Sunday, September 06, 2015

My Sunday Feeling

I wasn't going to write about the Kim Davis case.  I tend not to go out of my way to borrow trouble at this stage of my life, although I sometimes don't do a very good job of it.  And actually, I'm not writing about Kim Davis as such.  Rather, I'm going to write about what happened here within the framework of what has been venerable precedent in the courts of law.  And I'm going to address what I perceive to be certain irresponsible comments by people that should, and probably do, know better.

When I was a law student, I was taught the basic principals of criminal and constitutional law in my first year.  I'm pretty sure the following case popped up in both classes.  But I remember it with clarity in light of recent events.  

There were some defendants who had gotten indicted on drug charges.  I somehow remember them as Native Americans.  But they could have been anybody.  They were indicted for the illegal possession and use of peyote.  Their defense was that their use of peyote was part of closely held religious beliefs and that their prosecution was a violation of their right to free exercise of their religion as guaranteed by the First Amendment.  

Does this sound familiar?

Anyway, they Defendants lost. The ruling of the Court was to the effect that while one is free to believe whatever one wants, one is not allowed to act on those beliefs to the extent that it violates the civil or criminal law.  That has been the law of the land for a hundred years.

When I was a young lawyer, I assisted another lawyer with a Tax Court case.  The clients were Christian pacifists.  That was not the name of their denomination.  That what they were. They opposed war in any shape, form or fashion.  And they were opposed to any portion of their federal taxes going for military purposes.  They believed that forcing them to pay taxes for military purposes violated their First Amendment rights.  They weren't opposed to paying taxes.  They just wanted whatever portion of their tax dollars that went to the Marine Corps to be appropriated to the Department of the Interior.  Or something.

They lost.  The Tax Court ruled that the Congress appropriates tax money.  Not the taxpayer.  So basically, write your Congressman.  Or a letter to the editor.  Secondly, the Court stated that if everybody could pick and choose where their tax money was to go, the result would be anarchy.

Again, you can believe whatever you want.  But neither you nor I have the unfettered ability to act on those beliefs.  And if our religious based actions run afoul of a valid and/or constitutional law, the law prevails.  Which is what happened in the Kim Davis case.

Unlike most people that have expressed an opinion in the case, I actually read the transcript of the hearing on the request for injunctive relief filed by the Plaintiffs who were denied a marriage license by Davis's office based on her faith based reason that same sex unions are contrary to God's law.  

In an apparent attempt to prove that her beliefs were genuine, her lawyer asked her a series of questions about her devotion.  I'm working on recall here, but it is my recollection that she testified that she attended services 3-4 times a week and that she was part of a prison ministry. 

Based on her own testimony about her religious practices the judge ruled that requiring Kim Davis to issue marriage license to anybody-including same sex couples-did not create a substantial impact upon her First Amendment right to freely exercise her religion as she otherwise saw fit.  And so she lost.

She appealed all the way to the US Supreme Court and lost every step of the way.  Still she refused to issue the licenses to same sex couples.  This got her hauled back in front of the judge on a contempt charge.  She lost that too and got tossed in the pokey where she will stay for up to 18 months (as I recall) or until she purges herself of contempt (as they say).  

And here's the point.  Mike Huckabee's suggestion that Davis's incarceration proves that Christianity is being "criminalized" would be laughable if weren't for the fact that a certain number of people believe such nonsense.  The reality is that there is not a power in these United States that can make you believe anything or punish you for having a religious persuasion.  

I am a Methodist.  Nobody forced me to be a Methodist.  I like being a Methodist.  However, Sunday I'm going to the Baptist church to hear my buddy preach.  Nobody can stop me.  I guess he could.  But I'm not worried about that.  Or nobody can stop me from staying home and watching the US Open tennis tournament if I so choose.  

But I don't get to pick and choose among what laws I intend to obey or ignore because I am a Methodist. Again, that would be a prescription for anarchy.     

Conversely Kim Davis isn't eating county food now because she is being persecuted as a fundamentalist Christian.  She's in jail for violating a lawful order of the Court on an issue that had been litigated fully.  That's what she's in jail for.  

Which brings us to another bit of legal analysis on the part of Governor Huckabee.  He has gone on the record as stating that the United States Supreme Court "cannot make a law." That it can "only" "make a ruling on the law." 

I actually find myself in rare agreement with Huckabee.  I just don't agree with his conclusion as to the practical effect as it applies to this case.  Or most cases for that matter.

The United States Supreme Court ruled that state statutes that prohibit same sex couples from marrying violated the United States Constitution.  Accordingly, these laws were entitled to no more effect and states are no longer legally able to prohibit same sex couples from obtaining a marriage license on that basis alone.

Which is exactly how I explained it to the 10th grader in my life over lunch one day.  It is not much more complicated than that.  

So yeah, Mike, the Supremes can't "make a law."  But they can sure as hell rule as to the constitutionality of laws passed by legislative bodies and they have done so since around 1830 when the Supreme Court ruled that it was the function of the "judicial department" to declare what the law is.  

You can believe that same-sex marriage is wrong.  You can choose to join a church that doesn't marry same-sex couples. Like the Methodist church.  You can refuse to attend same-sex weddings.  You can write letters to the newspaper or to your congressman expressing your opposition to it.  You can refuse, in your personal life, to associate with gay folks.  Nobody can stop you from doing any of these things.  

But your closely held religious beliefs doesn't mean you can pick and choose what laws you will obey and what laws you won't.  At least not without consequences.

Kim Davis's position has never been the law.  Never, ever, ever.  

And that is all there is to say about this situation.  

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