Lawbreaker Kim Davis and the lawless Ted Cruz... By Dana Milbank

[mystery-ak]

https://www.washingtonpost.com/opinions/lawbreaker-kim-davis-and-the-lawless-ted-cruz/2015/09/04/fd63c660-5333-11e5-9812-92d5948a40f8_story.html


By Dana Milbank Opinion writer September 4 at 5:00 PM

What Kim Davis did was troubling. What Ted Cruz did was downright alarming.

Davis, a county clerk in Kentucky, refused to issue marriage certificates to gay couples. She said she was operating “under God’s authority,” but she now sits in jail for ignoring federal authority.

Davis, at least, is facing the consequences of her actions. Not so Cruz, senator from Texas and Republican presidential candidate.

“Today, judicial lawlessness crossed into judicial tyranny,” he said. “Today, for the first time ever, the government arrested a Christian woman for living according to her faith. . . . I stand with Kim Davis. Unequivocally.”

Tyranny? Our system of government gives the Supreme Court final say over constitutional matters, and, though Cruz doesn’t like it, the court ordered states to recognize same-sex marriages. In fact, the high court specifically declined to give relief to Davis, and the federal judge who ordered her jailed for contempt of court is a George W. Bush appointee and son of a former Republican senator.

Now Cruz, who took an oath of office to “support and defend the Constitution,” wants people to defy the Supreme Court’s authority? Who is the lawless one?

Cruz isn’t the only Republican candidate seeking the nation’s highest office while encouraging people to ignore its laws. Mike Huckabee, the former Arkansas governor, declared: “I thank God for Kim Davis, and I hope more Americans will stand with her.”

Louisiana Gov. Bobby Jindal, too, supported Davis, and Sen. Rand Paul (Ky.) called her jailing “absurd” and said stands such as Davis’s are “an important part of the American way.” Wisconsin Gov. Scott Walker said that “you have the freedom to practice religious beliefs out there. It’s a fundamental right.”

True. And there’s a proud American tradition of defying unjust laws with civil disobedience. But nobody is denying Davis freedom to believe what she wishes; she’s merely being ordered to do what she swore to do: “faithfully execute the duties of my office without favor.” Refusing to do so doesn’t make her Martin Luther King Jr. It makes her George Wallace.

“When they put their personal beliefs above their responsibilities as public servants, that’s not civil disobedience, it’s abuse of power,” says Michael Keegan of the liberal group People for the American Way, which tracks such actions by public officials. “Elected officials who feel like they can’t in good conscience fulfill their duties have an honorable way to proceed: They can find another line of work.”

Defenders of Davis, a Democrat, cite President Obama’s “lawlessness” — but even his expansive view of presidential power doesn’t include ignoring court orders. They cite San Francisco’s “lawless” sanctuary-city statute — but the ordinance has survived 26 years without being invalidated.

Jeb Bush, to his credit, said Davis “is sworn to uphold the law.” But a large number of Republican officeholders are encouraging people to ignore a variety of laws.

When Nevada rancher Cliven Bundy last year undertook an armed standoff against the federal government, Paul, Ben Carson (also now a GOP presidential candidate), Sen. Dean Heller (R-Nev.) and others took Bundy’s side.

Huckabee and Rick Santorum, another GOP presidential candidate, signed a pledge not to “respect an unjust law that directly conflicts with higher law.” Huckabee is on record saying that “the Supreme Court is not the Supreme Being, and they cannot overturn the laws of nature or of nature’s God.” Huckabee floated the notion of using federal troops to block people from getting abortions. He also said: “I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch.”

Paul recently sounded a call to arms against the city of Houston over a rescinded attempt to subpoena local pastors. “That’s at the point at which civil resistance is in order,” he said. Former Texas governor Rick Perry, for his part, said last year that his state wouldn’t comply with a federal prison-rape law.

Senate Majority Leader Mitch McConnell (R-Ky.), meanwhile, encouraged states not to comply with a proposed Environmental Protection Agency rule. Various judges and clerks across the country have taken stands like Davis’s.

Davis got support for her law-breaking from Matt Bevin, the Republican candidate for governor of Kentucky, and from her husband, Joe, one of three men to whom she has been married. Ominously, he said he’s not afraid of harassment by gay-marriage supporters, and he invoked his gun-toting rights under the Second Amendment. “I’m an old redneck hillbilly, that’s all I’ve got to say,” he said. “Don’t come knocking on my door.”

It’s fitting that, as Kim Davis undermines the rule of law, Joe Davis threatens violence. When you lose the former, all you are left with is the latter.

[Bigun]

Kentucky Revised Statutes

KRS Chapter 402

Includes enactments through the 2015 Regular Session

The KRS database was last updated on 09/04/2015


402.005 Definition of marriage.

As used and recognized in the law of the Commonwealth, "marriage" refers only to the
civil status, condition, or relation of one (1) man and one (1) woman united in law for
life, for the discharge to each other and the community of the duties legally incumbent
upon those whose association is founded on the distinction of sex.

Effective: July 15, 1998
History: Created 1998 Ky. Acts ch. 258, sec. 4, effective July 15, 1998.

http://www.lrc.ky.gov/statutes/chapter.aspx?id=39205

[Bigun]

Here is the oath of office she swore in black and white:

"I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of ——————— according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God."

