Same-Sex Marriage for All-Religion Clerks

NOTE: If, as you read this, you find yourself screaming out at the screen with arguments you are sure, if only I could hear them, would make mincemeat out of me, a clear & present danger to the Republic, troglodyte that I am, please click here for a September 2015 post where I very likely addressed all your self-righteous rage, in detail.

Kim Davis, Rowan County, Kentucky Clerk, is no longer a hardened criminal. Now that Kentucky has a Republican Governor, they were able to make that Kinko’s run to make it possible. Below is Kentucky Clerk Kim Davis Just Officially Won The Same-Sex Marriage License Battle, from The Daily Caller, April 14, 2016.

This is all that had to happen.  Tweak the law so that the county clerk’s name is removed from the marriage license. That’s it. The deputy clerk was already deputized to sign the document and was willing to do so, but because Born-Again Kim Davis’ name was on the Rowan County, Kentucky license she objected. Even though her deputy would sign it. So, duh. All it really required was a super-sized Kinko’s run. Just pass a one page amendment to the law and print some new forms. It was so obvious. Such a simple solution. But nooooo… The (then) Democratic Governor & the gay-fascists found a “right” to have this individual person in this particular office issue a same-sex marriage license.  There was another office 20 minutes away that was issuing them, but nooo… Much better to “inconvenience” Kim Davis by throwing her in jail than to suffer the far worse “inconvenience” of driving 20 minutes. Such hardship! Because, gosh, it makes so much sense to throw Kim Davis into jail. Surely she’ll emerge… no longer Christian, right? Because that’s the only possible outcome that made any sense by throwing her in jail. Unless she converted, what was the point?

Nobody has a “right” to force any particular individual to do any particular thing. You may have a “right” to a thing (like an attorney’s counsel) but not to a particular attorney. See the difference? You can’t compel people to violate their deeply held religious beliefs or their conscience. That’s actually enumerated. Not only as a First Amendment issue but as involuntary servitude!  The marriage-nazis primary insult to those who support man/woman marriage** is “bible-thumper,” but I want to protect the Koran-thumping Muslim clerk, too.

We don’t have a right to “worship.” We have a “religion.” What’s the difference? It’s huge. “Worship” means you can go to church every Sunday. “Religion” means you can live your faith once you leave, which is sort of the whole purpose, right? Be careful when you hear President Obama or other progressives talk about your right to “worship.” They know the difference and they aim to take it away from you.

**This is also a subtle, but important difference: supporting man/woman marriage is not the same as being anti-gay, or anti-same-sex marriage. Surely there are those who are, but most take the libertarian view: “If you insist on having it, fine, but just leave me out of it. I may not like it, but that doesn’t mean I am pro-actively acting to stop it,” (holding signs, writing my congressman, etc.). Some are, and that’s fine, too. I just want everyone’s rights protected, and all it requires is a modicum of civility.

Kentucky Clerk Kim Davis Just Officially Won The Same-Sex Marriage License Battle

After being jailed and publicly ridiculed, Kentucky clerk Kim Davis finally got a law to protect her in the same-sex marriage license fight.

Republican Kentucky Gov. Matt Bevin signed a bill Wednesday that brings “statutory finality” to the long battle over marriage licenses in the state, WLKY reports. Rowan County Clerk Kim Davis refused in 2015 to issue marriage licenses to same-sex couples with her name on them, citing her religious belief in traditional marriage. She was sued and jailed for five days when a judge held her in contempt of court, but she was later released when other employees in the clerk’s office began issuing licenses.

The bill changes marriage licenses so they do not include the county clerk’s name and allow people to check whether they are a bride, groom or spouse.

“We now have a single form that accommodates all concerns,” Bevin told Reuters in an emailed statement. “Everyone benefits from this common sense legislation. There is no additional cost or work required by our county clerks. They are now able to fully follow the law without being forced to compromise their religious liberty.”

Between Davis’ release and this law, Davis was not putting her name on the licenses. Bevin then wrote an executive order allowing clerk’s to opt out because of their religious beliefs which basically allowed Davis’ new system. But critics said the governor couldn’t simply change the rules without a law, so the law signed Wednesday codifies Davis’ decision and creates one standard marriage license for all couples that requires no clerk signature. The state legislature passed the bill Friday and sent it to Bevin for his signature.

