Kentucky Clerk refuses to issue same-sex marriage license

[mormont]

mormont made an observation, not an argument.

 

This notion that all rights are somehow fundamentally identical in both nature and in practice, and that licensing somehow is [i]a priori[/i] incompatible with the exercise of a right, is on the other hand not an observation: it's dogma.
 

 

[OldGimletEye]

You don't need a government issued license to enter a contract, and the point of a marriage license is not to signify agreement to a contractual arrangement.

I don't know. It seems to me that in order to make a valid contract to legally represent somebody, you'd need an attorney's license. It seems to me that in order to make a valid contract for medical services you'd need a license to practice medicine. To make a valid contract to provide accounting services, you'd need to be publicly certified accountant. To make a valid contract to prosecute a patent on somebody's behalf you'd have to be admitted to USPTO. In many states in order to act as a retailer, you'd need a vendors license. In many states in order to supply alcohol to pubs or bars, you'd need a distributor's license.

 

You need to go read Nestor's post on this. Btw Mormont tried to argue that the requirment to register a marriage mandated the need for licensure, a principle that would make it OK for women to require a license before they could get pregnant.

And that post rebuts the basic thrust of my argument, how exactly?

[Larry of the Lawn]

You don't need a government issued license to enter a contract, and the point of a marriage license is not to signify agreement to a contractual arrangement.
 
 
You need to go read Nestor's post on this. Btw Mormont tried to argue that the requirment to register a marriage mandated the need for licensure, a principle that would make it OK for women to require a license before they could get pregnant.

I kind of agree that a contract should be enough for a marriage, or that registration should be sufficient, but isn't this largely terminology? Other than an existing marriage or a renegade county clerk is a marriage license ever denied?

[Littlefingers In The Air]

I bet Kim's favorite food is shrimp.

[OldGimletEye]

I kind of agree that a contract should be enough for a marriage, or that registration should be sufficient, but isn't this largely terminology? Other than an existing marriage or a renegade county clerk is a marriage license ever denied?

It's true that most contracts can be made orally. Writing isn't usually necessary. The problem with such contracts is that they are often difficult and time consuming to prove. If an extensive factual examination had to be made, every time the issue of whether a marriage existed,that could prove to be costly and a waste of time.

[Mlle. Zabzie]

Actually, the "should private parties be able to contract marriage without state involvement" question is a good one (and marriage as a private contractual arrangement has a long history).  At the end of the day, the state would be involved one way or another in the contract if it were ever disputes under the contract (wonder what "efficient breach" looks like in that world).  But, given what marriage entails (it's very different than a long term supply arrangement) and the relative bargaining power, etc. between the parties and the messy issues that spring up (e.g., third party beneficiaries, like, I don't know, children), I don't see why the state doesn't have an interest in regulating these contracts (if for no other reason than to cut down on the burden on issues that might come before the judicial system). It also helps with due diligence requirements (eg, makes it easier to know whether bigamy is being committed, etc.).  In some ways, you could view state "marriage" as the default contract (that can be modified, btw) that springs up between two people who wish to have the protections afforded by the state to married people, and I see no reason why that shouldn't be regulated in some manner by the state.

[TerraPrime]

Re: Kim Davis

 

 

I think it should be every person's right to enact civil disobedience in the face of actions and laws that gravely offend one's sense of moral and ethics. Certainly, for city clerks of the 60s era, if they had disobeyed the laws of formal racial segregation, that would have been a wonderful thing. And at the risk of Godwin'ning my own post, if the government functionaries of the WWII Nazi government had collectively practiced civil disobedience on the issue of systemic extermination of the Jewish people, then history would have been very different.

 

However, civil disobedience comes at a cost to oneself, such as jail time, and sometimes even death. Dr. Martin Luther King Jr., for instance, was imprisoned for his work on civil rights.

