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Kentucky Clerk refuses to issue same-sex marriage license


Dr. Pepper

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Chillypolly,

She's using her religious beliefs as an excuse to not do what she is legally obligated to do. Why should she be left alone?

I don't know, maybe the same logic that applies to municipal officials who block the enforcement of black letter immigration laws when they set up their 'sanctury cities'? And you're really advocating for collective punishment to teach the county voters a lesson prior to the next election? You actually think that? Like for realz?

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Hayyoth,

Yes. The County, via Mrs. Davis, is refusing to undertake one of the duties it is obligated to undertake. As such it is liable for her failure to act as an Agent of the County. If she is a State employee perhaps the State is the proper party to sanction. Regardless, she must be compelled to do her job or removed from office and replaced.
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DG,

Again, she's an Evangelical Protestant. Divorce isn't a problem in her faith.

 

But it's is in a lot of people's faith. I do wonder how she would have felt if a clerk had denied her fourth marriage license on religious grounds.

 

Honestly the hypocrisy in this case is beautiful. 

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Hayyoth,

Yes. The County, via Mrs. Davis, is refusing to undertake one of the duties it is obligated to undertake. As such it is liable for her failure to act as an Agent of the County. If she is a State employee perhaps the State is the proper party to sanction. Regardless, she must be compelled to do her job or removed from office and replaced.

I'm still not seeing why it would be OK to fine the county, i.e. ordinary taxpayers, because one individual refuses to obey a court order.

 

Anyway here's hoping the logic behind suing this clerk is extended nationwide to all public officials, local, state and federal, who refuse to do their duty without fear or favor.

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I don't know, maybe the same logic that applies to municipal officials who block the enforcement of black letter immigration laws when they set up their 'sanctury cities'? And you're really advocating for collective punishment to teach the county voters a lesson prior to the next election? You actually think that? Like for realz?

 

I assume you are equally outraged by the handful of federal laws that have been proposed over the years, such as this one passed by the House of Representations less than two months ago, that would deny federal law enforcement funds to cities which are deemed to have policies that are not supportive of federal immigration laws. Since denying a city funds designated for law enforcement efforts is clearly "collective punishment" designed to teach a lesson to those local voters, right? 

 

And of course, there's also a pretty significant notable difference between 'sanctuary' cities and this Clerk - which is that sanctuary cities do not violate federal law, whereas this woman is actually violating the Constitutional rights of everyone she's denying a marriage license to and is also in violation of Court Orders directing her to do so.  

 

As to the constitutionality and validity of sanctuary cities, see Law Professor Bill Hing's analysis here and this 2009 Congressional Research Service report on the role of state and local law enforcement in enforcing immigration law. 

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I'm still not seeing why it would be OK to fine the county, i.e. ordinary taxpayers, because one individual refuses to obey a court order.

 

Anyway here's hoping the logic behind suing this clerk is extended nationwide to all public officials, local, state and federal, who refuse to do their duty without fear or favor.

 

How is it different from the county being forced to pay out a big legal settlement because another county employee (say a Sheriff's deputy) misbehaved on duty?

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She does not have a legal theory, nor any chance of prevailing legally if the matter is pushed.  I'm not even sure she has a well-articulated or coherent moral stance.
 
Personally I would prefer she be left alone.  Can the gay community really find no way around the problem of a single stubborn clerk? 


I'm a little confused on why the gay community needs to come up with alternatives to get the their legal access to services that are the job of the elected official their tax dollars pay for. Should their municipality decide to not pick up their gay trash or the postman not deliver their gay mail, are they required to solve those problems too?
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Hayyoth,

Yes. The County, via Mrs. Davis, is refusing to undertake one of the duties it is obligated to undertake. As such it is liable for her failure to act as an Agent of the County. If she is a State employee perhaps the State is the proper party to sanction. Regardless, she must be compelled to do her job or removed from office and replaced.

 

Sounds to me like a local State or County problem.  So why not let the State and County deal with it?

 

But the State and County might not be 100% on the side of those who are upset about this single clerk.  They are having their hands forced by the Supreme Court.

 

What if the State holds that her conduct is illegal, but declines to do anything about it, and the local County population continues to support her and pay her, and merrily drive to neighboring counties when they need to get married?  

 

If Tom thinks that Harry's maid isn't doing her job properly, is it Tom's business to tell Harry he should fire her?  What if Harry says "mind your own business"?

 

Is it a Federal issue?  Maybe.  But equal protection and discrimination issues are weakened by the fact that the clerk is not discriminating in any normal sense.  Neither is the County.  Neither is the State.

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Is it a Federal issue?  Maybe.  But equal protection and discrimination issues are weakened by the fact that the clerk is not discriminating in any normal sense.  Neither is the County.  Neither is the State.

 

It's not "maybe" a federal issue. It is a federal issue. A federal court ruled that the US Constitution requires that Davis issue marriage licenses to same-sex couples who otherwise qualify. There's no "maybe" there. And how you think Davis is not discriminating is beyond me.

