OldGimletEye Posted September 3, 2015 Share Posted September 3, 2015 No, because I don't see any discriminatory behavior OR denial of due process. Her motives are therefore irrelevant. You just want to punish her for the views she has expressed. But you know, things will probably go your way. This woman will probably be crushed like a bug. The media will drag out every unsavory detail of her private life, and use them to hurt her, and if she reacts badly to this treatment, or otherwise show signs of mental instability or vulnerability, they will use it to hurt her more. She will probably lose her job. Maybe she'll lose her husband too. And the members of this board will cheer and cheer and cheer and cheer and cheer. And will the inquisition be satisfied? No. The inquisition is never satisfied. it will just move on to the next target. I hope I'm wrong. You're not getting the concept here. If a Due Process violation is alleged, then the state or the state actor must provide a rationale as to why the there is no Due Process violation. Marriage is considered a fundamental right under substantive due process. So your assertion is way off the mark. Because the marriage right is involved, the state or state actor's reasons are going to be reviewed under strict scrutiny. Now, this Clerk is going to say that she is not issuing licenses because of her religious beliefs. And that isn't going to cut it. And in fact, her rationale probably couldn't survive a rational basis review. Link to comment Share on other sites More sharing options...
ChillyPolly Posted September 3, 2015 Share Posted September 3, 2015 You're not getting the concept here. If a Due Process violation is alleged, then the state or the state actor must provide a rationale as to why the there is no Due Process violation. Marriage is considered a fundamental right under substantive due process. So your assertion is way off the mark. Because the marriage right is involved, the state or state actor's reasons are going to be reviewed under strict scrutiny. Now, this Clerk is going to say that she is not issuing licenses because of her religious beliefs. And that isn't going to cut it. With all due respect, your legal analysis is hilariously bad. You are seriously out of your depth, and should just stop right now. Link to comment Share on other sites More sharing options...
OldGimletEye Posted September 3, 2015 Share Posted September 3, 2015 With all due respect, your legal analysis is hilariously bad. You are seriously out of your depth, and should just stop right now. How so. Explain Link to comment Share on other sites More sharing options...
ChillyPolly Posted September 3, 2015 Share Posted September 3, 2015 And in fact, her rationale probably couldn't survive a rational basis review. There's not even an occasion to apply rational basis scrutiny, much less strict scrutiny. Link to comment Share on other sites More sharing options...
OldGimletEye Posted September 3, 2015 Share Posted September 3, 2015 There's not even an occasion to apply rational basis scrutiny, much less strict scrutiny. What do you mean. Link to comment Share on other sites More sharing options...
OldGimletEye Posted September 3, 2015 Share Posted September 3, 2015 With all due respect, your legal analysis is hilariously bad. You are seriously out of your depth, and should just stop right now. With all due respect, I think you're hilariously full of it. Try me. Link to comment Share on other sites More sharing options...
ChillyPolly Posted September 3, 2015 Share Posted September 3, 2015 What do you mean. Kentucky is not preventing anyone from marrying, or discriminating against gays in any way in the way they dispense marriage licenses. Therefore, they do not have to provide a rational basis, or compelling basis, or any other kind of basis, for the non-activity that they are not engaged in. If they are accused of discriminating against the citizens of a particular county in not providing a marriage license clerk for that particular county, then that would be analysed under rational basis; just as when if I were to sue the Feds for putting a post office next to my friend's house, but not next to my house. Link to comment Share on other sites More sharing options...
OldGimletEye Posted September 3, 2015 Share Posted September 3, 2015 Kentucky is not preventing anyone from marrying, or discriminating against gays in any way in the way they dispense marriage licenses. Therefore, they do not have to provide a rational basis, or compelling basis, or any other kind of basis, for the non-activity that they are not engaged in. If they are discriminating against the citizens of a particular county in not providing a marriage license clerk for that particular county, then that would be analysed under rational basis; just as when if I were to sue the State of New York for putting a post office next to my friend's house, but not next to my house. I'm way out of my league. Why again? Because of your brilliance? The clerk action under the color of state authority is not granting marriage licenses. This implicates a fundamental due process right triggering her to give a compelling reason why she is not giving them out. Link to comment Share on other sites More sharing options...
Guy Kilmore Posted September 3, 2015 Share Posted September 3, 2015 Not a lawyer, but I thought the County is essentially a governmental entity that represents a subsection of a state. It is essentially an administrative subdivision based upon geographical considerations. ETA: Most funding comes from the state and rarely from the County, the County just adminsters those funds for the state. Link to comment Share on other sites More sharing options...
ChillyPolly Posted September 3, 2015 Share Posted September 3, 2015 The clerk action under the color of state authority is not granting marriage licenses. This implicates a fundamental due process right triggering her to give a compelling reason why she is not giving them out. Again, you are trying to pretend Kentucky not granting marriage licenses. This is false. And no "color of state authority" semantic shenanigans will make it true. Link to comment Share on other sites More sharing options...
OldGimletEye Posted September 3, 2015 Share Posted September 3, 2015 Not a lawyer, but I thought the County is essentially a governmental entity that represents a subsection of a state. It is essentially an administrative subdivision based upon geographical considerations. Most likely the complaint was brought under a section 1983 action, which makes bans anyone action under the color of state authority from depriving people of constitutional rights. I would think the clerk would fit under that definition. Link to comment Share on other sites More sharing options...