 

In the case of Kim Davis, yes, she should have the option to refuse to enact the laws, but at the same time, she cannot expect to suffer no consequences from her actions. It's only taking a stand for your moral conviction if there are likely negative consequences. If there were no consequences, then it's not really a risk one takes to affirm one's faith.

 

Regarding Davis' own personal life and its relation to her declared faith, I share the same concerns that are voiced by others, which is that pointing out her past personal history is neither evidence of her hypocrisy, nor a valid way to criticize her actions. 

 

All in all, I think we should not be as mad at Davis as we are, and should instead see her as more or less as an ideologue who lets her convictions trump her common sense. I wouldn't be very mad at a USDA food inspector for slaughterhouse regulations who turns vegan and then decides to stop issuing certifications to anyone, either. I think they should be terminated and such, but it's well within his/her right to voice their protest on an issue that deeply offends their values. As long as people are ready and willing to accept the consequences, I think we, as a society, will be better off to encourage people to act their conscience, than not.

[Hayyoth]

mormont made an observation, not an argument.

 

This notion that all rights are somehow fundamentally identical in both nature and in practice, and that licensing somehow is a priori incompatible with the exercise of a right, is on the other hand not an observation: it's dogma.
 

 

As Nestor pointed out the issue is language. The problem I have with defining marriage as a right requiring a permission is the danger that this carries over and affects fundamental negative rights. I'd have preferred the USSC  to have mandated the issuing of marriage licenses to gay couples under the Comity Clause but of course they wouldn't as this would leave the door open for states to simply refuse issuing marriage licenses to anyone.

[OldGimletEye]

As Nestor pointed out the issue is language. The problem I have with defining marriage as a right requiring a permission is the danger that this carries over and affects fundamental negative rights. I'd have preferred the USSC  to have mandated the issuing of marriage licenses to gay couples under the Comity Clause but of course they wouldn't as this would leave the door open for states to simply refuse issuing marriage licenses to anyone.

I think you are approaching this from the wrong point of view. The right to marry, could very well be cast as a negative right. ie. something that you have a right to do, albeit with some government regulation. Governments can pass some regulations over the marriage right. What they can not do is pass any regulation they would like to. Just like any other negative right.
 

You don't need a licence to enter into any contractual arrangement, this is not what licensure is for. All of your citations are examples of professionals requiring approvals to practice, granting the privilege of recognition.

The point here is that many contracts do require licenses. Also I don't think there is one and only one solid justification for requiring licensing. Also, with regard to the professionals, I've mentioned, all of them have their licenses recorded in some public entity. This helps make evidentiary questions about their fitness to practice their professions much easier to determine.

ETA:
Also, if a state were to make law a barring people from certain professions, based upon gender,race, or religion, I'd imagine you could very well challenge the law on Due Process Grounds, and not just on Equal Protection Grounds. So, perhaps, my examples here aren't that far off the mark with regard to our discussion about marriage licensing.

[TerraPrime]

As Nestor pointed out the issue is language. The problem I have with defining marriage as a right requiring a permission is the danger that this carries over and affects fundamental negative rights. I'd have preferred the USSC  to have mandated the issuing of marriage licenses to gay couples under the Comity Clause but of course they wouldn't as this would leave the door open for states to simply refuse issuing marriage licenses to anyone.

 

Part of the problem is this: marriage has been seen, and acted on, as a right, except that this right was given only to some citizens, but not all. That is how people have been seeing and treating marriage. The controversy is not that SCOTUS had affirmed that it's a right, but rather, that this is a right that is now accessible to LBG people. If there were not a fight over equality for LBG people, we would have continued our merry way of treating marriage like a de facto right without clear articulation based on laws.

 

Do I think the original Constitution and its ratified Amendments include marriage as a fundamental right? No, I don't. But throughout the years, we have agreed, for instance, that use of contraception and privacy are rights that need to be protected from laws, and under that logic, marriage should also be one of those protected rights.

