It Ain’t Over, Obergefell

Thanks to OverpassesForAmerica for this photo.

Davis Loses Appeal, But Others Also Run the Race

On 17 September 2015, Kim Davis lost her appeal to receive accommodations that would allow her to execute the duties of her office while maintaining her Christian faith. As reported in the following CBN video released on 18 September, Mrs. Davis is not the only official caught in the dilemma.

Recent Past in the Fight for Religious Freedom

According to a 9 July article by Jay Michaelson of the Daily Beast, seven states hosted officials who refuse to issue gay marriage licenses.  Among these seven states listed by Mr. Michaelson (Texas, Kansas, Alabama, Tennessee, North Carolina, Kentucky, and Ohio), Texas Attorney General Ken Paxton and U.S. Senator Ted Cruz have presented their case that county officials are protected by the state’s religious freedom law, which mandates government accommodation of deeply held spiritual beliefs.  Additionally, as reported on 28 June by the New York Post:

“Louisiana’s attorney general said it would wait for a final Supreme Court ‘order,’ while Mississippi, which had its gay-marriage ban overturned last year, said it awaits a decision on its appeal in that case.”

Legislators and County Clerks Push Back Against Gay Marriage

In a 22 September 2015 article, World News Daily chronicles the fight against gay marriage as it occurs on several fronts:

  • County clerks in Alabama have used existing law to stand for their religious rights
  • Tennessee legislators consider a push back that references other instances where states resisted Supreme Court rulings
  • Arkansas, Florida, Kentucky, Michigan, Ohio, Utah and Wisconsin legislatures have also started to consider legislation

Alabama County Clerks Push Back

In Alabama, where the law governing county clerks’ actions concerning marriage licenses allows some latitude to the clerks:

There also are nearly a dozen counties in Alabama where officials have refused to issue any marriage licenses. The state law says officials ‘may’ issue licenses, not ‘shall’ or ‘will,’ leaving the outcome of any legal challenge uncertain.”

Tennessee Crafts a Bill

As detailed by World News Daily, a Tennessee bill considers the conduct of two Justices, reviews the history of states’ reactions to bad Supreme Court decisions, and sets forward a path for following what is right:

“Tennessee’s House Bill 1412 is described as “an Act to amend Tennessee Code Annotated, Title 36, relative to the ‘Tennessee Natural Marriage Defense Act.’


It states: ‘Five justices of the United States Supreme Court issued a lawless opinion with no basis in American law or history, purporting to overturn natural marriage and find a ‘right’ to same-sex ‘marriage’ in the United States Constitution.’

The bill cites Chief Justice John Roberts, who said in his minority dissent that the decision had ‘no basis in the Constitution.’

The Tennessee bill notes that just two years ago, the Supreme Court itself ruled that ‘states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce.’

‘Whereas, Elena Kagan and Ruth Bader Ginsburg, two justices essential to the bare five justice majority in Obergefell, failed to recuse themselves from considering of the case, after demonstrating personal bias in its outcome, by officiating at and advocating for same-sex ‘marriage’ ceremonies, during the pendency of proceedings on the issue, in violation of 28 U.S.C 455 (‘Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.’)

‘Our rights come from the Creator, not the state, and our ‘Constitution – like the Declaration of Independence before it – was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from – not provided by – the state.’ ‘

The bottom line for the state?

‘Natural marriage between one (1) man and one (1) woman as recognized by the people of Tennessee remains the law in Tennessee, regardless of any court decision to the contrary. Any court decision purporting to strike down natural marriage, including Obergefell v. Hodges … is unauthoritative, void, and of no effect.’

The bill argues there is precedent for refusing to obey the Supreme Court, when the Wisconsin Legislature refused to file a Supreme Court mandate regarding the fugitive slave law nearly 160 years ago.

‘In addition to Wisconsin, the legislatures of Maine, Massachusetts, Connecticut, Rhode Island and Michigan actively nullified the Fugitive Slave Act and repugnant decisions of the United States Supreme Court by passing ‘personal liberty’ laws, making it nearly impossible to enforce the Fugitive Slave Act in those states,” the lawmakers wrote.
Tennessee’s proposal, which is expected to be discussed during the coming legislative session, points out the Supreme Court “is not the sole and final arbiter of the powers of the states under the ninth and tenth amendments, when it acts in an area outside of its jurisdiction.’ “

Arkansas Begins to Craft a Bill

Quoted in WND, Arkansas House Majority Leader Ken Bragg said:

“We refuse to simply shrug our shoulders and abandon basic principles that have guided our country successfully for the past 239 years.  We will work with other conservative leaders in our state and across the nation, strengthen the bonds of unity, and explore all available options. That certainly includes increased legislative protections for our First Amendment freedoms to exercise religion.”

