Republicans pleading nolo contedere on social issues

The Achilles heel of the modern Republican Party is its unending attempts to avoid addressing all but the most pressing social issues in favor of a focus on abstract economic issues. The party still invokes the name of Ronald Reagan, but it has knocked off the third leg of the Reagan stool, which is one of the reasons it keeps tipping over.

Reagan emphasized three things: Smaller government, a strong national defense, and traditional values. Since the Reagan administration, Republicans haven't particularly distinguished themselves in any of these, but they at least give lip service to the first two. The third has been largely eliminated from their agenda.

The most egregious example of this tendency was in the 2012 election when Mitt Romney, the poster child for this type of Republican, would try to change the subject every time a social issue was mentioned. Abortion? Change the subject to economics. Marriage? Change the subject to economics.

If you want a good example of this, you can look at how the party is now responding to the same-sex marriage issue that has reasserted itself since the Dobbs decision. Republican senators are either voting in favor the so-called "Respect for Marriage Act," or remaining mum about it altogether. The "Respect for Marriage Act" (I call attention to the quotation marks) would basically enshrine same-sex marriage in federal law.

What can you say about a supposedly conservative party that cannot trouble itself to defend basic conservative institutions like marriage? In fact, some have pointed out that, if you can't defend the traditional view of marriage, there is little traditional you can be expected to defend.

The party notoriously bailed on the marriage issue when it really would have mattered in the two years leading up to the 2014 Obergefell decision. And now their reprising their cowardly performance of eight years ago.

When asked what their positions are on the "Respect for Marriage Act," they respond, in frightened tones, "I haven't read the bill." Haven't read the bill? Since when did that ever stop a lawmaker from voting for or against anything? I doubt if any lawmaker reads any bill he votes for, including the ones he has supposedly written.

This is why Republicans lose--because they deny what Democrats know all too well: that social issues provide the gut-level motivation for their voters to go to the polls. Economic issues only work when there is an economic crisis that the reigning party can't fix. We have one of those now of course, so Republicans will pick up seats in the midterms even as they avoid issues of the heart. But when the economy improves, they will need social issues to motivate their voters, and they will choose, once again to avoid them.

World without end, amen.

As it turns out, the debate over SB 48 had nothing to do with #childbrides at all

WDRB's story about the passage of SB 48 today, a hearing in which I testified in favor of the bill which the Family Foundation had an important part in strengthening:

FRANKFORT, Ky. (WDRB) -- A bill designed to prevent Kentucky’s children from getting married at a young age passed a key hurdle Tuesday in Frankfort. The Senate Judiciary Committee approved the bill 10-0.
Currently, Kentucky has no minimum age limit for marriage, but anyone under 16 must have permission from a judge.
Senate Bill 48 -- known as the Child Bride Bill -- raises the legal age of marriage in Kentucky without parental consent to 18, and officials won't be able to issue marriage licenses to anyone under the age of 16 regardless of parental approval.

Read the rest here.

Liberal standards that only non-liberals must follow

At the Atlantic magazine Jonathan Merritt condemns the recent statement from Intervarsity Christian Fellowship that its employees must adhere to traditional Christian teachings on marriage. He imagines all the bad things that could happen under such a policy, such as that people who work for them would have to, well, adhere to traditional teaching on marriage.

Imagine. An institution requiring people to adhere to its purpose.

Once again we have liberals who want to hold others to standards they themselves refuse to adhere to. Liberal institutions routinely reject people for employment who hold conservative views. Go try applying for a job at at your local college's "women and gender studies" department and tell them of your traditional views on sexuality and see how far you get. Go try applying at Planned Parenthood and divulging that you are pro-life and see what kind of reception you receive.

And, of course, the Atlantic itself is so tolerant and diverse. Surely they would not exclude writers who, say, take a traditional view of marriage. Why there's ..., er, well, the writer, uh... Hmmm. Come now that I think about it, they don't have any writers who take that position.

Physician, heal thyself.

KY Farm Bureau protesters "Big on Intolerance," says family group

Today's press release from the Family Foundation:

LEXINGTON, KY--The Family Foundation today called on the Kentucky Farm Bureau to stick to in principles in the face of calls by protesters and liberal politicians to abandon their pro-family positions on marriage and domestic partner benefits. "The Farm Bureau needs to stand with its conservative rural constituency and not give in to the ideological demands of liberal protesters," said Martin Cothran.

