Family Foundation Press Release: State county clerks should not have to issue marriage licenses to same-sex couples

FOR IMMEDIATE RELEASE

June 29, 2015   

LEXINGTON, KY— "If it was okay for Jack Conway to do it, it should be okay for county clerks," said a spokesman for the group that pushed for Kentucky traditional marriage law that was struck down by Friday's U. S. Supreme Court decision. On Friday Gov. Steve Beshear told county clerks across the state that they were required to issue marriage licenses to same-sex couples in defiance of Kentucky's Constitution. The Family Foundation said today that county clerks whose conscience would be violated by following the Governor's order should consider their options.

"There are county clerks out there who have a religious objection to same-sex marriage," said Martin Cothran, senior policy analyst with the Family Foundation. "They should be able to do what our own attorney general did last year when he refused to defend Kentucky's marriage law on conscience grounds. County clerks have consciences too."

In fact, said Cothran, county clerks are on more solid ground than Attorney General Conway because they would not have to violate their oath of office to refuse to issue such licenses. "While Jack Conway violated his oath of office in not defending Kentucky voters, county clerks would actually be honoring theirs. County clerks take an oath to both the federal and state constitutions. The U.S. Constitution nowhere says anything about same-sex marriage and the Kentucky Constitution expressly prohibits it. In refusing to issue licenses, they would actually be complying with the constitutions to which they swore their oaths."

"If the Governor is so concerned about public officials doing their duty, why didn't he write the same kind of letter to Jack Conway that he wrote to county clerks?" asked Cothran.

Cothran also pointed out that there is 25-day period following Supreme Court decisions in which a request for rehearing can be filed, a technical fact that could also affect what county clerks can do.

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Scalia: "No social transformation without representation"

U.S. Supreme Court Justice Antonin Scalia, from his dissent in the Obergefell v. Hodges decision striking down marriage laws in all 50 states, on just how unrepresentative of America the elite judges who now rule our country are:

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular con­stituency is not (or should not be) relevant. Not surpris­ingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

Read the rest here.

Justice Scalia's Greatest Hits, Part II (does the 14th Amendment prohibit states from defining marriage as between a man and a woman?)

Justice Antonin Scalia responds to the reasoning in the Obergefell v. Hodges majority opinion that the 14th Amendment prohibits states from defining marriage as a relationship between a man and a woman:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. 

But the Court ends this debate, in an opinion lackingeven a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,”thinks the Fourteenth Amendment ought to protect. 

... This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, eventhose that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the Peoplesubordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Amen, Tony.

Matt Bevin issues statement on High Court's marriage decision

Republican gubernatorial candidate Matt Bevin on today's ruling by the Supreme Court prohibiting states from defining marriage as between a man and a woman:

I strongly disagree with today's ruling by the Supreme Court.  When the definition of marriage was put on the ballot 10 years ago, 74% of Kentuckians made it clear that they supported traditional marriage. Since that time, however, activist judges have chosen to ignore the will of the people, and to ignore the Constitutional principle of state's rights.

More here.

Supremes, "Stop (your democratic activities) in the name of (politics)"

Scalia, in his dissent from today's Supreme Court decision prohibiting states from defining marring as between a man and a woman:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court ...  the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. 

Read more here.

Family Foundation responds to Beshear order to county clerks on marriage

LEXINGTON, KY--The Family Foundation responded to Gov. Steve Beshear's order to all county clerks to issue marriage licenses on same-sex partners. The Governor told them in a letter: "Neither your oath nor the Supreme Court dictates what you must believe. But as elected officials, they do prescribe how we must act."

"Why is it," said Martin Cothran, spokesman for the group, "that county clerks are expected to 'do their duty' as elected officials on this issue, but Attorney General Jack Conway was not when he refused to defend Kentucky's marriage law? Conway was lauded for defying his oath of office, but now county clerks are being held to it. That's a blatant double standard."

"County clerks took an oath to the Kentucky Constitution," said Cothran, "not to a rogue Court that thinks it can repeal the votes of Kentuckians and that it can rewrite the U. S. Constitution."

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Supreme Court "gone rogue" from the Constitution says group that passed Marriage Amendment

LEXINGTON, KY—"This is the Supreme Court gone rogue from the Constitution," said a spokesman for The Family Foundation, the advocacy group that pushed the passage of Kentucky's Marriage Protection Amendment in 2004, in response to the High Court's action overturning the law today.

"Not only does the 14th amendment say nothing about same-sex marriage, but no one seriously believes the 14th Amendment prohibits states from defining marriage as between a man and a woman," said Martin Cothran, senior policy analyst for the group, "not the people who wrote it, nor the people who ratified it, nor the judges who today have rewritten it to make it mean what they want it to mean."

