Ky. County clerk makes a stand against feds

[Occam's Banana]

What is uneducated is the moronic notion that a Supreme Court decision is unlawful. Better take 9th grade civics again.

LMAO. Ya gotta love legal positivism!

After all, where else are you going to see 9th-grade civics classes cited as dispositive of SCOTUS as soi-disant ultimate arbiter of lawfulness?

Chicken, meet egg. Egg, meet chicken ...

[juleswin]

AP reporting that a judge has just ordered her to jail.

The highway robber fighting the street level pick pocket. If it was up to me, I would let both thieves fight each other until a mutual defeat. Couldn't the justices just cut her pay to zero and be done with it?

[tod evans]

AP reporting that a judge has just ordered her to jail.

In before the Romans 13 excuses.....

[Sonny Tufts]

If I subtract gender from the definition of marriage I'm also wrong.

Why? I've yet to hear a valid reason for not permitting same-sex marriage, and "it's always been that way" hardly qualifies.

Segregation prevented people from getting married. Traditional marriage doesn't prevent people from getting married.

Segregation prevented interracial couples from marrying, and laws mandating "traditional marriage" prevented same-sex couples from marrying. I don't see the difference.

[Sonny Tufts]

After all, where else are you going to see 9th-grade civics classes cited as dispositive of SCOTUS as soi-disant ultimate arbiter of lawfulness?

SCOTUS is the ultimate arbiter only in the short run, since even its decisions on constitutional law can be overturned in a number of ways.

[wizardwatson]

Why? I've yet to hear a valid reason for not permitting same-sex marriage, and "it's always been that way" hardly qualifies.

Nature?

Segregation prevented interracial couples from marrying, and laws mandating "traditional marriage" prevented same-sex couples from marrying. I don't see the difference.

Because you've already redefined marriage in your mind. You're not alone, polling shows that a majority of American's have done this as well. However, one of the key factors of this gay marriage issue (in this thread) is that Kentuckians have not.

Recreational pot is legal in a few states now. That doesn't mean the federal government has the right to say recreational pot, or strip clubs, or seatbelt laws, should be enforced in every state.

Anyway, this whole argument is very nuanced. And the mob has already made it's decision and mob rule is pretty much what this country has become. It seems the way everyone wants it is for the Fed's to enumerate the state's powers (which I suppose in the future will simply be how to collect taxes) instead of the Constitutions way of the state's enumerating the fed's powers and everything else will be decided by SCOTUS who changes definitions of words and concepts to suit the will of the majority.

It's a dead horse really. People seem to be on one side or the other. The greys are disappearing as the days go by.

[Occam's Banana]

SCOTUS is the ultimate arbiter only in the short run, since even its decisions on constitutional law can be overturned in a number of ways.

Then ipso facto SCOTUS is not the ultimate arbiter. Make up your mind.

What would your 9th-grade civics class textbooks say should SCOTUS rule that that such an attempted overturning is unconstitutional (or otherwise "unlawful")?

After all, you told us earlier that "the ... notion that a Supreme Court decision is unlawful" is "uneducated" and "moronic" ...

[wizardwatson]

Then ipso facto SCOTUS is not the ultimate arbiter. Make up your mind.

What would your 9th-grade civics class textbooks say should SCOTUS rule that that such an attempted overturning is unconstitutional (or otherwise "unlawful")?

After all, you told us earlier that "the ... notion that a Supreme Court decision is unlawful" is "uneducated" and "moronic" ...

Yeah, I said it was "unlawful" in the sense that it was a bad unconstitutional decision. He wants to strawman left and right as if I didn't understand that the "SUPREME" courts decisions carry the weight of the law.

I let it go. It gets boring defending against straw man attacks all day long.

[Christian Liberty]

Its hardly shocking that civics classes are going to teach statism. One more reason to homeschool.

[William Tell]

AP reporting that a judge has just ordered her to jail.

Wow. Remember when everyone was making fun of social conservatives for saying this was coming?