Truth in Media talks about the Tennessee bill

A 17 September 2015 article in Truth in Media reveals that Tennesseans are working to buttress traditional marriage:

“At the rally, State Senator Mae Beavers (R-Mt. Juliet) and State Representative Mark Pody (R-Lebanon) announced legislation calling for Tennessee to defend current state law and the constitutional amendment adopted by voters in 2006 specifying that only a marriage between a man and a woman can be legally recognized in the state. The ‘Tennessee Natural Marriage Defense Act’ rejects the Obergefell v. Hodges decision handed down by the U.S. Supreme Court in June giving same sex couples the fundamental right to marry and calls on the attorney general and reporter to defend any state or local government official from any lawsuit to the contrary.”

Rand Paul Advocates for Removing Government from Marriage

In the 28 June issue of Time, Senator Rand Paul argues for the removing government from the marriage:

“While I disagree with Supreme Court’s redefinition of marriage, I believe that all Americans have the right to contract.

The Constitution is silent on the question of marriage because marriage has always been a local issue. Our founding fathers went to the local courthouse to be married, not to Washington, D.C.

I’ve often said I don’t want my guns or my marriage registered in Washington.

Those who disagree with the recent Supreme Court ruling argue that the court should not overturn the will of legislative majorities. Those who favor the Supreme Court ruling argue that the 14th Amendment protects rights from legislative majorities.

Do consenting adults have a right to contract with other consenting adults? Supporters of the Supreme Court’s decision argue yes but they argue no when it comes to economic liberties, like contracts regarding wages.

It seems some rights are more equal than others.

Marriage, though a contract, is also more than just a simple contract.

I acknowledge the right to contract in all economic and personal spheres, but that doesn’t mean there isn’t a danger that a government that involves itself in every nook and cranny of our lives won’t now enforce definitions that conflict with sincerely felt religious convictions of others.

Some have argued that the Supreme Court’s ruling will now involve the police power of the state in churches, church schools, church hospitals.

This may well become the next step, and I for one will stand ready to resist any intrusion of government into the religious sphere.

Justice Clarence Thomas is correct in his dissent when he says: ‘In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.

The government should not prevent people from making contracts but that does not mean that the government must confer a special imprimatur upon a new definition of marriage.

Perhaps the time has come to examine whether or not governmental recognition of marriage is a good idea, for either party.

Since government has been involved in marriage, they have done what they always do — taxed it, regulated it, and now redefined it. It is hard to argue that government’s involvement in marriage has made it better, a fact also not surprising to those who believe government does little right.

So now, states such as Alabama are beginning to understand this as they begin to get out of the marriage licensing business altogether. Will others follow?

Thomas goes on to say:

‘To the extent that the Framers would have recognized a natural right to marriage that fell within the broader definition of liberty, it would not have included a right to governmental recognition and benefits. Instead, it would have included a right to engage in the very same activities that petitioners have been left free to engage in — making vows, holding religious ceremonies celebrating those vows, raising children, and otherwise enjoying the society of one’s spouse — without governmental interference.

The 14th Amendment does not command the government endorsement that is conveyed by the word ‘marriage.’ State legislatures are entitled to express their preference for traditional marriage, so long as the equal rights of same-sex couples are protected.

So the questions now before us are: What are those rights? What does government convey along with marriage, and should it do so? Should the government care, or allocate any benefits based on marital status?

And can the government do its main job in the aftermath of this ruling — the protection of liberty, particularly religious liberty and free speech?

We shall see. I will fight to ensure it does both, along with taking part in a discussion on the role of government in our lives.

Perhaps it is time to be more careful what we ask government to do, and where we allow it to become part of our lives.

The Constitution was written by wise men who were raised up by God for that very purpose. There is a reason ours was the first where rights came from our creator and therefore could not be taken away by government. Government was instituted to protect them.

We have gotten away from that idea. Too far away. We must turn back. To protect our rights we must understand who granted them and who can help us restore them.

 Native American Tribes Resist Gay Marriage

The Arizona Republic reports that LGBT attempts to use the courts to bulldoze popular votes does not seem to work with Native American tribes:

“As sovereign nations, the 567 Indian tribes within the United States’ borders are not obligated to honor the rulings of American courts. The vast majority of them — including all 22 in Arizona — have so far ignored the high court’s ruling on marriage.”

Most of those Who Broke the Law to Support Gay Marriage are Now Silent

The Daily Signal reported in a 3 September article that most of the 10 officials who who broke the law to support gay marriage have gone silent:

  1. California Lieutenant Gov. Gavin Newsom – As Mayor of San Francisco, Newsom directed city clerks to issue marriage licenses to same-sex couples. At that time, gay marriage was prohibited in California because of a law passed by popular vote.
       
  2. California Gov. Jerry BrownWhile acting as Attorney General, Brown decided not to respond to legal challenges of Proposition 8, which stated that “only marriage between a man and a woman is valid.” One of Brown’s responsibilities as attorney general was the defend California and its laws in court.
      
  3. Kentucky Attorney General Jack Conway – After Kentucky legislated a ban on same-sex marriage, Conway said he would not appeal a ruling to recognize same-sex marriages.
     