[Bigun]

If I were a member of congress the judge in this case would be facing impeachment!  He has absolutely no authority to order anyone to violate the law much less throw them in jail for refusing to do so!

[Oceander]

Here is the oath of office she swore in black and white:

"I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of ——————— according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God."

There is only one relevant part of that oath, and it is the part she is flagrantly violating:

I will support the Constitution of the United States

She is a lawless government official and precisely the sort of person from whom the courts are meant to protect us.

[Bigun]

There is only one relevant part of that oath, and it is the part she is flagrantly violating:

I will support the Constitution of the United States

She is a lawless government official and precisely the sort of person from whom the courts are meant to protect us.

Did you read the CURRENT law in the state of Kentucky which I posted above? The one that Kim Davis is upholding as she swore an OATH to do!

[Oceander]

Did you read the CURRENT law in the state of Kentucky which I posted above? The one that Kim Davis is upholding as she swore an OATH to do!

I don't have to because I read the Constitution of the United States, which clearly, without any qualification, states that the Constitution "shall be the supreme law of the land ... anything in the Constitution or laws of any State to the contrary notwithstanding."  Article VI.

Now, as I read that, it says that whatever Kentucky state law has to say about same-sex marriage is utterly irrelevant to the extent it is inconsistent with the Constitution of the United States of America.

This court isn't ordering Davis to violate the law or her oath, it is ordering her to honor her oath and uphold the supreme law of the land.

You should try reading the Constitution sometime - the whole thing, not just cherry-picked phrases - it would improve the quality of your "argument" immeasurably.

[Bigun]

I don't have to because I read the Constitution of the United States, which clearly, without any qualification, states that the Constitution "shall be the supreme law of the land ... anything in the Constitution or laws of any State to the contrary notwithstanding."  Article VI.

Now, as I read that, it says that whatever Kentucky state law has to say about same-sex marriage is utterly irrelevant to the extent it is inconsistent with the Constitution of the United States of America.

This court isn't ordering Davis to violate the law or her oath, it is ordering her to honor her oath and uphold the supreme law of the land.

You should try reading the Constitution sometime - the whole thing, not just cherry-picked phrases - it would improve the quality of your "argument" immeasurably.

Judges are not kings in America! They get to render OPINIONS! The DO NOT get to write law!

[Godzilla]

Judges are not kings in America! They get to render OPINIONS! The DO NOT get to write law!

I don't think that argument works.  But hey, feel free to use it the next time you have to go to court.

[Oceander]

Judges are not kings in America! They get to render OPINIONS! The DO NOT get to write law!

Are you kidding me?  You really do not understand how the law, or a court, works, do you.  (no, that isn't a question).

Firstly, as far as state courts are concerned, yes, judges do make law.  Where do you think the common law came from?  That was crafted out of whole cloth by judges, beginning many centuries ago in England.  The English common law was carried over in this country at the Revolution (a natural thing to do since the colonies were British).  That tradition continues in the various states to this day, and while it varies from state to state, most state courts - usually the highest court - do make new law.

Second, what you're calling "making law" is nothing of the sort.  The Supreme Court took already existing written law - the Constitution - and decided how that written law applied to the particular set of facts before it.

Tell me, what does the phrase "due process of law" mean in this first section of the 14th Amendment:

nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The amendment itself doesn't provide even a hint about what "due process of law" is, nor how much is sufficient (i.e., constitutionally mandated).

The only way that abstract clause gets any meaning is when a  court has to decide whether, on the facts before it, "due process of law" was granted or denied.  That necessarily means that the judge will end up holding that a particular action is, or is not, sufficient due process.  If that set of facts has not been the subject of a court case before, or if the judge has been persuaded that the arguments for changing the result of the prior cases are strong enough, then the judge will be issuing an opinion that for the first time declares that "due process of law" requires X, or that it does not require X.

Whether one calls it how the law evolves, or "making law," that is the essential aspect of applying the law to the facts.  For example, the first time the Supreme Court decided whether wiretaps violated the Fourth Amendment, it held that they did not.  Olmstead v. United States (1928).  It was a 5-4 decision and this is what Chief Justice Taft had to say about it:

"The amendment itself shows that the search is to be of material things - the person, the house, his papers or his effects.  The amendment does not forbid what was done here for there was no seizure.  The evidence was secured by the sense of hearing and that only.  There was not entry of the houses. T he language of the amendment cannot be extended and expanded.  Since the evidence was a conversation and no entry was made into Olmstead's home, there was therefore no violation of his rights against unreasonable search and seizure."

However, the Court ultimately decided that the better arguments favored protecting communications under the Fourth Amendment, although it took until 1967, in the case of Katz v. United States, 389 U.S. 347 (1967).

So, at what point did the Supreme Court "make law"?  The Fourth Amendment itself doesn't expressly cover wiretaps, or even eavesdropping, so was it making law when it said that the Fourth Amendment did not protect telephonic conversations?  Or was it making law when it reversed itself 39 years later and said that the Fourth Amendment did protect telephonic conversations?