Thursday, September 3, 2015

What Judge David L. Bunning got wrong



Since Reynolds (1878), the guiding principle of jurisprudence on issues of religious freedom vrs statutory law has been that free exercise is to be respected over statutory law with these provisos:

1) Free exercise can only be superseded by statutory law when the government has a compelling interest in enforcing statutory law.

2) Denial of religious freedom, when necessary due to a compelling interest, must be done by the least coercive means possible.

Regarding Davis, the government has no compelling interest in forcing Davis herself to issue the licenses. It could be done by a clerk in a neighboring county, which also would be less coercive regarding Davis.

The judge botched the law and violated Davis' constitutional rights. He needs to be removed from the bench, and prosecuted for violation of Ms. Davis' constitutional rights under color of law.


38 comments:

  1. Except that her religious freedom can remain intact while she does her job. Issuing a license is not a religious act, purely administrative. She is not endorsing the applicants' marriage (gay or straight). The only thing botched is your analysis.

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    1. Quite literally what a county clerk in her position does is endorse marriages. Her job is to approve those unions which the state finds legitimate.

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    2. She endorses marriage as representing the state, not as Kim Davis representing Kim Davis.

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    3. Actually, issuing the license in Kentucky is not merely an "administrative act." Unlike other duties of the County Clerk, the marriage license actually requires the Clerk to participate in the execution of the document. When you buy a property of get a mortgage, the clerk records the deed and mortgage, but the clerk doesn't help prepare the deed or mortgage, or in any way get involved in the execution of the documents, or even act as gate keeper to approve or disapprove of the transaction; the clerk merely records what happened. With a marriage license, the clerk must sign the license, and by doing so grants permission for marriage. One might ask why any government agency is involved "approving" marriages, but it is what it is. So, Kim Davis was put in a no-win position when five perverts in black robes decided that there had magically appeared somewhere in the US Constitution a "right" for same-sex couples to get married.

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    4. @John:

      [She endorses marriage as representing the state,]

      The law of the State of Kentucky does not permit gay marriage. And since she took no oath to "enforce the whims of unelected lawyers who violate the Constitution", she is under no legal obligation to issue marriage licenses to homosexuals.

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    5. The State of Kentucky may not have laws that violate the Constitution of the United States of America, and the Supreme Court ruled that the law did exactly that. It does not matter how many people voted for it, the law is not permitted. The people of Kentucky now have two options: write a law that achieves their spurious goal without violating the principals of the Constitution, or convince enough people of this nation that we need to amend the Constitution in order to deny rights to some citizens.
      Ms. Davis took an oath, and she violated it. She was given a court order, and she ignored it. Jail's the correct solution.

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    6. CLJ:

      Tatsächlich. Das Gewissen ist keinerlei Rechtfertigung für die Missachtung einer gerichtlichen Anordnung.

      Auch wenn das Problem hätte leicht, indem Sie zu einem anderen Büro gelöst haben, Gehorsam gegenüber dem Staat ist das einzige, was zählt.

      Sie würden in Deutschland blühte haben.

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    7. Unfortunately, it is cowards like you who would have told the founding fathers to knock off all the "no king but King Jesus" nonsense, end the rebellion and do your job. You are beyond pathetic. Except for the crew the entire Mayflower group were religious protesters who were tired of the government telling them how to practice their faith. Most were Sabbatarian’s trying to escape England's Sunday only laws. Without religious courage, there would be no America as we know it and you wouldn't even be here. Your weak-kneed ignorance is stunning.

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    8. Unfortunately, it is cowards like you who would have told the founding fathers to knock off all the "no king but King Jesus" nonsense, end the rebellion and do your job. You are beyond pathetic. Except for the crew the entire Mayflower group were religious protesters who were tired of the government telling them how to practice their faith. Most were Sabbatarian’s trying to escape England's Sunday only laws. Without religious courage, there would be no America as we know it and you wouldn't even be here. Your weak-kneed ignorance is stunning.

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    9. Bleeding liberal.