[Sonny Tufts]

What would your 9th-grade civics class textbooks say should SCOTUS rule that that such an attempted overturning is unconstitutional (or otherwise "unlawful")?

Well, let's see just how the Court's decision could be overturned and see if there's any basis at all to declare such a move unconstitutional:

1. The Court could overrule its prior decision, either over time (e.g., Brown overruling Plessy), by some Justices retiring and others changing their minds (e.g., Barnette overruling Gobitis in just over 3 years), or by enlarging the membership of the Court and packing it (the latter was unsuccessfully tried by FDR). Can't see any way any of that is unconstitutional.

2. The Constitution can be amended to overturn the Court's prior ruling. This is extremely rare: it's happened only three times in cases involving rulings on constitutional law (the 11th, 13th-15th, and 16th Amendments). Can't see how that could ever be declared unconstitutional.

There's nothing inconsistent in saying that the Court's decisions are the law and that its decisions can be overturned. The same is true for legislation, but nobody claims that statutes aren't the law simply because they can be repealed.

Now if you're defining the "law" in terms of some Platonic notion of immutable natural law then your objection to legal positivism is well-taken. But if that's where you're coming from then there's no basis for complaining about Obergefell's trampling over States' Rights; I know of no theory of natural rights that enshrines federalism.

[wizardwatson]

Well, let's see just how the Court's decision could be overturned and see if there's any basis at all to declare such a move unconstitutional:

1. The Court could overrule its prior decision, either over time (e.g., Brown overruling Plessy), by some Justices retiring and others changing their minds (e.g., Barnette overruling Gobitis in just over 3 years), or by enlarging the membership of the Court and packing it (the latter was unsuccessfully tried by FDR). Can't see any way any of that is unconstitutional.

2. The Constitution can be amended to overturn the Court's prior ruling. This is extremely rare: it's happened only three times in cases involving rulings on constitutional law (the 11th, 13th-15th, and 16th Amendments). Can't see how that could ever be declared unconstitutional.

There's nothing inconsistent in saying that the Court's decisions are the law and that its decisions can be overturned. The same is true for legislation, but nobody claims that statutes aren't the law simply because they can be repealed.

Now if you're defining the "law" in terms of some Platonic notion of immutable natural law then your objection to legal positivism is well-taken. But if that's where you're coming from then there's no basis for complaining about Obergefell's trampling over States' Rights; I know of no theory of natural rights that enshrines federalism.

Well, the problem is that the prerogative to redefine marriage was never an enumerated power. Since the will of the majority has already played out in SCOTUS, how could we have a constitutional convention to bar the Fed's from doing that in order to overturn it when it's clear the majority already supports it?

That's why "it's extremely rare", and that's why it is so important to enumerate the Fed's powers, because once it executes powers in line with the majority where is the will to overturn it via constitutional amendment?

So really only option 1 is viable.

Now I say it's "unconstitutional" in the same sense that Scalia dissented with. The "right to self expression" is bogus. The 14th amendment was to avoid a "class system" it wasn't to protect some vague idea of "the world isn't allowing me to have dignity according to who I am". 1 man 1 woman marriage did not prevent gays or transgenders or polygamists from entering into it. The states are not required to cater to the desires of every class of person according to their chosen identities.



Now, an argument that "marriage itself" is a violation of the 14th amendment I would almost think has a better philosophical backing. That being that raising a couple in the eyes of the government to a "dignified" position discriminates against those who don't fit the definition. Therefore, marriage recognition by the state should be abolished. That would actually make more sense to me. But adding "another class" of people by slowly eroding the definition makes no sense. Where would you draw the line?

[Sam I am]

Wow. Remember when everyone was making fun of social conservatives for saying this was coming?

For saying what was coming? Going to jail for explicitly violating a court order?