    “I understand that passions are high on both sides of the issue, but we are a nation of laws,” … (except when you are an elected official defying the results of a popular vote) … “and no one can defy an order from a federal judge,” Conway said.
     
  4. Montgomery County (Pa.) Register of Wills D. Bruce Hanes – Two years ago, Hanes issued the first marriage license to a same-sex couple despite Pennsylvania’s ban on gay marriage.
     
  5. Pennsylvania Attorney General Kathleen Kane – Kane declined to defend the state of Pennsylvania when she was listed as a defendant in a 2013 lawsuit filed by the American Civil Liberties Union regarding the state’s same-sex marriage ban.
     
  6. Oregon Attorney General Ellen Rosenblum – Rosenblum refused to defend Oregon’s ban on same-sex marriage.

    “State defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summer judgement briefing that the ban cannot withstand a federal constitutional challenge under any standard of review,” she said in the filings.
     

  7. California Attorney General Kamala Harris – After California’s Proposition 8 succeeded and prohibited marriage between same-sex couples, Harris decided not to defend the state law.
     
  8. Illinois Attorney General Lisa Madigan – Rather than fulfilling the duties she was elected to complete by defending state law, Madigan requested the attorney general’s office be allowed to join in two lawsuits challenging Illinois’s gay marriage ban in 2012.
     
  9. Former Nevada Attorney General Catherine Cortez Masto – Masto refused to fulfill his sworn duty to defend the state, claiming the “legal landscape” regarding same-sex marriage has “changed,” and that the state of Nevada could no longer defend a ban.
     
  10. Virginia Attorney General Mark Herring – After his election Herring, Herring told NPR he would no longer defend the state’s ban on same-sex marriage.

Ryan Anderson Authors Truth Overruled

Ryan Anderson of the Heritage Foundation captured a number of narratives on the marginalization of anyone holding to traditional marriage and included these stories in his new book:  Truth Overruled.   In an 18 September 2015 interview, CBN News provided the following synopsis of the message:

“For years, those who campaigned for same-sex marriage claimed it would not harm their opponents or believers in traditional marriage.

A new book, Truth Overruled: the Future of Marriage and Religious Freedom by Ryan Anderson, argues that harm is already being seen.

‘The main rhetoric that we’ve heard for the past decade from those in favor of redefining marriage was that if you’re against same-sex marriage, you’re just like the racist bigots who were against interracial marriage,’ Anderson told CBN News. ‘And we’re already hearing voices say the government should now treat people who believe marriage is the union of a man and a woman as if they’re racists.’

Anderson cites business owners who are already being punished for not actively supporting gay marriage or at least for not serving gay couples.

‘The fourth chapter of the book, Bake Me a Cake, Bigot, tells the story of all these professionals who simply asked to be left alone by the government to run their business in accordance with their belief,’ Anderson continued. ‘And they’ve been fined sometimes hundreds of thousands of dollars.’ “

Erick Erickson, editor-in-chief of the popular RedState blog, says the fact that Anderson’s young is both striking and meaningful.

Because he’s younger, his perspective is ‘kind of counter-intuitive because people perceive it as being a generational issue.’

‘So here’s this young guy who has a mastery of these issues and the implications for the future of the country,’ Erickson explained.

Anderson, meanwhile, says the fight by proponents of gay marriage to punish people is a serious threat to freedom. He said he actually doesn’t know how he’d advise a person trying to decide to bake or not bake a gay wedding cake.

‘The government’s role shouldn’t be telling them what to do either,’ Anderson continued. ‘So my position on this is whether you would bake the cake or not isn’t a reason for you telling someone else that they should have to bake the cake.’

‘Freedom is actually what should be reigning supreme here and the people who are in favor of baking the cake can bake the cake,’ he said. ‘Those who aren’t cannot bake the bake, and the market can sort these things out. It’s one of the beauties of freedom.’

Even before the book was published, gay rights activists organized a campaign against it on Amazon.com.

Erickson pointed out that such folks are intolerant of any opposition to gay marriage. ‘They cannot have that,’ he said. ‘They also cannot have books and data that dispute their claims.’

‘The fact that they’ve attacked his book on Amazon to discourage people from buying it — before it even came out, they were trying to drive down its ranking on Amazon so people wouldn’t buy it — just tells you everything you need to know about the contents of the book,’ he said.

The Cost of Fighting Immorality

AlJazeera America reports in a 10 September article that:

Michigan is weighing its response to a $1.9 million demand from attorneys for April DeBoer and Jayne Rowse, plaintiffs in one of the four cases that went to the Supreme Court and was decided in June. In Kentucky, another state involved in the Supreme Court showdown, the bill for services rendered is $2.1 million. South Carolina has been ordered to pay $130,000, and Florida’s attorney general is fighting a tab of about $700,000.

Several states have struck agreements already. Pennsylvania settled for $1.5 million, Wisconsin for $1.05 million, Virginia for $580,000, Oregon for $132,000, Colorado for $90,000, Utah for $95,000 and North Dakota for $58,000. The varying prices reflect the length of the battles or their intensity.

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