The group also charged that the decision was an abuse of power on the part of the Court. "This has nothing to do with interpreting the Constitution; this has everything to do with an elite caste of judges who think they have the power to rewrite it."

"Judges are supposed to be impartial legal referees. But if all of a sudden you see the refs shooting three point shots for the other team, you know things have gone wrong."

The decision helps create an uneven playing field on cultural issues, said Cothran. "When conservatives want to change the Constitution, they have to follow the democratic process; but when liberals want to change the Constitution, all they have to do is find sympathetic judges to do it by abusing their power. In the name of 'fairness', liberals have politicized the judiciary and created an uneven playing field."

"Social conservatives can see this as their Waterloo or as a 'Remember the Alamo' moment," said Cothran in regard to the decision. “When the abortion laws of all 50 states were invalidated by the Supreme Court in the 1972 Roe v. Wade decision, it was the beginning, not the end, of the pro-life movement. Ever since then, it has been a rallying cry for the unborn. This decision could very well become the same thing for traditional marriage."

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Scalia making sense again about another Supreme Court decision that doesn't

Here is Justice Antonin Scalia in another dissent to an increasingly liberal High Court, this time practicing its politics through King v. Burwell:

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B. 

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges. “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal quotation marks omitted). Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

Read the rest here.

How the War on Confederate Symbolism Contributes to Racial Tension

I'm thinking of offering a reward to the person who can trace the logical connection from the fact that there have been nine Black people killed in a South Carolina church by a crazed racist to the need for the removal of the Confederate flag from state capitols.

But even a very large reward would yield very little, since there really is no connection at all.

Amid all the news stories showing politicians striking Politically Correct poses for the cameras was one which captured the full significance of the debate over Confederate imagery: Warner Bros. has decided it will no longer sell toys and models of the car featured in the old Dukes of Hazzard television show (which the boys called "General Lee") which sported a Confederate flag on the roof.

We all know how many Black deaths resulted from people watching the Duke boys and going out on shooting sprees. Don't we?

Nobody is going to be hurt by the continued flying of the Confederate flag or statehouses and neither will they be helped. Not a single Black will be better off because Warner Bros. is discontinuing the use of the Confederate symbol--any more than eliminating Confederate imagery anywhere else will.

In fact, it does the exact opposite.

Giving in to demands to eliminate Confederate symbols not only does not help race relations, it hurts them. To continue to capitulate to what amount to political fashion statements devoid of any substance is to continue to feed racial tensions.

The groups that demand removal of the Confederate flag and the elimination of other Confederate symbols are groups that thrive on such tensions, which is why they aggravate them at every possible opportunity. They are a part of what George F. Will once called the "indignation industry." Racial grandstanders like Al Sharpton and Jesse Jackson, and groups such as the NAACP (a group which used to actually help Blacks) would literally go out of business if racial tensions diminished. Consequently they have to constantly be ginning up false crises and pointing to imaginary racism they say all Whites harbor.

The only people the war on Confederate imagery helps are those in whose interest it is for Blacks and Whites to be at each other's throats. For many of these people, racial harmony would be bad for business.

Which is why capitulating to demands to remove Confederate symbols does one thing and one thing only: It enables the very racial animosities which we all say we should get over.

We've eliminated actual racists who, with only a handful of irrelevant exceptions, don't even exist anymore, so what else is there to do than attack regional symbols while pretending that they are a threat? It keeps the cause alive—and the donations coming in.

The Confederate flag long ago ceased to be thought of as a racist symbol, leaving its only symbolism that of regional pride. Their civilization destroyed and its homes and cities burned, Southerners have always harbored a healthy distrust of the centralized political power that was one of the unintended consequences of the Civil War. The Confederate flag is now little more than a statement of rebellion against Washington, DC.

If you want to throw gasoline on the rebellious spirit of the people whose flag symbolizes the spirit of rebellion, go after the Confederate flag. If you've ever been to South Carolina, you'll know what I mean. These are, after all, the very people who started the Civil War in the first place.

Of course, if you set these people off, then they'll get mad. And if they get mad, then they'll start defending themselves. And if they start defending themselves, then that will be pointed to as evidence of continuing racism. And if people believe there is continuing racism, then racial tensions will be aggravated.

But then that was the whole point. Wasn't it?

The June Proscription List

The monthly Proscription List is out, containing, as it always does, the nine things Martin Cothran hateth this month--nay, there are ten:

Diet drinks

Psychological excuses for immoral acts (even my own (acts))

Any movie with Ben Stiller in it

Diet advice (particularly when it is uninvited)

Sincerity (when voiced by politicians)

Scientific explanations for moral acts (or any other voluntary acts for that matter)

The View

Dancing (when done without rules and an equally strict dress code)

"Whole grain" anything

Pretentious coffee drinks (the exception being Starbuck's flat white which, although extremely pretentious, I also happen to find very tasty and is therefore exempt from this list)

Stay tuned for next month's exciting list of things which you too should avoid.

