Unless you’ve been in a coma, outer space or solitary confinement, you’ve likely heard of the county clerk in Kentucky who has refused to issue marriage licenses to homosexual couples, citing her personal opposition to gay marriage. The story was punctuated today by a federal judge’s order that the clerk, Kim Davis, be thrown in the pokey for contempt of court.
Since this is a topic that doesn’t exactly bring out the dispassionate analytical side in most people, you’ve probably also heard two differing opinions about Davis. You’ve likely heard that she is either heroically standing on principle by refusing to go against her conscience or that she’s getting what she deserves for refusing to acknowledge and respect the “law of the land.”
Both of these reactions ignore the more basic and blatantly obvious reality that Davis’ refusal to comply with federal edicts is absolutely the constitutionally correct position.
Why? Well, for starters, there is no authorization in the Constitution for the federal government to be involved in developing and enforcing a definition – any definition – of marriage. This, by the way, is as true of federal laws that would seek to define marriage as inherently heterosexual as it is of those that would extend it to homosexuals.
This, combined with the fact that the Tenth Amendment unequivocally states that any power not delegated to the federal government remains with the states, makes it absolutely clear that if any government is entitled, constitutionally-speaking, to be involved in defining marriage, it is state and local governments, not Washington. In this manner, it is Kentucky’s definition of marriage that matters, not the Supreme Court’s.
Furthermore, any arguments that the Fourteenth Amendment somehow gave the federal government the authority to dictate a singular definition of marriage upon 300-plus million people, as the Supreme Court decided in its Obergefell decision, is wrong. The authors of that amendment made clear what its intent was, which did not include authorizing federal attempts to transform society according to federal judges’ preferences.
It is for these reasons that Davis’ detractors are off base. The Supreme Court’s alleged legalization of gay marriage was in actuality an unconstitutional usurpation and, because of this, states are not only permitted to ignore the Court’s decision, they are, as James Madison said, “duty-bound” to do so.
Of course, I have no doubt that neither Davis nor the majority of her supporters understand all of this. They are relying on her belief that to issue marriage licenses to homosexual couples would violate her religious principles. To many, this is the last line of defense for the advocates for traditional marriage – and that someone out there is doing it gives them hope, or at least a martyr to rally behind.
But really, there’s an underlying question that almost nobody is asking: why should the government be issuing marriage licenses in the first place? Is it so obviously desirable that the state have a say in how people define their relationships that we can’t even ponder an alternative scenario?
How about this: how about governments completely exit the marriage business? How about instead of telling people how they can define their relationships, the government just butts out? How about instead of forcing people to violate their consciences, politicians and bureaucrats allow individuals, businesses and places of faith to determine if and how they support alternative definitions of marriage?
Would this scenario mean that a gay couple could have a ceremony and call themselves married? Yup. But it also means that nobody would have to compromise their personal belief system and be forced to recognize or support this definition. Bakers wouldn’t be forced to bake cakes, pastors wouldn’t be forced to perform ceremonies. And nobody would have to issue a license because there wouldn’t be any.
Many will balk at this option because to follow this plan would prevent them from making other people adhere to their principles. But that only reinforces the point. You can be free to follow your conscience or you can submit to the will of politicians who have behind them the power of the sword, gun and prison. To follow the first path is to recognize that you will have to appeal to something other than violence and coercive power to win the debate. To follow the second is to virtually ensure that such powers will be turned on you.
So, support Kim Davis in her defiance of unconstitutional federal laws. But hope for the day when she, as a government licenser of peaceful activity, is out of a job.