Protesters from the Fairness Alliance and Congressman John Yarmuth had gathered outside the Farm Bureau's Ham Breakfast yesterday demanding that the group drop its position in favor of the definition of marriage as between a man and a woman and providing benefits to "domestic partners" of employees. 

"The Fairness Alliance and its allies are Big on Intolerance" said Cothran. "They talk about diversity, but somehow manage to find the time to oppose it whenever they see it."

"The Farm Bureau needs to stand up for conservative rural values and ignore calls from intolerant groups in our society to abandon the views of people they represent."

###

Fewer Americans are getting married, and that's a bad thing

From the Daily Signal:

Marriage is especially important for children. Fifty years of social science has shown that kids do better on a wide range of outcomes when they grow up in homes with their married biological parents.

Unfortunately for children being born in America today, marriage is becoming rarer. According to the Heritage Foundation’s 2015 Index of Culture and Opportunity, the marriage rate dropped continually between 2002 and 2012 to reach its lowest point in history. During almost the same ten years, the percentage of children born outside marriage grew by 6 percentage points. In 2014, over 40 percent of children were born to unmarried mothers.

This is a problem.

Read the rest here.

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.

Family Foundation Press Release on release of Kim Davis: Strengthen KY religious freedom laws

LEXINGTON, KY--"While we hope Judge Bunning enjoyed a leisurely holiday weekend," said Family Foundation spokesman Martin Cothran, "we are sorry Kim Davis had to languish in jail, away from her family. Judge Bunning has ordered her release, but we wonder why it came for Davis after spending six days in jail. Nothing has materially changed over the weekend. If she didn't deserve to be in jail today, she didn't deserve to be put there in the first place."

The Family Foundation, the group leading the effort in Kentucky to support Kim Davis, said that the release does not change the problem of threats to religious freedom. "There is no indication that the next person who exercises his or her First Amendment right to free religious exercise will not be thrown in jail too."

Cothran called for strengthening Kentucky's religious freedom protections. "We need to make sure this doesn't happen again," he said.

Cothran also openly wondered if Bunning had second thoughts over the weekend about what he had done. "Judge Bunning and others who have a low view of religious freedom protections must have realized over the holiday weekend that they had created a marytr and hurt their own cause. It's too bad it took the mobilization of tens of thousands of citizens to force her release."

###

Judge Bunning orders Kim Davis released

Judge Bunning orders #KimDavis released on the condition that she lets her deputy clerks continue to issue marriage licenses in the name of the county clerk. Meanwhile, a huge crowd gathers in front of the jail.

Developing...

Religious Freedom Held Hostage: Jailing Kim Davis was not only a sin―It was a mistake

In all of the debate about gay marriage, no one ever even suggested that anyone who supported it should be put in jail. Now, however, we are incarcerating people for disagreeing with it.

In the case of Kim Davis, the Rowan County Clerk, we have a public official, who, her detractors originally said, should do her job in spite of her religious beliefs or resign. They apparently forgot to mention the option of putting her behind bars.

But all of these demands trample on a number of important considerations.

First, when Kim Davis took her oath to the Kentucky Constitution, that document stated very clearly that marriage was between one man and one woman. Gay marriage was literally not in her job description. In fact, in a sense her job description specifically banned doing this. Some Kentuckians will wonder how they would feel if they were hired for a job and then told that they were to do something not only at odds with their religious convictions, but precisely the opposite of what they were hired to do.

Maybe what the General Assembly should do once they rewrite Kentucky's statutes to bring them in compliance with the Supreme Court's unconstitutional dictate is to have all public officials swear an oath to the new Politically Correct version of the law.

Second, the ACLU-headed lynch mob that went after Davis doesn't seem to appreciate the fact that the right of religious exercise is an enumerated Constitutional right important enough to have been mentioned in the very First Amendment in the Bill of Rights.

You can just imagine the reaction of the authors of the Constitution upon being told that future judges would downgrade this fundamental right in order to accommodate homosexuals wanting to get married―and that the change would be effected, not by the procedure they laid out (the amendment process), but through the usurpation by the High Court of the legislative prerogative.

One wonders what would be the reaction of the ACLU and their friends if the conflict involved in the Davis case involved another right mentioned in the very same sentence of the First Amendment: What if, instead of Davis' right of free religious exercise, it was her right of free speech that was threatened? We all know that the ACLU and its Amen chorus in the media would be holding up Kim Davis as a heroine. But the right of free religious exercise has the same Constitutional status as that of free speech.

