Columns » Max Brantley

Huckabee's Hail Mary

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Mike Huckabee, who made a credible run for the Republican presidential nomination in 2008, hasn't done as well in 2016, despite — or maybe because of — his financially rewarding turn as a hyperbolic media entertainer.

A conservative Republican judge in Kentucky gave Huckabee what he perceived as a needed opening last week. Coincidental to news that Huckabee was running 10th in national polling in Iowa — the critical first state in the nominating process and a state whose conservative religious bloc backed Huckabee in 2008 — Federal Judge Jim Bunning sent County Clerk Kim Davis to jail for refusing to obey an order upheld by the U.S. Supreme Court.

Davis said it would violate her religion to issue marriage licenses to same-sex couples. She also wouldn't permit her deputies — who were willing to issue the licenses — to do so.

To any legitimate legal commentator, Davis' position was futile. For better than two centuries, U.S. law has recognized the U.S. Supreme Court as the final arbiter on constitutional matters. The Supreme Court had held it was unconstitutional to deny marriage licenses to same-sex couples. Davis took an oath of office to uphold the constitution. She would not do so. She even wanted to force her religion on unwilling others. She went to jail through Tuesday, when the judge was satisfied others were fulfilling their legal obligations in her office. The Supreme Court had also made clear that acceptance of public office comes with some limitations on personal preference if they trample on rights of others.

Enter Huckabee, with his novel view that a Supreme Court ruling is not final. Citizens must only obey rulings they deem "right." Which sounds a lot like anarchy. It wasn't a new theory for Huckabee. When governor, he denied Medicaid money for an abortion for a mentally disabled teenager raped by her stepfather. When he says today that no current state law requires Kim Davis to marry anyone — U.S. Constitution aside — remember the rape case. U.S. law then said explicitly that Medicaid could be used to pay for abortions in case of rape, incest and to save a mother's life. The Arkansas teen qualified on two grounds. Huckabee refused.

Huckabee is wrong about many other things. Then-San Francisco Mayor Gavin Newsom didn't go to jail when he allowed marriage licenses for same-sex couples absent an authorizing state law. As Newsom pointed out on Twitter to Huck — who went silent — Newsom believed the ban on marriages unconstitutional. The Supreme Court would eventually agree. But in the interim, a court ordered Newsom to stop the issuance of licenses. Unlike Davis, he obeyed the rule of law.

Then there are those "sanctuary cities" that refuse to participate in enforcement of federal immigration laws. Why is no one in jail? Simple. No law requires cities to participate in federal enforcement. No court has ordered a city to enforce immigration laws, a constitutional responsibility of the U.S. government.

Huckabee struggled Sunday with George Stephanopoulos to explain the difference between court rulings that ended bans on mixed-race marriages and same-sex marriages. The main difference is that Huckabee (now at least) doesn't oppose mixed-race marriages. The situations are precisely the same. Racial bans were built, too, on some people's view of religion. The same with school desegregation, the place where lawyer Huckabee really falls short in his analysis.

No law — state or federal — backed President Eisenhower's decision to send troops to Little Rock to enforce school desegregation under federal court decisions. As late as 1990, Arkansas still had on its books a constitutional prohibition against integration. By Mike Huckabee's legal theory, officials like Faubus had no obligation to obey the court until somebody passed a statute.

Arkansas also retains a criminal statute for homosexual acts. It has been overturned by courts, but ONLY by courts. In the Huckabee legal view, that ruling has no meaning without an enabling statute.

Huckabee is merely demagoguing to reach ultraconservative religious voters in hopes of jump-starting a moribund campaign in Iowa and South Carolina. His arguments are so dishonest, so legally lacking (even Fox News legal "experts" deride them) and so full of errors of omission and commission that they shouldn't bear mention.

Except. What if they work on the gullible?

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