Saturday, September 5, 2015

Of Courts, County Clerks, Gutless Officials

We have a problem and it is a serious one.  The national government decided to define marriage in a manner contrary to the nature of marriage.  As if that were not bad enough, it is not even the case that all the branches of our three-branch central government did this.  One branch, the Congress, had reaffirmed that marriage is what it is: something that involves one man and one woman.  What makes this situation even worse is that it was five members of the nine-member judicial branch who decided to redefine marriage.

Just to remind us, the crux of what Anthony Kennedy said was this:  “Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”  He got to this conclusion first by pointing out that marriage has changed over time.  For example, we generally don’t have arranged marriages and we now allow inter-racial marriages.  So if marriage is changeable, we should be able to change it in any other way some wish, or so claims Kennedy.  Of course, arranged marriages were still marriages, as are inter-racial marriages.  They required a man and a woman.

But the crux of what Kennedy claims is that “the right to marry is a fundamental right inherent in the liberty of the person” so that the Fourteenth Amendment requires that those who want to “marry” the same sex have a “fundamental right to marry.”
The pretense of appealing the Fourteenth Amendment as the grounds for this redefinition are non-sense.  If a state decides to issue certificates of recognition to the owners of horses, no one has been treated “unequally” if that state refuses to issue such a certificate to the owners of dogs.  If it needs stating, this is just because dogs are not horses, no matter how much anyone, including Anthon y Kennedy, wishes they were.  Marriage is what it is.

The fact that Anthony Kennedy and a few of his cohorts decided they do not like the nature of marriage is not the real problem.  Anthony Kennedy thinks all sorts of things that do not comport with reality.  The real problem is that we have forgotten what to do when something like this happens.

Well, not quite everyone.  Because there was one, small, insignificant little county clerk in Rowan County, Kentucky who refused to go along with the great and powerful.  She refused to issue marriage licenses to those who, in fact, cannot be married.  She was doing exactly what the Constitution of Kentucky required her to do.  After all, she is a clerk of Kentucky.

But as Nathaniel Darnell reminds us, even in the case of officials of the United State, “Under Article VI of the Constitution, each official must take an oath to uphold the Constitution, not a judge’s possibly faulty view of the Constitution.  Otherwise, the oaths are effectively to the judiciary.”

But what are almost insignificant little state officials like a county clerk to do when they do their duty rather than the will of Anthony Kennedy?  As Constitutional lawyers Herbert W. Titus and William J. Olson point out:

“In a better time, a President could have explained to the American people why the Fourteenth Amendment has nothing to do with same-sex marriage, and protected her. Failing that, Clerk Davis should have been able to call on her state’s Governor to protect her - to interpose between her and the five Justices.”

Many people have never even heard of this idea, but it is not new.  It goes back at least to the Reformation era when Martin Luther went head-to-head with the Holy Roman Emperor and the Pope.  The Emperor would have executed Luther, but a more local official, the Elector of Saxony, protected Luther by putting the power of his position between Luther and the Emperor.  That is, the Elector of Saxony “interposed” himself between Luther and the Holy Roman Emperor.  The Reformers generally adopted this approach because, rather than being and exercise of anarchy and lawlessness, it was one official correcting another official.

Our system of government was designed with this sort of idea defining its very structure.  As either Hamilton or Madison put it in Federalist No. 51:

“In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

In other words, in case you missed it, in order to have many officials at multiple levels who can protect the rights of the people, we (supposedly) have not just a republic divided into somewhat competing branches.  We also have a “compound republic” with “two distinct governments” - the United States government, and the governments of the states.  And like the United States government, the governments of the states have competing departments.  Why have two governments, each with sub-divisions?  One reason is to have a lawful way to control things like an out-of-control Anthony Kennedy.  It is a system designed to be inefficient, in part to provide for the protection of the powerless.

So far the system has not worked in the case of the imprisoned Kentucky county clerk.  Could the system work?  We will never know until the other branches and divisions of our governments are populated with something other than the gutless wonders (like the current governor of Kentucky, just for one example) who now inhabit them.

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