As many people probably know, the county clerk in Rowan County, Kentucky, Kim Davis, was recently jailed for having the audacity to uphold the Constitutions of both the United States of America and the Commonwealth of Kentucky, as per her oath of office. Of course, since people defending the Constitution cannot be tolerated in 21st-century Amerikkka, millions of people are supporting her illegal incarceration at the hands of a rogue district judge and a Supreme Court that recently ruled the Constitution null and void. One of these millions is my wife’s uncle Hank, who is a wonderful person, but stated the following on a thread on my Facebook timeline:
“The court ruling is based on the 14th amendment (ratified in 1868), which further clarified the 10th amendment. The 14th amendment prohibits state laws that restrict civil rights.“The relevant passage is ‘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.’ “The right to marry has long been recognized as a civil right to which every citizen is entitled. In 1967 in Virginia, the supreme court struck down a state law that prohibited interracial marriages. There is no substantive difference in this case. State law cannot prohibit marriage - even or same sex couples. “The supreme court did not ‘pass’ a law. Instead they nullified blatant discrimination and are enforcing the constitution. The county is not a religious institution, and is required to follow the law. The court eliminated one more form of illegal discrimination, and the confused clerk should resign her position if she wants to discriminate and fulfill her oath of supporting the constitution.”
As my response is so long, I am doing what I have done several times in the past: posting it to blog for legibility’s sake. So Hank, the rest of this post is for you.
Hank, there are a few problems with your comment. I’ll attempt to deal with each separately.
1) I’m not sure how the 14th Amendment clarifies the 10th in any way relevant to Obergefell v. Hodges. The 10th Amendment states, in its entirety:
“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.”
I can see where the portion of the 14th Amendment you cited can be construed as relevant to the 10th, but since Davis wasn’t doing that to anyone (nor was anyone doing it to Obergefell in the case that started this whole mess), this passage is also irrelevant.
2) The 14th Amendment *does* support Kim Davis, specifically in §3:
“No person shall … hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath … 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.”
Not only has Davis not done this, but there are five relevant individuals who have done so and are somehow not in jail: namely, Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan; each of whom signed the majority opinion in Obergefell v. Hodges, which explicitly states that The US Constitution is trumped by any random individual’s personal opinion. Per the very amendment you’ve cited, their commission as Supreme Court justices is null and void, as is their ridiculous opinion.
3) You are correct that “The right to marry has long been recognized as a civil right to which every citizen is entitled.” However, that does not give individuals the right to enter into extramarital unions and have said unions recognized as marriages. The basis of contractual law in America is the fat that words have meaning. So if, for instance, I were to include in a contract the sentence “For the purposes of this contract, the word ‘table’ means ‘chair’,” that contract would automatically be null and void. Such is the case with people who attempt to claim that “For the purposes of this contract, the word ‘marriage’ means ‘garriage”.” It is equally illegal and must be struck down.
4) You are also correct that “In 1967 in Virginia, the supreme court struck down a state law that prohibited interracial marriages.” However, you are absolutely incorrect that “There is no substantive difference in this case.” The case you cite is Loving v. Virginia, which took issue with the Racial Integrity Act of 1924—specifically, the portion which states:
“It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian [criteria for what determines race omitted for brevity]. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this act.”
This very document proves its own invalidity: it recognizes the union of a white person and a black person as a marriage, which as SCOTUS correctly stated in the majority opinion, is “one of the ‘basic civil rights of man’.” However, this is not the case in Obergefell v. Hodges, in which the relevant passage in the Constitution of the state of Ohio was as follows:
“Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”
Unlike the Racial Integrity Act of 1924, which rendered interracial marriages illegal, the Ohio Constitution did not render same-sex “marriages” illegal; it merely reiterated what everyone—including the Supreme Court—already understood, that the word “marriage” is defined as “a union between one man and one woman.” Both Obergefell and his boyfriend, John Arthur, were more than welcome to marry; they just couldn’t enter into a union that doesn’t meet the definition of marriage and expect the state to recognize it as such.
5) You claim that “The supreme court … nullified blatant discrimination and are enforcing the constitution.” This is obviously not the case, as the law being challenged did not discriminate against anyone (see point #4). Before Obergefell v. Hodges, homosexuals could get married just like anyone else. After Obergefell v. Hodges, homosexuals can get married just like anyone else. The only difference is that now the states are forced to claim, despite the protests of the great majority of the people in almost every state, that a man can “marry” a man and a woman can “marry” a woman—again, regardless of sexual orientation. This isn’t a matter of a disenfranchised people getting a right that everyone else already had; it’s a matter of everyone—gays, straights, whatever—getting a new “right” that previously, nobody had.
6) You claim that “The county is not a religious institution,” and you are correct. However, the SCOTUS ruling inflicted a religious belief upon the county, its residents, and its officials. If your argument is that one’s religious beliefs cannot trump the law, then it evaporates in a puff of logic because Justice Kennedy, et al’s religious beliefs are doing exactly that. That’s why Kim Davis is in jail: because Kennedy’s religious beliefs, despite being in direct opposition to the Constitution, are somehow more legal than Davis’, which are completely in line therewith.
7) You claim that “The court eliminated one more form of illegal discrimination,” which is also incorrect: what it actually did was enshrine one more form of illegal discrimination, which again, is why Kim Davis is in jail.
8) You claim that “the confused clerk should resign her position if she wants to discriminate and fulfill her oath of supporting the constitution.” Again, you are the one who is confused. Every law ever written is discriminatory. Laws against theft discriminate against thieves. Laws against speeding discriminate against speeders. Laws against tax evasion discriminate against tax evaders. Laws requiring dogs to be on a leash discriminate against dogs. The whole purpose of law is to discriminate, and if you believe otherwise, I think you might want to check the definition of discrimination. Conversely, Kim Davis is “supporting the Constitution.” That’s the whole point: the law she’s refusing to uphold is itself unconstitutional; the Constitution is what justifies her actions!
In conclusion, I reiterate what I have said before: Kim Davis is a hero. While she—like all of us—has obviously made some unfortunate choices in her own life, this does nothing to negate the validity of her actions in this case. The longer she stays in jail, the more outraged the people will become. It is my hope that she will be freed quickly, but I hope even more that her leadership will be a call to action for the tormented few of us who still believe in the United States of America and its Constitution.