Kim Davis: Supreme Court Decision is NOT Law of the Land

[Revmitchell]

BarbWire contributor John Biver recently wrote, “SCOTUS issues opinions as a co-equal branch. The only way to properly read Article III is with the words of the Founders as the backdrop. Misreading it makes SCOTUS into an oligarchy. With the words of the Founders you understand it as the weakest branch, not the strongest — which is how most law schools improperly teach it to be. Today’s law schools, after all, are a product of the progressives. What I find interesting is that while lawyers are taught to consider legislative intent regarding statutes, the Founders’ intent is completely ignored regarding the role of the Supreme Court.”

Many people are wrongfully conceding that what the Supreme Court decides is “law of the land.” Just about every talking-head on FOX news and the every presidential candidate is wrongly going along with this false narrative, except for Mike Huckabee, Ted Cruz, Bobby Jindal, and Rick Santorum.

Kim Davis hasn’t broken any law. As a matter of fact, she is the one following her oath and the law. See Kentucky Revised Statutes Chapter 402.990:

Any clerk who knowingly issues a marriage license in violation of KRS Chapter 402 shall be guilty of a Class A misdemeanor. Any clerk who knowingly issues a marriage license to any persons prohibited by KRS Chapter 402 from marrying shall be fined $500 to $1,000 and removed from office by the judgment of the court in which convicted (KRS 402.990).

And so what would be a violation of KRS Chapter 402? Oh, well if the clerk issued a license to known relatives, someone who already has a living spouse, someone underage, AND to ouples of the same sex.

Read the law:

In Kentucky only persons of the opposite sex may enter into marriage. See Elkhorn Coal Corporation v. Tackett, Ky., 49 S.W.2d 571, 573 (1932). Thus in Jones v. Hallahan, Ky., 501 S.W.2d 588 (1973), the court held that the attempted marriage between two women was not a valid marriage since by being of the same sex they were incapable of entering into a “marriage” as the term is defined by common usage. The court concluded that it could find “no constitutional sanction or protection of the right of marriage between persons of the same sex.”

As used and recognized in the law of the Commonwealth, “marriage” refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex. Effective: July 15, 1998

History: Created 1998 Ky. Acts ch. 258, sec. 4, effective July 15, 1998.
For those unfamiliar with Kentucky law.

For all of those suggesting that Mrs. Davis should obey the “law” and just quit.

Here is the law in Kentucky:

Kentucky Constitution Section 233A
Valid or recognized marriage — Legal status of unmarried individuals.
Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
Text as Ratified on: November 2, 2004.
History: Creation proposed by 2004 Ky. Acts ch. 128, sec. 1.

Read more at http://barbwire.com/2015/09/06/kim-davis-supreme-court-lawlessness/

 

[Crabtownboy]

The article is wrong.

In Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), the United States Supreme Court for the first time applied the Supremacy Clause to strike down a state statute. Virginia had passed a statute during the Revolutionary War allowing the state to confiscate debt payments by Virginia citizens to British creditors. The Supreme Court found that this Virginia statute was inconsistent with the Treaty of Paris with Britain, which protected the rights of British creditors. Relying on the Supremacy Clause, the Supreme Court held that the treaty superseded Virginia's statute, and that it was the duty of the courts to declare Virginia's statute "null and void".

In Martin v. Hunter's Lessee, 14 U.S. 304 (1816), and Cohens v. Virginia, 19 U.S. 264 (1821), the Supreme Court held that the Supremacy Clause and the judicial power granted in Article III give the Supreme Court the ultimate power to review state court decisions involving issues arising under the Constitution and laws of the United States. Therefore, the Supreme Court has the final say in matters involving federal law, including constitutional interpretation, and can overrule decisions by state courts.
In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Supreme Court reviewed a tax levied by Maryland on the federally incorporated Bank of the United States. The Court found that if a state had the power to tax a federally incorporated institution, then the state effectively had the power to destroy the federal institution, thereby thwarting the intent and purpose of Congress. This would make the states superior to the federal government. The Court found that this would be inconsistent with the Supremacy Clause, which makes federal law superior to state law. The Court therefore held that Maryland's tax on the bank was unconstitutional because the tax violated the Supremacy Clause.
In Ableman v. Booth, 62 U.S. 506 (1859), the Supreme Court held that state courts cannot issue rulings that contradict the decisions of federal courts, citing the Supremacy Clause, and overturning a decision by the Supreme Court of Wisconsin. Specifically, the court found it was illegal for state officials to interfere with the work of U.S. Marshals enforcing the Fugitive Slave Act or to order the release of federal prisoners held for violation of that Act. The Supreme Court reasoned that because the Supremacy Clause established federal law as the law of the land, the Wisconsin courts could not nullify the judgments of a federal court. The Supreme Court held that under Article III of the Constitution, the federal courts have the final jurisdiction in all cases involving the Constitution and laws of the United States, and that the states therefore cannot interfere with federal court judgments.