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Chilly,

The Clerk is failing to perform one of the duties assigned to her by law. She is subject to a Writ of Mandamus for that failure. She should be removed from office. It is a federal issue as the right to marry has been held to be a substantive fundamental due process right under the 14th amendment. The Clerk's failure to do her job is denying the people of that county their right to Marry making this a Federal Constitutional question.
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It's not "maybe" a federal issue. It is a federal issue. A federal court ruled that the US Constitution requires that Davis issue marriage licenses to same-sex couples who otherwise qualify. There's no "maybe" there. And how you think Davis is not discriminating is beyond me.

 

If she's not issuing marriage licenses to anybody, then by that standard, she is not discriminating.  And if the State and County she serves decline to force her, it might not be a Federal question.  I have never heard of any Federal constitutional obligation on the part of states to provide marriage clerks in every county.

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If she's not issuing marriage licenses to anybody, then by that standard, she is not discriminating.

 

Helpfully, Ms Davis has vocally and repeatedly explained that she is refusing to issue marriage licences to anybody on grounds that are discriminatory.  Indeed, the whole basis of her case is that she should be allowed to discriminate. As such, there is no problem in saying that she is discriminating.

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If she's not issuing marriage licenses to anybody, then by that standard, she is not discriminating.  And if the State and County she serves decline to force her, it might not be a Federal question.  I have never heard of any constitutional obligation on the part of states to provide marriage clerks in every county.

 

When you say "by that standard" the implication is that you've actually articulated a standard. But you haven't actually articulated a standard. The idea that you seem to suggesting is that by refusing to issue any marriage certificates, even to straight couples, that her actions are therefore not discriminatory. Unfortunately for you, this is not the case, and our legal system's understanding of discrimination has long since passed the third grade level. The law recognizes a little thing called discriminatory intent, and it has long since been true that if you engage in a facially neutral practice with the intent to discriminate against a protected class of persons, then your action is, in fact, discriminatory. 

 

If the intent in denying marriage licenses to everybody in the county (and here I note that this is a factually problematic claim. The county clerk's office is only being "closed" on an ad hoc basis when gay people show up with the media in tow) is to specifically avoid having to grant them to gay couples, then the action is in fact discriminatory under the law. And how would we know whether this is, in fact, the reason for the action? Well, in a complicated situation, we might have to infer it, and see whether there's any legitimate, non-discriminatory reason for the county clerk to have mysteriously halted the issuance of marriage certificates whenever two gays happen to walk into her office shortly after the Supreme Court found gay marriage to be a constitutional right.  If we can't find a legitimate reason for this to be done, we might properly infer the intent is discriminatory.

 

But luckily, in "simple" cases like this one, we can simply read for ourselves the explicitly discriminatory rationale for the clerk's decision, which is made absolutely clear in (1) every pleading her attorney has filed with the Court in this case and (2) her press release from yesterday.

 

So hang up your deerstalker and put down your pipe, we've cracked the case, Sherlock. 

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Helpfully, Ms Davis has vocally and repeatedly explained that she is refusing to issue marriage licences to anybody on grounds that are discriminatory.  Indeed, the whole basis of her case is that she should be allowed to discriminate. As such, there is no problem in saying that she is discriminating.

 

Your argument basically boils down to the claim that Davis should be punished, not for her actions themselves, but rather for what she says and believes.  That does raise Federal Constitutional issues, but perhaps not the ones you have in mind.

 

But of course, the State will be within their rights if they remove her for not following their stated policies.  

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Chilly,

By refusing to issue any marriage licences she is denying the people of her county their fundamental due process right to marry. A violation of the 14th Amendment due process clause. It is a federal question on that basis.

 

Your argument is effectively false.  The people of her county, gay or straight, are not prevented from marrying, or even from marrying int he County, but merely from obtaining a marriage license from a clerk in the County.

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Chilly,

Perhaps you should look up "invidious discrimination". She in her capacity as an elected official may not use her personal religious beliefs as justification for refusing to do her job. Nor may she use her personal religious beliefs as a justification for denying the people of her county their fundamental right to marry.

Your argument is effectively false. The people of her county, gay or straight, are not prevented from marrying, or even from marrying int he County, but merely from obtaining a marriage license from a clerk in the County.


No. A marriage license is required to be legally married in Kentucky. As such she is refusing to perform her ministerial duty and is denying the people of her County their fundamental constitutional right to marry.
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No. A marriage license is required to be legally married in Kentucky. As such she is refusing to perform her ministerial duty and is denying the people of her County their fundamental constitutional right to marry.

 

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

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Perhaps you should look up "invidious discrimination".

 

I am familiar with the concept.  It is very doubtful that it applies here.  In order for discrimination to be "invidious" it must first be "discrimination"; otherwise, it may be "invidious", but it is not "invidious discrimination".

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