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    10. I am looking forward to the fall of Bunning he must pay for jailing people for not signing marriage certificates. He misused his power and the closet Bunny rabbit will pay .

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  2. agreed with above, and to add: are you insinuating that the government doesn't have a compelling interest in the right for all Americans to marry? Because recent history kind of completely proves differently. Catch up.

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    1. I think you missed the point. Imprisoning someone for genuinely held religious beliefs is an extreme act, in and of itself, as we are all specifically granted "free exercise" under the US Constitution, and most state constitutions. The compelling interest asks the question "What harm is done to the state (government) with respect to the person's religious beliefs and/or refusal to do X based upon those beliefs." Obviously, the answer is very little. Is there an alternative way to get the job done beyond putting the woman in jail? Obviously, the answer is yes. Now ask yourself this question -- Why is the supposedly highly-successful judge never married? Is he a closeted homosexual, who took out his wrath upon Kim Davis?

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    2. me:

      Fascinating point. I do think that the Gaystapo searches for fellow gaystapos in the judiciary so the fix is in. This certainly happened in the California ruling on Prop 8.

      Very interesting theory.

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    3. @Vanessa:

      [are you insinuating that the government doesn't have a compelling interest in the right for all Americans to marry?]

      Getting married by Kim Davis isn't a compelling interest. They can go elsewhere.

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    4. Your exactly right me112233 the so called Judge has never been married and has ruled in the past in favor of the homosexual agenda trying to force students to view a video to make them feel that homosexual behavior is normal. Remove Judge bunning from the bench !!!

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    5. Bunning was appointed by bush around the time a campaign commercial aired featuring George W Bush and David Bunnings father, at the time a sitting us Senator Jim Bunning walking side by side. Just my opinion but talk about daddy buying his son a job with political favors. This should be illegal and I think it is illegal, it should at least be looked into.

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    6. Remove Judge Bunning from the bench!!! He said he was religious. So why did he jail his sister in Christ? He would have to answer to Him at the time of the judgment seat.

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  3. ^ these people are so intellectually dishonest.

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  4. In this post on my blog, I link to all of Mr Egnor's recent posts on this matter, and I *also* link to a couple of recent posts by Douglas Wilson, in the first of which he directly addresses the imaginary point raised above by the anonymouse and 'Vanessa'.

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  5. I agree with the two commenters. Issuing a license has nothing to do with religious freedom. All the license is an acknowledgement that the meet all of the legal requirements in that state to be married. There is no moral involved. In fact, there are no moral decisions allowed. If the clerk refuses a license to an inter-racial couple, or an inter-faith couple, because she thinks it is immoral and goes against her religion, she is failing to do the job that she was hired for.

    If this clerk was Catholic, would she have the right to refuse to file divorce papers? Could she refuse to file licenses for doctors if they happen to perform early stage abortions? Could she refuse to process business licenses for pharmacists because they sell contraceptives?

    Your interpretation that religious freedom protects her action is simply wrong factually, and wrong headed.

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    1. To be fair, when she ran for office, the law of the land was no gay marriages (unconstitutional in Kentucky). Then, five perverts in black robes claimed that Kentucky's constitution was unconstitutional (if that makes any sense). But she was already in office at that time.

      Curiously, you indirectly hit on something. The Circuit Clerk does not help prepare divorce papers; not in any way, shape, or form. The Circuit Clerk simply records the documents filed with the court system, and sometimes forwards a copy to the other party. In contrast, the County Clerk (a different office in Kentucky) must participate in the preparation of the marriage license, and must sign it to make it "good." The marriage license is NOT something that is prepared by someone else, and simply brought to the clerks office to make a record of it, similar to how a deed or mortgage is handled (the clerk simply records what was 100% done by someone else).

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  6. Vanessa:

    [are you insinuating that the government doesn't have a compelling interest in the right for all Americans to marry]

    You misstate the issue. The jailing of Kim Davis presupposes that the government has a compelling interest that the gay couples be married by Kim Davis.

    Being married by Kim Davis is not a compelling government interest. My wife and I weren't married by Kim Davis, and we've done just fine.

