Huckabee, Cruz are not defending religious freedom; they are lying

In her disagreement with the Supreme Court’s same-sex marriage decision, Kim Davis is not engaged in civil disobedience, just plain old regular disobedience. Her notion that the decision of five Supreme Court justices is not the law of the land and does not bind her or anyone else could not be more wrong. And her supporters know it.

There has been a great deal of furor over the situation in Kentucky with Rowan County Clerk Kim Davis, who has taken exception to the Supreme Court’s decision in Obergefell v. Hodges, which held that a couple may not be denied the right to marry based on sex.

Davis’ beliefs as an Apostolic Christian, she says, forbid her from appending her name or approval to any marriage license for a same-sex couple. She is not engaged in civil disobedience, just plain old regular disobedience. She is a law-breaker, and there are now hundreds of articles explaining this. (For a good cross-section, try The Daily Beast, CATO Institute, and Washington Post.)

A particularly virulent piece of demagoguery has surrounded this case from the beginning — the notion that because the decision of five Supreme Court justices is not the law of the land and does not bind her or anyone else.

This could not be more wrong.

Ted Cruz said:

“Today, judicial lawlessness crossed into judicial tyranny. Today, for the first time ever, the government arrested a Christian woman for living according to her faith… I stand with Kim Davis. Unequivocally. I stand with every American that the Obama Administration is trying to force to choose between honoring his or her faith or complying with a lawless court opinion.”

Mike Huckabee said:

“Kim Davis is staying true to her convictions while allowing the overreaching judge in Kentucky to force her office to follow his directions to ignore the Kentucky Constitution and statutes to accommodate nothing less than the judicial tyranny of the Supreme Court…The only thing more shocking than an unelected judge ordering an elected official to jail is that most of the chattering class fail to realize that our Constitution is being shredded by ignoring the separation of powers, the equality of the branches, and the checks and balances that would prevent unelected lawyers from ruling the entire nation.”

When Huckabee and Cruz say that the Supreme Court is shredding the Constitution, they are claiming that the Court has overstepped its bounds and interfered with state sovereignty. They are fundamentally and knowingly misrepresenting how America’s legal system works.

In our modern world, there are essentially only three types of legal systems: common law; civil law; and religious law.

The founders of the United States set up a government in which there were three co-equal branches to avoid tyranny of any one ruler. Civil law systems place all of the power in the legislature, and common law systems place all of the power in the courts, so they set up a hybrid system. (Note that they purposefully did not include any aspect of religious law).

The highest law in our land in the Constitution. It grants power to and limits the power of the federal government. All states are free to govern themselves and their people without any federal interference except that specifically allowed by the U.S. Constitution. Any federal law that is properly based in the Constitution (and they all must be) preempts conflicting state laws. States cannot violate the U.S. Constitution, and federal courts have no authority over state laws that do not violate the U.S. Constitution.

So, for example: The citizens of Kentucky, in 2004, approved an amendment to that state’s constitution banning same-sex marriage. Before the Obergefell decision in June, federal courts had exercised no authority to override that decision of the people of Kentucky, but that does not mean the authority did not exist.

The main job of the Supreme Court is deciding “cases and controversies” arising under the Constitution. When a party argues that a law or action violates its Constitutional rights, the Court has final say over whether the claim is valid. This is the judicial branch’s check on the powers of the legislative and executive branches of government. It seems like an immense power, but as the judiciary’s only countervailing influence, it must be in order to balance the other two branches.

In Obergefell, the Court merely did what it is asked it to do: It weighed the state-level same-sex marriage bans against the rights guaranteed by the U.S. Constitution and found that the marriage bans violated the due process and equal protection guaranteed to all people in the United States by the Fourteenth Amendment to the Constitution. (For more on why this was the right decision, see an article I wrote in June.)

Huckabee and Cruz are making two separate claims:

that the Court is “creating law” by recognizing same-sex couples’ right to marry.
that the Court has overstepped its bounds and interfered with state sovereignty and the will of the people.

They are wrong on both counts.

In exercising its Constitutional prerogative to interpret the Constitution, the Court was neither creating new law nor abrogating state sovereignty. The states are every bit as subject to the U.S. Constitution as is the federal government. Supreme Court rulings merely recognize what the law was always supposed to be.

We are all servants of the laws in order that we may be free

Whether or not Huckabee or Cruz or Davis or you agree with the Court matters not at all. Obergefell is the final say on the matter of same-sex marriage in the United States, and the only way to change it would be to change the U.S. Constitution itself.

Huckabee, a former governor of Arkansas, and Ted Cruz, a graduate of Harvard Law School and current U.S. Senator, both know this to be the truth. They are merely using Kim Davis to whip up fervor in their voting base in the hopes of winning the Republican nomination for the presidency of the United States.

All government officials in this county, including Kim Davis, swear an oath first and foremost to uphold and defend the U.S. Constitution. This is because we prize the rule of law above all else. John Adams referenced great statesmen when he said that a republic is “a government of laws, not of men.” The freedom that we hold so dearly stems directly from the rule of law.

The U.S. Constitution guarantees our freedom to speak our minds, own firearms, be free from unjust punishments, be free from invasions of our privacy, raise our children as we see fit, move from state to state, vote, own property, and worship the god that we choose in the manner that we choose.

Not one bit of that freedom is unfettered. The right to own weapons extends only to those that are used for individual self-defense. You aren’t allowed to own nuclear or biological weapons, land mines, or large explosive devices. You cannot use your freedom of speech to cause other people harm. Your right to privacy is limited by duly authorized search and arrest warrants. Your right to freely practice your religion does not allow you to break secular laws in doing so. It also does not allow you to impose that religion on someone else.

These limitations are meant to keep our freedoms from imposing on one another’s freedoms. They promote peace, harmony, safety, and the general welfare. We haven’t always gotten it right in this country. Freedom of speech has often been over-regulated. The Supreme Court has allowed convictions based on unconstitutionally obtained evidence. Religious freedom arguments upheld anti-miscegenation and slavery laws in their time. But I believe that we are moving in a generally fair and just direction in spite of our missteps, and Obergefell is an example of us getting it right.

What Kim Davis and her supporters really want

Kim Davis is not merely practicing her religion; she is imposing it on other people illegally. The Supreme Court of the United States, through its constitutional authority, has interpreted our Constitution’s guaranteed freedoms to include the right to marry the person you want to regardless of that person’s sex. In refusing to issue marriage licenses to people legally permitted to be married, Davis is asking to be exempted from operating under the same Constitution as the rest of us.

Davis has decided that same-sex couples’ constitutionally guaranteed rights conflict with her religion and are unjust. She is citing “God’s authority” — but the Christian God is not the final arbiter of what is lawful here in the United States. This is not a religious law system, and we are not permitted to prioritize one religion over another. I highly doubt we would be seeing this same support from Huckabee and Cruz over a Christian county clerk refusing to issue a marriage license to an interracial couple, or a Muslim DMV clerk refusing to issue a driver’s license to a woman.

Obviously, exempting every individual in the country from the laws that they find personally objectionable is the path to anarchy. Laws would cease to have any meaning at all. 

Whether the Kentucky legislature decides to make an accommodation for Kim Davis is the business of the people of Kentucky, and I don’t really care one way or the other. The issue here is not what may come in the future, but Mrs. Davis’ actions now and the erroneous claims the politicians and lawyers supporting her. The Kentucky legislature reconvenes in January though, and until such time she must abide by the law as it is. We are a nation of laws and those laws apply to everyone.