(Some of the many legs Kim Davis and Ted Cruz don’t have to stand on…)
My posts are long enough, I think everyone will agree, and often a lot more than that. Believe it or not. I’m always debating whether to include more detailed and footnoted arguments that make the blog more like the New Yorker, and I usually opt for the shorter version. I am always grateful when an articulate commenter expands on the post expands, at any length, on what I present and adds some of the sources I have read and others, putting more flesh on the bones of my position.
johnburger2013 has done Ethics Alarms a service by doing this regarding my posts about recalcitrant Kentucky clerk Kim Davis, now known as Inmate 8522901, and hosanna to that. In particular, I am grateful for his Scalia reference. The Volokh Conspiracy is the best reference for issues like this, as Prof. Volokh and his cohorts lean libertarian but brook no nonsense. You know, like Ted Cruz’s rant. Thanks to jvb also for using that site deftly.
Here is his Comment of the Day on the post, Disqualified For High Office: Senator Ted Cruz (R-Tx):
I saw that interview and I had the same thoughts. Cruz is so much brighter than what he stated. Pure political pandering to the Christian Right. The Kentucky clerk SHOULD be in held in contempt for defying the court’s order. Cruz knows that and his comments were truly mind-boggling. She is not being persecuted for her religious beliefs and I wonder if her lawyers are treading on very thin ice by making arguments that are clearly against the great weight of law.
Her religious faith has no bearing and is absolutely irrelevant to performing her functions as the county clerk. If she is opposed to same-sex marriage on religious grounds, then her avenues are to resign and then attempt to change the status of the laws. By not issuing marriage licenses, she has violated her oath to uphold the laws of the State of Kentucky (just as the Tennessee judge is in violation of Tennessee laws and the Code of Judicial Conduct), and she should be removed. By extension of her illogic, if her religion or religious conviction prevented her from drinking alcohol, then she should deny permits to bars, nightclubs, restaurants, and liquor stores, because her convictions should control over state laws and her duties to execute them faithfully. That is a recipe for lawlessness and chaos.
Sasha Volokh wrote about the “limits of disobedience.” He writes,
“So it’s clear that Davis has no legal right to keep her government job and at the same time refuse to issue the marriage licenses. As to her moral right, we can consult Justice Scalia (see Jonathan Adler’s recent post) who wrote, in First Things, in the context of judicial participation in the death penalty:
‘[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty–and if that fails, lead a revolution. But rewrite the laws he cannot do.’
“So, in Scalia’s view, you either keep your job and do your job, or you resign and engage in political action or revolution. I quote this not to pick on Scalia specifically, but because (as in many cases) Scalia has expressed a view nicely and can serve as the poster child for everyone else who holds the view.”
So did Dale Carpenter: He writes,
“Violating unjust laws and willingly going to jail for it are time-honored acts of civil disobedience. I do admire people who stand up for their beliefs and take their lumps, often even when I find their beliefs profoundly mistaken.
“But Kim Davis is not courageously sacrificing herself for her beliefs. She is keeping the benefits of her government job and insisting that pain must be inflicted on others.
“Davis is not just any person who disagrees with the law and refuses to obey it, imposing costs only on herself. She is a public official charged with administering the law and serving the public that pays her salary. Even if she said God personally whispered to her that thrice-divorced people were not entitled to a fourth marriage license, thrice-divorced people would still be entitled to fourth marriage licenses and she would have to issue them. Either that, or every functionary is a law unto herself.”
She has no legal leg to stand on and for Cruz to support her and encourage her is disheartening. Moreover, Cruz’s bringing the sanctuary city mess into the discussion is pretty bold and despicable. The two are not comparable at all. Jonathan Adler makes this point in a recent blog posting:
“The Constitution establishes that federal law is supreme. But it is also well-established that the federal government may not “commandeer” state and local governments to implement federal law. What this means is that the federal government is free to enforce federal law, including immigration law, whether state or local officials like it or not. At the same time the federal government cannot dictate that state and local officials enforce that law on the federal government’s behalf.”
Ethics Alarms 
The recipe for lawlessness and chaos was not of Kim Davis’ making. Rather, it is of the corrupt politicians and jurists who have forwarded this evil stratagem for the sake of their authoritarian designs on America. The blame falls on those persons and it is they who belong in prison.
I beg your pardon? What stratagem are you referring to?
That of utilizing “gay rights” as a spearhead for the disestablishment of free American society.