[Sam I am]

The real problem is how difficult it is to simply remove her from her job as county clerk. If she could simple be impeached, all this drama wouldn't be necessary

[LibertyEagle]

She was just sent to jail.

https://twitter.com/WKYT/status/6394...513984/photo/1

http://www.wkyt.com/home/headlines/R...324091781.html

[Occam's Banana]

Well, let's see just how the Court's decision could be overturned and see if there's any basis at all to declare such a move unconstitutional:

1. The Court could overrule its prior decision, either over time (e.g., Brown overruling Plessy), by some Justices retiring and others changing their minds (e.g., Barnette overruling Gobitis in just over 3 years), or by enlarging the membership of the Court and packing it (the latter was unsuccessfully tried by FDR). Can't see any way any of that is unconstitutional.

2. The Constitution can be amended to overturn the Court's prior ruling. This is extremely rare: it's happened only three times in cases involving rulings on constitutional law (the 11th, 13th-15th, and 16th Amendments). Can't see how that could ever be declared unconstitutional.

There's nothing inconsistent in saying that the Court's decisions are the law and that its decisions can be overturned. The same is true for legislation, but nobody claims that statutes aren't the law simply because they can be repealed.

None of this addresses my point or answers my question. ("What would your 9th-grade civics class textbooks say should SCOTUS rule that such an attempted overturning is unconstitutional (or otherwise 'unlawful')?" - emphasis added.)

You stated that it is "uneducated" and "moronic" to hold "the ... notion that a Supreme Court decision is unlawful."

If SCOTUS ruled (for whatever reason) that an attempted overtuning of one of its decisions (regardless of how such an ostensible "overturning" might have occurred) was "unconstitutional" (or otherwise "unlawful"), then - by your own assertion - such a ruling must necessarily be "lawful" (i.e., not "unlawful" - since to conclude otherwise would be "uneducated" and "moronic"). But as a justification for the attempted "overturning" of such a ruling, to make reference to anything (such as the Constitution, for example) beyond or apart from the plain, unqualified fact of the SCOTUS ruling (regardless of the ruling's basis) must necessarily entail that it is possible for SCOTUS rulings to be "unlawful." (IOW: If the standard by which a ruling is to be deemed "lawful" is "whatever SCOTUS decides," then SCOTUS can on that basis "overturn" any attempt to "overturn" any of its decisions - but if the standard by which a ruling is to be deemed "lawful" is something other than or in addition to "whatever SCOTUS decides," then it must be possible for SCOTUS decisions to be "unlawful" ...)

The only way around this is either (1) to equivocate upon the meaning of the term "(un)lawful," or (2) to be reduced to asserting that "(un)lawful" merely means "whatever some group (such as SCOTUS or those who would 'overturn' SCOTUS) is able to arbitrarily decree (and subsequently uphold or enforce)." (And in the latter case, a SCOTUS decision could be rendered effectively "unlawful" merely by the refusal of the executive to carry out or implement the SCOTUS decision - as Andrew Jackson did when he essentially told the Marshall court to go pound sand in re Worcester v. Georgia.)

Now if you're defining the "law" in terms of some Platonic notion of immutable natural law then your objection to legal positivism is well-taken. But if that's where you're coming from then there's no basis for complaining about Obergefell's trampling over States' Rights; I know of no theory of natural rights that enshrines federalism.

The nature of my objection to legal positivism has nothing to do with how I define "the law" (which would certainly not be Platonic in any case, as I am not a Platonist).

It has entirely to do with the fundamental, ultimate and inescapable nature of legal positivism - namely, that it is tritely truistic ("the law is the law") and/or vacuously circular ("'the law' is whatever the 'officially' designated expositors of 'the law' say 'the law' is - and whatever the 'officially' designated expositors of 'the law' say 'the law' is is 'the law'"). My rejection of legal positivism is entirely due to its own inherent demerits as an exercise in recursively self-justifying hand-waving ...

[Lucille]

The judge said she left him with no alternative but to jail her, since fines alone would not change her mind.

Check it out. This judge is a precog.

[wizardwatson]

Check it out. This judge is a precog.

