Kim Davis is the duly elected clerk of Rowan County, Kentucky. When she was elected and still in effect today, the Kentucky Constitution forbids issuing marriage licenses to same-sex couples. Since her election the Supreme Court has decided, in a 5-4 decision, that same-sex couples can, in fact, be married. This decision flies in the face of Kentucky law. Incidentally, the Supreme Court cannot make laws. If Kentucky decides to change its law and its Constitution to allow for the implementation of this new decision, then Kim Davis could and should be held accountable for violating the law. Until then, she has a problem. If she adheres to Kentucky law, she violates the Supreme Court decision. If she issues marriage licenses to same-sex couples, she violates Kentucky law.
Meanwhile a federal judge has decided she must violate Kentucky law or go to jail. This is what happens when various branches of government go outside their normal spheres and try to do another branch’s job. If there is to be a new law regarding homosexual marriage, then those new laws must be passed by legislatures and the U.S. Congress. Not by any court, period.
In this country we have what is known as “settled law.” For example, our immigration laws are “settled law.” When someone enters this country without our permission, or overstays their visa, they are, in fact, breaking settled law. When cities or counties or any officials of those entities look the other way, they are also breaking settled law. When employers employ undocumented individuals or when welfare organizations offer benefits or assistance to undocumented immigrants, they are breaking settled law.
The ruling by the Supreme Court is not law. It’s a determination by five lawyers wearing black robes. If their ruling is to become law, it must be dealt with by legislatures or the Congress. Laws must be enacted and signed by the executive. Unless or until that happens, it’s nothing more than a Supreme Court ruling.
Now, in the face of that, who should be arrested and jailed? Should it be Kim Davis who was following settled law in Kentucky, or should it be the sheriff and board of supervisors in San Francisco who clearly were violating settled law by giving sanctuary to undocumented immigrants? How about all the other municipalities who also give sanctuary to persons who are here illegally? How about the President who regularly ignores settled law and operates as if he is above the law? Or Hillary Clinton who has for decades skirted settled law and lived by her own rules?
I guess it’s a lot easier to pick on a little county clerk in rural Kentucky. I rather imagine the judge who ordered her to jail didn’t figure on the outpouring of support for Davis. I rather imagine if he had it to do over, he would have perhaps chosen a different remedy.
It gets down to this. When is a law a law? At what point is a law valid? And, in our form of government, who makes those laws? Our Constitution clearly lays this out. We have three equal branches of government. Each has its own duties and responsibilities. The Executive branch is the President. The President cannot make law. Next we have the Judicial branch. The Judicial branch cannot make law. Judges are referees. They look at laws to see if each is valid and constitutional. If they determine a law is unconstitutional, it’s referred back to the Legislature to be redone. At that point legislation is enacted, a law is written, and referred to the executive for signature in order to become law. Then and only then is a law a law.
The matter in Kentucky is less about religious freedom and much more about the law. Oh, and some serious political grandstanding.