”
Volokh argues that she might actually win such an exemption under Kentucky law, although not federal law. If Davis turns to Kentucky courts and wins such a change, that would conclude the matter. In response to the argument that such an “accommodation” is, in reality, a legislative change that would require an act of the legislature, Volokh finds that Kentucky law already provides for such an accommodation.
What’s Really Happening Is the End of Law Itself
That opens up a whole second set of questions. It is one thing for a religious-freedom law to require accommodations or work-arounds that would, for example, exempt a religious Muslim or Jew from head-covering laws or facial-hair requirements, and another for one law, as if by autopilot, to change the wording of a legal form. But if courts are allowed to, in effect, dictate the content of our legal code rather than, as they traditionally did, simply reject unconstitutional law, that might not be so unreasonable.
More and more of the laws under which we live are not legislation passed by our legislatures.
That Volokh’s interpretation may very well be correct shows us how far the very idea of legislation has been degraded in the United States. After all, more and more of the laws under which we live are not legislation passed by our legislatures. Instead, they are rules created by unelected bureaucrats or, as in this case, unelected judges—and in both cases they usually have jobs for life, making them, in effect, a postmodern form of robe-nobility.
How to fight against such intrusions upon the rights of we, the people? As in all other fights, we need to fight intelligently. Moreover, we also need to do our best to see the full contours of the fight we are in.
What Do Kim Davis’s Constituents Think?
ALL of it here:
Kim Davis And The Rule Of Law
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