For those who are not aware, an elected county clerk in Kentucky was jailed for contempt of court for failing to issue marriage licenses to same sex couples because she claims that aiding same sex marriage violates her religious beliefs. She had been given a court order to do so and refused to either comply with the order or to resign her position.
An acquaintance asked this on his FB wall:
He asked: “Do any of my libertarian (or anarchist or otherwise anti-‘state’) friends agree that Kim Davis should be jailed for not issuing marriage licenses to gay couples?”
I thought I’d reproduce my answer here.
So, there are two levels to this. On the one hand, as an anarchist, I would say the state shouldn’t exist at all, and a minarchist would agree with me that marriage licenses should not exist. No one should need to seek state permission to enter in to a private interpersonal relationship.
However, lets presume a world where the state does exist, and marriage licenses do exist. Under those circumstances, a government official whose job is to give out such licenses ought not have any discretion about withholding them from people who meet the general legal qualifications.
If you would like translated version of that, imagine that you have an official whose job is to give out building permits, and they refuse to give out a building permit for a headquarters for an organization that they feel offends their religion. As an example, imagine such an official refusing to grant permission for a church which is a heterodox schismatic sect of the religion they follow because they consider such people heretics. Now, clearly, there shouldn’t be building permits, and no state official should have such power to grant them in the first place, but given that state officials are out granting building permits, they shouldn’t be able to stop people from building things that offend them, even if their religion says that the people building the building are heretics.
In this particular instance, generally, I’d say that she should have been fired for failing to do her job, not jailed, but given that she is an elected official, the current legal regime provides very little in the way of other options to the judge.
Note that if libertarianism is about anything, it is about curtailing the power of state officials to deny people the right to do things, even if those things deeply offend them, if those things are purely consensual for all involved parties and do no violence to others. To the minarchist the state ought to be minimized, to the anarchist it should not exist at all, but neither would grant a state official the right to make the decision to interfere in such behavior.
Actually, Kentucky has a statutory procedure for prosecuting and removing elected officials for “willful neglect of duty.”
The problem is, such a prosecution would allow due process to the official, and a trial by jury which would likely result in nullification, so instead the usurping courts have to resort to bullying instead. The courts have already blown the separation of powers to hell and back to get gay marriage enacted, so what is one more crime against the constitution?
There’s lots of applicable precedent for Kim Davis refusing to perform her duties to to her personal convictions. She doesn’t have to issue marriage licenses; she should have resigned her office in protest. Have a big press conference, have the media, and announce that since she cannot countenance this immoral law, she has no option other than to resign.
The parable of “Render unto Caesar the things that are Caesar’s” would seem to apply. If she’s taking the “King’s shilling”, then she can hardly refuse to obey the law.
A more modern parable would involve the history of the “Revolt of the Admirals”.
“Phelps” writes: “The problem is, such a prosecution would allow due process to the official, and a trial by jury which would likely result in nullification, so instead the usurping courts have to resort to bullying instead.”
I take it, then, that you believe that it would be perfectly right for a town clerk to refuse to issue a building permit for a Hindu temple if he felt such a structure violated his Christian beliefs, and that it would be “bullying” for the individuals denied the building permit to seek relief from the courts.
Because there is, of course, no distinction between that instance and this whatsoever.
I think you’re missing a number of salient features:
1) If marriage is a fairly arbitrary legal relationship then it can be defined by the authority issuing the certificates. In this case Kentucky has clearly defined marriage to be between one man and one woman and stuck that definition in its constitution. No law making body has changed that, though some high court judges chose to intervene in the matter. If the high court judges are allowed to make changes in the law like this (and then enforce it themselves) there’s not much scope for any limits on their powers.
2) It follows then that Kim Davis entered her job and then the job was substantially (in her eyes) changed. She’s personally not trying to stop gay marriage, she just doesn’t want her name on the certificate.
3) The gay couples in question aren’t being denied any rights that many other groups are denied. A marriage certificate doesn’t suddenly allow them to have sex, for instance. There may be some legal rights they can now enjoy, but those are (I would guess) legal rights that should be allowed to individuals who currently can’t marry.
4) Even if some legal rights were denied the gay couple by not allowing them to marry, they could still marry by going to another county (though if they did that, they wouldn’t be able to persuade a large news crew to watch them try to register).
The analogy of the Hindu temple therefore fails unless the town clerk in question entered the job on the assumption they wouldn’t need to issue such permits, didn’t hold a monopoly on granting said permit and was OK about her colleagues signing such a permit providing it didn’t have her name on it.
I think there’s lots for libertarians to be interested here – not least the way the high court judges are able to define law against state wishes without constitutional authority and also enforce that same law.
“Jamess” writes:
“I think there’s lots for libertarians to be interested here – not least the way the high court judges are able to define law against state wishes without constitutional authority” — clearly you were unaware of the text of the U.S. constitution establishing the courts so I’ll provide it for you.
Now, if you wish, you can claim that both the plain meaning of those words is somehow different from the obvious and their interpretation by all parties involved for the last 230 years or so was wrong, but I’ll choose to laugh at you then.
“I think you’re missing a number of salient features” — not really. You’re making unreasonable claims that you almost certainly wouldn’t believe in another context, and are pretending this somehow alters the fact that the analogies hold exactly. Lets go through some of them.
“If marriage is a fairly arbitrary legal relationship” — it’s a private contractual matter, and no one else’s business but the married people themselves. It is not, to a libertarian, up to the state to define in the first place, but certainly to a libertarian if the state is going to license this activity then it must grant licenses to all and not prevent some people from getting the licenses. More importantly, it is not up to some clerk to decide on their own who receives one — or to interpret the law at all in fact.
“No law making body has changed that, though some high court judges chose to intervene in the matter” — I’m sure that, had the law that the high court struck down been one you didn’t like, you would have been less upset about it. Regardless, if we are to presume that the Kentucky state constitution is in any way legitimate, then we should also presume that the U.S. federal constitution is also legitimate, along with the fact that it created federal courts with the power to decide such matters in the first place. the fact that “no law making body” was involved is of no significance.
“If the high court judges are allowed to make changes in the law like this” — they always have been. Indeed, judges have been allowed to make changes in law as long as common law has existed, which in our particular tradition is close to a thousand years now, though you could argue that it goes back to the Romans and before.
“It follows then that Kim Davis entered her job and then the job was substantially (in her eyes) changed” — then she can quit. No one forces her to take a salary extorted from taxpayers in the first place.
“The gay couples in question aren’t being denied any rights that many other groups are denied” — whether they want to be married or not your business in the first place, nor Kim Davis’ business.
“Even if some legal rights were denied the gay couple by not allowing them to marry, they could still marry by going to another county” — not the point. The clerk is a public servant, not a private person conducting private business. If libertarianism advocates anything, it is that the behavior of public officials towards the public is to be constrained. She chose to be a public official of her own free will and could resign and allow someone else to do the job at any time.
“The analogy of the Hindu temple therefore fails” — no. Not in the least, really. Even if we were to grant some of your previous arguments, none of them were germane to this, and your previous arguments failed to persuade in the first place.
First, I reject your analogy. Right now, the law in Kentucky is clear that it is a misdemeanor for any official to issue a permit for marriage other than between a man and a woman (and to issue a permit for a man and woman too closely related, or underage without parental consent — they are all treated the same.) That is enough of a conflict to take this to a jury.
So lets instead change this to a marriage certificate for a 40 year old man and his nine year old daughter. They are the same issues — a marriage is desired that is contraindicated in the law. If the clerk refuses to issue in that analogy, you claim that an unelected judge-for-life should be allowed to summarily and without due process imprison that clerk until the clerk does the job to his satisfaction?
More importantly, why is this not being done in any other situation where officials are refusing to carry out the law? Virtually every federal agency is refusing to comply with subpoenas — and no one is in jail. Entire cities are refusing to comply with immigration law — and no one is in jail. Entire states are refusing to comply with federal marijuana laws –and no one is in jail.
By your reasoning, the feds should be stomping down on Colorado and Washington, wiping out the marijuana dispensaries, and deporting millions of illegals in San Francisco, Houston, etc.
The reality is, you are succumbing to that old bias — “my preferences deserve the rule of law and the things I disapprove of should not.” Even libertarians aren’t immune to it. You are throwing out due process because you are butthurt that some homosexuals that you fancy would be your friends have their feelings hurt.