“The First Amendment guarantees Kim and every American the free exercise of religion, even when they are working for the government. County clerks should not be forced to license something that is prohibited by their religious convictions,” Mat Staver Founder and Chairman of Liberty Counsel the group representing Davis, said in a statement. “To provide a license is to provide approval and places a legal authority behind the signature. We celebrate this legislative victory. County clerks are now able to fully follow the law without being forced to compromise their religious liberty.”


It Now Literally Requires an Act of Congress to be a Clerk AND a Christian

You’ve heard of “Driving while black”?

We now have “Clerking while Christian.”

Rowan County, Kentucky Clerk, Kim Davis is waking up in jail this morning.  It’s her third such morning.  And why?  Because she didn’t get a permission slip from The State. Kim Davis is in jail because ever since the Obergefell decision at the U.S. Supreme Court just 10 or so weeks ago, she has found herself in the absurd position of having to beg like a serf, plead, “try in vain” to get the Kentucky legislature to pass a one page law allowing her to opt-out of facilitating what she regards as a sin.  She wasn’t “trying in vain” to get to “no” to gay marriage at all, ever, out of Rowan County; quite the opposite.  She was trying desperately to get to “yes.”  The goal of her pleadings wasn’t to impose her value system on others; quite the opposite.  Same-sex marriage licenses could flow out of Rowan County Kentucky by the ream.  She just wanted someone else to sign-off on them, like her Deputy Clerk who already has the authority to issue when, for instance, she’s on vacation or sick.  The only difference now is she would like the Deputy Clerk to be able to sign autonomously;  under his or her own name and authority, not hers.

This could quite literally be fixed with a one page law and a Kinkos run.

But don’t let the simplicity of the solution trick you into thinking the issue underlying its necessity is a little thing.  It’s not.  It’s deeply, profoundly, existentially WRONG.

This is the first time in the history of our Constitutional Republic a Christian (a person of any faith) has had to plea for a permission slip from The State to have a job while Christian.

Let that sink in.

Clerking while Christian is now illegal in America.

How do we know this?

Kim Davis is in jail, remember?

“Well, she can quit, right?”

Yup.  She could.

But what about the next clerk?  Or the next _____ in a marriage-related job? And the next? Right now Kim Davis is a population of one.  What about when there are 10? 1,000? 10,000 in jail? Is that really who we are?

Lots of haters-who-are-gonna-hate point out that Kim Davis is a fallen woman.  Married several times, etc.

Yup. All true.

But the quality of your rights is not contingent upon the quality of the human claiming them.  If they were, we’re all screwed.  Seriously.

Are we really okay with living in a country where entire sectors of the economy are closed-off to you because you’re not on-board with same-sex marriage?

I’ve spent quite a bit of time the last few days on Twitter engaging with same-sex-marriage supporters just delighted ‘the bitch is in jail.’  Probably the top red-herring they offer up is “These are the same arguments you bible-thumpers used against interracial marriage.”  This isn’t even remotely like interracial marriage. Marriage is a choice.  Being black isn’t.  You can’t help being black.  Kim Davis isn’t denying fishing licenses on the basis that someone “looks” a particular way to her.  I’m not aware of any religion or time in 5,000 years of human history that human beings fishing was regarded as a sin, gay or straight, black or white.  That would be discrimination and I would fully support punishment if she did something so patently egregious.

The other red-herring the haters-who-are-gonna-hate throw out there is this ridiculous case of a Muslim woman who took a job as a stewardess then refused to serve alcohol.  Unless the airline was “Alcoholics Anonymous Airlines” which never-ever served booze, then AFTER she was already working the airline got bought out by Delta so the terms of her employment changed, tough-noogie.  You knew you had to serve booze when you took the job.  You chose it, freely.  Nobody forced you to take it.  If, however, this Muslim woman did find herself working for Delta instead of the dry airline she took the job with, well, then hell yes! I’d support her being offered an accommodation.  Why not?  You do what you can to keep her on the payroll.  Doesn’t mean she has to like it.  Maybe it’s a ground job, I don’t know.  But you do what you can to help her.  But if you accept the job knowing you can’t do it, that’s on you, not me.

There’s also the red-herring of “Well, what if a pacifist refused to issue you a gun-permit?”

Was the 2nd Amendment operational when the pacifist took the job?


