Monday, September 14, 2015

Govt Licensing Marriage: A Match Made in Hell

The quicksand of dis-integrated Principles
So... Kim Davis, County Clerk in Kentucky, Marriage Licenses,1st Amendment, Rule of Law - are these all principles to stand up for? Are they all in conflict? What is this all about? The initial issue is not whether she has the right to act according to her convictions - she absolutely does - but whether it is proper for her convictions, religious or otherwise, to decide which of her elected office’s duties and powers as defined by law, that she will, or will not, choose to carry out - or more simply: Does the nature of her office allow for her to make such choices?

But that’s only the first question, and if you pursue no further questions, then any stand you might take, as I suspect she has, will necessarily be a stand for your personal preferences, not a principled stand.
"There are men, in all ages, who mean to exercise power usefully; but who mean to exercise it. They mean to govern well; but they mean to govern. They promise to be kind masters; but they mean to be masters. They think there need be but little restraint upon themselves. Their notion of the public interest is apt to be quite closely connected with their own exercise of authority. They may not, indeed, always understand their own motives. The love of power may sink too deep in their own hearts even for their own scrutiny, and may pass with themselves for mere patriotism and benevolence. " --- Speeches of Daniel Webster, Member of Congress, U.S. Senator from Massachusetts, and United States Secretary of State.

Of course, a number of people do start and stop asking questions with only that first question asked, partly because it quickly appears to them as if their principles are in conflict, and that scares them off. But can such principles, if valid, be in conflict?

No. So.... how's that again?

If you have a situation involving several valid principles - such as Religious convictions, Rule of Law, Constitution, etc. - and one or more of them seem to be in conflict with the others, then, assuming your principles are valid and rooted in what is True (and thus complementary), then some other issue is forcing them into an arrangement that has turned them against themselves. And please, if your principles are valid, for God’s sake don't cheer one at the expense of the others – Religious Liberty vs Rule of Law for instance - that can only destroy you as you use one leg to kick the other leg out from under you. Something is distorting the situation, and what you need to do is follow that first question up with others to identify the source of the distortion that is turning you against yourself, and put your house back in order.

If you don’t take care of first things first, then your attempt to take a principled stand, especially where your Principles, or where the idea of Principles as such are questioned or ridiculed, is going to be a dicey affair. In situations where principles are being pushed to the background, if not out of the scene altogether, you quickly find yourself in a pragmatic quicksand of disintegrated interests, and trying to find a reasonable position to take depends more and more upon which details seem more immediately advantageous for you to favor (which is one of the hallmarks and results of positivist, Pro-Regressive law), and it won’t be long before you find yourself either casting away the one principle you were hoping to defend, or repudiating all of the others you live by in defending it - and eventually you will do both, and lose all.

So before jumping on anyone's bandwagon, some work needs to be done on evaluating just what is going on and why.

First the facts
What is the Davis case ultimately about? No matter your feelings towards Davis, the issue boils down to the misuse of Govt power by govt official(s), operating outside the Law(s), in either their substance or procedures (Note: By ‘Substance’ I mean derived from logical arguments that are supportable. By ‘Procedure’ I mean in accordance with the legally established rules and processes), and interfering with or preventing the rightful actions of the citizenry.

Some immediate questions that brings to mind are:
  1. Q:Would it ever be proper for her, as an elected official/civil employee, to allow her convictions to determine which of her legal duties the office of the County Clerk will carry out?
  2. Q: If so, when?
  3. Q: Does this rise to that level?
  4. Q: Is she compelled to follow the law, or orders (ex: member of military or some other highly binding contractual agreement), or does she have other choices?
  5. Q: What is the law and is it being applied properly?
  6. Q: (is the law being applied properly)In both in substance and procedure, or only one or the other?
  7. Q: And what is the proper role, if any, of govt in relation to the citizenry's actions?
So those are my starting questions, to be followed up on probably, but not necessarily, in that order. To answer them we’ve first got to look at the facts that actually occurred… and beware of narratives and memes posing as facts.

When I heard the first reports on her case, the impression I had, which I was very much aware was taken from the media narrative, was that two events had occurred in quick succession:

1) the SCOTUS ruling occurred, and
2) She declared her refusal to comply with it.

