This is sort of an off topic post, but it ties back to guns in the end, I promise. By now most of you have heard the controversy over Rowan County Kentucky Clerk Kim Davis not issuing same-sex marriage licenses, and being jailed for contempt of court for refusing to obey court orders to issue them. A lot of conservatives have been arguing that to jail Ms. Davis, but not to jail anyone involved in failing to enforce immigration laws in sanctuary cities, amounts to a double standard. On the surface, it might seem like the same issue, but they are subtly different, and legally quite different.
First, we go back to the time before the Civil War, and before the 14th Amendment. Under the original constitution, the states were understood to enter into the union with their sovereignty intact, with both the federal government and state governments being separate sovereigns. So how does this work in practice?
In 1793, Congress passed the first Fugitive Slave Act. A number of states actively undermined the Act by refusing to enforce it. In the early 1840s, the Commonwealth Pennsylvania was sued, and the case went to the U.S. Supreme Court. The Court ruled that while federal law was supreme over state law in this area, the states were under no obligation to enforce federal warrants against runaway slaves, or to otherwise enforce federal law. This is pretty much directly applicable to federal immigration warrants. San Francisco is no more obliged to enforce federal law than Pennsylvania was in 1842. But this is not the end of our story, because something very calamitous happened, and that was the Civil War.
The 13th, 14th, and 15th Amendments are known collectively as the Reconstruction Amendments. The Thirteenth Amendment abolished slavery, and the Fifteenth Amendment provided voting rights for black men. But the Amendment we’re really interested in here is the 14th, which provides that:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This was a radical idea. So radical the Supreme Court would mostly redact it out of the constitution. It wasn’t restored until later in the 20th century, and even today it is not fully restored. What the 14th Amendment essentially did was waive the states sovereignty to a limited degree. When it comes to protecting rights and equality before the law, the federal government is supreme over any state law. This was the intention of the people who drafted the amendment in the first place.
Kim Davis is in jail for contempt because the Supreme Court ruled that same-sex couples had a due process right to marriage under the 14th Amendment. San Francisco officials are not because immigration is a matter of ordinary federal law. A lot of ink has been spilled about whether the Obergefell decision was right or wrong, or about whether it should have been decided as an equal protection issue rather than the strange reasoning Justice Kennedy used in his opinion. But that’s neither here nor there, because legally same-sex marriage is now a right, and state officers can’t interfere with its exercise by denying marriage licenses (one can wonder why marriage licenses are constitutional in the first place, but that’s another post).
I said I would tie this whole thing back into guns. Well, I won’t tie it back, the Supreme Court already did in 1997 when it handed down its opinion in Printz v. United States, an NRA funded case challenging the constitutionality of the Brady Act. The Brady Act made a key constitutional error, in that before NICS was in place, it required local police and sheriffs to conduct background checks on prospective gun purchasers. Most police departments were overwhelmed, because the gun control crowd has never understood that buying gun isn’t solely the domain of a small handful of nutty extremists, but something ordinary people do every day. Jay Printz was a Montana sheriff, and sued the federal government arguing that as an agent of the State of Montana, he was under no obligation to enforce the Brady Act. This case bought us into the modern era of the anti-commandeering doctrine.
The idea that the states can’t be forced or commandeered to enforce federal law is pro-freedom. As gun owners, the states act as a bulwark against future infringement by the federal government on our Second Amendment rights. Sure, the feds are always free to enforce their own laws, but the truth is the feds don’t have the resources to counter widespread civil disobedience on the part of gun owners to whatever gun control schemes they may concoct in the future. Enforcement of federal law generally requires willing cooperation by the states. There will be times when you might not agree with a state’s defiance of federal law or policy, but as someone who believes strongly in a limited federal government, I would never argue the states simply don’t have the right.
Very well put. Thanks as always for the good analysis.
I second that! Thanks for a very informative post.