Waddya think, everybody? Hysterical hyperbole of the year?
Whatever…
That’s just about as substantively persuasive as your more lengthy comments on this topic.
I didn’t have time for more then and, concurrently, I was getting tired of repeating myself.
We are also tired of you repeating yourself.
Good. Then we both benefit. Tossing pearls before swine is, as a great Man once hinted, ultimately fruitless.
If you really think that your contribution here amounts to nothing more than “pearls before swine,” then you should quit wasting our time as well as your own.
Just a little arrogance right back at you, Chris. How does it feel?
No. Any discerning individual, with a modicum of knowledge of human nature can see that these militant gay rights activists care more about infringing on other peoples beliefs than they do about getting “married.” There were some “couples” there just gloating over being able to make Kim uncomfortable, in front of the cameras. Like I told my 13 year old niece who seems to be liberal, but does not believe in gay marriage: “don’t you dare go to school and voice your opinion in your social circle. Not only will you have no more friends, those accepting, loving kids of liberals will make school a living hell for you.” And someday I will be able to tell you of militant gay activist bullying at some of the biggest corporations in the US. If being afraid to state your positions or even a passing opinion is not losing freedom, I have no idea what is.
To quote an appropriate riposte in “Cheers”, “What color is the sky in your world, Cliff?” Because this is just pure delusion:
1. Gays are no different from you or I except in their choice of partners.
2. There is nothing militant about wanting and demanding if necessary the same rights as other citizens.
3. Kim is a arrogant, ignorant fool and getting waht she deserves. I’m GLADGLADGLAD, and so should be anyone else who believes in duties, rule of law and process.
4. “don’t you dare go to school and voice your opinion in your social circle. Not only will you have no more friends, those accepting, loving kids of liberals will make school a living hell for you.” Which has nothing to do with Kim. What Chi-Chi is describing is cultural standard setting. Bigotry is out. Good. The same thing happens when a kid says women are inferior, Hispanics are lazy and blacks are dumb. Speech has consequences. It also matters what the manner of expression is that voices the opinion. If she says, I think marriage should be between a man and a woman, then that should not be met with derision or hostility, but debate. If the opinion is what SMP says, “Gays are perverts and trying to destroy marriage,” “Oh, shut up, spew your hate at a KKK rally” is an ethical response.
5. STOP SAYING THAT DAVIS IS BEING PUNISHED FOR HER OPINION!! That’s not true. She is being jailed for defying a judge and not doing her job.
She was jailed for defying a lawless judiciary, Jack, and for standing up for the values and institutions of America. The arrogance- along with the deviance and corruption- lie solely with those you are defending. It’s ironic that, when you compare resistance to the pervert agenda with the Klan attacking blacks, you ignore the fact that black churchgoing Americans are among the sternest opponents of that agenda. Remember Proposition 8 in California? Twice Californians voted down gay marriage in vast numbers, only to see the corrupt courts invalidate their voices. What did your sweet friends of the Bathhouse Brigades do? They attacked black Christians, along with Mormons and Catholics; in the streets and in their churches. Here’s your arrogance, lawlessness and bigotry. Not from decent American people, but from the perverted savages and their self appointed keepers in the press and the judiciary.
She was jailed for defying a lawless judiciary, Jack
Bullshit squared. Citizens don’t get to decide on their own that a SCOTUS opinion is lawless, and you know it. If they could, any law could be called lawless, and you’d support them.
It is not the purpose of the Supreme Court or any other judiciary to make law out of nothing and by extra-legal means besides. This is what SCOTUS did.
Ugh. Equal protection isn’t nothing. The Declaration of Independence isn’t nothing. Due process isn’t nothing. Core American values of equal treatment under law isn’t nothing. Once we didn’t believe that women, blacks, children and gays were “men” under the Jeffersonian mision statement. we learn, we advance, we get wiser, we get more just.
And how does any of that apply here, Jack? If I were to rob or murder anyone- homosexuals included- I could expect to be arrested and tried for the crime. (In fact, given the state of justice these days, likely even sooner than for a normal person!) Homosexuals and deviants of all stripes already have those protections… and more. Due process? With a case beyond the scope of the judiciary and with the two deciding votes on SCOTUS already demonstrably biased? Additionally, do you honestly believe that any portion of either the Declaration or the Constitution was written with perverts in mind? Marriage is a traditional institution between a man and a woman that has been long acknowledged by civil authorities and by common law. Same sex “marriage” is a contradiction in terms. Nor is it a “right” by anyone’s definition previous to this twisted era that we find ourselves in.