And I’ll raise you Article III with a couple of amendments:
Phelps claims: “Right now, the law in Kentucky is clear that it is a misdemeanor for any official to issue a permit for marriage other than between a man and a woman” — no, the law in Kentucky is that same sex marriage is legal, because the U.S. constitution trumps all local law, and the U.S. Supreme Court is the arbiter of what is and isn’t constitutional.
As for your other claim, the clerk is not being criminally prosecuted, so almost everything you say is irrelevant. She is not even being held against her will — she may leave the jail at any time she wishes provided she resigns her post or complies with the earlier court order. The only thing at question is deprivation of liberty without due process, but even if you considered this that, she also has received due process — due process means court procedure, and that has happened in a series of over a dozen court hearings.
Now, you may find it news that courts are allowed to enforce their injunctions under the laws of both the U.S. and the U.K., but of course they are — if they couldn’t enforce those orders, no one would obey them. Imprisonment for contempt of court goes back to before the existence of the United States, and the very presence in Article III of the constitution of a grant of jurisdiction over cases at equity (as opposed to at law) means that the power to grant injunctions and to enforce them was specifically given over to the courts in the U.S. constitution — that’s what a remedy at equity is, and again, federal courts were specifically granted that power in Article III.
However, you are entitled to believe anything you wish, no matter how at variance with fact.
It’s pretty plain at this point that you are not arguing in good faith. The SCOTUS is not the ultimate arbitrator — the People are. That is why jury nullification of slave escapee charges was right, and the Dred Scott court was wrong.
You are right in that the clerk is not being prosecuted — she is being summarily jailed instead of being given due process. A judge stepping in, and saying, “I’m going to use a legal fiction of contempt to justify changing this civil case into a criminal prosecution resulting in jail time” is a due process violation. She’s been given no opportunity to a trial and no offer of bail.
This judge has overstepped his authority, and I am confident that a higher court will rule so shortly.
However, you are allowed to believe any fiction that supports your libertine amorality, no matter how at odds it is with the law and the will of the governed. If she was being jailed for refusing to imprison marijuana users, you would be climbing over yourself to demand her freedom. If she was being jailed for refusing to deport illegal immigrants, you would be calling this a travesty.
You sir, are a small thinker.
if libertarianism is about anything, it is about curtailing the power of state officials to deny people the right to do things, even if those things deeply offend them, if those things are purely consensual for all involved parties and do no violence to others
But this obviously doesn’t apply to marriage, which gives enforceable legal rights against third parties (eg ERISA rights to survivor pensions.)
How would your building permit example work if the permit is not simply for allowing you to build your building, but also for allowing you to take the land on which to build your building from someone else under eminent domain ? I doubt too many libertarians would be defending the jailing of a clerk who refused to grant that permit – even if the applicant met the necessary legal conditions.
The Kentucky clerk is not refusing to sign for libertarian reasons, but she would have a perfectly respectable libertarian justification for doing so. Of course if the law banned extra marital sex, imposing pension liabilities on innocent employers would be a lesser evil than preventing a couple from engaging in sex without risk of punishment – but that’s not how the law is in Kentucky.
Perry M. – you admit that “Marriage Licenses” should not exist. Government marriage did not exist in England and Wales before 1836 – and the licences have been abolished in Alabama (in reaction to the antics of the Supreme Scum).
But then you support putting someone in prison for not issuing them.
As for your talk of “the law”.
That is nonsense – there is no law (State or Federal) that suggests any legal duty to hand out marriage licenses to homosexual unions.
The Supreme Scum have (as is their habit) just made-stuff-up.
If they declared that everyone whose first name was “Perry” and whose family name started with the letter “M” be executed, would you support that as well?
This person has not “violated the law”.
If she has – show me this statute, either at State or Federal level.
I have no idea whether Ms Davis is or is not “right” in her views, not do I know a single thing about the constitution, laws or customs of her state.
But what I would say is that this whole gay marriage thing — whether a good idea or not — doesn’t seem to be a source of unconfined joy and happiness. I won’t say I always thought it would end in tears, because I thought (possibly naively) that humans would work out a middle ground and reach meaningful compromises. Seems I was wrong there.
It depends on what kind of country she lives in. If she lived in a country where left-leaning officials who do not comply with federal immigration law for example, would face the same sanctions she now does and jail time for officials who refuse to uphold the law is enshrined in criminal law, then yes she would deserve to go to prison.
She doesn’t though. She lives in a country where “progressive” officials get away with only enforcing the laws they agree with.
I take your point, but instead I think it a rather larger ongoing issue. It is not especially about homosexual rights, as such. At a highly vocal sub minority of the population they are simply the useful idiots du jour. It is another step in the governmental criminalization of religion and religious practice, most particularly Christianity. I say this as a fairly poor specimen of that faith and with some lingering reluctance. But having had the benefit of a pricey private education the Left’s hatred of any competing allegiance beyond an all powerful state cannot be understated. The simple idea that as Americans we derive our natural rights from the Almighty and they are recognized and respected by the government is enough to give most of them apoplexy.
This is a pretext not an issue. According to the CDC the homosexual population is less than 2% of the total. The logical question follows naturally as to just what per centage of that 2% actually wants to be coupled for life given that community rather vocally claims that a if not the major attraction to the lifestyle is the hyper-promiscuity. At the moment this Culture of Decree remains somewhat comical, although perhaps not to the Kentucky woman. For the rest of is there is this puerile spectacle of ludicrous decrees which must not simply be accepted but applauded or the legion of dread twitteratti will descend like the Bandarlog screeching ‘it’s so, it’s so because we say it’s so’. Consider whomever Jenner. I am afraid that regardless of how he chooses to mutilate himself he is not a woman, merely a mutilated man. Steve and Steve are certainly free to do as they wish, God only knows they cannot resist telling every other citizen they encounter, but that does not mean they are married and neither I fear does it require that everybody in a more normative relationship now or in the past millennia harbor some dark ‘animus’. The 2 embarrassing women from the once mighty US Army are also NOT Rangers, having failed multiply to meet the admittedly draconian standards of either the other men in their own class or all those who went before. But we are all told to rise up and cheer these ridiculous decrees. The emperor and no small number of his acolytes have no clothes yet still demand we applaud their finery, for the time being.
“However, lets presume a world where the state does exist, and marriage licenses do exist. Under those circumstances, a government official whose job is to give out such licenses ought not have any discretion about withholding them from people who meet the general legal qualifications.”
Just like concealed/overt firearm “permission” slips!
CaptDMO: Precisely.
Everyone knows what is going on here and rhetoric could sink the Titanic.
This is a complicated legal issue, and I’m going to argue that her jailing was proper, but first I need to set the table with a few preliminary points. I approach this as a libertarian (of the minarchist, not anarchist, sort), a lawyer and a strict constitutionalist.
First, I agree with Perry M (and, I presume, most others here) that the state should not be in the business of licensing marriages. To those so inclined it’s a religious issue (receiving the imprimatur of your church may be important to you), but otherwise it’s a simple matter of contract. However, states have taken on that function, and we have to take the world as it is. So I move on.
Second, if homosexuals decide to enter into long-term relationships analogous to “marriage”, I support their right to do so. However, I don’t agree that it is necessary to label their union a “marriage”, a term which has a clearly-defined meaning of extremely long standing. We (read: the government) forcibly overturn venerable cultural practices at our peril. To the extent the state extends certain benefits to those who are deemed “married”, the same result can be achieved by simple statutory means without calling such unions “marriages”. Indeed, that is the intent of the various “civil union” laws.
Third, I do not agree with the Supreme Court’s decision overturning all state laws and constitutions defining marriage. The alleged basis for that decision was the violation of homosexuals’ “equal protection” rights, but that is a stretch and in any event could have been resolved by requiring equal treatment of all persons (see my point “second” above). It is an elementary judicial principle that courts should defer to legislative decisions (and, especially, to state constitutional provisions) to the maximum extent possible, and where overturning something is absolutely necessary to craft a remedy which is as limited as possible. This the Supreme Court completely failed to do. For it to unilaterally overturn millennia of cultural and legal history was unwise and, I think, quite beyond their constitutional remit. It was extreme overreach on their part, an act of gross judicial arrogance. But it is now the law of the land.