It strikes me that if you grant government officials the authority to deny shall-issue licenses on personal whim, then an anti-gun state official could shut down carry licensure in a state by simply refusing to issue them. We have had exactly that problem here in NC, with local sheriffs sometimes refusing to issue pistol purchase permits to citizens whose lifestyle they personally disapprove of.
The idea that a government official can deny you your civil rights because he/she disapproves of your personal choices is not a precedent we want to set, I think.
An element of my soul understands that you need to obey the law of the land, even if you disagree with it.
Another element realizes that sometimes you need to stand for what you believe to be true, even if it means you go to jail.
And a part of me wonders if there shouldn’t be a place for someone in Government, if they believe something isn’t a right, and is even morally wrong, but they are required by Government to act in a certain way.
And another part of me facepalms, and says “This wouldn’t happen if we would just get government out of the marriage business altogether, excepting possibly a role for enforcing contract law.” (That’s the anarcho-capitalist in me, by the way.)
While I commend the clerk for her determination to do what is right, I can’t help but wonder if there isn’t a better way to do what she’s doing…
(Since she happens to be a Democrat, it’s also a reminder that all these Culture War issues aren’t always as cut-and-dry Republican vs Democrat as we are led to believe…)
The government can’t get out of the marriage business, because there are rights attached to the status of being married and therefore it has to have a definition of what “married” means. Take spousal privilege, for example. Your spouse can’t be compelled to testify against you and communications between spouses are also privileged. This last part is hugely important because it means that a spouse can share other privileged information, such as discussions with an attorney, without breaking that privilege.
Spousal privilege, however, applies only between people who are actually legally married, and only to events during the marriage. So there needs to be a way to establish what’s a marriage, when does it begin, and when does it end. And it’s all tied up with the government, because the courts and the law are a governmental function.
Anything that can be handled via marriage licenses can just as easily be handled via contract law, including spousal privilege, which could simply be granted to anyone who has a marriage contract.
Raises the more fundamental question of why spousal privilege exists.
What precise qualities of what used to be a traditional marriage relationship were so vital as to justify shielding one particular kind of legal partnership from being forced to testify. Do those same qualities exist/persist today with non-trad or less-trad “marriage” relationships?
As we say in philosophy, that needs unpacking rather than being taken as a given.
“Anything that can be handled via marriage licenses can just as easily be handled via contract law…”
I agree, and I have long pointed out that just as you can (could?) buy a standardized real estate rental agreement at any good stationers store (maybe LegalZoom today?) the same thing could be true for marriage contracts. They could contain whatever is now considered “standard” or “implied” — with provision for those things to be crossed out and initialed — and plenty of room for people or their churches to pencil in other provisions. Churches could provide their own contracts, or require approval of a couple’s own contract before performing a marriage.
A good deal of our current friction results from what is essentially a collection of religious concepts becoming codified by The State.
There used to be common law marriage, where if you were to come in contact with the courts in a dispute over the marriage, if you had held yourself out as married, you were married in the eyes of the law. No licenses needed. If a church record could be produced, you were living as a married couple would, or if you had ever indicated or stated the other person was your spouse, that was it…. you were married.
Keep in mind that marriage is a fundamental right, but subject to licensing. What other right can we think of that a lot of people think should be subject to licensing?
“There used to be common law marriage…”
At least 30 years ago I was in a meeting with the county Register of Wills when she made the statement “there is no such thing as common law marriage in Pennsylvania anymore.” Yet recently I heard of a decision favoring a plea by a same-sex couple, based on that their relationship had been a long-term common law marriage. Possibly the fact that they could not marry in any other way at the time entered the decision.
Of course I am basing a lot on what one political dingbat said to us 30 years ago, and that I never researched.
There still is such a thing in Iowa. Almost all other states have gotten rid of it–there might be one or two others left.
