If I took a job at a burger joint, and then discovered I was allergic to grease, the next moral and ethical step would be clear. It wouldn’t have to do with the employer: Grease is part and parcel of that kind of business, there’s really no getting around it. No, the rational next step would be for me to quit. If I can’t do the job, then I owe it to the employer – and, hell, even to myself – to acknowledge as much and resign. Same applies to Kim Davis. She is the Rowan County, Kentucky, clerk whose office dispenses marriage licenses but who has refused to provide such licenses to same-sex couples, the United State Supreme Court notwithstanding. She says that she cannot, that it is “a Heaven or Hell decision.” And added, “I never sought to be in this position, and I would much rather not have been placed in this position.” The first is her opinion, no doubt deeply held to the point that she feels she cannot violate it. Fair enough. The second contention is not true, however: She sought to become county clerk; she was not forced into it. The job of the county clerk (and county clerk jobs coast to coast are very tightly circumscribed by law and rule) specifically includes provision of marriage licenses to same-sex couples. This is not an insoluable equation: If she feels she cannot do the job, then she ought to quit the job. Right away. – rs (photo by Tom Ventura)Share on Facebook
One of the more interesting complaints from conservatives about the Portland wedding bakery case – the bakers who declined to sell pastry for a lesbian wedding – concerns a specific provision in the state order about what the baker can say about it.
It cannot say, the state said, that it will not provide services for gay weddings. Specifically, it said, it must “…cease and desist from publishing, circulating, issuing or displaying, or causing to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of a place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of sexual orientation.”
On its face, this sounds like a first amendment violation. How is it, or is it, justifiable?
California law professor Eugene Volokh takes on exactly this subject in a recent blog post, and draws a careful distinction:
The bakers have a flat free-speech protection if they want to say, “we disapprove of the Oregon decision,” or “we disapprove of same-sex marriages,” he said.
What they cannot do is say that “we won’t do same-sex marriage, same-sex wedding cakes” because doing so isn’t legal. It becomes “essentially a true threat of illegal conduct.” And threats of illegal conduct (it becomes most obvious in the case of threats of violence, but other conduct can be covered too) are themselves illegal.
It’s a little subtle, but the point is clear.Share on Facebook
In one week. The Affordable Care Act is upheld by the nation’s highest court – in the process assuring more frantic right wing attacks to end its life-saving existence. The same court then cast aside unconstitutional – and poorly argued – barriers to universal marriage. And the Confederate flag – long regarded as a defining symbol for 13 states in our nation – is suddenly being swept into the dust bin of history as an icon of slavery.
In a week!
It would be hard to find a single period in the last 100 or so years in which so much of the basic societal tapestry of this country was so drastically altered. In one week!
Then the inspirational coda: America’s first Black president, in the pulpit of a Black church that had been tragically assaulted, summing up those days – and that deadly assault – in 35-minutes of classic oratory, climaxed by his breaking into song and leading the congregation – and much of the nation – in the classic hymn “Amazing Grace.”
Others, with a better grasp of the English language than mine, are struggling to recap the historic political, legal, social and racial meaning(s) of all this. I wish them well. The after-effects will linger for a long, long time as they reflect and attempt to define.
One of the facets of all this capturing my attention has been watching reactions to both those whose causes have been vindicated or upheld and those who’ve seen their opposition to all this overridden legally and morally.
In a general sense, the vindicated have been happy, ecstatic, joyful, prayerful and – above all – gracious. Those in the first person, who’ve had their lives and social conditions changed for the better, have generally not been angry or expressed vindictiveness or scorn for either the process or for those who forced them into our courts for relief.
The same cannot be said for many of those who found little support for their views in our highest court. Among our Republican presidential aspirants, for example, Bush and Rubio came closest to a civilized response, expressing anger and disappointment while admitting laws of the land had been changed in proper and accepted ways; the nation needs to adjust and move on.
But Mike Huckabee – the only ordained minister and “man of God” among the GOP presidential contenders – spoke for many of his supporters and those of other candidates in a totally unfounded way regarding the gay marriage ruling. Said the “pastor:” “This flawed, failed decision is an out-of-control act of unconstitutional judicial tyranny.” Vindictive. Angry. Scorn-filled. Wrong.
Time was, you took your issue to the courts, argued your best case, presented your best evidence and placed that issue in the hands of a judge or judges. The outcome, whatever it was, was the outcome. You either accepted it and went on your way or you regrouped and began your judicial journey again, hoping for a different verdict. You did not reject the decision and you did not insult those who decided it. Now, we have elected officials urging people to “ignore” or “pick-and-chose” which laws/decisions to obey and which to disregard. Wrong headed. Dangerous. No nation – no society – can exist when laws become “suggestions” or are ignored because someone doesn’t agree.
In a most basic way, the U.S. Supreme Court exists for a single purpose: to measure issues before it to the justices’ interpretation of the U.S. Constitution. Justices aren’t tyrants. They aren’t “out-of-control.” Their decisions – whether you agree or not – are not failures despite whether your argument prevailed or lost. Those decisions are deemed to be the legal application of the Constitution by the court and are not “unconstitutional” unless subsequently proven so in another case.