Then, just like the Muslim stewardess, that’s on you, not me.  You shouldn’t have taken the job.

There were even several haters-who-are-gonna-hate who were in high-dudgeon that “Well, the taxpayers pay her.  She works for the government.  She has to do it,” so I asked them:

“If the county garbage-men are told ‘New rules: You have to collect corpses now,'” or even this one “As a condition of the state giving you your medical license, you now have to perform late-term abortions.  It is, after all, a *legal* procedure.”

Without exception, these people were good with collecting corpses and late-term abortions being forced conditions of employment, no accommodation.  None.  At all.  I tried.  I tried to offer up all kinds of concessions, like lower pay, etc. if they could just keep their jobs.  Nope. 


How do we manufacture people like this?

“You can’t pick and choose,” they say.

“Pick and choose?” How about asserting your constitutional rights based on Kennedy’s majority decision inventing a new “Right to Dignity” on the basis of (perverting) the 14th amendment but denying Kim Davis her 1st amendment rights?

The constitution applies the 14th to you but not the 1st to her?  WHAT?

And if bureaucrats surrender their 1st amendment rights, what other rights are subject to the mob?  The 4th?  The 5th?

Talk about “pick and choose”!

How did we get here?  That even one American has to literally beg, like a serf, for an act of congress to allow her to work while Christian?

BONUS QUESTION:  Remember the rallying cry when this all started? “How does my marrying someone of the same-sex affect your marriage?  Your life?  What do you care?”

The all too predictable answer:  Kim Davis.

Thoughtful Analogy on SSM

Regarding the uproar over wedding cakes, etc., for same-sex marriages:

I like this.  It’s thoughtful.  Somebody put their thinking cap on and really noodled this out and I like that.  A lot.  Give it a read and follow the bouncing, extrapolating ball.  It’s kinda neat. Via Breitbart’s John Nolte, who’s a fave of mine over there.



April 1, 2015
By John Nolte

CNN’s Sally Kohn runs a small private for-profit business.

Indiana Bob runs a small private for-profit business.

Sally offers a product to the public as a speaker. Her product is inspirational speeches that conform to her worldview.

Bob offers a product to the public as a baker. His product is specialized wedding cakes that celebrate the holy union of marriage.

Sally is a very nice, very smart, very likable gay progressive.

Bob is a very nice, very smart, very likable practicing Muslim.

Sally will tell you she was born a lesbian.

Bob will tell you he was born a Muslim.

Sally’s speech is protected from the government by the First Amendment.

Bob’s religious faith is protected from the government by the very same First Amendment.

Because her speech is protected by the First Amendment, Sally cannot be forced by the government to alter her product — her speech — into something that violates her beliefs and conscience.

Although Bob’s religious practices and beliefs are protected by the same First Amendment, Sally is demanding the government force Bob into altering his product — a wedding cake — into something that violates Bob’s beliefs and conscience: a same-sex wedding cake.

Sally believes it is unconstitutional for the government to force her to alter her business product (inspirational speeches) in a way that violates her beliefs and her First Amendment rights.

Nevertheless, Sally also believes that freedom and equality demand the government force Bob to craft and deliver his business product (wedding cakes) in a way that violates his beliefs and First Amendment rights.

Because her speech is protected by the First Amendment, even though she offers her services to the public, the government cannot force Sally to serve everyone. For example, on her website, Sally offers to deliver “an inspiring tingle-in-your-toes speech,” but she could not be forced by the government and would not agree to offer that service to inspire or tingle anyone’s toes at a meeting of anti-abortion activists.

Nevertheless, Sally believes the product she serves the public (inspirational speeches) is more equal than the business product Bob serves the public (wedding cakes).

Thanks to her First Amendment protections, Sally does not believe she can be forced by the government to serve all of the public with her inspirational speeches.

Nevertheless, Sally believes Bob should be forced by the government to serve all of the public.

Sally believes her First Amendment speech rights are protected even when that right is turned into a for-profit business product.

Sally does not believe Bob’s First Amendment religious rights are protected when that right is turned into a for-profit business product.

Although she offers her product to the public, Bob would never dream of asking Sally to violate her First Amendment rights, her beliefs or her conscience.

Nevertheless, Sally would see the government punish Bob and the public shame Bob if he refused to violate his own First Amendment rights, his beliefs and his conscience.