Finally, what statute in Kentucky's law books is Kim Davis violating? Kentucky's marriage laws all assume traditional marriage, and will continue to do so until the General Assembly revises the law in the next legislative session.

One of these laws requires that the marriage license be filed in the county "in which the female resides." Any county clerk clerk who issues a license to a male same-sex couple is explicitly violating the law. In other words, the law itself has not been brought into line with the Supreme Court's questionable decision.

If a clerk is asked by two males to give them a marriage license in his county and he issues it, will Judge David Bunning throw him in jail for not following the law?

If Kim Davis is to be put in jail for not following the law as a public official, then (as some conservatives have pointed out) why haven't we also jailed the numerous other public officials who are not following immigration laws?

Was Gavin Newsome, the Lieutenant Governor of California, thrown in jail when he ignored then-current law and issued same-sex marriage licenses in 2004? And why wasn't Eric Holder (or for that matter Barack Obama) put behind bars for deciding in 2011 that it would no longer follow the Defense of Marriage Act, passed by the U. S. Congress in 1996?

Why were the people who are now so insistent on Kim Davis "following the law" so enthusiastic about violating it when doing so favored their own political interests? Why do liberals get to freely defy the rules, but conservatives must always be good little boys and girls and swallow their unconstitutional medicine?

There are some people, not a few of them conservatives, who think that the principle upon which Kim Davis operates is a recipe for anarchy. “What we cannot do," said The American Conservative's Rod Dreher, "and what the government cannot permit, is open defiance of settled law.”

"Settled law"?

"Settled" means you've been there a while. It means you've had time to acclimate yourself to the new situation. It means you're at peace with things. The problem on the same-sex marriage issue is that, although the proponents of same-sex marriage have gutted the Constitution, installed all new legal appliances, and completely redecorated the place, we're only just now moving in.

"Settled law" is what you get when a law has been around a while, when statutory law has had time to bring itself into compliance, and when it has been used as precedent for other laws. Obergefell isn't even close to being "settled law."

But more to the point, as Republican presidential candidate Mike Huckabee pointed out on last Sunday on ABC's This Week with George Stephanopolis, if that is the principle we are to follow, then what can we say about Abraham Lincoln's defiance of the Supreme Court's 1857 Dred Scott decision?

The idea that the only two options are blind compliance with any and every law (even those that violate clear Constitutional protections) or complete anarchy is not only incorrect, it is the falsest of false dichotomies.

The people who articulate the principle that we are to always follow the law, no matter what, have not thought very hard about what that would mean. Do we really think, for example, that public officials in the South should have complied with Jim Crow laws requiring strict racial segregation? These laws were a lot more "settled" than same-sex marriage laws are today. In fact, the civil rights movement is filled with instances of the refusal to follow "settled law."

If we must obey the law in all circumstances then there is no relief from injustice and oppression. We make of every political disease a potential death sentence. Ever injustice threatens to become a fatal political malady.

The Supreme Court, in the process of rewriting the Constitution to bring it into line with with the left-wing attitudes of their fellow culture elites in Obergefell, changed the very definition of a concept that is woven throughout our law, affecting hundreds of thousands of public officials. Can we not expect that there will be people who it has placed in a serious ethical dilemma? Is there no way to accommodate them at all―at least until the statutory law is brought into line?

There are even a few conservative jurists who believe that Judge Bunning did the legally correct thing. Okay. But if they're going to maintain this, they're going to have give a coherent account of why Kim Davis isn't protected by Kentucky's Religious Freedom Protection Act, passed in 2013. Kentucky's RFRA requires that the government not only show that it has a compelling interest in substantially burdening someone's religious freedom, but that it use the least restrictive means of doing so? Judge Bunning ruled (on the basis of a not-very-persuasive argument) that she was not substantially burdened by the requirement to issue license, but he didn't even deal with the second criterion.

Why isn't Judge Bunning following the law?

If Bunning had taken full account of Kentucky's religious freedom law, this issue could have been easily resolved. All Davis asks is that her name not appear on the license. That's it. So why did we push everyone over a political cliff on this?

The reason, of course, is that they wanted to create a scene. Well, they accomplished that purpose. The trouble is that in looking like bullies, they only hurt their cause.

Not only is it wrong to have put Kim Davis in jail, but I think even the supporters of same-sex marriage will rue the day Bunning took this action. "It is worse than a sin," to quote Napoleon: "It is a mistake."

