March Madness (not that tournament)
Part 1 - America’s landmark gay-marriage ‘Obergefell’ decision was upheld this month by the Sixth Circuit Appeals Court, ignoring logic, breaking the law.
Ten years ago Kim Davis, the county clerk of Rowan County, Ky., refused to issue a marriage license to a same-sex couple. Thus began a long journey through many courts, a jail, and no doubt, the pits, until this month, the bitter end. Or, is it?
On March 6 she lost an appeal in the Sixth Circuit Court which a decade earlier had upheld the gay-marriage bans in its four states, Michigan, Ohio, Kentucky and Tennessee. She has been ordered to pay $100,000 to the plaintiffs, David Ermold and David Moore, and an additional $260,000 in legal fees.
The court opined: “Davis cannot raise a Free Exercise Clause defense because she is being held liable for state action, which the First Amendment does not protect.”1 Simply put, Kim’s personal beliefs were not pertinent or permitted when she was being paid to do a job by the state. As a government employee she ought to have obeyed the law.
We understand how this works. For example, during ‘Covid’, state police were required to record license plate numbers of people attending church services. They could not question the order. The law is the law, even if only issued in an emergency order. Even if only handed down by the USA judicial branch that is not authorized to make laws, but only to interpret them.
Kim’s Liberty Counsel attorneys now hope to appeal to the Supreme Court, believing that her case will be the one to overturn Obergefell v. Hodges. After all, Dobson v. Jackson Women’s Health Organization did that for Roe v. Wade.
However, in 2020 SCOTUS declined to hear an appeal from Kim’s lawyers. At that time, the justices were Chief Justice Roberts and Associate Justices Clarence Thomas, Ruth Bader Ginsberg, Samuel Alito, Sonia Sotomayor, Elena Sagan, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
So, will a new request open a place on the SCOTUS docket?
Are there no conscience rights in America?
Despite the Obergefell law of the land, a bill ensuring ‘medical-conscience rights’, SB 132, passed in the Kentucky Senate on March 7. At this writing, it does not appear to have passed in the House.
Sen. Stephen Meredith, who sponsored similar bills in the past noted: “Now think through that one: if your heart is really not supportive of providing that care to that gay couple, are you really doing what’s in the best interest of that gay couple? You may go through the motions, but you’re not really going to give them comfort, good advice, you’re just going to sit and listen. Wouldn’t it be much better to say, ‘I’ve got an issue, I want to refer you to one of my colleagues.’ Wouldn’t that be the right course of action?”
Can there be one rule for healthcare providers and another for county clerks? Maybe not.
Would recognition of common-law marriage in Kentucky have resolved Kim’s dilemma? Were all options explored before making gay marriage lawful in the USA? Will these questions be answered before we slide further down the slippery slope?
The SCOTUS Certiorari (rationale for review of the case) for Obergefell v. Hodges presented four principles as guiding tenets:
The right to personal choice regarding marriage is inherent in the concept of individual autonomy. There is ‘an abiding connection between marriage and liberty.’
The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.2
Marriage safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.3
Previous Court cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order… It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage…. [while being denied] the constellation of benefits that the States have linked to marriage. ($$$ -ed)
Are these four ‘guiding stars’ logical? Is ‘individual autonomy’ (point 1) the same as the liberty promised in the 14th amendment? Are you not a free person in this country if you practice homosexual acts? But does that personal behavior equate to the right to a marriage license? Is marriage a civil right? Could you not say that you have a right to marry your son in that conflation of liberty of personal behavior with civil rights?
Is it logical to partly base a court decision that would deny a marriage license to some applicants on the notion that it would demean them? (point 4) Ad misericordiam fallacy? Ad populum? Is laying the ax to the foundation of marriage not more concerning than hurting the feelings of a small minority of complainers even though their liberal supporters will grieve?
In America’s courtrooms logical fallacies are frequently ignored, as judges focus on the rearview mirror of which previous cases can apply to a current one, while following all trial procedure rules.
More to come! Watch for Part 2 of this post tomorrow.
As stated by one appellate court, “[E]very legal analysis should begin at the point of reason, continue along a path of logic and arrive at a fundamentally fair result.”
To criticize, reverse, or overrule an administrative or judicial decision as “arbitrary,” “capricious,” “unsupported by law,” or “contrary to precedent” is to say nothing more, but nothing less, than that the decision is deficient in logic and reason.
The First Amendment states, ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’
A finding of the SCOTUS decision on Griswold V. Connecticut that protects the rights of married couples to use contraception.