Concomitant with that last point, I don’t think Perry M very well understands the Constitution or the proper place of the Article III courts in our federal system. His comment that “along with the fact that it created federal courts with the power to decide such matters in the first place” and related statements is wrong on several levels. The federal courts were not created with that power; their power to reach into states is limited to situations where the state is violating someone’s rights under the US Constitution (indeed, Article III specifically grants power only over cases “arising under this Constitution“. In this particular case that is achievable, and the local federal court has jurisdiction, only because the Supreme Court exceeded its own jurisdiction in striking down state marriage laws. But once that occurred, jurisdiction of the inferior court attached.
Now to the issue itself. Part of the job of the County Clerk is to issue marriage licenses to all those who apply and qualify for them. “Qualify” means meeting the legal requirements (i.e., age, duration of residence in the state, sometimes blood tests for venereal diseases, etc.) and paying the prescribed fee. The Supreme Court has determined that homosexuality is not a permissible basis for denying a license, and once that determination was made it overrode any state laws (statutory or constitutional) to the contrary. So the lower federal court had no choice to do anything other than what it did (enforce the Supreme Court’s decision), and the Clerk had no legal authority to deny the license.
She claims this violates her constitutional right to practice her religion. I find that unpersuasive (she is not the one issuing the license, the state is; she is merely processing the paperwork, and I don’t see how that can legitimately be considered interference with her religion), but even if one accepts her argument that doesn’t absolve her of discharging her duties. Issuing marriage licenses is a purely ministerial function, involving no discretion on the Clerk’s part. The proper remedy when a government official refuses to discharge his non-discretionary duties is the issuance of a “writ of mandamus”, an ancient equitable doctrine under common law. I don’t know if that is precisely the form which this order took, but it’s certainly the functional equivalent.
And when the official continues to refuse to discharge his duties, thus disobeying the court’s order, it is perfectly proper for the court to issue a contempt citation and have the official jailed. What’s important to remember here is that she can walk out of the jail any time she likes, either by complying with the order (and issuing the licenses) or resigning her position. As lawyers like to say, she “holds the key to her own jail cell.”
Given the legal situation, the judge had no choice but to issue the mandamus order and then have her jailed for disobeying it. If she feels that strongly about the issue and believes that her religious principles prohibit her performing the functions for which she is being paid, her duty is to resign. But until she either starts issuing licenses, or resigns, or by some means is removed from office and replaced with someone who will follow the law, she should remain in jail.
No one, especially in freakin Kentucky, should have a public grunt job, be paid 80k a year and be immune from being immediately fired should they be unable or unwilling to fulfill the requirements of the job. The asshat is currently not doing her job by choice AND STILL BEING PAID. I challenge this mental midget to show where it’s “biblical” to collect money (that was expropriated by force to begin with in the form of taxes) for NOT doing her goddamned job.
The problem with that, Thailover, is that she doesn’t have a boss who can fire her. She was elected, and so can only be removed from office by an impeachment proceeding.
I think Laird’s long comment slightly confuses legal and ethical issues, ie assuming Laird is right on the law, that doesn’t mean that it is necessarily right, ethically, to jail the woman, nor that the woman is ethically required to resign. If she was required to sign a form confirming that the bride’s father had ordered the marriage, so that a 10 year old could be forced to marry against her will, nobody would find it difficult to understand that sitting at her post resolutely blocking an injustice would be a perfectly ethical alternative to resignation.
the judge had no choice but to issue the mandamus order and then have her jailed for disobeying it
The judge could – like Mr Davies – perfectly well refuse to do this even if he was required to do so by law – but leaving aside the ethics I seriously doubt this is true as a matter of law. (Though unlike Laird I am not a lawyer.) I understand Mrs Davies’ deputies have been ordered to sign marriage licences and are now doing so. Though I also understand that some doubt has been thrown on whether this is legally valid (the deputies perhaps lacking the requisite legal standing) the judge must have thought that it was valid – otherwise it would have made no sense to order the deputies to sign. Consequently, as far as the judge was concerned, Mrs Davies’ disobedience was not, in fact, blocking the issue of marriage licences to those who met the legal conditions. I am not aware of any legal principle whereby judges are required to jail people, if their stubbornness isn’t creating an actual problem. The judges overseeing the slow-walking of FOI stuff from the IRS and State department have failed to jail anyone so far.
I meant to add –
suppose two journalists had written an article exposing some government secret, and a court had issued orders to each of them, requiring that they name their source. One complies and names the source. The other refuses. Would the judge then jail the refusenik for contempt ? I hae ma doots.
A few responses to Lee:
1) I am not confusing legal and ethical issues; I am speaking strictly to the legal issues, not to any “ethical” ones (which, frankly I don’t see; her argument is that this is a religious, matter, not an ethical one, and I’ve already explained that I don’t find her position on that front persuasive). However,
2) Your hypothetical about the 10 year old is inapposite, because issuing a license in such an instance would be against the law. In that case the applicant doesn’t “qualify” (i.e., meet that legal standard) to receive a marriage license. Hence the issuance would have been illegal, and its refusal her clear obligation under the law. In the instant case it is the refusal which is against the law (as determined by the Supreme Court).
3) Any judge who refused to issue a writ of mandamus in such a clear-cut case would himself have been in dereliction of his duty, and subject to impeachment. And once the order was issued he had no other means of enforcing it than finding her in contempt of the order and jailing her until she complied (or the order was rendered moot by some other circumstance).
4) Her deputy clerks did not begin issuing marriage licenses to homosexual* couples until after she was jailed. Hence her incarceration had at least partially, if indirectly, the desired effect. Whether such issuance has now rendered the contempt finding moot I do not know; perhaps she could now be released provided that her office continues to issue the licenses after her return. If she is able to prevent that, however, she would go right back to jail. Frankly, I don’t know.
5) Your second hypothetical, about the journalists, is in fact a current issue. Some courts have done precisely that. How it differs from the Kentucky clerk case is that there is a clear First Amendment issue there, whereas there is none in the case of the clerk. Her refusal to follow a lawful order has no constitutional basis, because her actions in issuing marriage licenses are purely ministerial, not discretionary.
Sorry for the length of both posts. As I said, this is a bit complicated, as well as being highly “legalistic”.
* Personally, I find the usurpation of the word “gay” by homosexuals to be offensive, and I refuse to use it in that sense.
Did she agree to obey the law when she took up her post? Then she should obey the law. If a pacifist worked in the patent office, they can’t refuse to issue patents to new weapons because of their beliefs.
Here in Australia, years ago, a man AWOLed from the Army because he didn’t agree with the Iraqi War. Since we have a volunteer army, he got no support from me! Apparently he’d joined just to have something to do. If he hadn’t thought about the possible consequences, then he shouldn’t have enlisted.
Did she agree to obey the law when she took up her post? Then she should obey the law. If a pacifist worked in the patent office, they can’t refuse to issue patents to new weapons because of their beliefs.
But the law changed.
Suppose you signed up as a patent clerk, at a time when the law said – explicitly – “patents are not to be granted for new weapons.” As someone with moral objections to new weapons, you had no problem agreeing to obey the law. Then along comes a court and decides, for whatever reason seems good to the court, that that explicit proviso in patent law is unconstitutional and void. So now you are legally obliged to issue patents for new weapons. You say “No – not only didn’t I sign up for that, I signed up when weapon patents were explicitly banned.”
It’s really not a very good rejoinder to that objection just to say “issue those patents for death rays – you agreed to obey the law when you signed on as a patent clerk.”
But no-one has a guarantee that the law won’t change! If you agree to a public position, shouldn’t you think that this might mean you need to enforce laws with which you disagree? How does she, as a Christian, feel about abortion? Does she have an opt-out clause on any law she might disagree with? If you or I were offered a public office, shouldn’t we think about all the ramifications. Come to that, aren’t lawyers required to try to get their clients free, even if they know their clients are guilty?
1. On that basis no moral person could ever take an oath to obey the law, whatever it might be changed to from time to time, because it’s always possible that it would be changed to something morally abhorrent. (There’s a difference between laws you disagree with and laws you find morally abhorrent.)