 

As for the whole argument on whether a right is still a right if you need a license or not is very much an angle-dancing-on-pinhead problem, because I really don't care, as long as my husband and I can no longer be barred from visiting each other in the emergency room based on the whims of the nurses on duty, or that our respective accidental deaths will void our social security for the other, or if we were veterans our respective benefits will no longer be accessible by our spouse after our death, or if one of us needed immigration to the US to stay together it would be available, etc., etc. Life is made up of millions of these independent things, and legally recognized marriage happens to affect a large number of these events in our lives. As Zabzy says, when two people entwine their lives together, the government WILL have to get involved at some point. Arguing over the ideology of it all behind the definition of "Rights" and such is very much pointless for a day-to-day consideration.

[sologdin]

the negative/positive rights distinction is worthless, anyway. all so-called 'negative' rights carry with them correlative duties that imply state expenditure. the right to life is insignificant in the absence of the state's correlative duty to protect the right through civil and criminal enforcement. due process of law includes at a minimum the right to effective assistance of counsel in criminal matters, which means that the state pays for a defense attorney in addition to providing a professional judge and empaneling grand. the right to be free from cruel and unusual punishment means that the state has an obligation to feed, clothe, heat, and provide rudimentary medical care to incarcerated persons.

[Shryke]

 

Part of the problem is this: marriage has been seen, and acted on, as a right, except that this right was given only to some citizens, but not all. That is how people have been seeing and treating marriage. The controversy is not that SCOTUS had affirmed that it's a right, but rather, that this is a right that is now accessible to LBG people. If there were not a fight over equality for LBG people, we would have continued our merry way of treating marriage like a de facto right without clear articulation based on laws.

 

Do I think the original Constitution and its ratified Amendments include marriage as a fundamental right? No, I don't. But throughout the years, we have agreed, for instance, that use of contraception and privacy are rights that need to be protected from laws, and under that logic, marriage should also be one of those protected rights.

 

As for the whole argument on whether a right is still a right if you need a license or not is very much an angle-dancing-on-pinhead problem, because I really don't care, as long as my husband and I can no longer be barred from visiting each other in the emergency room based on the whims of the nurses on duty, or that our respective accidental deaths will void our social security for the other, or if we were veterans our respective benefits will no longer be accessible by our spouse after our death, or if one of us needed immigration to the US to stay together it would be available, etc., etc. Life is made up of millions of these independent things, and legally recognized marriage happens to affect a large number of these events in our lives. As Zabzy says, when two people entwine their lives together, the government WILL have to get involved at some point. Arguing over the ideology of it all behind the definition of "Rights" and such is very much pointless for a day-to-day consideration.

 

It's the same old tired argument we've always seen on this issue. As soon as it looks like gays are gonna start having the right to be married under the law, suddenly a whole bunch of people just magically decide "You know, I'm against the idea of the state sanctioning marriage after all!"

 

There's no way to take this shit in good faith, given the timing.

[Shryke]

the negative/positive rights distinction is worthless, anyway. all so-called 'negative' rights carry with them correlative duties that imply state expenditure. the right to life is insignificant in the absence of the state's correlative duty to protect the right through civil and criminal enforcement. due process of law includes at a minimum the right to effective assistance of counsel in criminal matters, which means that the state pays for a defense attorney in addition to providing a professional judge and empaneling grand. the right to be free from cruel and unusual punishment means that the state has an obligation to feed, clothe, heat, and provide rudimentary medical care to incarcerated persons.

 

Not necessarily. You just have to accept that negative rights without said duties are utterly meaningless. "You have a right to life. So ... good luck with that".

 

Words are wind and all that.

[NestorMakhnosLovechild]

the negative/positive rights distinction is worthless, anyway. all so-called 'negative' rights carry with them correlative duties that imply state expenditure. the right to life is insignificant in the absence of the state's correlative duty to protect the right through civil and criminal enforcement. due process of law includes at a minimum the right to effective assistance of counsel in criminal matters, which means that the state pays for a defense attorney in addition to providing a professional judge and empaneling grand. the right to be free from cruel and unusual punishment means that the state has an obligation to feed, clothe, heat, and provide rudimentary medical care to incarcerated persons.