He's making an example out of her as a deterrent. He said that explicitly.

He claims that her supporters will just pay the fines probably so he's punishing her to strike fear into those who support her.

http://www.usatoday.com/story/news/p...gays/71635794/

Bunning agreed and said fines for Davis, who makes $80,000 a year, would not be enough to ensure that she would follow his orders. He also raised concerns that supporters, whom she said are raising money for her, would pay any fine he levied against her, hampering its force.

"I don't do this lightly," he said. "It's necessary in this case."

Maybe he should just cane her.

[Southron]

The judge should be the one in jail.

[RonPaulGeorge&Ringo]

The real problem is how difficult it is to simply remove her from her job as county clerk. If she could simple be impeached, all this drama wouldn't be necessary

I think she can be impeached. It wouldn't be simple though, because she'd have to be impeached by the legislature, which represents the wishes of the people of the state. Neither the legislature nor the people support the the SCOTUS ruling, and there's no particular reason to think there would be a majority willing to impeach to her.

[wizardwatson]

The judge should be the one in jail.

Well, it's all about intent really, and about hypocrisy.

I think she is less hypocritical than SCOTUS so I'm kind of on her side and also against the SCOTUS decision.

But when Bree Newsome took down the Confederate Flag I was on her side too in a weird way, but actually against the Confederate Flag mandate.

Because in Bree's case I was simply amazed that she was willing to go to jail to make a point. She had spirit. She was wrong in my opinion but I felt her heart was in the right place at least.

Anyway, I find it kind of odd actually that Bree took down that flag the day after gay marriage was legalized. That flag to me actually represents "truth" in a way. And the fact that it's modeled after St. Andrews Cross seems almost prophetic.

Gay marriage is kind of a sign that this country detached from God to me, and the Confederate Flag issue was kind of a rejection of truth. All signs point to not good for this country.

Shemitah incoming!

[Tywysog Cymru]

I think the LGBT lobby might have just made a critical mistake. Their strategy has revolved around slowly sneaking the agenda in. For instance, in 2008 the people of California were not ready for gay marriage, and that was a major setback when Proposition 8 was passed. Maybe a slight majority supports SSM, but a lot of these people were against it only a few years ago, and could change their minds again. The American people are not yet at the point where they can tolerate people being thrown in jail. The whole thing could backfire.

[Krugminator2]

I am really surprised at these answers.

If she denied people concealed carry permits or even gun permits on the grounds that guns are evil, would you defend her? If not, how is this different?

Let's say it is 2008 she was elected in a blue state with tough gun control laws and the Heller decision came down. She said she wasn't going to abide by the Heller decision. Would you stand up for her if she said the Supreme Court is terrorizing local authority? If not,you are a huge hypocrite.

[ChiefJustice]

I think the LGBT lobby might have just made a critical mistake. Their strategy has revolved around slowly sneaking the agenda in. For instance, in 2008 the people of California were not ready for gay marriage, and that was a major setback when Proposition 8 was passed. Maybe a slight majority supports SSM, but a lot of these people were against it only a few years ago, and could change their minds again. The American people are not yet at the point where they can tolerate people being thrown in jail. The whole thing could backfire.

Good she can sit in jail until she resigns or respects people's legal rights. LGBT individuals have the right to marriage liscences.

The real suppressor of liberty in this case is Kim Davis herself.

[William Tell]

I think the LGBT lobby might have just made a critical mistake. Their strategy has revolved around slowly sneaking the agenda in. For instance, in 2008 the people of California were not ready for gay marriage, and that was a major setback when Proposition 8 was passed. Maybe a slight majority supports SSM, but a lot of these people were against it only a few years ago, and could change their minds again. The American people are not yet at the point where they can tolerate people being thrown in jail. The whole thing could backfire.

I hope it does.

[jllundqu]

I am really surprised at these answers.

If she denied people concealed carry permits or even gun permits on the grounds that guns are evil, would you defend her? If not, how is this different?