In throwing Kim Davis in jail, Judge Bunning has put a face on the issue of religious discrimination. His order produced a mugshot of Davis now circulating on the Internet. People of faith all over this country have to wonder whether this image is a sign of things to come in a country now ruled by judicial elites unsympathetic to the text of the Constitution itself and now seemingly hostile and punitive toward those with whom they politically disagree.

The same-sex marriage movement's anti-religious freedom crusade will now be seen for what it is: an aggressive and intolerant movement that is willing to jail people for exercising their legitimate Constitutional rights.

Kim Davis will be released from jail. But Judge Bunning's action will live on in infamy.

Huckabee lets loose on George Stephanopolous about #KimDavis

Mike Huckabee appeared yesterday on This Week with George Stephanopolous to discuss the #KimDavis. A number of his comments were run over at Breitbart. They were all good, but this one was particularly lucid:

You’ve got Democrats who ignored the law when it was the law to have traditional marriage. Gavin Newsom in San Francisco as mayor performed same-sex weddings even though it was illegal. Did he ever get put in jail? He most certainly did not. You have Barack Obama and Eric Holder, when he was attorney general. They ignored the rulings of [the Defense of Marriage Act].  Did they ever get put in jail for ignoring the law? They most certainly did not. So when is it that liberals get to choose what laws they support, but a county clerk in Kentucky who, acting on her Christian faith, is criminalized, jailed without bail, because she acted on her conscience and according to the only law that is in front of her?

Read the rest here.

Remember when Obama was the public official refusing to enforce the marriage laws?

The defenders of Tolerance and Diversity argue that Kim Davis, the Rowan County Kentucky Clerk who was jailed yesterday for refusing to issue marriage licenses, belongs in jail because she is a public official who has refused to do her job.

Here is the argument liberals are using to put Kim Davis in jail, in proper logical form:

All public officials who do not enforce existing law should be prosecuted
Kim Davis is a public official who does not enforce existing law
Therefore Kim Davis should be prosecuted

This syllogism is perfectly logical; that is, if the premises are true, then the conclusion has to be true. But are all the premises true? Is it really true to say that "All public officials who do not enforce existing law should be prosecuted"? If it is, then the liberal using the argument has a problem.

Ted Cruz made an excellent point the yesterday. He said, "Where is the call for President Obama to resign for ignoring and defying our immigration laws, our welfare reform laws, and even his own Obamacare?"

So let's keep the same logical structure of this argument and the same major premise (the one about public officials) but replace the minor premise and draw the new conclusion:

All public officials who do not enforce existing law should be prosecuted
President Obama is a public official who does not enforce existing law
Therefore President Obama should be prosecuted

Now if the first (or major) premise is true and the second (or minor) premise is also true (which it certainly is), then the liberals using this should be asked why it is, if they think that Kim Davis should be prosecuted, they don't also think that Obama should be prosecuted.

But Cruz has apparently forgotten about an even more relevant example, one that has to do with the marriage issue itself. On Feb. 4, 2011, the Obama administration announced that it would no longer be enforcing the federal Defense of Marriage Act (DOMA).

Hmmm.

Where were the people in the folks now so concerned with public officials doing their jobs then? Funny, but I can't recall them calling for Obama to resign or face jail time.

If the highest public official in the land is within his rights to refuse to enforce the law on marriage, then is Kim Davis not be within her rights to do the same thing?

Support Kim Davis and Die!

I would openly wonder whether publicly issuing death threats could land you in jail, but then I thought, well, maybe jail now is just for people who practice their religion.

Don't you love this tolerance stuff?

State Rep. Stan Lee's statement today on the jailing of Kim Davis

State Rep. Stan Lee's statement on Kim Davis:

FRANKFORT, Ky. (September 3, 2015) – “Today a federal judge jailed an American Christian for simply standing up for her Christian beliefs in opposition to issuing marriage licenses to same sex couples.    As a result, today American Christians lost a little more of their freedom.  This should serve as a warning to others believers, that if you don’t think this could happen to you, think again. Think about the Christian baker, the Christian T-shirt maker, and now the Christian clerk.

In my view,  today’s action is a twisting of our entire justice system, and is no different than the  Sanhedrin throwing Peter and John into jail  for preaching in public.   I fear this will have dire consequences to our nation, especially  because of what  she was founded upon.