2. What has abortion to do with this ?
3. No she doesn’t have an opt out clause to take account of her religious objections (unless the law provides for one) so she has to suffer the legal consequences
4. Lawyers sign on to be lawyers based on the well known principle that they are supposed to try to get their clients off, even if they know they’re guilty. If they don’t like that principle, they don’t have to sign on to be lawyers. But if the law is changed to say “Hey guys, we’ve changed our minds, from now on, if you think your client is guilty you are required to say so to the jury”, existing lawyers can then choose either to resign, or to disobey what they may regard as an unjust law, by continuing on the old basis. And hoping to get away with it if they’re not caught and disciplined, but taking their punishment if they are. It is not obvious to me that doing the latter is necessarily immoral or disreputable.
Lee, should this clerk have the right to impose her memory of the laws onto other people? Or should she resign? Who made her superior to the courts? If she is not superior, shouldn’t she obey, or get another job?
“On that basis no moral person could ever take an oath to obey the law, whatever it might be changed to from time to time”
That’s simply wrong. You always have the option to resign, whether you’re a patent clerk or a County Clerk. Which is precisely what she should do.
Rowan County Clerk Kim Davis’ (D) objection here is not issuing marriage licenses to same sex couples per se, even though she thinks SSM violates her god’s dictates. Her objection is that with her name on the license (as required by law, it’s PRINTED on the form) people will somehow construe that she does support SSM by virtue of her printed name on the form. That’s why she wouldn’t allow her underlings to issue licenses, her name is printed on the license even if her signature isn’t on same.
The merits of her argument seem specious to me. The county clerk position oversees the office that performs perfunctory government administrative duties for the county unit. Candidates campaign on their competency to do the job efficiently and diligently. Public policy concerns usually don’t enter into the conversation as managerial competence is the main requirement to fulfill the duties of the office. So I don’t think the casual voter would assume that she’s gung ho for SSM merely because her name is PRINTED on the license just like her name is printed on any other official form that is prepared and filed while she holds the office.
Using her own reasoning, I could argue Ms. Davis is pro-death because her name appears on death certificates. (Assuming the clerks office issues death certificates.)
The old adage that one doesn’t discuss religion or politics isn’t because they aren’t important, but rather because you never know when you will encounter someone who is bat-shit insane on either subject and the conversation spirals out of control. Unfortunately there are fair number of Christians in the USA that have combined their religion with their politics and now our politics is infected with a social conservative cadre that is bat-shit insane squared.
There are several good reasons why people should keep their religion and politics separate and I won’t go into them all. But one main problem with claiming your political preferences represent your god’s wishes for us all is that there is no way for any of us to confirm the truth of your claim. There’s no 1-800-7HEAVEN we can dial to contact your god and determine for ourselves that your policy preferences do indeed represent The Almighty’s wishes. And besides, most people believe in God yet they can’t even agree among themselves what God really is, what he/she really wants, what the metaphysical rules really are, etc., so how can anyone know for sure what God really wants politically? Given this confusion that exists among believers, it’s ludicrous for any single person or faction to claim that they have the political truth from God at the exclusion of all other differing God claims.
IMO, bringing religion into politics only muddies the waters and poisons the well. How’s that for mixed metaphors!
So did the weather. So what? That’s what law does from time to time, the US Constitution even specifically provides for it to be changed.
Heat, kitchen?
Wrong. An officer of the court cannot mislead the court by representing on a ‘not guilty’ plea a client who the officer (i.e. lawyer) knows to be guilty.
Next.
But what about all those TV dramas where lawyers defend guilty men! Are you going to say that Hollywood and the TV studios distort the facts? And sometimes exaggerate? Surely not!
Ah, but knowing your client to be guilty is distinct from ‘knowing damn well’ your client is guilty, in that the latter is a situation where it is bleedin’ obvious but technically deniable that you knew. Hence if a client tells his lawyer ‘I am guilty, but I’ll plead not guilty’, the lawyer is ‘professionally embarrassed’ and cannot act, but if he says ‘I know and you know I look guilty, but I’ll plead not guilty’, the lawyer can keep the client and any fees, and of course, any tax-funded legal aid, yum yum!
I do not know how US law works, but from what I know of law in the UK, everything Laird writes strikes me as true. However, there could be an alternative mechanism to jailing people, (if things were set up nicely) which would be to issue an injunction deeming all applications that meet the criteria of State law, as consistent with the Constitution of the United States, to be granted, so if someone gets a refusal of or inaction on an otherwise valid marriage permit application from the said official, then the the application could be cited along with the injunction as proof of entitlement to marry.
In English law, sometimes a divorcing couple might sell a property, if one spouse (or ex-) refuses to sign for the sale, a simple mechanism to give a valid ‘consent’ to sale has been to ask a judge to issue a certificate that the sale can go ahead, so the buyer has a valid receipt for the sale, pays over the money and the costs most likely go against the hold-out party, making it rather pointless and expensive. A personal costs order against a recalcitrant bureaucrat would soon illustrate the absurdity of the official’s position and reduce most of them to penury.
However, how long before a priest is jailed for refusing to marry a couple in these circumstances? That is my concern, I can almost hear the wording ‘…There is a public element in the solemnization of marriage, and that gives the Court the right to enforce Federal law and to uphold Constitutional Rights by taking action against private individuals who refuse to uphold those rights without exception on the basis of sexual orientation…’.
Who made her superior to the courts? If she is not superior, shouldn’t she obey, or get another job?
I think this is the nub of it.
1. Each of us is superior to the courts, in our moral right to judge for ourselves what is right and what is wrong.
2. If her view of what it is right for her to do in her job differs from the court’s view, she can obey the court, resign or……stick around flouting the court’s rulings. If you deny that the third can be a morally legitimate choice, that is tantamount to saying that it is always and necessarily immoral to disobey the law. Which is, morally, crap.
3. If she chooses to flout the law, then obviously the courts are likely to punish her
The problem with placing law over morality is, what do you do when the duly enacted law says “round up the Jews,” as it has in fact done? Especially when another duly enacted law makes protesting the first law illegal?
Morality-over-law may be messy, but law-over-morality simply abandons questions of right and wrong to raw power.
Lee, I don’t disagree with you that it is sometimes disobeying the law is the moral thing to do. I don’t think it is in this particular case, but YMMV. In any event, your #3 is precisely what has happened, and what was inevitable.
As to Mr Ed’s idea of some form of permanent injunction, I don’t see how that would work. Someone has to “check all the boxes” to ensure that the applicants have, in fact, met the requirements of the statute, as well as to collect the fee, and the court certainly isn’t going to do that every time (which is how it works when a recalcitrant ex-spouse refuses to sign a deed). But if, as Randy says, this clerk’s specific objection is that her name is printed on the form, why not just remove it had have it simply say “County Clerk” instead? After all, she is acting in her official, not personal, capacity when the license is issued.
I’ll offer a modest proposal as a resolution of this dilemma: Have the state stop issuing “marriage” licenses and instead begin issuing “civil union” licenses to all applicants, of whatever sexual orientation. Remove the word “marriage” from the forms and all relevant statutes, and also replace the words “husband” and “wife” anywhere they appear in the state code of laws with the word “spouse”. If people want to “marry” they can go to their church or other religious body (or even create their own) to get the desired religious imprimatur. But a “civil union” will qualify the couples for all governmental benefits and whatever legal prerogatives attach to the status of “married”. Problem solved.
Indeed, Laird – but it will not happen, because the whole purpose of this whole circus about “gay marriage” is to force conservatives in general, and religious Christians in particular, to abandon their beliefs, or at least to deny those beliefs their public legitimacy.
@Nicholas
“But what about all those TV dramas where lawyers defend guilty men!”
All men are innocent, unless proven otherwise. Therefore the lawyers are not defending guilty men. Unless a retrial or appeal hearing.
@Mr Ed,
“Wrong. An officer of the court cannot mislead the court by representing on a ‘not guilty’ plea a client who the officer (i.e. lawyer) knows to be guilty.”
Same point.
How can the the client be guilty unless they have been convicted? In which case a “not guilty” plea, assuming this is in the best interests of the client, is not misleading. The client is innocent at this point. And whatever the officer knows is privileged. What matters is what the prosecution can prove or persuade a jury to convict upon.
Withdrawing from a case for reasons of “professional embarrassment” would be highly prejudicial and would likely incur severe financial/professional sanctions.
