Kim Davis insists she is doing the will of God. I got to thinking about that and asked myself the question, Just what does God want Kim Davis to do?
The first thing that came to mind is that God surely wants her to keep the promise she made on the day she was sworn in as County Clerk. That’s what an oath is; making a promise and asking the Creator to bear witness to its sincerity. It is a commitment of conscience.
What did she promise? Two things. 1) To support the Constitutions of the United States of America and the Commonwealth of Kentucky, and 2) Faithfully to perform the duties of the office of County Clerk according to the best of her abilities.
As an elected County official, Ms. Davis works for a division of the Commonwealth of Kentucky. It tells her what to do, it pays her salary. Kentucky Revised Statute 402.005 requires her to issue marriage licenses only to couples consisting of one male and one female. It is her sworn duty to do so, and that means that it is her sworn duty to deny a license to same sex couples.
Wait a minute, you say. Didn’t the Supreme Court just say that the Kentucky statute and all others like it are unconstitutional? Yes, indeed. That was the opinion of five of the nine members of the Supreme Court. Acting on that opinion, the Court issued orders requiring the defendants in several cases to issue marriage licenses to the plaintiffs in those cases.
Aren’t all Americans bound to obey the Supreme Court? Are you kidding? Members of the military take an oath to obey the orders of the Commander in Chief, but nobody in the United States has ever taken an oath to obey the opinions of the Supreme Court. Federal Courts, like any court of law, have the power to issue direct orders to defendants over whom they have jurisdiction in specific cases, but they have no power to issue orders to the public at large.
An oath to support the Constitution of the United States is not a commitment to agree with every opinion rendered by the Supreme Court. Ms. Davis, like the members of the Kentucky legislature is oath bound to support the written words of the Constitution which is the Supreme Law of the Land.
The members of the Kentucky legislature didn’t think that Section 402.005 of the Revised Statutes was unconstitutional when they adopted it. They apparently don’t think so now. If the Court’s opinion in the Obergefell case hasn’t persuaded them to repeal or amend the law – the instructions they are giving to Kim Davis and all other County Clerks in the State – then those instructions still stand.
So what we have here, folks, is a difference of opinion about the meaning of the United States Constitution. It is not simply a difference of opinion between Anthony Kennedy and Kim Davis, although surely their opinions differ; it is a difference of opinion between oath bound public officials in Frankfort and other oath bound public officials Washington, D. C.
Judge Bunning can order Kim Davis to violate her oath as she understands it; he can demand that she do what her conscience forbids; he can keep her in jail until she disobeys the Kentucky laws she has sworn to administer, but neither he, nor the entire Supreme Court can force the people of Kentucky to change their definition of marriage or their honest belief in the domestic sovereignty of their Commonwealth as guaranteed and protected by the Tenth Amendment to the United States Constitution.
Which is why I repeat my counsel to Ms. Davis: If you must issue same sex marriage licenses, print the following disclaimer on each one:
THIS LICENSE IS ISSUED IN VIOLATION OF KENTUCKY REVISED STATUTE 402.005 ON ORDERS OF THE UNITED STATES COURT FOR THE EASTERN DISTRICT OF KENTUCKY.