And what is so sad and alarming, is that all of this could have been avoided.   Therefore, I again  join with others in urging Governor Beshear to immediately call a Special Session to address this constitutional crisis.   Every day the Governor refuses to act,  is another day an American Christian remains in jail for following her sincerely held religious beliefs.”

What some people aren't getting about Kim Davis' rights

I posted this in the comments section of Rod Dreher's blog at the American Conservative today. Rod seems to be viscerally supportive of the now jailed Kim Davis, but has questions about whether she is in the right here. I have noticed this on other conservative blogs too.

The problem is that there are factors Rod and the others are not taking into account, mostly because they don't know about them:

Rod,

I think you are not taking several thing into account here.

First, the state constitution to which Davis swore an oath stated very explicitly that marriage was between one man and one woman. Therefore, technically speaking, she would be violating her oath to issue a marriage license to a same-sex couple. 

Second, Davis' refusal to issue a license does not prevent anyone from getting married. They can simply go to the next county down the road. In Kentucky this is easy, since there are 120 counties. The couple that brought the suite claimed that that was burdensome, but it wasn't burdensome for them to go to another county to file their suit. 

Thirdly, Kentucky just passed a Religious Freedom Restoration Act two years ago that requires the government a) to prove that the government has a compelling interest in burdening someone's religious freedom, but b) that they have to use the least restrictive means in doing so. The judge in this case has ignored that law. 

Fourthly, all four legislative leaders here in Kentucky agree that this issue can be easily resolved by updating marriage laws that are out of date anyway, but the governor refuses either to call a special session to deal with it or to issue an executive order relieving Davis of this (arguable) obligation. All he has to do is sign an executive order and everyone gets what they want. But he has, by his inaction, precipitated this crisis. 

Finally, this is not an issue of civil disobedience. For one thing, we are talking about a public official, who is, by virtue of being one, part of government itself who claims that she IS following the law. For another, it is not civil disobedience to claim refuge in the Constitution to protect yourself against a misinterpretation of it. You may not agree with that practice, but it is not rise to the level of civil disobedience. You are not refusing to follow the law, but only denying that the "law" you are being asked to follow is really the "law." That is something very different.

Read more here.

PRESS RELEASE: Kentucky clerk jailed for standing up for religious freedom

Today's press release from The Family Foundation:

FOR IMMEDIATE RELEASE
September 3, 2015   

LEXINGTON, KY—"Rowan County Clerk Kim Davis is now going to jail because Judge David Bunning is not enforcing Kentucky's Religious Freedom Restoration Act and Gov. Steve Beshear will not sign an executive order," said Martin Cothran, spokesman for The Family Foundation. Davis was ordered to jail today by Judge Bunning on the grounds that she will no longer issue marriage licenses.

"Our public officials are now jailing people in America for exercising their First Amendment religious freedoms. This will not end well," said Cothran.

Cothran said Gov. Beshear vetoed Kentucky's religious freedom law in the 2013 General Assembly session but was overridden by both chambers. "Gov. Beshear has the right to veto a law, but he does not have the right to ignore it when it has been passed, and Judge Bunning has the responsibility to enforce it. They have decided not to do their jobs and Kim Davis is paying the price."

"Legislative leaders of both parties have said that this issue can be easily resolved. All Gov. Beshear has to do to satisfy both sides in this debate is to issue an executive order. He has, by his inaction, precipitated a crisis that didn't need to happen."

Cothran said Kentucky Religious Freedom Restoration Act is being almost completely ignored. "Our law requires the government to prove that it has a compelling interest in overriding someone's religious freedom and to use the least restrictive means in doing so. Neither one of these things have been done."

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My "Kentucky Tonight" appearance on marriage and religious freedom Monday night

Our debate last week on KET's "Kentucky Tonight" on same-sex marriage and "LGBT rights."

The problem with prosecuting county clerks under current Kentucky laws

One of the things the critics of county clerks balking at issue same-sex marriage licenses don't seem to take into account is the current language of Kentucky's Revised Statutes, which have not yet been changed to accommodate the Obergefell decision. This brings up a number of questions.

If there is a right to same-marriage, then what obligation does that confer on county clerks. To the critics this seems clear, but I hardly think it is. Does a right automatically infer a commensurate obligation of some kind? How? And how does it do it when the actual statutory language doesn't yet reflect it.

Let me give one example. Which county clerk is responsible for issuing a marriage license? According to 402.080, "The license shall be issued by the clerk of the county in which the female resides at the time..."