That narrative is False. As I began digging into the SCOTUS Obergefell v Hodgins case, and the Kentucky statutes, it became apparent that she didn't just flip out on hearing the SCOTUS verdict and fly into a religious frenzy of withholding marriage licenses from her county's residents. Giving credit where credit is due - and blame where it is deserved - Davis saw the problem coming from as far back as January, and the facts are that she began alerting and petitioning the Governor, the legislature, the courts, that something needed to be done (her petition to SCOTUS for a temporary stay gives a good, though over wrought, accounting of the measures she took, and the responses to them) to accommodate the Clerk's offices around the state, so that if SCOTUS decided the Obergefell v Hodgins case as expected, the clerks wouldn't be put in an impossible situation. The fact is that her Kentucky government either didn't respond, or acted in a way that any clear thinking person can see as being questionable as to whether they tried to utilize the protections that their own RFRA acts provided (personally I think RFRA acts are bad laws being used to doctor worse laws, but… they are the law) were created for.

In my opinion, the majority opinion in the SCOTUS decision of Obergefell v Hodgins is a truly horrific offense against the nature of our laws, and the dissenting opinions ably point out why and in what way that is true (Justice Thomas' being my favorite, though Justice Scalia adds some gems). And there are several articles (some of which you can get to from here: and from here: ) that provide a good pro and con overview of reasonable opinions of the case and her actions in it. Much of what she had done prior to refusing to issue the licenses was admirable, and I do cut her a bit of slack on her actions, after all, attempting to take a principled stand in a situation where Principles as such have been discarded decades ago (or more), is a dicey affair.

But the fact is that Davis did petition the Gov, the Legislature, the Courts and the SCOTUS - and lost.

Now I fully agree that their decisions, top to bottom, were at best flawed, if not flat out incorrect, but part of the Rule of Law is accepting the ruling of the court, even when you know it is flawed or unfair. If, however, you enter the process, as she apparently did, with the expectation that if you don't get your way then you'll just disregard the law and do what you think is best anyway, no matter how that may abuse power - for the greater good - then that is not the rule of law, but a mockery of it.

And cheer-leading one principle on one point, is not supporting the Constitution or the Rule of Law, it’s only carping.
(And before you go all 'SCOTUS TYRANNY!' on me, don’t forget that YOUR part in a Constitutional Republic, such as that which we are trying our damndest to keep hold of, is to vigilantly observe where the courts fail, and then to pursue, persuade and agitate as need be in order to rectify the situation, either by further challenging the judgment in the courts, or by getting your legislators to pass new laws, or if it’s more serious than even that, to rebuke and reorganize the courts (see Jefferson), or if more serious still, seek to write and ratify new amendments (See these two in particular from my friend Lloyd Sloan). If you aren't willing to do that, then, SHUT UP AND SIT DOWN!)
To do otherwise, to assert your power over that of the law, or as the Law itself, in order to 'do good', is to implement evil.

Got to be able to be wrong, in order to be Right
The whole premise of a judiciary is founded upon the idea that we could be wrong, that no man is a just judge of his own cause, that a fair, reasonable, objective process - to the extent humanly possible - be set up, which we as a society pledge to comply with. If we, and doubly so for those in govt power, decide to ignore that, then everything falls to dust, as we become what Scalia described: 'Lawless'.

When the SCOTUS ruled that Andrew Jackson, Democrat, couldn't relocate the Indians, he infamously said
"John Marshall has made his decision, now let him try and enforce it."
- is that the sort of behavior we're now supposed to get behind? What do you suppose will, must, follow from that attitude? Other than Ferguson riots, shooting down cops, and other such instances of 'doing good' as we've already seen, I mean. Perhaps you'll do better?

Or perhaps not.

The painful truth remains, and the very continuance of the principle of the Rule of Law rests upon it, that when bad judgments are made, we still have to follow them to the extent that we can, or refuse to comply with them and take the consequences – that is civil disobedience.

But it ceases to be Civil Disobedience, and becomes an Uncivil disobedience, when a person in office inflicts their will over their options as defined by law - their options for exerting power are defined by law TO PREVENT THAT!

It is not civil disobedience for civil employees to take the power that they’ve been entrusted with, and turn it against We The People, and any action that a civil employee takes outside the law is an act against all of We The People, going as it does against the laws that are designed to bind governmental powers down – to break one link, whether by pen, or by phone, or by religious conviction, breaks the entire chain. She isn't simply refusing to comply with the law, she is using the power of her office to enforce HER judgment, not We The People's, upon us - that goes to the very essence of 'a nation of men', rather than one of laws, and you can’t keep a Republic without holding fast to that fundamental principle.

