By Trevor Law
Kim Davis…by now I am sure you have heard all about her, and how (depending on who you ask) she bravely stood up to the supreme court and was thrown in jail for her beliefs, or how she is standing in the way of progress, and keeping honest Americans from forming families. Oh, American politics, no room for the most basic level of empathy…. Anyway, the entire thing has forced me to reexamine my own views, the supreme court decision, and why exactly she is in jail.
First let’s go back to the supreme court’s decision to legalize same sex marriage. Now, there is a lot that went into this but to sum it up to its most basic level, the Conservative argument came down to the tenth amendment, which states
“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.”
Really short right? What this means is that if it isn’t covered under federal law, its either a state issue, or an individual right. So there is little to no federal law governing marriage. So its a state matter, now while the federal government gives benefits to married people they really just let the states deal with licensing, divorce, etc.
But Trevor, these seems to be a really solid argument against same sex marriage, how did the supreme court legalize it? Well that’s because the liberal argument came down to the fourteenth amendment, which states (I put the entire amendment here in case you got curious, but really only section one and five is important for this discussion):
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
What those two sections mean in this context in that a state can’t deprive you of life, liberty, or property without due process. So if a state decides that all people named Fred can’t get a driver’s license then all Fred’s could sue the state in federal court and would win, since that would be taking away a right others in the state have. So if a state lets people get married, then EVERYONE as the right to get married. It is based on this reasoning that the supreme court legalized same-sex marriage. If you want the court’s complete ruling, click here, or for a summery of it click here.
Ok then, so it’s the law for a court clerk to give a gay couple a marriage license, and since Kim Davis is a Christian and feels like this is violation of her religious rights then she just stopped giving out marriage licenses all together. There! Problem solved! Nope, she was held in contempt of court for violating a judge’s orders to keep handing out marriage licenses. Since the state of Kentucky, where she resides, still has marriage licenses she can’t just decide to stop doing her job. To a lot of Conservative Christians this is viewed as persecution, but think about it like this: If a Catholic judge stopped allowing divorces because it was against his religious beliefs, he would be thrown out pretty quickly, or an Orthodox Jew who is a meat inspector, who started calling all ‘unclean’ meat unsafe for consumption. These are all things we would more or less universally say are a right under U.S. law, so why is she any different? Heck she isn’t legally required to say “my god bless this gay union” She is only required to recognize it as a marriage under Kentucky and U.S. law. It is why an Atheist fire inspector can’t just deny a building permit to a church, because it is against his personal beliefs. From a legal standpoint it is pretty cut and dry.
Here is what I find REALLY funny about the entire thing though, Conservatives essentially insured this would happen. You see back in the 2000’s Republicans started putting same-sex marriage bans on the ballots to try and get higher turnout. It didn’t really work but it did set up a cut and dry showdown. You see now Conservatives were locked into a system that couldn’t recognize ANY gay marriage or really any rights for gay couples. So when the country kept shifting on this issue Conservatives were locked onto a losing side. Had they sought a compromise and given gays the same rights as married couples but just not called it marriage it is very possible the 14 amendment couldn’t have been used to legalize it. It is a classic strategy of the Conservative movement and it insures the biggest possible win for liberal issues. So instead of having a system of civil unions and giving all Americans equal rights under the law, now Conservative Christians like Kim Davis have to sign marriage licenses for gay couples, or lose their job. It truly is amazing the shortsightedness of so many Conservatives on this issue, but its what I’ve come to expect.
About Author