Justin,
I disagree, the lawyer is never obliged to say why they are withdrawing, just that they are. It could be a client unwilling to pay fees, it could be a conflict of interest, e.g. representing another party in that or another case where there is a conflict of interest, e.g. a ‘cut-throat defence’ with the client implicating the lawyer or another client of the same lawyer but in self-exculpation. The presumption of innocence is simply a principle that the prosecutor must prove every element of the crime, or else fail. If a client pleads guilty, then there is no presumption of innocence, but a conviction at the point that the plea is entered. If a client tells a lawyer that he wishes the lawyer to mislead the court, even by introducing fabricated evidence which the lawyer knows to be false, then the lawyer is embarrassed. The client telling the lawyer ‘I am guilty‘ does not have the same effect as the lawyer telling the court ‘My client is guilty‘ in answer to a plea, but if the lawyer knows that the client is guilty (as opposed to merely believing so), and the knowledge can only come from the client’s privileged confession, then the lawyer is, by pursuing a defence on guilt, implicitly representing to the court that the client’s innocence is a permissible finding.
Here is the England and Wales Solicitor’s Regulatory Authority on the matter.
It may well be highly prejudicial for a client for the lawyer to withdraw from the case, but that would be the fault of the client, not the lawyer. There are no professional conduct rules that require lawyers to mislead the court (as opposed to hope that the court does not notice something), indeed, these are not only professional conduct rules but rules of the court itself. An English solicitor for example, who gives an undertaking and does not keep it, can be jailed for contempt, so solicitors promise to give their ‘best endeavours‘ (i.e. they fall short of a promise) if they cannot guarantee to do something.
Alisa: the whole purpose of this whole circus about “gay marriage” is to force conservatives in general, and religious Christians in particular, to abandon their beliefs, or at least to deny those beliefs their public legitimacy
I think this rather decorously understates it. The purpose is really to drag your enemy’s body behind your chariot, taunting his womenfolk all the while. An entirely familiar and understandable emotion, if not a particularly attractive one.
Yep, Lee, that too :-/
Eugene Volokh has his usual concise and unbiased analysis and discussion here. Much too detailed for me to discuss the parts I found interesting in a comment.
Alisa wrote:
And here I was, just thinking that my friends wanted to be married like everyone else. I’ll have to tell those whose weddings I have attended that I’m not amused that they failed to tell me the real purpose of the entire event, and that the weddings were all really just an attack on other people’s beliefs rather than, well, weddings.
Justin, you are simply wrong, as Mr Ed explains. A defendant is not “innocent until proven guilty”, he is presumed innocent until then. Big difference. The presumption simply explains where the burden of proof lies in the trial court, nothing more. And it only applies to the judicial process itself; there is no obligation for the general public to make that assumption.
An ethical lawyer will never represent a client whom he knows to be guilty (as opposed to merely suspecting guilt). That would violate his oath to the court. (That’s merely one more fiction perpetrated by Hollywood.) For that reason a good lawyer will never ask his client “did you do it” or anything equivalent.
Alisa, that may indeed be “whole purpose of this whole circus” (although I’m not convinced of that), but in any event my approach would satisfy all concerns of the courts, and should withstand any legal challenge. As I said, problem solved.
Perry M,
There is no basis for the inference to be drawn from what Alisa wrote, she was clearly referring to the political movement, not your friends. If a person of capacity wanted to be ‘married’ the point would be that they could be married, provided that they found a person of the opposite sex, that is what marriage was, and still is to many people.
Many States I understand, offered a ‘civil union’, which gave essentially the same status as being a spouse as between a couple of the same sex. The question is why the obsession with ‘marriage’ being broadened by fiat, and not accepting that like and like were not being compared?
At no point did Alisa state of your friends (or anyone else) that the purpose of their events was to do what you imply, yours was frankly a puerile response.
I agree, Laird.
“An ethical lawyer will never represent a client whom he knows to be guilty (as opposed to merely suspecting guilt).”
There’s an exception to every rule, of course. When British soldiers were on trial after the Boston Massacre, John Adams defended them in court, saying that even the guilty deserved a lawyer.
Laird, agree about the “Civil Union” thing, if there MUST be some sort of formal designation for this particular type of contract. (Aside: Whatever happened to common-law marriage? It disappeared from Illinois I guess maybe 20-30 years ago, when I wasn’t looking.)
But a niggle: how to refer to the partners in a Civil Union? To my mind “spouse” is too closely related (connotatively) to the concept of traditional-Anglospheric (at least) marriage: it is merely the non-gender-specific term for “husband or wife.” (I’m not talking about “legal marriage” here. The concept and word “marriage” was understood in the anglosphere as applying to a couple consisting of one man and one woman long before the term entered the statute books.)
Couldn’t we just go with “partner”? Or “life-partner,” except it’s kinda clunky. Or some genuinely-new neologism (not a euphemism).
. . .
Alisa / Lee / Alisa: Quite.
. . .
Mr Ed:
and Laird, at 6:56 p.m.: Great explication.
Yes, when we say, casually, in common conversation, “Innocent until proven guilty,” that’s really a misstatement of the principle because it omits the word “Assumed.”
(Of course, outside the legal system, a person often has to go on whatever evidence he has, and when I say I know perfectly well who called the cops on me for having a raccoon, legally trapped by licensed trappers, on my roof, I don’t have info that would stand up in a court of law. L.K.: Guilty as charged. Urge to rant suppressed.)
Not so long ago I got royally slapped down at one of the Law “Blogs” (I forget which one) for daring to suggest that the purpose of the defendant’s attorney at a criminal trial is not to “tell the best story,” but rather to see that the defendant has a fair trial. (So, defense attorneys should see, insofar as possible, that nobody acting for the prosecution lies, including the prosecuting attorney as well as witnesses; and that all laws that might favor the defendant are brought to bear.) This precisely because the attorney is an officer of the court; and as such, he may not present what he knows to be false as if it were true — not even, I should hope, as part of a hypothetical scenario alternative to the Prosecution’s theory of the case, which he hopes will create doubt in the minds of the jury’s members.
Heaps of scorn from the O.P. (some legal eagle) and commenters (including more legal eagles). Now if they had been arguing that in practice, he who tells the best story wins, that might be true, at least sometimes. But they weren’t. They thought it right and proper for the attorney to say whatever it took to get the client off, on the grounds that his duty is to do whatever it takes to get the client off. “Officer of the court, BAH!”
But what do I know, I’m just a layman. :>))
. . .
Laird:
Be still my heart! :>)))
. . .
Ken: If John Adams did say that, in exactly those words, one would also like to know where and in what context he was speaking. If it was over an ale with his fellow Colonials, he may have been speaking loosely and from the point of view of the Colonials. Even if it was in court, he may have erred only in speaking loosely. And remember, he was defending them under British law, not the as-yet-non-existent American law, so he may have been saying that they were guilty morally speaking, but not under British law.
I don’t say that’s the case; I don’t know. But it certainly seems possible to me.
. . .
Alabama — Correction from the Foot of All Knowledge, boldface mine:
https://en.wikipedia.org/wiki/Same-sex_marriage_in_Alabama
Quoth “Mr. Ed”:
I am reminded of Anatole France’s quip, that in its majestic equality, the law forbids rich and poor alike to sleep under bridges.
“You may marry anyone you like, provided it isn’t someone you are attracted to or love” isn’t much of a concession.
Mr. Ed also wrote:
— but I was part of that political movement, as were my friends. Clearly I must have been deluded as to what I was trying to accomplish — here I was, trying to make sure that certain of my friends could get married just like anyone else, when in fact, what was it Alisa said, ah, yes “the whole purpose of this whole circus about “gay marriage” is to force conservatives in general, and religious Christians in particular, to abandon their beliefs, or at least to deny those beliefs their public legitimacy.”
So gracious of Alisa to describe for me what I had never known about myself! Self knowledge is the most important kind, and I am eternally grateful to have been disabused of my previous assumption that I mostly just wanted people to be able to get married just like everyone else.
Anyway, Alisa and Mr. Ed and all the rest, when you can elucidate to me a concrete harm that several pairs of my friends being married has caused to you or anyone else, please do. Until then, however, I will have to stick to the libertarian position, which is that voluntary human interactions and agreements that cause no violence to others are not the business of the state or indeed any third party at all.