They words also weren’t written with women and blacks in mind. But the words were intended universally, and now we know who they apply to. Human beings.
Jack- you’re continuing to make the error of equating race and sex (both genetic traits and predisposed) with sexual deviance… which is not.
No, not equating race and sex: correctly comparing the reasons they were both misused centuries ago in assessing the qualifications for human rights. Your argument comes down to maintaining that sexual orientation is conduct rather than identity. Conduct is irrelevant to rights, even if you were right. But science, sociology, psychology and experience had educated us to understand that gender and sexual orientation is identity, as much as race, and if not immutable, involuntary. It’s unethical to withhold rights on this basis.
stvplln:
It absolutely is of her own making. She opposes same-sex marriage and the Court’s ruling (for the record, I think the SCOTUS’ reasoning is tortured and not very persuasive; SCOTUS should have let the legislative/political process work). She is not being persecuted; she willfully and intentionally disobeyed a court’s order, an order that was appealed and affirmed. She has been held in contempt for that, not for her Christian beliefs or practices. She can still worship however and wherever she wants. If her religious convictions compel her to disobey a law she thinks is immoral, unethical or down right wrong, she should resign her post in protest and work to change it. She can run for the state legislature on that very issue. Today, her lawyers (cynically, in my opinion) declared that she will continue serving the citizen’s of her county from the jailhouse – that includes drawing a taxpayer-funded salary. She will also (most likely) ask the taxpayers to pay her legal fees for her shenanigans. Those to factors show me that she is grandstanding and is not willing to engage in traditional civil disobedience to show that the SCOTUS ruling is unjust. She suffers no real consequences. She still has her job and her salary and she is using her political office to bludgeon her community.
As for Cruz, he is extraordinarily bright. I have heard him argue and debate; in my opinion, there a few up to challenge his intellect and his ability to persuade. But his comments were totally off the mark and he knows it. He is pandering, nothing more, to bring his poll numbers up and drag some of the limelight away from Trump. He is better than this and his comments were disappointing.
jvb
I’ve made my position as clear as I can, John. I guess we’ll just have to disagree. What continually amazes me, though, is that so many people don’t see beyond the shallow argument of “equal rights” to the true heart of the matter and the dangerous path this nation walks accordingly.
i agree with both of you guys. I like Cruz because he is one of a handful of politicians who has actually done what he has said he would do. But i do get this sense of pandering at times with him, and that bugs me. I guess actions speak louder than words….
I met with Ted Cruz during the 2012 Republican State Convention when he was challenging David Dewhurst for the senatorial nomination. It was a short meeting, but one on one and revealing to me of his character. He’s a man on a mission which he holds above himself. Such men are rare. Having also met his father, Dr. Rafael Cruz (while his son was conducting a radio interview in the convention hall) it wasn’t hard to see where Ted got it from. Nor was it hard to understand why the younger Cruz, with little else but the force of his personality and character, was able to garner the support of 75% of the delegates against the well financed Lieutenant Governor Dewhurst. BTW: I’d recommend his book.
You are wasting everyone’s time, Steve. Either make an actual argument for why the Supreme Court’s interpretation of the 14th Amendment was wrong–one that has not already been debunked a thousand times–or moved on. I don’t know what you get out of making variations of the same argument, over and over again. Do you think you are convincing anybody?
That’s because I keep getting the same old crud all the time. Just how many times and in how many different ways can I make the case, hmmmm? If you’re bound and determined to submit to political despotism and support the cause of insane perverts, there’s not much else I can say.
You could, you know, explain why anyone should believe that gays are “insane perverts.”
Because it defines them. Actually, using the terms “insane” and “pervert” together is a redundancy.
Do you realize that that is not an explanation?
Did you want a 12 page essay or what? It was a short question and I answered it briefly, as no more appeared to be necessary.
This is because you haven’t made the case, or even gotten all the pieces gathered. Asserting that you’ve made the case is mot making it.
How so? We’ve argued it back and forth, up and down. How many times do I have to state my case, Jack? It’s come down to two different worldviews that are irreconcilable, I was just stating this as I’m tired of repeating myself in what’s become a fruitless discussion. It’s much like that extended debate you and Charles are having over a minor issue of semantics in a minor issue of journalistic ethics. I’ve stuck with this as long as I have because this issue is NOT minor, but one that threatens the very fabric of a free and decent society.