Let's say it is 2008 she was elected in a blue state with tough gun control laws and the Heller decision came down. She said she wasn't going to abide by the Heller decision. Would you stand up for her if she said the Supreme Court is terrorizing local authority? If not,you are a huge hypocrite.

THIS ^^^^ Exactly the argument I've been making. Have some intellectual honesty and integrity for crying out loud. If she didn't agree with gay marriage... quit. No one is forcing her to do anything against her faith. She can either do what is legally required of her, or suffer the consequences... she is no hero. Especially given her many divorces/adultery/etc etc....

Jail is too much though....

[Tywysog Cymru]

Good she can sit in jail until she resigns or respects people's legal rights. LGBT individuals have the right to marriage liscences.

The real suppressor of liberty in this case is Kim Davis herself.

Well, the government shouldn't have started handing out marriage licenses to begin with...

But LGBT individuals had access to marriage licenses before. A gay man, if he really wanted to, was able to get married to a woman in the early hours of June 26, 2015 in Kentucky, Michigan, Texas, or anywhere else. Then, shortly before my lunch break that day, the Supreme Court decided that the old universal definition of marriage was outdated because it hurt peoples' feelings. Now everyone can marry someone of the same gender. The rules apply to everyone equally either way.

[tod evans]

I am really surprised at these answers.

If she denied people concealed carry permits or even gun permits on the grounds that guns are evil, would you defend her? If not, how is this different?

Let's say it is 2008 she was elected in a blue state with tough gun control laws and the Heller decision came down. She said she wasn't going to abide by the Heller decision. Would you stand up for her if she said the Supreme Court is terrorizing local authority? If not,you are a huge hypocrite.

I'm all for any county employee making a public stand against the feds for any reason.

I just wish the Evangelicals would quit shaking in their panties and mumbling about Romans 13..

[Sonny Tufts]

but if the standard by which a ruling is to be deemed "lawful" is something other than or in addition to "whatever SCOTUS decides," then it must be possible for SCOTUS decisions to be "unlawful" ...)

But what is that standard? If you say it's the Constitution, then you're elevating your interpretation of that document over that of SCOTUS. What makes your interpretation more lawful?

The only way around this is is either (1) to equivocate upon the meaning of the term "(un)lawful," or (2) to be reduced to asserting that "(un)lawful" merely means "whatever some group (such as SCOTUS or those who would 'overturn' SCOTUS) is able to arbitrarily decree (and subsequently uphold or enforce)."

Why would you assume the decree is necessarily arbitrary? Are you suggesting that the Justices are intellectually dishonest and that they ignore precedent and just make things up?

It has entirely to do with the fundamental, ultimate and inescapable nature of legal positivism - namely, that it is tritely truistic ("the law is the law") and/or vacuously circular ("'the law' is whatever the 'officially' designated expositors of 'the law' say 'the law' is - and whatever the 'officially' designated expositors of 'the law' say 'the law' is is 'the law'"). My rejection of legal positivism is entirely due to its own inherent demerits as an exercise in recursively self-justifying hand-waving ...

What other definition of "law" would you suggest?

[wizardwatson]

He's making an example out of her as a deterrent. He said that explicitly.

He claims that her supporters will just pay the fines probably so he's punishing her to strike fear into those who support her.

Maybe he should just cane her.

Since they won't replace her, they still need her authority apparently to issue the licenses. They offered to release her if she agrees to allow her employees to issue the licenses. She told them no.

Obey damn you!

http://www.nytimes.com/2015/09/04/us...-marriage.html

Clerk Rejects Proposal to Let Deputies Issue Marriage Licenses

ASHLAND, Ky. — A defiant county clerk rejected a proposal that would have allowed her deputies to grant same-sex marriage licenses, hours after she was sent to jail by a federal judge for disobeying a court order.

Through her lawyer, the clerk, Kim Davis of Rowan County, said she would not agree to allow the licenses to be issued under her authority as county clerk. Had she consented, the judge would have considered releasing her from custody.