The Liberal Pose: Politics as Fashion Statement

I swear, every time I leave town, the world falls apart. Sheeez. Okay. I'm back. Can we all calm down now and be reasonable?

Just as I was leaving last week, I heard the news about the Church killings in Charleston. Now according to news reports, nine people in a Black church were killed by a crazed racist with a gun. But, after listening to the commentary on the incident, it has became apparent to me that there are some people who are under the impression that the parishioners of this Black church were killed, not with a gun, but with a Confederate flag, although I have yet to hear anyone explain exactly how Dylann Roof could have killed nine people with a large red and blue piece of cloth.

If you trace the reasoning back from consequent to ground, it seems clear that these people believe that, had these flags not been available, these deaths would not have happened. And further deaths, this implicit logic would seem to suggest, will be prevented if we will remove these flags.

Of course, this is just the usual routine we all have to go through every time there is a high profile crime committed in this country--particularly if it has anything to with race or gender (or purported gender).

Every crime that is committed now must, if possible, be universalized and fitted into some pre-existing narrative framework of oppression--that of widespread racism, or anti-gay oppression, or latent hostility toward women. These are categories into which, if at all possible, we must fit every violent event.

And not only must it fit into the narrative of oppression, it must be seen as a crisis. Any particular act is not just a particular act: It is always an instance of some larger conspiracy of Intolerance against the oppressed group of the week. If a White person performs an act of violence against a Black person it is never an isolated act (whereas if it is Black on White violence, it is, of course, an isolated incident).

Liberals don't want good race relations. It is in their interest to fan racial tensions as often as possible. Black leaders like Al Sharpton can't have much to say about Rachel Dolezal, the head of the NAACP. While she is not in fact Black, she shares with Sharpton and his ilk the fact that she is a professional Black--someone who strikes the oppressed Black pose. They're in the same business.

The criminals themselves love this. They know their cause will be front and center on the evening news. When Dylann Roof was shooting members of Emanuel African Methodist Episcopal Church, he intentionally left one survivor, telling her that he wanted her to live because "we need someone to survive," presumably so she could tell others what happened.

Liberal politicians love it too. They can line up at microphones and strike the liberal pose, pretending to be at the forefront of the War on Racism to which they attribute all the violence is our society.

It's not difficult at all.

What libertarianism has in common with Marxism

I have observed before that the difference between libertarians and traditional conservatives lies in the fact that libertarians see freedom as an end in itself, whereas conservatives see freedom as the means to the end of the common good.

This is, by the way, why libertarianism militates toward pure democracy, something the founding fathers eschewed, while traditional conservatism naturally inclines toward republican forms of government like that of the United States. In this sense, libertarians are at odds with, rather than inclined toward American constitutionalism.

As Aristotle points out in his Politics, each form of government has its unique aim. The aim of democracy is freedom. Republican forms of government, on the other hand, contain mixed aims, since a republic is a hybrid form of government.

This is why I think you will see (as we already have) so-called "libertarian conservatives" supporting Internet voting and multi-day elections and other means of "democratizing" the election process. And the next time the electoral college becomes an issue, just watch libertarians—who talk a good game on the Constitution, but don't seem to know much about why it was written the way it was written—line up in support of changes to make it a purely popular election irrespective of the role of the states.

The founders put all kinds of complicating factors into the system to balance it and keep it stable and to protect it from the destabilizing forces of pure democracy.

In any case, since libertarians have largely appropriated the "conservative" label these days, it is probably useful also to point out one way in which libertarianism is similar to Marxism.

Under Marx's "materialist dialectic," it is material factors that determine socio-political realities through socio-economic factors. In this sense Marxism is all about economics. Economics determine everything.

Under traditionalist conservatism, non-materialist values have played at least as much, perhaps a larger role in the well-being of a society. This is why values issues have always loomed large in conservative political rhetoric—always, until recent years.

For traditionalist conservatives, values matter, because they shape events more than material factors. But if you listen carefully to libertarian rhetoric, which now focuses almost exclusively on pocketbook issues, you will detect the implicit assumption that values don't matter (unless they are "market values," whatever that means). In fact, many so-called "moderate" Republicans say this outright: politics is exclusively about material issues.

This is why libertarianism can be referred to simply as the "materialist right." It is the materialist right that, unlike traditionalist conservatism, has given up on the culture.

Now as you listen to the campaign leading up to this next election, note the almost complete dependence of Republican rhetoric on economics—even among candidates who are ostensibly traditionalist conservatives.

This is also why, by the way, the Republicans will lose again—because they have given up on the heart issues. Voters vote their hearts, not their pocket books. That is why Reagan won—and Obama (It's also why Obama won re-election—right in the teeth of an economic crisis).

Just watch it happen again.