    The compelling interest in making marriage available (it should not be available to gays) can be met by suggesting that the gay lovebirds drive a few miles across the county line and get married by another clerk. There are tens of thousands of clerks in the USA who will marry them, and many clerks nearby.

    The legal approach to Free Exercise/Statutory law conflicts is to identify the actual compelling interest (getting married by someone) and accomplishing it in the least coercive way possible (encourage the gay lovers to get hitched in the next county).

    That gets the gaystapos married, without violating the clerk's constitutional right to free exercise.

    But Vanessa, all of this is irrelevant. The gaystapo goal here is not to get married, anymore than the gaystapo goal is to get a wedding cake.

    The gaystapo goal is to intimidate and ruin and jail Christians, and it's been quite successful.

    ME

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    1. "The gaystapo goal is to intimidate and ruin and jail Christians, and it's been quite successful."

      You really have to get off this conspiracy theory obsession. It is not healthy.

      Are some homosexuals targeting specific people and businesses? Absolutely. I seem to remember a few black teens doing the same thing in the 60s in at a Woolworth's diner. And another young black lady doing a similar thing on a bus. And the interesting thing with her is that she didn't have to travel to the next county to obtain her legally entitled service; she only had to move a few rows back in the bus. Should we call them the Blackstapo?

      But the recent examples are only targeting people who are breaking the law. The police and the media do this all of the time. If you don't want to suffer some consequences, don't break the law.

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    2. [Are some homosexuals targeting specific people and businesses? Absolutely. I seem to remember a few black teens doing the same thing in the 60s in at a Woolworth's diner.]

      Right. And in the 60's it was the protestors of conscience who went to jail--just like today.

      Blacks in the 60's were the victims of horrendous Progressive Democrat racism--this atrocity committed by your comrades haunts black America today.

      Gays have suffered no discernable socioeconomic discrimination. They are on the average wealthier and better educated than "breeders", and they dominate many high income and high prestige industries--the arts, entertainment, media to name just a few.

      The only disadvantage they suffer today are the health effects of their own promiscuity.

      To compare gay life in America with segregation and Jim Crow is obscene.

      Note this: it's telling that the same groups who were fighting hardest for civil rights in the 20th century--blacks and Republicans--are fighting the hardest against the gaystapo today.

      ME

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    3. "Right. And in the 60's it was the protestors of conscience who went to jail--just like today."

      I don't recall the staff at the diner, or the bus driver, or the management at either company going to jail. They acted the way they did out of conscience as well.

      "Gays have suffered no discernable socioeconomic discrimination..."

      How old are you? Five? Davis discriminated against them. You discriminate against them. It was not that long ago that they were jailed or forced to undergo chemical castration. You really should read a little history. For centuries homosexuals had to keep it hidden for fear of reprisals. Rock Hudson and Raymond Burr had to keep it secret in order to have a career. Burr went as far as to invent a fake wife and family.

      There is still a stigma around homosexuality, but at least enough people are now rational enough to realize that it is none of our business as long as it harms nobody and does not harm society. Unfortunately, there are still a few mouth breathing, knuckle draggers who want to go back to the days when they weren't seen or heard. Thank god those days are gone for good.


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    4. [I don't recall the staff at the diner, or the bus driver, or the management at either company going to jail.]

      The correct analogy is that Davis is the black protestors. They did go to jail for standing up for their rights, like she has.

      [It was not that long ago that they were jailed or forced to undergo chemical castration.]

      No gay alive today was jailed or castrated. I repeat: gays have higher incomes, better education, and better jobs than breeders. To compare gays to blacks is obscene, and in polls blacks strongly disagree with the comparison.

      [There is still a stigma around homosexuality,] Not enough, it seems. There was a reason for the closet, as we are seeing with the rise of the Gaystapo. "mouth breathing, knuckle draggers" is a fine description of the scum that destroy people's lives over a cake and send Christians to jail rather than get their licenses 20 minutes down the road.