In Pennsylvania v. Nelson, 350 U.S. 497 (1956) the Supreme Court struck down the Pennsylvania Sedition Act, which made advocating the forceful overthrow of the federal government a crime under Pennsylvania state law. The Supreme Court held that when federal interest in an area of law is sufficiently dominant, federal law must be assumed to preclude enforcement of state laws on the same subject; and a state law is not to be declared a help when state law goes farther than Congress has seen fit to go.
In Reid v. Covert, 354 U.S. 1 (1957), the Supreme Court held that the U.S. Constitution supersedes international treaties ratified by the U.S. Senate.
In Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court rejected attempts by Arkansas to nullify the Court's school desegregation decision, Brown v. Board of Education. The state of Arkansas, acting on a theory of states' rights, had adopted several statutes designed to nullify the desegregation ruling. The Supreme Court relied on the Supremacy Clause to hold that the federal law controlled and could not be nullified by state statutes or officials.

In Edgar v. MITE Corp., 457 U.S. 624 (1982), the Supreme Court ruled: "A state statute is void to the extent that it actually conflicts with a valid Federal statute". In effect, this means that a State law will be found to violate the Supremacy Clause when either of the following two conditions (or both) exist:[1]
Compliance with both the Federal and State laws is impossible"State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress"
In 1920, the Supreme Court applied the Supremacy Clause to international treaties, holding in the case of Missouri v. Holland, 252 U.S. 416, that the Federal government's ability to make treaties is supreme over any state concerns that such treaties might abrogate states' rights arising under the Tenth Amendment.

The Supreme Court has also held that only specific, "unmistakable" acts of Congress may be held to trigger the Supremacy Clause. Montana had imposed a 30 percent tax on most sub-bituminous coal mined there. The Commonwealth Edison Company and other utility companies argued, in part, that the Montana tax "frustrated" the broad goals of the national energy policy. However, in the case of Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981), the Supreme Court disagreed. Any appeal to claims about "national policy", the Court said, were insufficient to overturn a state law under the Supremacy Clause unless "the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained".[2]
However, in the case of California v. ARC America Corp., 490 U.S. 93 (1989), the Supreme Court held that if Congress expressedly intended to act in an area, this would trigger the enforcement of the Supremacy Clause, and hence nullify the state action. The Supreme Court further found in Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), that even when a state law is not in direct conflict with a federal law, the state law could still be found unconstitutional under the Supremacy Clause if the "state law is an obstacle to the accomplishment and execution of Congress's full purposes and objectives".[3] Congress need not expressly assert any preemption over state laws either, because Congress may implicitly assume this preemption under the Constitution.[4]

https://en.wikipedia.org/wiki/Supremacy_Clause#Supreme_Court_interpretations

 

[annsni]

Didn't Roe v. Wade make abortion the law of the land as well?

 

[Crabtownboy]

Didn't Roe v. Wade make abortion the law of the land as well?

Love it or hate it the answer is yes it did make abortion the law of the land.

Also, love it or hate it their Citizens United making corporations individuals under the law as the law of the land also.

One flaw in the logic of the OP is that if one ruling is not the law of the and then none of their rulings are the law of the land. This would mean that the SC has no power and no authority to rule. Also it would mean that any state could destroy any federal law. There would be chaos.

 

[church mouse guy]

Wasn't Dred Scott the law of the land also?

One flaw in the logic of the Leftist supporting s0d0mite marriage is that if one ruling is not the law of the land if the Court acted without authority from the Constitution. Where did Thomas Jefferson or James Madison say that s0d0mites should marry?

Kim Davis is one brave Democrat to stand up against Obama, Ruth Ginsburg, and all of those other Lefties.

 

[Revmitchell]

Wasn't Dred Scott the law of the land also?

One flaw in the logic of the Leftist supporting s0d0mite marriage is that if one ruling is not the law of the land if the Court acted without authority from the Constitution. Where did Thomas Jefferson or James Madison say that s0d0mites should marry?

Both Scalia and Roberts said this decision was not based on law or the constitution.

 

[church mouse guy]

Both Scalia and Roberts said this decision was not based on law or the constitution.

And neither was Dred Scott, another Democrat decision.

 

[church mouse guy]

The Democrats are now saying that race is a choice (you can chose to be black or to be Cherokee Indian, for example) but that sexual orientation is something that you are born with.

Now 100 years ago, it was just the opposite: race was an accident of birth and sexual orientation was a choice.

 

[Doubting Thomas]

Both Scalia and Roberts said this decision was not based on law or the constitution.

This is true--it's based on a culturally Marxist revisionism and '1984' Newspeak. It's certainly not based on a plain reading of the Constitution interpreted in the framework of the "Laws of Nature" and "Nature's God", to whom the founding fathers appealed in the Declaration of Independence, and from Whom our rights come. Our federal goverment is lawless in every way--inventing rights that aren't real and forcing them on the people, passing laws without reading the bills, making laws through executive fiat, and refusing to enforce other laws. Our founding fathers must be spinning around in their graves.

 

[church mouse guy]

Why is it that Democrats when they really want to insult someone call them 'homosexuals' as we saw recently here on the Baptist Board?