 

This is false on multiple levels. Even if you assume that it's true that negative rights imply positive obligations by the State, that doesn't render the distinction worthless. It just means that negative rights imply positive obligations by the State. That doesn't therefore render positive rights (really: obligations) a thing. 

 

But at a base level, negative rights don't necessarily imply state action at all. Negative rights don't necessarily even imply the existence of a State. 

[NestorMakhnosLovechild]

 

It's the same old tired argument we've always seen on this issue. As soon as it looks like gays are gonna start having the right to be married under the law, suddenly a whole bunch of people just magically decide "You know, I'm against the idea of the state sanctioning marriage after all!"

 

There's no way to take this shit in good faith, given the timing.

 

Plus, you can't help but notice the complete lack of any proposed legislation, petitions or court actions seeking the de-State sanctioning of already existing heterosexual marriages by these people. Rand Paul seems to be in no hurry to decouple his heterosexual marriage from the privileges of state sanction. 

[IamMe90]

 
 "They're fighting against"?   Don't you mean WE'RE fighting against?  Careful, your pronouns are showing...a valiant effort however.
 
As in other debates happening in the thread, perhaps it's the difference between Canada/other free nations and the USA - I don't feel the way you're claiming whatsoever, and haven't in years.   I will state that IMO transgendered people probably have it tougher than gay/lesbian/bisexuals do here, and the stats bear this out, however it's nothing like what you describe here in Canada for the LGB contingent.  You may be right about the USA, but not much of the remaining free world.

No, I meant the dedicate LGBTQ people that are devoting their lives to fighting for equality. I would be lying, and a hypocrite, if I claimed that I was one of those people. You can be gay and not dedicating your life to social justice. It doesn't make your comments any more acceptable. I can't take any person's opinions seriously when they think that gay people are shoving their gayness down regular people's throats, as if this hasn't been happening in reverse to us for hundreds of years.

And yeah, it's really bad in a lot of places in the US. And a lot of countries in the world. So, living in magical unicorn Canada land doesn't really discount the fact that your statement gay people being "accepted" by the majority of the developed world was overly simplistic, and not really correct.

[TrueMetis]

Recording a marriage would merely have registration as a requirement, exactly the same as births and deaths. A license is a government permission to act in a certain way. I don't need government permission to speak my mind or defend my life or to practice my religion so why do I need one to get married? The USSC has issued a proclamation of a quasi right, a strange hybrid.

 

So your only issue is that they call it a license instead of a certificate. Okay simple enough, just think of them as marriage certificates, problem solved.

[sologdin]

 
This is false on multiple levels. Even if you assume that it's true that negative rights imply positive obligations by the State, that doesn't render the distinction worthless. It just means that negative rights imply positive obligations by the State. That doesn't therefore render positive rights (really: obligations) a thing. 
 
But at a base level, negative rights don't necessarily imply state action at all. Negative rights don't necessarily even imply the existence of a State. 

am just gonna whatever this, yo.

[maarsen]

You don't need a government issued license to enter a contract, and the point of a marriage license is not to signify agreement to a contractual arrangement.

 

 

You need to go read Nestor's post on this. Btw Mormont tried to argue that the requirment to register a marriage mandated the need for licensure, a principle that would make it OK for women to require a license before they could get pregnant.

A marriage contract isa special type of contract in that the goods or services of value exchanged are of intangible value as opposed to a regular contract with goods or services that are easier to valuate. In other words, what is the price of love? 

[Sivin]

Time to get banned again.  :fencing:

 

 

Mr.OJ,

The county can pressure the State to act and this is a warning to take care who is given the authority of an elected position.

Scotty, you've gained a fan. I love the idea of the people being punished if they fuck up their most important civil duty and elect to office someone unqualified/unfit for the position, and it's about the only way I can think of to improve voter turnout which is a huge issue in America. People need to learn to get off their fucking instragrams and take responsibility for their country. 