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    5. Nobody has destroyed any bodies life over a cake (or photos, or flowered, or a marriage license). In all of those cases the people were refusing to provide a service to people based on sexual orientation, which is against the law. They made bad decisions. And in many cases, as with Ms. Davis, the court bent over backwards to arrive at a compromise that would prevent them from further negative consequences. They chose to play the martyr role.

      You have repeatedly said that the comparison to the civil rights movement is obscene. Why? At the time blacks fought for equal rights, supported by a large number of whites. Today homosexuals are fighting for equal rights, supported by a large number of heterosexuals. They are not fighting for special rights, just equal rights. Including marriage. Which, as much as you would disagree, is not owned by any religion. With right come responsibilities and obligations. One of those is to defend the rights of others, even if we don't understand, or even condone, their decisions.

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    6. [Nobody has destroyed any bodies life over a cake]

      So you're volunteering to pay the meager fines?

      [Today homosexuals are fighting for equal rights, supported by a large number of heterosexuals.]

      Gays have equal rights. Gay marriage is not a right, anymore than marrying your dog is a right.

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    7. "So you're volunteering to pay the meager fines?"

      Why would I pay the fine for someone who intentionally broke the law? Are you going to pay my speeding fine because I disagree with the speed limit? I didn't think so.

      "Gays have equal rights. Gay marriage is not a right, "

      The Supreme Court disagrees with you.

      Why are you so opposed to same sex marriage? Nobody is forcing the church to preside over a SSM. Marriage is as much a civil and secular institution as it is religious one. Marriage predates Christianity, and even during the Christian Era it has changed dramatically. It has done so even during my life. Not too long ago wife's had to vow to honour and obey their husbands. Not long ago husbands were legally allowed (and expected) to physically discipline their wives. So this concept of "traditional" marriage is an artificial concept.

      Again, please provide me with the rationale against allowing SSM. If you can do it without invoking the bible, I might listen to you. But you can't.

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    8. Some have defended traditional marriage by pointing out its potential fecundity, or the fact that children have a right to a mother and father (surely you support diversity!).

      This is my argument:

      Marriage is a Sacrament.

      Homosexual conduct is a sin.

      Homosexual "marriage" is a manifestly evil desecration of God's Sacrament.

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    9. I can't believe that some black people ignore others when they compare the struggles with equality to the perverted equality that sodomites are pushing for. If I was black I would be offended by such comparisons.

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    10. William Spearshake, you wrong about marriage not being owned by any religion. the first marriage was in the Garden of Eden, when God himself created Eve the first women for the first Man Adam to be his wife, thus marriage is owned by God and Christianity. So before you spout off again and show everyone on this forum that you're not to smart read up first.

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  7. M.Egnor: "And since she took no oath to "enforce the whims of unelected lawyers who violate the Constitution", she is under no legal obligation to issue marriage licenses to homosexuals."

    Please, don't allow the leftists to set the terms to be used. It isn't that she isn't issuing marriage licenses to homosexuals -- she isn't even asking the applicants about their sexual preferences. Rather, she is not issuing the same marriage license to two men, or to two women, ragardless of their sexual preference.

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    1. Good point, Ilion. She has no problem issuing licenses to homosexuals applying for heterosexual marriage.

      It's easy to fall into their terminology.

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  8. How much wrong doing are we going to allow in the name of the Lord? Invoking God's name doesn't make you right. And by the way, this issue was working it's way to the Supreme Court when Kim Davis last ran for re-election. So, she did know that she might be faced with this decision. Finally, your rights end as soon as they step on mine just as mine end when they step on yours. Kim should do her job or step down. SHE DID VIOLATE THE LAW! A court order is just that just as it is for all others ever found in contempt.

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  9. Got no problem with folks living their own way, just quit tring to force me to see the world thru your eyes. After you loose your entire family to death, the understanding of life will be altered, showing you the other side and how very short it is.

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  10. John said:"She endorses marriage as representing the state, not as Kim Davis representing Kim Davis."
    ok, but she can't be A two "personality" person at a time!! she is what she is!

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