 

[wpe3bql]

While I personally admire Mrs. Davis's position that gay marriage is wrong, I'm not really sure that her getting herself jailed is really going to change many gay persons' minds with regard to them wanting to be married.

If a gay couple is bound and determined to be married to each other, they'll most likely just go to some place that'll perform a gay marriage for them.

There are even some churches who have a gay woman as their pastor, so even if a gay person desires to be wed in a church setting, that's quite possible nowadays.

Mrs. Davis has made her choice to abide by her state's Marriage Covenant legislation, and she is to be applauded for that.

OTOH, I've seen state judges rule that, even if a majority of that state's voting population voted in favor of traditional marriage [one man & one woman], a single judge can rule against this kind of "voice of the people" and thus declare that this referendum is null and void, with little or no recourse given to the people of that state.

In recent years, this is exactly what has happened, leaving the people with hardly no say-so at all when it comes to their having a voice in what they want in their state's constitution.

 

[FriendofSpurgeon]

Questions:

How would you feel about a Quaker refusing a to issue a gun permit because he was a pacifist?

How about a Muslim refusing to issue a driver's license to a woman?

How about a Christian refusing to issue a divorce decree?

 

[annsni]

Questions:

How would you feel about a Quaker refusing a to issue a gun permit because he was a pacifist?

How about a Muslim refusing to issue a driver's license to a woman?

How about a Christian refusing to issue a divorce decree?

In each of these cases, did the job originally NOT include these tasks? Would the Quaker have a job where suddenly he is responsible for gun permits? In each of these cases, the person would know exactly what the job entails from the start. It's not like I'd go try to get a job at an abortion clinic and then suddenly decide I'm not going to do any work regarding abortions.

However, this woman has had this job for many years and the state lawmakers made sure that SSM was illegal in the state. She had no problem with that. When the government decided that marriage is a right for anyone no matter who they marry, the woman decided to not do ANY marriage licenses and instead asked that it be someone else who signs the license. That is a reasonable accomodation, IMO.

 

[Revmitchell]

While I personally admire Mrs. Davis's position that gay marriage is wrong, I'm not really sure that her getting herself jailed is really going to change many gay persons' minds with regard to them wanting to be married.

I am not aware that was her stated purpose.

 

[annsni]

From my understanding, she has been ordered released and her deputies have been giving out marriage licenses since she has been jailed and they will continue. I wonder if they still have her name on it despite the fact that she's not actually signing them.

 

[Zaac]

Both Scalia and Roberts said this decision was not based on law or the constitution.

Doesn't matter what two of the Justices say as far as the rule of law goes. A decision was reached by the court interpreting law and that's supposed to be the precedent until someone follows procedure to change it.

 

[church mouse guy]

Doesn't matter what two of the Justices say as far as the rule of law goes. A decision was reached by the court interpreting law and that's supposed to be the precedent until someone follows procedure to change it.

Right--that was the way it was with Dred Scott!

The Court should have stayed out of this issue and left it up to the states. Ginsburg and the others should have kept their reprobate and unnatural ideas to themselves. Frankly, Ginsburg is a barbarian.

 

[Zaac]

Right--that was the way it was with Dred Scott!

The Court should have stayed out of this issue and left it up to the states. Ginsburg and the others should have kept their reprobate and unnatural ideas to themselves. Frankly, Ginsburg is a barbarian.

The process has proceeded the way the process is supposed to proceed. if you don't like the outcome, fix the process.

 

[church mouse guy]

The process has proceeded the way the process is supposed to proceed. if you don't like the outcome, fix the process.

Right! It's just like Dred Scott!

 

[TCassidy]

In another thread on another forum Chris Buono did a masterful analysis of the legal aspects:

"Remember in Civics class where we learned that Congress makes the laws and the Supreme Court interprets them? Ok, in 1996, President Clinton signed the Defense Of Marriage Act (DOMA) into Federal law stating that marriag was between a man and a woman.

There was no Federal Law concerning marriage prior to that, so DOMA became THE Federal statute pertaining to marriage. The Supreme Court ruled in 2013 that PART of DOMA was unconstitutional and some states voted to allow same sex marriage. However, they were in conflict with the remaining articles of DOMA.

The way Federal Laws work is that state law can be MORE restrictive but it cannot be less restrictive than Federal law. So, some states, who voted to recognize same sex marriage were in conflict with Federal Law. Which is the reason the Supreme Court heard the issue again this year.

We all know their decision. But, what we apparently forgot is that since they can't make law, their decision to declare DOMA unconstitutional resulted in there being NO federal law concerning marriage. Which means, jurisdiction falls to the state.

And what that means . . . is that Kim Davis IS NOT in violation of ANY law by refusing to issue marriage licenses after the SCOTUS ruling. In fact, if she had issued a license to a same sex couple, she would have been in violation of the state laws of Kentucky (KRS 402-020), which had voted no on the issue.

Congress failed to be prepared to handle the situation resulting from SCOTUS striking down DOMA by writing a new Federal Law so we are left with the issue being handled at a state level. In the states that voted no on this issue, same sex marriage is not Federally protected.

Like it or not, agree with it or not, that's the way the law works in this country.