The whole concept of unenumerated rights is wrong, and only invites judges to impose their policy preferences by making up rights as they go along.
The Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” seems to infers the existence of unenumerated rights.
One of the objections to the bill of rights at the founding was that the enumerated rights would or could be construed as the only rights granted to the people. To understand the constitution as the founders understood it might just require a constitutional amentment to cover, for example, electronic communications.
There was a test for unenumerated rights- the Glucksberg test.
WE HAVE MANY INDIVIDUALS IN THIS NATION WHO SHOULD BE JAILED FOR NON ENFORCEMENT OF LAWS INCLUDING THE PRESIDENT. ATTY GEN, ALL IMMIGRATION OFFICERS ETC ETC
BUT THEY DON’T HAVE THE GAY LOBBY
THANK GOD WE HAVE THE LESS POWERFUL BUT EQUALLY LOUD CAPS LOCK LOBBY TO STOP THEM.
1. Too stupid a comment for this blog. Do better.
2. No all caps, please. Last warning.
BUT JACK, WHAT IF WE’RE TRYING TO IMITATE THE STYLE OF BRIAN BLESSED? WHAT DO WE DO, THEN?
GOOD POYYYYNT!
I do not see any discretion in the job description of a county clerk as to the issuance of marriage licenses lawfully applied for.
That’s because there is none.
I thought in any licensing situation there is room for denial, just that denial cannot be based on race, gender, religion, etc… But that there are defined grounds upon which licenses from drivers to concealed carry to marriage can be denied…?
Sure. In divorce, a judge can declare that the marriage isn’t broken and the couple can and should reconcile. But judges almost never refuse to grant divorces, and this one is no different. Without the hit on SCOTUS his opinion would be safe. But what he is doing—proving it may be tough—is using the couple as his “I HATE YOU” billboard to SCOTUS. Pure Kant violation, regardless of whether they use the Code on him.
“I am always grateful when an articulate commenter on the post expands, at any length, on what I present and adds some of the sources I have read and others, putting more flesh on the bones of my position.”
Me too. This is a thank-you note. I am especially grateful for the commenters, like JohnBurger 2013 on this topic, who save me the time and trouble (seriously, I get caught up in these things!) of researching well into sleep-, play- and sometimes into work-time my many areas of ignorance, as well as being compelled to pursue related or even thinly tangential questions for days. As far as I’m concerned, comments can be as useful con as well as pro, as well in wit as in passion, and I appreciate Jack’s and his regulars’ editorial use of them.
I don’t follow Ethics Alarms with what seems to be defined here as socially or politically “left” or “right” and frequently lead off in those directions. (Worst, when I find myself responding to them with similar knee-jerk assumptions or insults either way: it’s not in my Constitution!) I came to learn about ethics alarms and how they work and I appreciate it as much when new ones ring as when I discover old ones becoming automatic.
Thus, (with the exceptions of commenters who make recurring zombies of their poor dead arguments) — it wouldn’t really be me without a parenthetical phrase — I am thankful and indeed indebted to all following Our Jovial Leader who post consistently under RESPONSE.
This does beg a very important question.
Why does Senator Cruz believe that his statement will resonate with the electorate?
Then consider the4se beliefs held by large portions of the electorate:
– Employers impose their religion and violate women’s rights if they refuse to offer health care coverage that includes contraception without co-pay.
– Citizens United means that corporations are people.
– Universities are perfectly competent to investigate rape claims
– The Department of Education Office of Civil Rights has the power to interpret law.
– Hate speech is not free speech.
– A public university’s code of conduct overrides the First Amendment.
In various comments on Facebook and Disqus, I have read examples of all of the above.
Why does Senator Cruz believe that his statement will resonate with the electorate?
The answers are all horrible.
1. Cruz is smart and sophisticated, and he knows most people aren’t.
2. The “conscience” argument has always appealed to the right and libertarians, mostly because they don’t think very hard about it. 3. It’s easy hypocrisy. The right has never had much tolerance for, say, those in the Vietnam war who said their religion forced them to resist the draft.
4. Cruz has to do something to stand out, and he is trying to appeal to Trump voters. You know. Morons.
5. He is genuine hard-line Christian, who genuinely objects to same sex marriage, and knows that many, many voters feel similarly. Unlike them, he knows that SCOTUS decisions cannot be defied., however, and must not. But he’s trying to get them to like him.