Huckabee is not the problem. But he certainly is symptomatic of the way things political have been conducted in this country for too long. One group – usually Democrat – trying to do something which the other group – usually Republican – has attempted to stop the issue under discussion. In the case of the Affordable Care Act – most of which has been upheld twice now by SCOTUS and victorious over more than 50 failed legislative challenges – Republicans have not offered a version of their own. Not one. But Speaker Boehner says the efforts to eradicate ACA laws will continue. So much for acceptance.
As for the gay marriage decision, many GOP governors are telling state officials to either ignore the SCOTUS finding or not honor it by not issuing licenses until new state laws (doomed to ultimately fail) can be written and enacted. One governor even says he’ll introduce legislation to stop ALL marriages in his state. Acceptance? Gracious? Scorn!
Republicans nationally are slipping into a posture of irrelevance in politics. The courts – the demographics – the country – are changing. Foot dragging, obstinance, unrestrained opposition, angry epithets, unsubstantiated challenges to our legal system, futile efforts to swim against the tide of public opinion of reasonable gun laws, immigration and other issues will assure reduced GOP influence on this country’s direction. All of that is confirmed by overwhelming evidence.
Quietly looking back, that presidential coda to the week’s nation-changing events seemed to have even more relevance far beyond the walls of a South Carolina church than a local eulogy for a local pastor. In an often plain-spoken way – in an often soaring use of the English language – the President tied all these events of joy, anger, sorrow and tragedy into a tapestry of acceptance and hope this country has rarely seen.
Whatever your politics – whatever your personal beliefs – whatever your religion – whatever your ethnicity or race – if you haven’t heard the President’s words – all the President’s words – please search the I-net for the Pinckney eulogy. Set aside your worldly joys and concerns for 35 minutes. Watch. Listen.
The massive change our society has undergone in recent days is reason enough to take the time. Trying to understand what all this change means for the future makes it absolutely essential.Share on Facebook
From a Facebook post by Duff McKee, a former 4th district judge in Idaho.
A court decision of significance will invariably disappoint some and delight others. Usually, the more delighted the winner is, the more upset the loser becomes. It is not uncommon for losers to blame the judge.
The marriage equality decision by our highest court demonstrates the phenomena. The teapots and extreme evangelicals are noisily rising up to complain, as expected. One theme of their rumble is that it’s all the courts’ fault; the courts have gone off on excursions of their own, changing laws at will, ignoring the will of people, tearing up valid legislation, etc. The noise is, by and large, hyperbolic, extreme, and historically wrong, but we have come to expect this from the more radical divisions within our society. It’s within the penumbra of tolerable free speech.
But there is also a line of critical remarks about the courts swirling around the marriage equality decision that is different from the normal rumble of losers’ gripes.
These are the comments to the effect that one should just ignore judicial decisions that one disagrees with, or that those in power are not obligated to follow a decision that they choose not to, or that states remain able to enact their own laws contrary to rulings of the high court. These remarks are not just disturbing, they are appalling – because these remarks are coming from men who are currently seeking to become President of the United States. It makes one shudder.
The inspired magnificence of our Constitution is in the balance it imposes upon the government. Integral to this balance is the existence of an independent judiciary with the right and the duty to examine the acts of government to ensure the actions are within the boundaries of the Constitution, properly express the will of the majority, and do not trample upon the rights of the minority. While we believe the will of the majority should, and does, overwhelmingly guide our affairs in almost every facet of our lives, we believe with equal fervor that the government should not trample upon the rights of the minority.
The guardian of all these concerns throughout history has been, and is, judicial review by an independent judiciary. This is the essence that has been part of our heritage since the very earliest days of our government. Marbury v Madison, decided in 1803, was not a startling new proposition, but was merely the first case of judicial review to reach the high court.
To complain that the high court in the marriage equality decision has just recently usurped unto itself the power to interfere, and that this somehow takes away from the inherent authority of the Congress or of the several states, is to display a fundamental lack of understanding of how our government works, but it is a just complaint. To even suggest that it would be appropriate for those in power to simply ignore such a decision of the high court is not only dangerously stupid, it is plain treachery.Share on Facebook
As legalized same-sex marriage advices in a few more jurisdictions, there’s a read from Washington state well worth the review, coming from the opposition side. (Hat tip on this to the Seattle Times’ Danny Westneat.)
It comes from the conservative pastor Joe Fuiten, of Cedar Park Church at Bothell, long active on social issues and strongly opposed to same-sex marriage. That hasn’t changed. But his take, and that of others of like mind, on how to react to the social changes underway around the country certainly seem to have changed.
The immediate trigger is the newly-passed state legislation providing redefinitions for domestic partnerships, making them closely (not exactly ) equal to marriage. Fuiten is among those who disagree with it, and considering campaigning for a referendum in which voters would, prospectively, overturn it. Fuiten emailed a number of his counterparts around the state asking, is this is a battle we want to, or should, get into? The replies make for fascinating reading.
There were 34 responses, which Fuiten summarized: “Out of that group, six people have said, yes, we should definitely run a Referendum, three people offered conditional support, and over 25 people said, ‘DO NOT RUN a REFERENDUM’.”
Westneat called Fuiten and asked, after seeing and considering the responses, that question. The response: “It’s dumb to try to repeal it. We’d lose. We’d set our whole cause back.”
Once again, changing wind.Share on Facebook