Thursday, September 10, 2015

A question for conservatives who think Kim Davis should "follow the law" or resign

I have a question for my fellow conservatives unsympathetic with Kim Davis' refusal to issue marriage licenses.

A number of conservatives have said that they think Rowan County Clerk Kim Davis should either "follow the law" or resign her position. The "rule of law," they say, is all-important and cannot be defied without threatening our very form of government.

So, here is my question:

Given that the Supreme Court defied the rule of law in a manner, given their power and office, far more destructive to our form of government (by ignoring the plain language of the Constitution, defying precedent, and just flat out making stuff up) than Kim Davis could do in fifty lifetimes, why did you never call on the five justices who made up the High Court's majority in the Obergefell decision to "follow the law or resign"?

I just find it ironic that their standards for the behavior of public officials is higher for a lowly county clerk than it is for an exalted member of the nation's highest court.

And let's not say that the Court has the right and responsibility to "interpret the Constitution." That dog most definitely won't hunt, since there is a legitimate distinction between interpretation and policy-making and the Court has defied as egregiously as it possible to defy it, and the argument that the Court has the right to do this on the basis of Marbury vs. Madison basically amounts to saying that the Supreme Court can do what the Supreme Court wants to do because it says so.


10 comments:

Anonymous said...



The Supreme Court is supposed to be the arbiter of what is constitutional. Most of their decisions are not unanimous, so even they can't agree.
So how can it be "given" that they defied the law and made stuff up?
Our government is composed of humans and is subject to human flaws and uncertainties.
I suppose that is one thing that drives Davis (and possibly) Martin to seek an external absolute in religion. It would be great to have absolute standards rather than fallible, differing, inconsistent human opinions. The only question then becomes, which of the myriad conflicting forms of absolute truth does one choose?

j a higginbotham

Martin Cothran said...

I have made purely Constitutional arguments. Why don't you respond to me on the same terms? Why do you have to invent arguments I didn't make rather than answer arguments I did make?

Anonymous said...

I guess I am not clear what the Constitutional arguments presented here are.
The role of the Supreme Court is to decide whether laws are consistent with the Constitution.
If you don't like the decision, you can pass an Amendment or try again with another case. [Or start a new revolution.]
I don't know of any provision for removing Justices for not doing their job.
[And in this case it is clearly not a given with a large segment of the population that the Supreme Court did not do its job.]

"Given that the Supreme Court defied the rule of law in a manner"
That's not a given.

"why did you never call on the five justices who made up the High Court's majority in the Obergefell decision to "follow the law or resign"?"

Kim Davis was ordered by Judge Bunning to issues licenses; she refused.
What authority told, or what authority exists with the right to tell, the Supreme Court that they aren't doing their job?

"I just find it ironic that their standards for the behavior of public officials is higher for a lowly county clerk than it is for an exalted member of the nation's highest court."

It is pretty clear what Davis was ordered to do and that she refused; it is not at all clear that the Supreme Court egregiously defied the distinction between interpretation and policy-making.

j a higginbotham
(if that is more than usually incoherent, i am behind on sleep)


KyCobb said...

Martin,

The 14th Amendment says that people are entitled to due process and equal protection of the law. The Supreme Court applied the 14th Amendment to marriage laws. Just because you don't like their ruling doesn't mean they made stuff up.

Martin Cothran said...

Higginbotham:

I guess I am not clear what the Constitutional arguments presented here are.

I addressed these in my opening statement in my debate with Judge Heyburn: http://vereloqui.blogspot.com/2014/11/the-undemocratic-future-of-marriage.html

And here: http://vereloqui.blogspot.com/2014/11/same-sex-marriage-14th-amendment-fail.html

In short, the burden of proof was on the Court (since they were violating precedent) to demonstrate that the 14th Amendment prohibited states from defining marriage as between one man and one woman. Anthony Kennedy never does this. If you have an argument for it, I'm all ears.

Martin Cothran said...

Higginbotham:

The role of the Supreme Court is to decide whether laws are consistent with the Constitution.

Then their decisions can be judged on the basis of whether they are or not. Obergefell was not.

Martin Cothran said...

Higginbotham:

"Given that the Supreme Court defied the rule of law in a manner"
That's not a given.


What do you mean by "given," I have argued the point numerous times on this blog. It's not like I'm taking it as axiomatic or something.

Martin Cothran said...

Higginbotham:

What authority told, or what authority exists with the right to tell, the Supreme Court that they aren't doing their job?

Reason and precedent.

Martin Cothran said...

KyCobb,

The 14th Amendment says that people are entitled to due process and equal protection of the law. The Supreme Court applied the 14th Amendment to marriage laws. Just because you don't like their ruling doesn't mean they made stuff up.

Just invoking phrases does not prove your point. I have already pointed out that the assumption that the equal protection clause cannot be interpreted (and has never been) to support same-sex marriage and than any application of it as broadly as it must be interpreted to include same-sex marriage would also have to apply to polygamy and incestuous marriage.

KyCobb said...

Martin,

"I have already pointed out that the assumption that the equal protection clause cannot be interpreted (and has never been) to support same-sex marriage and than any application of it as broadly as it must be interpreted to include same-sex marriage would also have to apply to polygamy and incestuous marriage."

Completely wrong, and you are now bearing a dead horse since its a done deal. And it doesn't require allowing plural marriage or incestuous marriages, since there are good reasons for prohibiting both. You might as well give up on that shibboleth, since its too late to try to scare people into opposing ssm.