Even Scalia shows the way: Kentucky clerk must issue marriage licenses or resign | Arkansas Blog

Even Scalia shows the way: Kentucky clerk must issue marriage licenses or resign

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POPULAR ON TWITTER: Kim Davis' own life makes her an unlikely champion for "traditional marriage" and inspired social media creations such as this. She has acknowledged past "mistakes" and a turn of her life more recently toward a religion-centered view.
  • POPULAR ON TWITTER: Kim Davis' own life makes her an unlikely champion for "traditional marriage" and inspired social media creations such as this. She has acknowledged past "mistakes" and a turn of her life more recently toward a religion-centered view.

Mike Huckabee has gone to practicing law again, grabbing some headlines with his advice that Kim Davis, the Kentucky clerk, has his approval to ignore the U.S. Supreme Court and not issue marriage licenses. Huckabee's OBU undergrad degree and knowledge of the Bible notwithstanding, we turn to a better authority.

Jonathan Adler,a law professor who is no liberal (he also writes for National Review), puts it clearly at the Volokh Conspiracy 

No justice publicly dissented from the Supreme Court’s denial of Davis’s plea for relief, and this was not surprising. The law on this point is clear. Davis cites her religious conscience as the excuse for her intransigence, but she is wrong to do so. That’s not only my view, but the view of no less than Justice Antonin Scalia.

Davis has a right to observe and adhere to her religious beliefs, but she does not have a right to her job as county clerk. The latter obligates her to follow federal law, including the applicable judgments of federal courts, and it is now the law of the land that the Constitution bars state governments from refusing to recognize same-sex marriages on equal terms with opposite-sex marriages. If, as Davis claims, her religious convictions bar her from issuing such a marriage license, she should resign.

Scalia? He hasn't commented directly, but:


... he has addressed the question of what public officials should do when their official obligations conflict with their religious conscience. Writing in “First Things” in 2002, Scalia explained that if he were to conclude that the death penalty is fundamentally immoral, he should no longer serve on the bench.

[W]hile my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral. . . .

[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty” and if that fails, lead a revolution. But rewrite the laws he cannot do.

Somebody ought to give that Scalia book to Kim Davis. And Mike Huckabee. But, as we all know, Mike Huckabee has the only Book he needs and needs no help in interpreting it. 

PS — Courtney Goodson, who announced via social media today for chief justice of the Arkansas Supreme Court, said it's time for institutions to restore public confidence in the rule of law. You think maybe she didn't want to give an interview for fear of someone asking her what she might do if an Arkansas public officials refused to obey a Supreme Court order on gay marriage?


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