So what if two men come to a county clerk and request a marriage license? Since neither is a female, is the county clerk in the county in which both or either of them reside responsible? Or can they get it anywhere? Is there any particular county clerk under these laws who is actually individually responsible?

If two women come to a county clerk and request a marriage license and they live in different counties, is there another clerk who could issue them the license?

This is just one issue. There are numerous others that have to await the legislature completely rehauling the law.

What does this say for how clerks who are refusing to marry can be prosecuted, since there is no statutory law which coherently lays out their responsibility in same-sex marriage situations?

What are a County Clerk's Obligations?

I am posting a comment from the comments section of one of my posts on the county clerk controversy that gets to some of the serious issues involved. It was a substantive post, so I thought I would bring it and my response out on the main blog:

Martin,
There are two types of duties that State Officials possess. The first is a ministerial duty, and the second is a discretionary duty. The Attorney General in Kentucky (and all other states to the best of my knowledge) has the discretion to appeal a trial court's finding that a law is unconstitutional. There is no affirmative constitutional duty to appeal such a finding if the Attorney General, in his opinion, believes the appeal will fail or that the law is otherwise repugnant or unconstitutional. There is a duty to defend the law at the trial court level (before Judge Heyburn in this matter) which the Attorney General did in this case. 

A ministerial duty is a duty in which there is no room for discretion. The most common example in law school is, ironically enough, filling out a form or putting a seal on a piece of paper. Issuing a marriage license is a ministerial duty. 

What the LEO was attempting (albeit awkwardly) to say is that it is a false equivocation to compare a clerk's failure to perform a ministerial act with the Attorney General's lawful and discretionary choice not to appeal a finding that the marriage amendment violated the federal constitution. 

As someone who has published logic textbooks, you are obviously very capable and very good at critical thinking. Therefore, I find it impossible to believe that you are unable to grasp the distinction between ministerial and discretionary acts. As someone who leans left on the gay marriage issue, I will freely admit that Kennedy's opinion was lacking in solid jurisprudence.  

Can you not do me the same courtesy and admit that the comparison between the clerks refusing to issue same-sex marriage licenses and Conway's refusal to appeal is misleading at best and cynical at worst? 

My response:

Matt,
I am certainly not in a position to tell you what it is possible or impossible for you to believe, but the distinction you point to is not one that has been pointed out to me. And for that reason, I appreciate you pointing it out. It is certainly relevant to the discussion.
I have no problem with the distinction per se, but it seems to me that it doesn't necessarily resolve the issue. 

First, in regard to Conway's discretionary duty, you say that he would have the discretion whether to appeal the case. I don't deny that. But even you seem to think that that discretion is subject to some kind of criteria. You set them forth as whether he thinks "the appeal will fail or that the law is otherwise repugnant or unconstitutional." I would be curious to know where you get these criteria. Are they in the Kentucky Constitution? Is there some case law that establishes these criteria as judicial doctrine on these issues? I'm not accusing you of making them up, but I really don't know by what authority you assert them and would like to know. 

But for argument's sake, let's assume them. On the first criterion--whether he thinks an appeal will fail--seems a pretty weak one to me. Whether a case is likely or unlikely to be won seems like a rather subjective criterion. In all cases there is a winner and a loser--and the percentage breakdown is obviously about 50/50. I imagine in a lot of those cases the parties have some idea of the probability of winning and losing. I am just wondering what happens if all the 

In fact, doesn't that criterion amount to a self-fulfilling prophecy? The refusal to defend these laws may be based on a subjective judgment of probability of an appeal being successful, but such a refusal will most certainly affect the probability that such an appeal would be unsuccessful. If those ostensibly responsible for defending these laws decide not to defend them, doesn't that increase the probability that their side in the case will lose? And won't the spectacle of multiple instances of this further increase that probability? In fact, isn't this exactly what happened on the marriage issue? Whatever the chances an appeal would not be successful, the refusal to file it would increase the chances of its not being successful, and it seems to me the AG's job is to increase the chances where he has the power to do so. And he could have done this by filing an appeal. 

Not that it is dispositive here, but I just wonder how this would work out in a military context. What happens when your chances of losing are high? You just give up? I can think of a number of battles that would have turned out very differently had this criterion been observed. 

Conway certainly did say that Heyburn was right and that "these laws will not likely survive upon appeal" and that he would not "waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win." But there are several things about this that make it a pretty weak excuse. 