 

 

No.  She is permitting them to obtain marriage licenses in other counties.

 

Wasn't gonna get into this thing. Swear to FSM I wasn't, but... Really? C'mon! Really? Is that what you're gonna go with there?

 

Thank god for her, right? What a great freedom she has given the people of her county to go further out of their way so that someone else can do her job for her! Hmm, when I told hurt or sick people that I was allowing them to go find a different source of medical treatment they called me an asshole... Ungrateful bastards. I gave them directions to other medical facilities and everything! 

 

I mean, there's not much one can say against this brilliant and well thought-out argument. It's not like most public offices in the U.S. require you to swear you will serve the people who elected you or anything. 

 

 

 

Yeah, I've got to say the "acceptance" on display here is making me feel really equal

 

:cheers:  Good to know where everyone else stands, right? 

 

 

Nope. Actually, Huckabee in an attempt to outcrazy Cruz goes way further than that.

 

"When people of conviction fight for what's right they often pay a price, but if they don't and we surrender, we will pay a far greater price for bowing to the false god of judicial supremacy. Government is not God. No man - and certainly no unelected lawyer - has the right to redefine the laws of nature or of nature's God," Huckabee said. http://www.washingtonpost.com/news/post-politics/wp/2015/09/02/mike-huckabee-offers-support-to-kentucky-clerk-who-refuses-to-issue-gay-marriage-licenses/

 

So in other words. Screw the laws of the land, just follow the bible. So he proposing the Christian equivalent to Islamist Sharia law. I am curious how far Huckabee would be willing to walk down that road. Back to slavery and forced marriages?  

 

I am somewhat surprised that from the GOP establishment Graham was the one to call out Davis and simply say. Rule of law. She accepted the job, if she can't make it work with her [Christian] conscience she should simply resign. (honorable Mention Fiorina shares that position).

 

While Christie, Paul and Rubio somehow try to play on both sides, and suggest a bizarre third way, that does not exist. 

 

Trump and Bush have thus far remained silent on the issue. Which was probably the smartest thing they could do. This way they don't upset the Christian crazies in the primaries and do not alienate other voters for the general election.

 

What!?! That's one of the best lines I've ever heard! I particularly like how he went full Sarah Palin and made up his own word.  

 

Actually, you are way of the mark here. Using your First Amendment example: Certainly there is a right to freedom of speech. But, that does not mean the federal government or the state's cannot regulate that right in certain cases. Certainly, when a government seeks to regulate freedom of speech, it's justifications should be heavily scrutinized to see if it passes the smell test. That said, governments do from time to time have valid reasons to regulate free speech. Suppose you want to stage a public protest over some issue you care about. Your local government may require to get said permit in order to stage the protest. The local government would have some valid reasons to require the permit: Like making sure police forces were available in case of any violent confrontations and making sure that it could appropriately allocate public land to various groups, and making sure the protest wouldn't be conducted during hours where noise may bother other citizens.

If you don't believe me, try this experiment: 1) join the military, 2) tell your CO that you think he is a cock sucker or a mother fucker, 3) at your court martial, file a motion to dismiss the charge claiming a 1st Amendment Right, 4) see how that works out for you.

Same with the Second Amendment. The court has ruled that the Second Amendment is incorporated through the Fourteenth Amendent and accordingly applies to the states. That does not mean, however, that the state's are completely prohibited from regulating gun rights in some way. I'd suspect, in the future, will see several cases where the Supreme Court will begin delineating the bounds of how the state's can regulate the possession of fire arms.

The bottom line here is none of these rights are absolute.

 

I like this post, even though I can't quite fully get behind the example because it's kind of reaching to make a point.  :thumbsup:

 

I bet Kim's favorite food is shrimp.

 

HA! I uh... I understood that reference.  :smug:

 

You guys have already made all the arguments that need to be made with much better lawyering than I could provide, I just wanted to respond to a few (of many) posts that stood out to me.