Are there instances where your convictions should prevent you from complying with the law? Absolutely. But making that decision is not something to be done lightly, it is further colored by whether you are among the governed or the governing, and the response must be commensurate with the flaw in the law – you don’t attempt to shut down govt because you received an unjust traffic judgment, conversely you don’t simply file suit if you see govt is going to deprive someone of their life without benefit of lawful procedures. You do have to use judgement, and the judicious application of principle – always as an aid to thought not a replacement for it, and derived from truthful observations of reality, not preferences – to particulars; what used to be known as Practical Wisdom, or Prudence.

Once again: Kim Davis tried all the proper avenues, and lost. The last option open to her in this leg of actions, would seem to be to resign. Resign loudly, perhaps even filing suit in the process, perhaps seeking to foster other legislative action, or even running for office herself, but losing and then attempting to hold the office hostage to her whims, is simply asserting her power over our system of law. That's a no-go.

Being Unprincipled on Principle
So where are we with following up those initial questions?
  1. Q:Would it ever be proper for her, as an elected official/civil employee, to allow her convictions to determine which of her legal duties the office of the County Clerk will carry out?
  2. a. Ever? A very qualified Yes.
  3. Q: If so, when?
  4. a. Such actions are permissible in extreme violations of existing laws where greater laws or rights are being unwarrantedly sacrificed to lesser ones, or in emergency situations, but only if those duties or orders violated the law or posed clear risks to life, limb and property – and knowingly at the risk of consequences.
  5. Q: Does this one rise to that level?
  6. a. No.
  7. Q: Is she compelled to follow the law, or orders (ex: member of military or some other highly binding contractual agreement), or does she have other choices?
  8. a. No, she is under no compulsion to carry out tasks she views as violating her convictions, resigning from office is an option for her.
  9. Q: What is the law and is it being applied properly?
  10. a. See Kentucky Statues, currently deemed by Kentucky Gov. to have been over turned by SCOTUS – NOTE: Overturning a law, and legislating by judicial decision are two very different things, and should itself be struck down, via the courts or further legislative means.
  11. Q: (is the law being applied properly)In both in substance and procedure, or only one or the other?
  12. a. In substance the SCOTUS opinion and the responses of the Gov, legislature and judiciary are faulty at best. But procedurally Davis has utilized the lawful recourses available to her and she has been responded to according to law, and no unlawful response is warranted.
  13. Q: And what is the proper role, if any, of govt in relation to the citizenry's actions?
Number #7 is now left to be answered, and it is through this question, IMHO, that the question of being able to invoke 1st Amendment protections of religious liberty comes from, and all the valid principles of Law, Rule of Law, Religious convictions, and more, are being contorted into a circular firing squad, through this aspect of the issue.

Where did this situation begin? According to Davis, the media and the whole gaggle of supporters and those opposing her, it began with her being required to approve of, and issue, SSM licenses - but did it?

To answer that question, we need to ask a few more. What has her position been for over two decades? Has the nature of her job actually changed? That’s a matter I’ve given some thought to, as that was the only avenue that I could see even a shred of an out for her. Take a look.

She has been elected to the role of County Clerk, a position she has held for over two decades, and a constant function of that job, by law, has been to oversee and endorse that the requirements of the State have been met, before using the authority of her office, and in her name, to license [pay special attention to that word] as marriage, those unions, whether Religious or Civil, that she has verified that the technical requirements of have been fulfilled, according to the procedures set forth by the state, and by doing so her function as Clerk gave to them the official license of lawful marriage.

I’d like you to read that over again, and please note, that although there are particulars that have recently been changed (as the particulars have changed several times over her tenure as clerk), that the functions of her office, and her position in it, have not, in principle, been altered one whit by the SCOTUS ruling.

Not. One. Bit.

The nature of her job has not changed since she was elected. The nature of the job: seeing to it that the State's requirements of who can and cannot marry are met, and under the states conditions, prior to her using her authority and in her name, to license either Religious Marriage or Civil Union, in order to give the State's official sanction of lawful marriage - that has not changed in the least.