Bob would never dream of trampling Sally’s First Amendment rights.

Sally wants the government to trample Bob’s First Amendment rights.

Breitbart News reached out to Sally Kohn for comment. Always a great sport, she told us…

“To be clear,” she said, “I’m talking about ‘free speech’ in principle, not law, since it doesn’t apply here. What does apply legally,” she added, “is that any business can discriminate in any way it sees fit as long as it’s not discriminating against a protected class. Period.”
Kohn wants gays to have that protected legal status.

She added, “I can’t refuse to give a speech to a group based on religion for instance. That would be illegal (and immoral). But I can refuse to give a speech based on a group’s political/issue views. Because [those groups are] not legally protected.”

“Baking a cake is not the same as speech, and when you operate under the laws of our country, you serve everyone. If I were a baker I would serve the Westboro Baptist Church. My free speech protections would protect me from writing “God Hates Fags” on the cake, but not protect me from baking the cake.”

When I asked if a Christian baker was then protected from the act of adding a same sex couple figurine and the name of the same-sex couple to the cake, she said she didn’t want to go into that.

“I don’t want to quote law,” Sally said, “but I’d be happy to refer you to a Constitutional lawyer who could explain this better than I could.”

Breitbart News politely declined the offer.

Laws can be unjust.

This is an ethical argument about who keeps and loses their First Amendment rights once that right becomes a for-profit business product.

This is about an American social compact that is supposed to go beyond the law when it comes to respecting one another’s sincerely held beliefs.

~ end ~


UPDATE 3/26 @10:53am ~ Came across this study on what marriage/divorce/child-bearing looks like after 10 years of same-sex marriage in the Netherlands.  Being the first nation to do it, they are the closest thing we have to a real-life lab on this matter. Result?  It ain’t good if you’re a “marriage equality” advocate.  And by the way:  If you use that term (“marriage equality”) around me I’ll clock you one.  It’s silly & annoying.
Below is a brilliantly delineated path forward from The Wall Street Journal for the Supreme Court to navigate the rocky shoals of the same-sex marriage arguments it will hear next week.  It’s kinda dense reading for the non-lawyer (like me!) to fully apprehend, but take your time, and really try to digest the nuance of each argument.  It’s worth it.

Now, parenthetically, for what it’s worth, and for those who care and are unfamiliar with my views on the matter, they are this: Civil unions between one human being and one other human being of the same sex, who are unrelated, is fine & dandy with me. If you are lucky enough to find someone to love you through a lifetime, it seems to you should fall down on your knees and thank the Higher Power of your choice that someone is willing to enter into such a magnificent covenant with you – just don’t call it “marriage” – because it’s not.  You are absolutely entitled to have all of the legal responsibilities and benefits of  marriage – as a matter of law – but in terms of a societal or cultural imprimatur, or stamp of approval, no.  Call it something else.  

Understand:  I will not give you the stink-eye, shun, or otherwise refuse to associate with you.  My children have friends who have married same-sex parents whom I regard with very high esteem and extremely warm affection.  They are welcome in my home, at my table, and I am glad to have their embrace whenever I see them.  Further, I trust them absolutely with the care of my children at their homes.  They are lovely, lovely, people.

But it’s not a marriage they have.  It’s something else.

So, that’s where I stand, for what it’s worth.

And below, via WSJ, is the best argument I’ve seen yet for the path forward.  It’s brilliant.  It preserves legal, constitutional integrity while passing no moral judgement whatsoever on same sex unions, all while preserving the individual liberty to live and let live.  That’s a pretty neat trick.

Here’s where you could change my mind – sort of:  If someday, all 50 states decide that same-sex unions are lawful – literally, having voted them into law – then, and only then, should the Supreme Court step off the balance beam – but I would still withhold labeling them “marriage” for purposes of federal law.  The “label” question, it seems to me, should be left to society; via secular and religious consensus.