The first is the whole financial reason he gives. For one thing, what I want to know is how much more the state spent defending the law with outside counsel than it would have if he had done his job.  

And secondly, I want to know how our showing up unexpectedly at several of the meetings between Conway's junior attorneys and Heyburn (Conway himself didn't bother to show up for any of the meetings) during the time he was purportedly actively defending the law--meetings in which his staff clearly had been directed to tred water affected Conway's decision--affect his decision. Even Judge Heyburn seemed to get impatient with them, and in one case clearly expected them to ask for a stay, and when they just sat there, looking at each other and shrugging their shoulders, Heyburn just did it himself--doing their job for them. 

It was pretty pitiful. 

Then there was Conway's brief in the original case, which a number of attorneys I talked to thought was simply badly done. Several thought they were intentionally bad. Even one attorney supportive of the plaintiff told a reporter that he thought the briefs signaled that Conway was opposed to his own case. 

I'm trying to figure out how pretending to defend a law but actively undermining your own case can be justified under any circumstances. 

I'm not saying that he couldn't do what he did: Obviously he could because he did. I'm saying he shouldn't have done it, partly because his reasons for not doing his discretionary duty were not convincing, and partly because he was serving in an office he campaigned for on a platform that included opposition to same-sex marriage. It wasn't like he didn't know what he was expected to defend going into his position. 

In regard to his ministerial duty, I would again ask for the basis upon which you make this distinction and why it applies to county clerks and not attorneys general. Why, in other words, are filling out forms and putting seals on documents ministerial and not discretionary? It's not a part of their oath of office (like Jack's obligation to defend the Kentucky Constitution was), so what is it? 

And, again, granting again your assumption (unestablished so far), is this ministerial duty to be discharged under all circumstances? To use an admittedly extreme example, if I am a clerk in Germany in the late 1930s and early 1940s, am I morally bound to sign the documents that are involved in sending Jews to the concentration camps? Again, I admit this is extreme, but it does establish that there is some point at which a person is relieved of his obligation to perform his ministerial duties, and the question therefore becomes on which side of the line violating your religious convictions falls (However far away they may may not be from sending people to concentration camps on the scale of moral terpitude).  

You simply assume that it falls on one side of the line, but you do not say why.
I appreciate your admission about Kennedy's opinion and the intelligent discussion starter on this issue. And unless you have an objection, I'm going to post your comment and my response as a separate post on the blog tonight because I think your points worthy of more attention.

You can read the original article and the rest of the comments here.

57 County Clerks sign letter to Beshear on religious freedom

A letter signed by 57 of Kentucky's __ county clerks have sent a letter to Gov. Steve Beshear requesting that he call an extraordinary session of the General Assembly to address the religious freedom rights of county clerks.

Here is the letter:

LEO Weakly confused on what I said about Jack Conway

Steve Shaw at LEO Weekly, in an article extolling the glories of our new Judicial Oligarchy and its redefinition of marriage, said:

Casey County Clerk Casey Davis presumably was high on GOP talking points when he falsely paralleled his neglect of duty with Attorney General Jack Conway’s refusal to defend Kentucky’s ban against a compelling judgment rescinding it as discriminatory. Martin Cothran of the Family Foundation, likwise, misrepresented Conway’s option not to pursue a forbidding appeal as a courtesy extended by Governor Steve Beshear. Conway is the Democratic nominee to succeed Beshear. [Emphasis mine]

First of all, I'm in favor of another amendment to the State Constitution prohibiting sentences like this. LEO staff apparently need some remedial instruction in clear writing.

If I interpret the statement correctly (and I'm willing to be corrected by someone with more expertise in the language it is written in), it seems to suggest that I portrayed Conway bailing on his oath of office as "a courtesy extended by Governor Steve Beshear."

This would have been rather hard for me to do, since I don't even know what "a courtesy extended by Governor Steve Beshear" would be. Does this mean I said that Beshear gave Conway permission not to do his job?

Where did I say that? And if I didn't say that, then how did I "misrepresent Conway's option?"

And in what was was the Obergefell decision "compelling"? Certainly not logically.

Let me restate what I did say: Attorney General Jack Conway violated his oath of office, his job description, not to mention reversing the position on which he ran for office, in refusing to defend Kentucky's Constitution, and has no standing whatsoever to criticize county clerks who are only abiding by their own oaths in refusing to issue same-sex marriage licenses.

What any courtesy extended by Beshear has to do with it, I don't know.