The only thing that has changed, are some of the parameters of the requirements, that have always been defined by the state – not her religion – as has been the case in the entire term of her two plus decades as County Clerk, and which she has busily, and apparently thoughtlessly, been performing for that entire time. The fact that her myopic sensibilities are only now being disturbed, is more a consequence or her beginning from an unprincipled position to begin with. So now that she does realize that she has a problem with her religious convictions allowing her to perform the duties of her office, what can she do? Unfortunate as it may be, her choice is to choose to no longer be involved in the marriage licensing business under such circumstances, and resign.

Oh, I'm sorry, are the consequences of realizing what the proper response to the position she's held for the last couple decades, should have been, too tough to deal with? Are the consequences of realizing that her positions conflicts too much with her religious understanding of marriage, going to be too, too, tough to deal with? Ah, shucks. Say, let's all call Thomas Moore and see if we can't get a pity party going, shall we?

Give me a break. Better yet, forward that break to the supposed 'Defenders of Principle!' who, failing to connect one principle with another, intend to defend her from further arrest. Even Mark Levin and Ted Cruz are getting in on the act, calling all who fail to focus exclusively on one solitary fav *principle*, 'faux conservatives', 'frauds and 'turncoats'.

There's no dispute from me that the SCOTUS Obergefell v Hodgins case ruling is un..., even anti constitutional. The dispute is what is to be done about that? What do they mean by 'Stand with Kim!', refuse to comply? Like Andrew Jackson? Seriously? Protest, Yes! But overthrow those last shreds of the Rule of Law remaining to us, its procedures, because of a dispute about the law?

Is it no longer possible to protest a SCOTUS judgment as being entirely wrong, while also expecting the procedures of law to be followed? How else would you ever have a chance of overturning such heinous rulings?

Do they really advocate that every person in government, perhaps with their own personal militias, should suddenly violate the procedures of the law (all that remains, as The Rule of Law has been in a coma in this nation for nearly a full century) until it pleases them? While you’re at it, do be sure to ask these literalistic fundamentalists what principle they intend to stand upon against rioters such as those in Ferguson, when they declare their intent to 'burn this place to the ground' because they don't agree with a court ruling? I'm sorry, what's that you're saying there Mr. Big Mouth? Huh. Crickets.

Remedies to the laws have to come from within the law, legislation or amendments, not the imposition of personal preferences over the laws as such. And sometimes, such as in this case, it's less the latest ruling that's the problem, than the surreptitious structuring of government that guarantees a miscarriage of law, no matter which side of a decision a ruling comes down on.

Govt Licensing of Church Ceremonies: A Match Made in Hell
The source of the troubles in this matter, for Davis, Kentucky, SCOTUS and all of us together, lays in either the nature of her office as County Clerk, or in the State’s position in regards to marriage. Which is it?

The role of Clerk, or a public keeping of records, being the repository and clearinghouse of public record, is an old and vital function of government, and especially so on the local level. However the role of the State in regards to religious marriage, goes no further than its proper function as being the public source of record, as that of recording deeds, contracts, marriages, births, and so forth. It also has a legitimate role in performing and recording secular marriages - civil unions- for those who are either not religious or who have other issues with having a church perform their marriage ceremony.

However the notion of the State Licensing marriage – not just recording and seeing that individual rights are not be violated (shotgun marriage, underage, sold into matrimony, etc.) - is a modern, and very Pro-Regressive, and unavoidably corrupting, idea.
Black’s Law Dictionary:
LICENSE. Certificate or the document itself which gives permission.”
Whatever do you need permission to marry for, and why from the state? It wasn’t even required from the Church for 16 centuries. NY Times:
"For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.

Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.

The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.

By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.”
Why would the state want marriages to be performed under legal auspices? If it's not clear enough, have a look at this, from a 1937 Brooklyn Law Review "Tampering with Marriage", advocating for the state's 'right' to manage matrimony,
“"The second assumption is that since the family is admittedly subject to modification by social and economic pressure, it may also be affected adversely or beneficially by statute and court decision.
In the past these efforts have been directed largely in three directions-segregation of married people into a special class, improving the condition of members of the class, and controlling the process by which the relationship may be dissolved. The state, by legal process, has sought progressively to draw a line between those who are married and those who are not, by such devices as registration and license,"9 inspection for physical defects,' a ceremony' and the like. Rewards and special privileges may be given to make the status sociologically and economically,"2 as well as romantically, attractive."
The practice of licensing marriages began as a tool to prevent mixed marriages, evolved later into a tool of eugenics and soon after into other means of inserting the power of the state into people's private lives and beliefs, for purposes of controlling them socially (and not only their marriage alone, but ensuing children, divorce, inheritance, etc.) and economically (tax laws, insurance, etc.), and by such means as this, the State has freed itself from being bound by law to upholding the rights of its citizens, to using the law to bind its citizens to securing its permission to exercise and enjoy their own rights.