OldGimletEye Posted September 3, 2015 Share Posted September 3, 2015 Again, you are trying to pretend Kentucky not granting marriage licenses. This is false. And no "color of state authority" semantic shenanigans will make it true. What the fuck are you talking about? The clerk is acting under the authority of Kentucky and is not granting the licenses. Your argument here is bullshit. Link to comment Share on other sites More sharing options...
ChillyPolly Posted September 3, 2015 Share Posted September 3, 2015 Not a lawyer, but I thought the County is essentially a governmental entity that represents a subsection of a state. It is essentially an administrative subdivision based upon geographical considerations. Irrelevant. Every state employee does not have to grant you a marriage license. Link to comment Share on other sites More sharing options...
OldGimletEye Posted September 3, 2015 Share Posted September 3, 2015 Irrelevant. Every state employee does not have to grant you a marriage license. But those whose normal duties are to grant those licenses may not deny them for prohibited purposes. Link to comment Share on other sites More sharing options...
Guy Kilmore Posted September 3, 2015 Share Posted September 3, 2015 Irrelevant. Every state employee does not have to grant you a marriage license. I have no idea how this relates to what I said. Link to comment Share on other sites More sharing options...
ChillyPolly Posted September 3, 2015 Share Posted September 3, 2015 What the fuck are you talking about? The clerk is acting under the authority of Kentucky and is not granting the licenses. Your argument here is bullshit. Yeah, well, the probate clerk is also acting under color of State Authority. My guess is he will probably refuse to give you a marriage license too. Even up here in New York. Same goes for the policeman and the fireman. Kentucky is issuing marriage licenses. Anyone who wants one can get one. No state employee who issues marriage licenses is discriminating, or if they are, that has nothing to do with Ms. Davis. It does not matter if the fireman, the policeman, the probate clerk, the buildings department clerk, and Ms Davis refuse to issue you a marriage license. You can still get a marriage license from the State employees who are doing that. "YES BUT ITS HER JOB", you may howl. But I don't care. What her job is, is a matter between her, her employer, and the taxpayers who pay her salary. It is they, ultimately, who will decide what her job is, and what it is not. Link to comment Share on other sites More sharing options...
OldGimletEye Posted September 3, 2015 Share Posted September 3, 2015 Yeah, well, the probate clerk is also acting under color of State Authority. My guess is he will probably refuse to give you a marriage license too. Even up here in New York. Same goes for the policeman and the fireman. Kentucky is issuing marriage licenses. Anyone who wants one can get one. No state employee who issues marriage licenses is discriminating, or if they are, that has nothing to do with Ms. Davis. It does not matter if the fireman, the policeman, the probate clerk, the buildings department clerk, and Ms Davis refuse to issue you a marriage license. You can still get a marriage license from the State employees who are doing that. "YES BUT ITS HER JOB", you may howl. But I don't care. That's a matter between her, her employer, and the taxpayers who pay her salary. It is they, ultimately, who will decide what her job is, and what it is not. None of those public officials are empowered by the state to grant marriage licenses. A federal court would accept a state's reasons for not empowering those officials to grant licenses. The clerk, at issue, however, is empowered by the state of Kentucky to grant licenses and she is failing to do it for prohibited purposes. If she denies those licenses, she must explain why. And her religious reasons are not sufficient. Link to comment Share on other sites More sharing options...
ChillyPolly Posted September 3, 2015 Share Posted September 3, 2015 None of those public officials are empowered by the state to grant marriage licenses. I really don't think that's relevant. But if it were, Kentucky could solve the problem by disempowering her from granting marriage licenses. Then she could carry on just like she's doing. Would that make you happy? Link to comment Share on other sites More sharing options...
OldGimletEye Posted September 3, 2015 Share Posted September 3, 2015 I really don't think that's relevant. But if it were, Kentucky could solve the problem by disempowering her from granting marriage licenses. Then she could carry on just like she's doing. Would that make you happy? First, anytime a fundamental due process right is implicated by a state, the state's rationale is important. If the state says they don't empower police officers to grant marriage licenses because police officers have other more important duties and there are other state employees to fulfill that function a court would buy that argument. With regard to your last question: The court probably wouldn't go for that because the state ultimately took her power away precisely because the issue involved here. Now, if this whole thing had never happened, and the state for some reason had shut down the clerk's office because of budgetary or logistical reasons, then a court would be ok with that. The bottom line is that the state or the state actor's rationale matters. Link to comment Share on other sites More sharing options...
ChillyPolly Posted September 3, 2015 Share Posted September 3, 2015 First, anytime a fundamental due process right is implicated by a state, the state's rationale is important. If the state says they don't empower police officers to grant marriage licenses because police officers have other more important duties and there are other state employees to fulfill that function a court would buy that argument. With regard to your last question: The court probably wouldn't go for that because the state ultimately took her power away precisely because the issue involved here. Now, if this whole thing had never happened, and the state for some reason had shut down the clerk's office because of budgetary or logistical reasons, then a court would be ok with that. The bottom line is that the state or the state actor's rationale matters. So, it would NOT make you happy, then? You were just joking when you said that was the standard? Just pulling my leg? Just pretending? Are your rationales just make believe? You don't care if your rights are being violated -- you just want to crush her like a bug cause she's a homophobe? Link to comment Share on other sites More sharing options...
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