Oh, and lastly, let me note that if it is true that conservatives and Christians will be forced to abandon their beliefs, or at least will have their beliefs denied public legitimacy, by people getting married — if their beliefs were truly so flimsy that the existence of such marriages are capable of harming them so grievously — then perhaps their beliefs were unreasonable to hold in the first place. As it happens, I know religious Christian libertarians who are fine with gay marriage being legal for the same reason that they’re okay with heroin being legal — not because they approve, but because they understand the distinction between something that is the business of the law and something that is a matter of personal belief.
Perry M, I am not aware that anyone here was arguing that homosexuals shouldn’t be able to form lasting relationships of the sort we generally refer to as “marriages”. This thread was actually about the jailing of a clerk for refusing to issue said licenses, and I (among others) was arguing that such jailing was proper, and that the licenses should be issued. But I will take issue with your response to Alisa. A large (or, at least, a very strident) portion of the homosexual community (and its supporters) clearly isn’t satisfied with receiving all of the legal benefits of marriage without appropriating the actual term as well; otherwise they wouldn’t continue to fight against “civil unions” and demand that their relationship be specifically called “marriage”. I consider that to be deeply wrong. Marriage is an ancient human institution which has had a clearly understood meaning throughout recorded history (and probably predating it as well). To discard that history for frivolous reasons is unwise, and to me offensive.
Perry M’s recent comments on Samizdata remind me of the psychiatrist in Fawlty Towers saying ‘There’s enough material here for an entire conference‘, and it’s pretty clear who’s Basil.
My feelings, too; not out of any specific value I place on ‘marriage’ but because a government of laws is first of all a government of the words those laws are written with. Redefining the words to suit the purpose of the moment just throws away the stability that a government of laws provides.
“Redefining the words to suit the purpose of the moment just throws away the stability that a government of laws provides.”
I entirely agree with PersonFromPorlock, who has expressed this better than I could. Thanks!
Update: the federal judge has now ordered the Clerk released, because her office is now issuing those licenses (it began doing so on Friday). “The court is therefore satisfied that the Rowan County Clerk’s Office is fulfilling its obligation to issue marriage licenses to all legally eligible couples,” according to the judge. So evidently the issue has been rendered moot, provided of course that she doesn’t try to stop the issuances. The judge directly addressed this latter point, by requiring that she “shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples” and threatening her with “appropriate sanctions” if she does. (These quotes are from the Wall Street Journal article, which is behind a paywall and thus may not be available to everyone here.)
Julie, actually if we follow the etymological origins of words (which is my default course of action in cases such as this), spouse seems to be the most suitable:
I have often asked who, concretely, is harmed by gay people marrying. This objection does not describe any concrete harm. It instead requests that we prevent people from doing something that makes them happy and harms no one else.
If libertarianism is about anything, it is about not interfering in other people doing something that makes them happy and harms no one else.
Can you describe a single concrete harm caused by gay marriage? And I don’t mean “it offends people”, I mean actual harm.
Alisa: Thanks for the quoted history; very helpful.
I agree with you on etymology as an aid to understanding the meaning (or meanings) of a word historically; and therefore, I think, as to getting at least some of the nuances or overtones of the word as we use it in our own discourse.
(Generally speaking, that is. Cf. the varied historical meanings of the word “nice,” as given in the Etymology Dictionary.)
(Aside: Do you have a preferred source, leaving aside “print vs. on-line,” for etymology? I put the print compact OED (1933 ed., with addenda as of early ’70s as I remember) first; but when I’m on-line, unless the issue is very important to me for some reason I usually consult Webster’s Combined 1913+1828 as being more complete and authoritative than the New Unimproved online OED.)
In fact the whole explanation from your link to the Etymology Dictionary bears on this discussion (my boldface):
I do think that in current usage, “spouse” is used as a general or gender-neutral term; but it certainly affirms my understanding that it relates to the institution of marriage in the proper sense, rather than that of Civil Unions or some other formal or informal relationship.
Although it does not in itself answer the main question. Stay tuned for further results from this investigative trail.
Marriage.
Let us proceed along the etymological path. From
http://www.etymonline.com/index.php?allowed_in_frame=0&search=marriage&searchmode=none,
with my italics and bold typeface:
So for 700 years or more, “marriage” has referred specifically to a “union of a man and woman for life,” the final italicized usage notwithstanding, because it refers to “a joining AS IF by marriage”; and to emphasize the point that this usage is NOT identical with the earlier meanings, it begins by specifying that it gives a FIGURATIVE, that is metaphorical, usage.
(Just as I might say, “A veritable firestorm of vituperation issued from her fingers, with the result that her keyboard and indeed the entire discussion which was the destination of her comment went up in flames.” A metaphorical, or figurative, usage of the word “firestorm,” although not without merit. 🙂 )
Therefore one cannot adduce this passage as evidence of any weight that “marriage,” right down to only a few years ago, meant a union between a man and a woman.
Laird:
Me too.
. . .
Person from Porlock:
I can only say, What Ken Mitchell Said. He quoted, in particular, PfP’s 2nd sentence above.
This is also why we Americans (or the sensible among us!) understand the importance of keeping as close as possible to the Constitution as written, and not changing or broadening (or contracting) its meaning so as to enable laws to be written, amended, or repealed in order to achieve some group’s idea of what the document “OUGHT” to say, except through the procedure specified in the Constitution of amending it. And, of course, Amendments should be written with the utmost care to make misconstrual as difficult as possible.
Laws and the legal system must be grounded in the strongest fixity of the meaning of its words that is humanly possible.
. . .
It is for this reason, even if no other, that one is justified in concluding that Mr. Metzger and other who share his views do at bottom believe it is appropriate to use force — the force of governmental punishment — should we fail to act in accordance with laws about “marriage” that use redefinition of the word, and indeed a redefinition that strips it of its fundamental meaning. [His words to the contrary notwithstanding:
Oh dear, wonder how many more I will find. And I did so proofread!
September 8, 2015 at 11:10 pm: Should be, of course,
“It is for this reason, even if no other, that one is justified in concluding that Mr. Metzger and other who share his views do at bottom believe it is appropriate to use force — the force of governmental punishment — should we fail to act in accordance with laws about “marriage” that use redefinition of the word”
Who is being “punished” by the state? At most here a state functionary might be compelled to comply with the state defined terms of their job with the state for which they take a salary from taxpayers — which is hardly worse than a state functionary being forced to release a prisoner at the end of their jail term even if they don’t want to, or a state functionary being forced to issue a building permit even if they don’t want to, or a state functionary being forced to issue a driving license to a woman even though they believe that under Sharia law women shouldn’t drive.
Let me ask once more: who is concretely harmed by my friends (and I’ve had quite a few gay friends who have gotten married) being married? Whose mouth has it taken food from? Whose leg has it broken? And no, I don’t count a clerk refusing to issue a license that’s part of their job to issue as someone “harmed”.
I’ve heard only one even vaguely reasonable argument, which is that the state provides some benefits to married couples — but by this argument, all marriages are acts of aggression and so I can’t see any rational reason to oppose gay marriages in particular. Anyone claiming this would need to explain why gays are singled out for their special opprobrium in this regard, and why they aren’t angry at everyone who gets married. I’ve even heard this a couple of times from people who are married themselves — presumably, if their position is correct, they should immediately divorce.
In the hearing before his court, Judge Richard Posner of the US seventh circuit demanded of counsel for the anti-marriage equality side how gay marriage harmed any third parties. In spite of years of opportunity to prepare arguments to this effect, they were essentially unable to provide any evidence of harm. The best that the state attorney generals could come up with in their briefs and oral arguments was the claim that the effects might not yet be foreseen — this in spite of many years experience with gay marriage in a number of states.
I suspect that if the most motivated attorneys in the United States could at best say “we don’t now what might happen, even though it has already happened in many places”, then I suspect that no one in this thread is going to be able to describe some special harm that gay marriage imposes upon people that straight marriage does not.
And no, saying “we’ve always done it that way” is an insanely lame excuse for making millions of people unhappy. “We’ve always done it that way” could easily have been used to excuse slavery at one time or bans on smoking pot — no libertarian takes such an argument seriously.
Ask a married gay couple of your acquaintance if they’re glad that they could get married or not. If they say “yes”, and you can’t provide evidence that there was any harm caused, that’s all the rationale a libertarian needs for why the change was just.