Marriage is either a chosen religious ceremony uniting man and woman in accordance with their religious beliefs, with no State input - 'separation of church & state' don'tcha know, or it's that of a secular personal contract joining the intimate lives and interests of those involved - which the State also has no involvement in. In neither case should anyone need to ask permission from the state to conduct their lives as they see fit.

So given that, if Davis wished to take a principled stand in support of her religious convictions, then her religious problem with the defined duties of the County Clerk, should have begun with the fact that the state has no business whatsoever in Licensing Marriage at all, traditional or otherwise, but she has found no problems with that in principle, only with the SSM particulars. The problem is, that even prior to the SSM question, she was already carrying out tasks, under her authority, in her name, which consisted of bending, breaking and confounding principles of law and religion. Granted, she had the position long before she became a Christian, and even afterwards the thought probably never entered her mind, but the fact is that she has already long been involved in rendering unto Caesar what Caesar had no business being involved with, in wider society and in the business of the Church. Her attempt to take a religious stand, within that ongoing situation, without taking a careful assessment of the nature of her own actions, together with her office as Clerk, can only result in only more turmoil and confusion for everyone.

But ok, the SCOTUS ruling on same sex marriage crystallized the issue for her and made her aware of the pickle her elected career put her in. So now what?

Accepting the SCOTUS ruling at face value effectively leaves the states lawless in regards to marriage, and the particular actions, inactions and reactions of the Gov. of Kentucky, the Judges involved, and their Legislature, who all had months of warning on the matter - with several warnings raised by Davis herself - are culpable.

But the solution is not to break the thin patina of law remaining to us down even further, the solution is to loudly refuse to carry out what you now see as being in the wrong. She has no principled leg to stand upon in protesting the state's intrusion on people's religious convictions and ceremonies - that has been the job she's been carrying out for two decades. Barring a challenge to the ruling through judicial channels, the only principled action she can take is to declare her unwillingness to implement the current ruling, and to resign. Loudly. And with just a bit of grassroots media savvy you should be able to build that volume into forming legislation that will get government out of the marriage business altogether.

But instead, she has chosen to do what has been the typical Democrat response – from Andrew Jackson, to Sanctuary Cities and Obama’s pen - towards laws and rulings that she feels upset by, to ignore or flat out violate them. It is not enough to simply identify the Principles involved, and protest their violation, even when you do manage to get to the primary violation - Principles are not substitutes for thinking, but only guides - so what actions are warranted? What actions are required? Can we begin with the after effects and think we'll find a full solution?

No. We need to deal with the current situation, mindful of the Principles involved, and then we need to act to correct the corruption that has placed right action in the wrong, and that is getting govt out of the relationship approval business altogether.

A friend, Brian Bollman, has put into print the more fundamental point, which is that government has no business involved in the marriage business at all. We should take this opportunity of actual lawlessness, to work towards removing Govt from the relationship business altogether:
"...Government has no business in the area of civil relationships other than to protect the private property of those involved, ensure that government benefits and entitlements are properly distributed before and after death, and ensure terminations of such relationships are orderly and fair (especially to offspring). Other than that, government is not a party to the relationship. Therefore, it has no course to define or redefine the words used to describe that relationship.

To that end, the words ‘marry’, ‘marrying’, ‘marriage’, et al must be removed from all federal, state, and local constitutions, laws, statutes, regulations, ordinances, and policies and immediately replaced with words such as Civil Relationship Unit(s) – or CRU, or cru...."
If you want to take a stand for Principle, for the Rule of Law, for your Religious Convictions, if you want to do something to put your principles towards benefiting life, rather than controlling and hampering it, then that's an idea worth advancing, as that's where the actual issue is, the power of the State being inserted into our most personal, intimate lives and in some sense living our lives for us - that is what is at the root of turning our principles around to work against us all.

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