Michael McConnell: The Constitution and Same-Sex Marriage


For most Americans, the Supreme Court cases being heard on Tuesday and Wednesday next week are about same-sex marriage. But the cases—Hollingsworth v. Perry (the Proposition 8 case from California) and U.S. v. Windsor (the Defense of Marriage Act case)—also are a test of the nation’s democratic and decentralized constitutional structure. These cases thus are not just about marriage. They are about how we reach decisions regarding matters of deep moral significance in our federal republic.
We learned from Roe v. Wade that the Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution. The court sometimes intervenes when the legislatures of the 50 states are approaching a consensus. When it jumps into a live political controversy, the justices look like they are acting like legislators.
The system today, without the Supreme Court’s intervention, is working as it should. Representatives of the people are deliberating. “We the People” are thinking. So far, nine states have extended marriage to same-sex couples; many others have chosen to explicitly endorse traditional marriage. Those choices distress advocates on either side of the matter when their wishes have been disappointed.
But when all of us have an equal right to be heard on an issue, and to participate through our representatives in making the decision, it is easier to accept the outcome than when unelected judges make moral pronouncements from the bench. Change that comes through the political process has greater democratic legitimacy.


Moreover, in states where same-sex marriage has been made legal, legislatures have taken care to provide generous protections for people and institutions—especially churches—that conscientiously disagree. This is good for civic harmony and for achieving a long-term position of mutual respect. A judicial decision likely would not include these protections.
The two cases that will be argued next week seem to endanger this process. If the justices hold that California’s Proposition 8, which provides that “only marriage between a woman and a man is valid or recognized,” is unconstitutional, this will end the deliberations and impose a single national definition of marriage on us all. The court cannot reach this outcome without branding the views of the other side as either “irrational,” if it employs the lower, rational-basis level of judicial scrutiny, or “bigoted” and hateful, which would justify heightened judicial scrutiny. That is not the path to national reconciliation, and it does not show respect to the diverse views on this divisive issue.
But if the justices hold that there is no constitutional right to same-sex marriage, this also imposes an answer of a sort. It would reflect the Supreme Court’s considered judgment that in the eyes of the Constitution, same-sex relationships may be treated as morally different from (and inferior to) heterosexual relationships. Such a decision would set a precedent for the foreseeable future. It would embolden opponents of same-sex marriage and deprive proponents of one of their most potent moral claims in the political process—that the denial of marriage rights offends American values of equality.
Even though the stage seems set for a momentous ruling by the court, the litigation actually offers the justices a golden opportunity to resolve these cases without setting a precedent either way, and to reaffirm the ideal of democratic, decentralized decision-making.
In Hollingsworth, the Proposition 8 case, the state of California has declined to defend the state’s own law. The Ninth Circuit Court of Appeals allowed a group of private citizens, proponents of the proposition, to step in and defend the law in court. Former Solicitor General Walter Dellinger, who served under President Clinton, has filed a friend of the court brief arguing persuasively that these intervenors do not have standing to sue (meaning they have no legal stake in the issue, but only political interest). He has precedent on his side. More than 25 years ago, in Diamond v. Charles, the court held that a pro-life doctor did not have standing to defend an antiabortion law in court when the state attorney general refused to do so. The same lack of standing is true here.
If Mr. Dellinger is right (and I think he is), the Supreme Court has no jurisdiction to decide the Proposition 8 case, and neither did the Ninth Circuit. The court should vacate the decision striking down Proposition 8, leaving in place the original district-court order that prompted the case by allowing two same-sex couples to marry, but deprivingHollingsworth of precedential effect.
In Windsor, the Defense of Marriage Act case, the government also declines to defend its law, but the U.S. Solicitor General, unlike the California attorney general, filed a notice of appeal and a petition for review, and the government is continuing to enforce the law. That preserves the Supreme Court’s jurisdiction to decide the constitutionality of DOMA.
But the court need not base its decision in Windsor on the merits of the same-sex marriage question. The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.
The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). In the past, the court has recognized a “domestic relations exception” to federal judicial power. Although the legal question is close, the court could take the same path in Windsor—holding that DOMA improperly intrudes on the reserved powers of the states.
If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds, the combined effect would be to reaffirm America’s democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question.
By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage—a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer—and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation’s culture wars.
Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides. In this instance, modesty requires no more than that the justices follow the technicalities of the law.

Mr. McConnell, a former federal judge, is a law professor and director of the Constitutional Law Center at the Stanford Law School, and a senior fellow at the Hoover Institution.

A version of this article appeared March 22, 2013, on page A15 in the U.S. edition of The Wall Street Journal, with the headline: The Constitution and Same-Sex Marriage.