Julie, I was referring specifically to the possible terms to be used with regard to the persons who enter into such a union – not the term which we may or may not use to describe the union itself. I tend to agree with the conservative position on that particular point.
I may have made the impression that I’m a stickler for etymology, which I am not (and that’s the main reason I don’t usually bother with looking beyond readily accessible online sources). I find it very interesting “academically”, but useful only to the extent that it may help people reach agreement on use of various terms when such an agreement may be otherwise difficult. If enough people refuse to use the term spouse, the fact that I happen to think it the most suitable for etymological reasons is of no help, and tough luck to me, I guess. IOW, I love language as much as I love physics, but they are ain’t the same at all 🙂
OK, bed time for me… :-O
Alisa, your viewpoint as always is interesting and worth having. I appreciate your sharing it. 🙂
I am often mindful that “he who controls the language controls the discourse,” so I am very reluctant to accept new usages that will further an agenda of which I am wary, and particularly when they depart radically (i.e. “at the root,” fundamentally) from long-established meanings. If etymological investigation shows that the “new” usage has in fact a long-established history in common usage right up to the present, I have to concede the point. But by the same token, if what I thought the word meant turns out to have been the general understanding of it for a very long time — in the instant cases, 7 centuries or more — and has only begun to change very recently, and that in a way that makes allusion to certain ideas or concepts difficult, then I argue that the long-standing customary understanding of the word is properly controlling. For one example, in the context of law, as I and others mentioned above.
I also believe that while language inevitably evolves, it is useful to slow the evolution as much as one can, save only for the addition of true neologisms and borrowings from other languages. The reason is that words symbolize concepts, and the grammatical structure of the language — its formal “rules” — are the rules of combination and association which enables our words to shove around concepts in our own heads, and to communicate them with some degree of success to others.
It seems to me this last, about communication, is what you’re talking about when say that “…[etymology] may help people reach agreement on use of various terms when such an agreement may be otherwise difficult.”
This is also why in a disagreement, starting from a fixed, dictionary-definition is helpful, even when neither party entirely agrees with it. Each party can then say clearly in what way his meaning is congruent or incongruent with the one the dictionary gives, and with luck and good-faith argument (discussion) on both sides, people can sometimes come to an agreement about the terminology, so that they’re no longer arguing based on misunderstandings of the other guy’s usages (“semantic” argument) but rather arguing the actual topic.
So I wouldn’t say that I’m a “stickler for etymology,” but I do think it’s useful in the Real World of thought and logic and communication, so not purely academic.
I believe it was Thurber who somewhere wrote of one of his acquaintances from his New Yorker days who was (more-or-less) so “imbued with the Latin language that he could write of ‘an elephant endorsed with towers.'” 😉
Yes, I agree – not purely academic.
Mr. Metzger.
My comments have not been directed at your instant case, but at the radical redefinition of legal “marriage” upon which you and others insist. (As a matter of fact I don’t think marriage is within the proper purview of government either.)
Excerpted from mine on Sept. 8 at 11:11 p.m.:
1. Quoting PfP:
2. Further on, mine:
I will temper that somewhat, though. It is possible that Perry M. hasn’t followed out the logic of his demand to its logical conclusion, even though he thinks in all honesty that he has. Further deponent sayeth not.
. . .
Examples: Two hypothetical* scenarios:
1. I am on the witness stand. I am asked whether X and Y were married. I answer, quite truthfully, “No.” I did know, of course, that X and Y are housemates, and perhaps I even knew that they are of the same sex, seem truly devoted to each other, and enjoy sexual congress with each other.
What I didn’t know is that the laws have recently been changed, and now recognize this couple’s relationship as one now called “marriage.”
Time passes, and at some point I find myself charged with perjury. I am flabbergasted, but it is now the Lawr that this couple be recognized as “married,” and I said they weren’t, contrary to fact.
My own attorney argues that I believed I was correct in my initial testimony. The Prosecutor argues that “ignorance of the law is no excuse.”
In other words, I am threatened with punishment — force — if I do not bow to the whims of the Legislature on this matter.
2. Or a maker of hardcore advertises for a married couple to perform in one of his films. Mr. Alpha and Mr. Zeta show up, hand-in-hand, as they legally fulfill the requirement of being “married.” Our filmmaker won’t give them a screen-test, as he’s not about to be sued by anyone for putting him or her in a position where he or she might catch AIDS.
Whereupon Mr. A and Mr. Z sue him, successfully, for turning them down without so much as a screen test: They do, after all, meet the advertised requirement, so this is clearly an actionable offense by the filmmaker.
—-Force.
No doubt others can come up with hypothetical situations that seem less far-fetched. –Although it’s hard to imagine anything more far-fetched than declaring a rain-puddle in the middle of a near-desert property nearly 20 miles from a truly navigable waterway to be a “wetland,” and requiring the owners to pay some ginormous sum of money based on the EPA’s brazenly heinous redefinition of the meaning of the term “navigable waterway.” (Note to all: Search for Sackett EPA .)
*NOTE. If anyone wishes to argue based on my two hypotheticals, remember that you cannot make a successful argument against a hypothetical scenario by adding any assumptions, or leaving out any of the hypothetical circumstances, or changing any of them.
(I mention it because of the many such “arguments” I have run across on this board and elsewhere.)
. . .
But beyond all that, those who insist on a legal change in the nature of the institution of marriage are already using the threat of force on the populace in general should any of us fail to get with the program, and refuse to accept the legal rights and privileges (with which we may or may not agree in the first place, of course) of the old institution as necessarily applying to the new one masquerading as the old.
It amounts to requiring the public to accept one thing as if it were something else, which is to say that the redefined term of “marriage” is FRAUD enforced by Law.
To campaign for adding to the reasons for the State to use force against us is to argue in favor of the State’s use of force, at least in this one, itsy-bitsy, teeny-weeny case.
I note that both the Governor of Ohio (the one who claimed that Saint Peter wanted him to accept the Obama Medicare expansion) and Donald Trump have come out saying that “the law” is whatever the Supreme Court says it is.
Donald Trump and Governor K. of Ohio – not company I would wish to keep.
So a few people in funny robes can declare that anything (anything at all) is “the law” – and people may be thrown into prison if they do not obey.
They need not point to any Statute (State or Federal) or to the view of any of the writers of the Constitution or the Amendments to the Constitution.
Making stuff up, I-feel-like-making-this-the-law-so-it-is-the-law is enough.
Yes that it is the America of Donald Trump or Governor K.
Judicial tyranny (judges just making-stuff-up) clearly does not bother them.
But I am shocked that Perry M. would go along with it.
If people can be thrown into prison, or be fined, on the arbitrary whims of judges – in relation to no law (neither State or Federal).
Then the Rule of Law is dead – clue it is not the same thing as “the rule of the people who happen to wear judicial robes” it is the “rule of law – not of men”.
What is next?
Will people be punished for not baking wedding cakes in celebration of homosexual unions?
Or be punished for not taking photographs of these happy events?
Oh, silly me, that has already happened.
“But Paul – this lady was a government employee”.
And if she had been a MUSLIM government employee (not a CHRISTIAN one) no one would have said “boo” to her – let alone flung her in prison.
This is judicial tyranny targeted at a specific group – Christians.
In the Founding period Americans knew how to deal with judges who ordered people about – in blatant defiance of the laws.
The response involved tar and feathers.
Too extreme?
What about judicial TAXATION?
In some States judges have declared that government spending on government schools should be X – and that taxes should be increased to pay for this spending (New Hampshire is an obvious example).
If Donald Trump and the Governor of Ohio are correct, if “the law” is whatever-the-courts-say-it-is then there is no problem with judicial taxation.
“The law, and the Constitution, are whatever the judges say it is” is an terrible principle for a libertarian (or anyone else) to endorse.
No – this can not be allowed to stand.
Judges – State and Federal, have to be told (clearly and firmly) that they can not just make-stuff-up.
No more pulling “law” from their backsides.
If Roe V Wade was not enough for you (what-is-a-few-million-dead-babies-between-friends) then judicial taxation should be the final straw for anyone.
Clearly those things are wrong by libertarian precepts.
However, lets keep some context here.