IANAL, but, my understanding is that (as of now, based on the latest relevant state supreme court decision) if the existence of the marriage is in dispute, as far as the court is concerned their findings hinge on whether you have ever filed your taxes as “married”. Otherwise you pretty much are what you say you are. But once you become/are found to be common law spouses, you stay that way until you get formally divorced.
Odd. I never have to do any paperwork or ceremony or reporting to establish an attorney-client relationship. I’ve not heard of doctors having one. Or clergy, and they don’t even need a license; no government approval whatsoever. The precise date the relationship started can matter with those, too, yet somehow we can manage to suss it out afterwards, in court, if it comes up. Your argument is spurious.
There really is no need for a marriage to be between a man, a woman, and the State.
By the way, spousal communications privilege is applicable to communications that took place during the marriage, persists after it, and may be claimed by either party. Spousal privilege regarding testifying is at the option of the testifying spouse, and only exists during the marriage. It’s really two privileges.
“There really is no need for a marriage to be between a man, a woman, and the State.”
I like that. I’ll have to remember it.
It raises a good question for religious historians. To what extent in Jesus’s time and place was marriage a three-way between a man, a woman, and The State?
It would raise the further question why, if The State horned in later, Christians didn’t raise bloody hell that marriage was being redefined as something Jesus never had intended?
“It would raise the further question why, if The State horned in later, Christians didn’t raise bloody hell that marriage was being redefined as something Jesus never had intended?”
Because, if I understand it correctly, at the time the church and the .gov were intertwined, and the .gov was enforcing the church’s will. Also, it started because priests were marrying people who didn’t meet the church’s requirements (publishing the banns, etc.). Involving the secular authorities gave the church another way to enforce their will.
It’s my understanding that, at least in this country, the involvement of the state in marriage is largely an outgrowth of the Jim Crow era: it was a way to prevent those with differing skin tones from marrying.
The state is involved in that you’re an attorney recognized to practice before the bar, which allows the attorney-client privilege to exist in the place. Lacking that recognition, communications between you and your clients would not be privileged. The state sets the definition of who is recognized as an attorney. The state sets the criteria for what must be done routinely to continue being an attorney. The state determines what must not be done to avoid being kicked out of the profession. Therefore, the state is smack dab in the middle of attorney-client relationships.
As for marriages, the state has the same problem. It needs to recognize what’s a valid marriage and what isn’t. Saying “make it a contract” solves nothing, because then is every conceivable form of marriage contract valid? If some are valid and some are not, then we’ve just looped back to where we were before with licensing, except now with contracts.
Bar associations are private entities; Requiring admittance to the bar in order to practice as an attorney is a form of economic protectionism that the government arguably has no legitimate right to enforce.
On the other hand, defining what qualifies as an attorney-client relationship for the purposes of attorney-client privilege is an entirely reasonable thing for government to do.
In other words, the state’s current role here is a mix of reasonable regulation, and unreasonable economic protectionism. Conflating the two as being one and the same, and then using that as a starting point to argue for more unreasonable government action is devoid of logic and reason.
“While I commend the clerk for her determination to do what is right, I can’t help but wonder if there isn’t a better way to do what she’s doing…”
There is.
If she cannot, in good faith, perform a required function of her office, then she should resign.
I suspect she hasn’t taken that option because she doesn’t want to give up her family’s dynasty.
“If she cannot, in good faith, perform a required function of her office, then she should resign.”
Just to play Devil’s advocate for a minute….
Look at it from the other side: If you were in a position to make a principled stand against something, would it make sense to cede your ability to make that stand?
Suppose we take her at her word that she was attempting to make a principled stand; You’re proposing that her two options were to A: Ignore her principles and affix her seal of approval to something she believes to be unconscionable, or B: Ignore her principles and step aside in order to allow someone else to permit something she believes to be unconscionable to occur. When seen from this angle the only way she can maintain the moral high ground is for her to be stripped of her authority, and thus her ability to make her stand, by those above her.