6. He is not averse to capturing the anti-gay bigot vote, which is substantial.
7. He’s a classic demogogue.
With the apparent ignorance of large chunks of the American electorate (described in my comment above), the only people who have a chance at being elected President are those who have no reservations about appealing to their ignorance.
Yes.
Or, having clerked for William Renquist, having been Solicitor General for Texas and having argued cases before the Supreme Court, he has well grounded ideas in what the federal judiciary properly can and cannot do. He also might combine those ideas with constitutionality, ethics & morals and an ability to articulate those to good citizens who have had their absolute fill of illicit government by criminals and degenerates.
That’s what’s so terrible and disappointing about Cruz here. He knows he’s talking nonsense and pandering, and he’s using the credentials you mention to give credibility to a flat out ridiculous proposity. How do we know that? Because he keeps misidentifying what Davis is being jailed for.
“Today, for the first time ever, the government arrested a Christian woman for living according to her faith.”
Gee, why was ONLY Davis arrested for living according to her faith, Ted? Because that’s not what she was arrested for, and he knows it. This is like saying that Vester Lee Flanagan is being villified for using his legally obtained gun.
“I stand with every American that the Obama Administration is trying to force to choose between honoring his or her faith or complying with a lawless court opinion.”
Cruz has a major jurisprudencial argument to make and prove that a SCOTUS decision can ever be “lawless,” by definition. He can’t assume it, and nobody should take his word for it. And he is just asserting what he knows not to be true. A law cannot be “lawless,” that’s ridiculous. Roe v. Wade esconces what some people thing is legalized murder as a right, but even if they are correct, it’s not “lawless.” A decision that Cruz would make differently make be wrongly decided, but it IS NOR LAWLESS< and Cruz makes the public dumber by saying otherwise. Then he gives us sa false dichotomy. Is every person of faith obligated by that faith to actively block the execution of the gay marriage right? Of course not, so the "choice" Cruz asserts is a lie. Do other people having a same sex marriage violate YOUR faith for YOU? Well, do the acts of every non-Christian violate your faith for you to the extent that you are obligated to stop them?
“When the mayor of San Francisco and President Obama resign, then we can talk about Kim Davis.”
What kind of legal theory is THAT? If Cruz wrote that on a Harvard Law exam, he’s be sent to the infirmary or shipped to Yale Law School
“Those who are persecuting Kim Davis…”
Right, Ted: being told that you have to do the job you agreed to do and are being paid for is persecution. I didn’t even have the guts to make that argument when I found out my oce cream scooping job included cleaning the toilet once a week.
“…. believe that Christians should not serve in public office.”
We have never had a non-Christian President, 9 of the SCOTUS members are Christians, including the author of the opinion, and Cruz really makes that statement. Disgraceful.
“We are a country founded on Judeo-Christian values…where we could worship God and live according to our faith, without being imprisoned for doing so.”
Any time one’s “faith” (the issue here is bigotry) makes someone violate a law, they are prosecuted for it. Those who have shot abortionists cite their faith. This is no different. Faith does not give license to defy non-rilogious laws.
The toothpaste is already out of the tube. See e.g. the IRS, The DoE interpreting Title IX, the University of Oklahoma expelling students for hate speech…
It’s not just a matter of personal faith or conscience, Jack- although that should be an issue. There’s also the matter of Kentucky state law and that of the legitimacy of the Supreme court ruling. All of this needs to be addressed. If Mrs. Davis opted for “civil disobedience” to an unjust law, then how does this make her different from others that have done the same… and, in a number of occasions, for a far less worthy reason? I DO firmly believe in a nation under the rule of law, not men. However, I’m forced to maintain that we are no longer that. If the Supreme Court didn’t prove that with their ruling, what more is needed? Obama breaking immigration laws with executive orders?! Oh… yeah.
“If Mrs. Davis opted for “civil disobedience” to an unjust law, then how does this make her different from others that have done the same…”
The fact that she is a government employee refusing to do her job, you idiot.
The fact is that she is a county official of the State of Kentucky and upholding state law on this matter… moron.
Like Lois Lerner?
Or the President of the University of Oklahoma?
Or the Office of Civil Rights in the Department of Education.
I don’t think any of those people are claiming to be performing “civil disobedience,” Michael.