Consider heterosexual marriages. The fact that heterosexual people of African descent living in the United States can marry is reasonable, and it would be entirely reasonable to force a county clerk to issue a marriage license for a heterosexual marriage between two such people — even if forcing that issuance required a threat of jail time.
Of course, under US law it is also almost certainly a violation of the law to refuse to bake a cake for such a heterosexual wedding or to refuse to be the photographer for it, and that’s clearly also a violation of libertarian precepts, but this isn’t a new problem.
It is possible to be in favor of neutral behavior by the state and its agents whilst also opposing laws that force private parties to participate in such events. One need not pick only one.
I believe that if, for example, this person had said “I refuse to issue drivers licenses to women on the basis that this violates my muslim faith”, their behavior would not have been considered acceptable either.
I agree with Perry, the State’s actions are neutral, in that they would be likely to occur had any simliar unlawful action been taken contrary to Federal law but with a different religion being the basis of the case. I am not aware of any instance of a Muslim official operating whether within a State or Federal jurisdiction within the United States refusing to perform any act on the basis of it offending his or her faith. As and when that happens, we shall see if the judicial power of the United States acts differently.
In short, the clerk was a fool to pick this fight, and has only discredited her position and got herself in jail.
Given that the separation of Church and State is a well-established principle in the USA (even if on the basis of a stretched if not deliberately wrong application of the First Amendment’s wording regarding the establishment of a religion by act of the Congress), it should hardly be a surprise that an official who selects those laws she enforces on the basis of her beliefs should meet the full force of the law.
Perry M : Anyway, Alisa and Mr. Ed and all the rest, when you can elucidate to me a concrete harm that several pairs of my friends being married has caused to you or anyone else, please do.
Why do we need to restrict ourselves to your friends ? What’s wrong with pointing out concrete harm being caused by gay marriages not involving your friends ? Like being sent to prison, for example ? Or being stung with a $150,000 bill for “damages” for declining to bake a wedding cake. How’s about you stick that telescope up to your good eye ?
Until then, however, I will have to stick to the libertarian position, which is that voluntary human interactions and agreements that cause no violence to others are not the business of the state or indeed any third party at all.
Except for the jail time and $150,000 damages, that is.
Oh, and lastly, let me note that if it is true that conservatives and Christians will be forced to abandon their beliefs, or at least will have their beliefs denied public legitimacy, by people getting married — if their beliefs were truly so flimsy that the existence of such marriages are capable of harming them so grievously — then perhaps their beliefs were unreasonable to hold in the first place.
Yup, I think we’ve hit the motherlode here. If only these crazies had reasonable beliefs, rather than unreasonable ones, they should stay out of jail and hang on to their bakery shops. But as they don’t, well, not so much.
OK< if you think that it's proper that Kim Davis have gone to jail, then why hasn't DC Police Chief Cathy Lanier been jailed? Why haven't any California police chiefs been jailed? If you think jailing a public offician for refusing to do her duty is worth jail, then why was Kim Davis singled out?
http://www.teaparty.org/isnt-dc-police-chief-jail-issuing-gun-permits-117986/
Maybe politically correct crimes are OK, while offending liberal sensibilities is the REAL offense.
Ken, the short answer is that they should. Kim Davis was jailed for disobeying a court order; the two you cited are guilty of precisely the same thing. But it’s the judge who has to make the contempt finding and determine the penalty, and he’s unlikely to do it sua sponte. My guess is that in the DC and CA cases no one has pushed him to do so, as happened in the KY case. Remember, too, that these are all different judges, with different temperaments and, for that matter, different “hot buttons” and prejudices.
Laird : But it’s the judge who has to make the contempt finding and determine the penalty, and he’s unlikely to do it sua sponte. My guess is that in the DC and CA cases no one has pushed him to do so, as happened in the KY case.
….but….
CNN : Daniel Canon, an attorney who was working with the ACLU on the case against Davis, said his clients had not asked for Davis to be jailed.
Well, Lee, I don’t know what he did ask for, but obviously he went before the judge to ask for some sort of relief. Judges don’t always grant the specific relief requested, and in this case he chose jail, as was his prerogative. (Remember, contempt is an offense against the judge himself, not against the plaintiff in the case.) As to those other cases Ken cited, I repeat the last sentence of my previous post.
United States District Judge David Bunning has released Kim Davis from custody.
Excerpted from the Status Report on the Kim Davis case, which Fox presents in full (2 pp.) at
http://www.foxnews.com/politics/interactive/2015/09/08/us-district-court-order-releasing-kim-davis-from-custory/.
Note the typo “custory”in the URL (which I copied and pasted. No human fingers Near Rockford tampered with the URL). If the link doesn’t work it will probably be because somebody at Fox fixed the typo.
contempt is an offense against the judge himself
Since I’m not a lawyer, I don’t really understand what contempt is. It appears to be either
(a) an offence against the dignity of the court / judge, punishable by whatever the judge feels is appropriate, or
(b) a refusal to follow a court order, countered by a sanction designed to enforce the court order
If it’s (b) then it wouldn’t seem to fit some sorts of things – eg the court orders you not to name someone outside the court, you name them and bazinga. But the bazinga can’t enforce the original order, since you have already irrevocably broken it. But if it’s (a) then aren’t there laws about due process and trials, and proof of guilt and juries and so on ? Maybe not in this country, but in the US where there’s some sort of a Constitution and so on ?
And if it’s (a) – why would the judge let her out ? Why would the extent of his punishment for her offence have anything to do with whether marriage licences were now being issued ? How has the dignity of the court been assuaged by other people doing stuff while she’s in jail ?
The US has two Constitutions; the Literal Constitution, which is the one in the books; and the Tacit Constitution, which has been created through a great deal of nudge-nudge-wink-wink interpretation of the Literal Constitution.
One of the most basic provisions of the Tacit Constitution is that federal judges are gods.
This is true insofar as it goes. But why must there be an unspoken (“tacit”) constitution in every nation?
The recognition of a popular right is always a concession by sovereignty. Social institutions, religious dogmas, personal prejudices, corporate privileges, spiritual beliefs, and cultural traditions comprise the real, unspoken constitution (of power) in society and, therefore, limit, extend, direct, and impact in myriad unseen manners the exercise of power in the nation.
Laws are declarations of rights and written law – when it is genuinely law – only ever recognizes previously established rights that have de facto been established in society. Since laws are declarations of rights and rights are only declared when attacked, it can be deduced that the stability of a constitution that governs a nation is inversely related to the extent to which the laws that govern said society are written.
This is why, as Joseph de Maistre said:
The tens of thousands of laws passed by the French National Assemblies following the French Revolution betrayed a woeful lack of stability in government. Three written constitutions in five years! No great work results from deliberation.
If by the “Tacit Constitution” you mean common law, that was part of the constitution from the start, and indeed, predates the constitution by about six hundred years. Judges under the common law system have always had the power to add to the legal system through precedent, and have always had the ability to enforce their orders.
Indeed, of what use would a legal system be if it had no means of enforcing judicial decisions whatsoever? There has to be some mechanism, if only consensus to completely shun someone who violates orders from adjudicators.
So long as no one is jailed for running city-wide, unlawful refugee camps for unlawful aliens, no, Davis should not be in jail.
Actually, I mean the Tacit Constitution that amends “Congress shall make no law” to “Congress shall make no law unless it seems like a good idea at the time,” and other changes for the convenience of government.
You discussed the “tacit constitution” in conjunction with a claim by Lee Moore that Davis was denied a jury trials (not needed, and never needed even under the United States Constitution, in courts of equity — she was not being charged with a crime, she was the subject of an injunction), mumbles about due process (which Davis received — she had a considerable number of court appearances and none of this was done in a summary manner), etc.
I fully agree that the courts have misinterpreted the constitution for all sorts of reasons and that it is now a tissue that is more holes than substance. However, I disagree that the existence of injunctive relief or contempt proceedings is some sort of usurpation — it was part of the US system from the beginning.
it seems clear to me she should not have been jailed because:
1. There was a legal remedy in place to remove her: Impeachment.
2. She was unable to prevent an couple from getting a license. Worst case was you had to get licensed in one of Kentucky’s 119 other counties, 7 or which are adjacent to Rowan County.
Jailing her would only be justified to prevent a greater injustice. I see no way to credibly argue that a greater injustice was avoided by jailing her. She was jailed simply to send a message. That’s not sufficient justification for locking someone up.