To be entirely clear, I don’t like ANY of the players in this controversy.
The clerk: Ignoring every detail about this controversy and focusing on how she comports herself, and how she speaks, she comes across to me as a petty, power-hungry tyrant. Frankly, that basic attitude is not one that I believe we should accept from our civil servants; To put it bluntly, it’s the attitude that results in the semantic equivalence between “civil servant” and “civil master.” If we could prevent that basic attitude within the ranks of our civil bureaucracy, I believe we’d all be FAR better off.
The local gays pushing the issue: Even though I disagree with the concept of state-issued marriage licenses (and thus the decision in the Obergefell case), they clearly could have gone somewhere else to get a marriage license. That they didn’t is another piece of evidence of how childish many in the “gay rights” movement are: For many in the movement their actual goals are clearly different from their stated goals. Personally, I find the disingenuous nature of their efforts to be very off-putting.
The media and politicians: It’s all about their agendas; For one side it’s about how “those eeeevivilll republicrats are oppressing teh gayz!” and for the other it’s all “War on Christianity!”
Frankly, the issue is simple: A petty local tyrant decided to engage in petty tyranny, and refused to apply her seal of approval to something that has no legitimate reason to require her seal of approval in the first place. The solution is simple and twofold: Dismantle the entire marriage licensing system, and remove the petty tyrant from office.
“they clearly could have gone somewhere else to get a marriage license”
Apply that argument to something else, like a concealed carry permit. Would it still fly?
What if every Clerk in the surrounding counties did the same thing. Would it then be right to make people have to drive 50 miles to get a marriage license? What about 100 miles?
“You can go somewhere else” is not an argument that should be applied to a right.
“You’re proposing that her two options were to A: Ignore her principles and affix her seal of approval to something she believes to be unconscionable, or B: Ignore her principles and step aside in order to allow someone else to permit something she believes to be unconscionable to occur.”
Instead, she’s taken option C: Use her position of power to force her religious beliefs about marriage on others.
Kentucky law requires residents of a county wishing to be married in that county to receive a marriage license from that county. There is no other option.
I’d also take issue even of making people go to a different county.
If true how does that make the case of the gay Ohio couple driving 3 hours to her office for a license?
Source? I have looked, I’ve only found information on one of the gay couples, and they live in that county. The other two couples are straight.
http://www.nytimes.com/2015/09/03/us/kentucky-rowan-county-clerk-kim-davis-denies-marriage-license.html?_r=0
You have to read down but Davis denied on Wednesday a Ohio gay couple
“Apply that argument to something else, like a concealed carry permit. Would it still fly?”
As it stands, my county requires indiviudals wishing to get such a license to apply in person. The licenses, if issued, are then mailed out at a later date. My original license took roughly 23 days to arrive. When I lost my wallet a few months ago, the replacement card arrived within 48 hours. My renewal this summer took over five weeks. This meant that for two and a half weeks, I didn’t have a valid LTCF.
Rather than this BS, some other counties in PA issue these licenses on the spot: You go in, you apply, they take your photograph, they run the check, and they then HAND YOU YOUR CARD. You’re in and out with your new LTCF in about the time it takes to buy a gun.
Frankly, if I had the option to go to another county in PA in order to receive such prompt service, I’d jump at it.
Furthermore, given that there are counties near mine that are WORSE than mine, I’m sure that people living in those counties would similarly jump at the opportunity to get theirs through a county even as backwards (relatively speaking) as my own.
Frankly, I believe that all such licenses should be issued by local authorities to ANYONE in the commonwealth: That way, no one can be effectively denied their rights by a local tyrant. In other words, I believe that the option to “go somewhere else to get your rights recognized” is a needed upgrade to our system of checks and balances.
“What if every Clerk in the surrounding counties did the same thing. Would it then be right to make people have to drive 50 miles to get a marriage license? What about 100 miles?
“You can go somewhere else†is not an argument that should be applied to a right.”
Whether you admit to it or not, you’re really proving my REAL point: If you have to apply for a license, then it’s a privilege and not a right.
If you truly believe that something is a right, then no licensing scheme is acceptable. As such, rather than expand the scope of the licensing scheme, your goal ought to be to end that scheme.
As such, I support the elimination of licensing schemes both when it comes to the carry of firearms, and when it comes to marriage contracts.
Right, just like the plaintiffs in Ezell v. City of Chicago could travel outside of the City of Chicago to get range training for a city license when the city banned the same range training for civilians. The 7th Circuit said flat out that you cannot ban the incidents of the requirement by requiring a license and then the local city on the other hand banning the practice. Post-Ezell, the city redressed their civilian “ban” into regulations, eventually the requirement to be only in industrial zoned areas only (Which killed any possible range possibility) was struck by the federal district court. The city licensing scheme itself was struck by the preemption provisions of the Firearms Concealed Carry Act, which was pressed by the post-Ezell case Moore v. Madigan.
Also, Gary Indiana back in 1980 pulled the same crap when it came to licenses to carry. It was struck down by two state court cases:
Motley v. Kellogg
https://scholar.google.com/scholar_case?case=8655675320887504129&hl=en&as_sdt=6,48&as_vis=1
Kellogg v. City of Gary:
https://scholar.google.com/scholar_case?case=400147649319596975&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Kentucky does NOT have common law marriage, so in order to be legally recognized as married, you must be licensed to marry either by a clerk or have a valid out of state marriage license, or a common-law marriage in another state which became a common-law marriage before traveling or moving to the Commonwealth.
The two sets of plaintiffs were one hetero couple and one gay couple, and both actually resided in Rowan County.
I urge all of you commenting on this issue to actually read the ruling from Judge Bunning. It includes comments like this:
Excellent analysis! I would suggest another comparison to show the disparity of federal court action though: Look at the incarceration of Harris, a government employee, when she disregarded a court order, and compare that to the San Diego county sheriff, another government employee, who is still walking free, even though he has not complied with the 9th circuits order to provide pistol permits without the need for ‘good cause’.
Take it a step further; how many people have been affected by both? Two, maybe four, people in Kentucky are not yet married, while over 7000 in San Diego still cannot protect themselves and the ones they love! Apparently some rights are more important than others I the eyes of the courts (and news media).
I believe the Sheriff did take applications without the good cause requirement during the window while the the 3-judge ruling stood, relied on the backlog delays to avoid issuing, then promptly went back to the good cause standard when the case was taken en banc and a stay was put in place.
“Look at the incarceration of Harris, a government employee, when she disregarded a court order…”
I would argue she went more than a step beyond “disregarding” the court order, to actively seeking to prevent others from implementing it. She argued that if her deputies issued marriage licenses, that the licenses would not be legal without her authorization. I understand that state officials in Kentucky dispute that.
Much of her personal defense was based on, that she “could not” obey the court order, and that inability to obey is a legal defense. But she took things a step farther by trying to prevent others from obeying it. I believe that was in the judge’s mind when he exercised his discretion regarding sentencing.
If she is the county X, and all marriage licenses are issued by the office of the county X, then it follows that all marriage licenses issued by that office are issued on her authority.
In other words, if her argument is that she cannot in good conscience issue a license for something, then it follows logically that allowing someone else to issue the same license in her place and on her authority would be equally unconscionable.
Maybe I missed it, but I do not recall anything being said about the magisterial (non-discretionary) duties of the office. Mrs. Davis understood, or should have understood, that taking the office of clerk involved issuing licenses as required by law. She is free not to issue marriage licenses to same-sex couples, but not free to do so in contravention of the duties of her office.
In other words, if she does not want to do something her office requires her to do she can step down, thus removing the obligation to issue marriage licenses. I’m not aware of anybody forcing her to remain in office.
The judge is right to hold her in contempt for her refusal to obey his order to obey the law. Those that do not like/agree with the decision of the Supreme Court are free to ask Congress to remedy things by passing a law that will pass constitutional muster.
stay safe.
“…She is free not to issue marriage licenses to same-sex couples, but not free to do so in contravention of the duties of her office…”
As some have pointed out, at the time she assumed office, the definition of “marriage” as it applied to the licenses her office issues fit with her alleged personal religious beliefs. The SCOTUS, in an example of what I believe to be deeply flawed case law, decided to force this issue upon her.
As such, I believe arguments that start from the premise that “she knew what she was getting into” are fundamentally flawed.
Very cogent analysis. I don’t agree with the actions of Mrs. Davis, and I believe she and her supporters to be on a crusade for media martyrdom……but I see the intrinsic value in States being the bulwark against Federal overreach. However, while there is no Constitutional guarantee of marriage…likewise, there is no Constitutional guarantee of law that denies civil liberty, sans at the very least, Rational Basis.
We don’t have to look back to the 1800s, because in the 1900s, the courts have also notified us that state officials are not bound to execute federal regulatory regimes. I suppose it becomes a good question, as to what are simply ‘federal regulatory regimes’ and ‘those federal regimes which carry out substantive rights’, the question being, did the court mean state officials to be required to abide — police? judges? Also, although it is not a duty, are state officers empowered to execute it?
Kim Davis is probably in the right jail but for the wrong reason and cause of action. If the government cannot license or tax the right, any officer, (here as Kim Davis,) is incompetent to issue such a license. Because she is not allowed to issue the license, someone should have sought an injunction against such conduct, and when she inevitably kept trying to issue straight-people fun-licenses, jail might have been an appropriate remedy for the contempt of that order. As an alternative, the issuing of licenses one has no power to issue is probably in many cases provable as misfeasance or malfeasance, or purjury as violation of oath of office, especially where that issuance is intended to codify one or more religions or partial religious institutions, or alternatively, performing the wrongful act of licensing with her clearly stated improper motive for licensing or not licensing. Jailed for criminal acts, jailed for violating what a court’s order ought to have been. Whatever.
Nothing about human or American life requires that our systems of government recognize anything beyond what contracts provide. We cannot and should not have gotten into the illegal business of privileging marriage. People are always free to suffer the joy of the privilege at their leisure and without subsidy or official overglorification. Further, every ‘just end’ we perceive marriage to supposedly provide, can be recognized and pedestaled, without any respect for the marriage itself. And the privileges/immunities which sprung up from the so-called institution derive from some messed up thinking about interpersonal relationships and the marriage system anyway.
But the point is, it isn’t just unwise, what we’ve allowed to occur; it’s unlawful. And the wrongdoing of the clerk is to ever issue a license in the first place, not to fail to issue them uniformly.
I have heard a few things recently that puts me more in line with Kim’s stance, if these things are accurate:
First, she doesn’t wish to stop the issuance of licenses; she merely doesn’t want to issue licenses with her name on them. Kentucky law currently requires her name to be on all licenses.
Second, she (and a certain number of other Kentucky clerks) brought up the issue with the Governor and the State Legislature even before this case was decided. The letter said “Hey, some of us are going to have a problem with this! Why don’t you change the law so that we won’t have this issue?” Nothing was done about it, though.
Now, if this clerk had been adamant about forbidding licensing no matter what, I would be inclined to oppose her actions, even though my sentiments are against SSM. (I also have sentiments about obeying the law of the land, unless it’s egregiously immoral.) However, I don’t think it’s an unreasonable accommodation to request a change in the law, where a clerk’s office could issue licenses, without requiring the clerk to be the sole issuing authority.
Of course, being the anachro-capitalist type that I am, I completely agree with the sentiment that we shouldn’t even be asking the State for permission to get married at all! ;.)