Sunday, September 6, 2015


Two thoughtful emails from very intelligent men and a long chat with my equally intelligent wife have persuaded me that my last blog needs more explanation.

First, let’s make one thing perfectly clear. A county clerk must obey the law. Conscientious objection on the basis of religious belief does not excuse a public officer from doing his or her duty.

Faced with such a conflict, the officer holder should resign. That was the gist of John F. Kennedy’s 1960 speech to the Protestant pastors in Texas.

The point that seems difficult for most people to grasp is the legal effect of a Supreme Court opinion. Everybody says that the United States Supreme Court “legalized” same sex marriage. The Obergefell decision was celebrated from the White House to the coffee houses by homosexual couples who perceived that they were now able to marry legally.

But the Supreme Court did not “legalize” same sex marriage.

Courts decide cases and controversies between plaintiffs and defendants. Courts do not enact, amend or repeal any law. When a court believes that a law is unconstitutional, it does not wipe that law from the statute books. It simply says that the law is unenforceable and decides the case as though the law does not exist.

Section 402.005 of the Revised Statutes of Kentucky defines marriage as a relationship between one man an one woman. That law is still on the books. It is still valid and it still defines the duties of county clerks.

When a same sex couple requests a marriage license, the clerk has two choices: either obey the statute or assume that the statute is unconstitutional and need not be obeyed. That choice was not created by the Supreme Court’s decision in the Obergesfell case. The clerk has taken an oath to support the Constitution of the United States. If she believed that the Kentucky statute violated the federal constitution, she would have been oath bound to ignore it, with or without a decision of the the high court or any court.

The clerk’s oath to support the Constitution binds her conscience. She has not sworn to obey the opinions of the United States Supreme Court. She has sworn to obey the Constitution, a document written in the English language, which she is quite capable of reading and understanding. The Supreme Court’s opinion in the Obergefell case is exactly that: an opinion. It is not a decree. It does not bind anyone except the parties to the lawsuit of which the Court has jurisdiction.

Courts change. Opinions change. A person cannot be punished for failure to obey a court order issued against somebody else. Ms. Davis’s case will be decided by a federal district judge. That judge, like Ms. Davis and the members of the Supreme Court, has taken an oath to support the Constitution of the United States. His oath, like that of the clerk, is a personal commitment of fidelity to the written words of the nation’s charter.

Typically and traditionally, lower courts follow the precedents of opinions by higher courts. But they are not bound by law or conscience to do so. Appellate court opinions are just that: opinions, and if a lower court judge thinks otherwise, he or she need not follow the example of the higher tribunal.

Of course, the trial judge who does not follow the opinions of the appellate court can expect to be reversed on appeal. But, obviously, that does not always happen. The Supreme Court has reversed its opinion many times, and the only way that can happen is if somebody has re-litigated the issue.

Lincoln’s words bear repeating and thoughtful consideration:

the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers,

The idea that opinions of the Supreme Court are the law of the land is nowhere to be found in the Constitution. The practice of substituting litigation for legislation is further evidence of the abandonment of our republic in favor of a dictatorial oligarchy.

We have only ourselves to blame.

1 comment:

  1. What's fascinating to me is that I have been teaching for years (based upon a textbook) that the 1803 decision of Marbury v Madison creating the legal doctrine of judicial review, coupled with the traditional notion of stare decisis, has solidified the Supreme Court with both an error correction and a lawmaking function. However, what people don't understand is that we must fight, with conscientious objection, when a decision is contrary to the constitution according to our good faith belief. It took 57 years and a full blown civil rights movement for Plessy v Ferguson to be overruled by the Supreme Court in Brown v Board of Education. The Supreme Court's 1895 decision was wrong then and remained wrong until it was finally set aside in 1952. We can only hope that Obergefell v Hodges (and Roe v Wade) will someday become modern day mistakes and join the infamous list with Plessy. Unfortunately, these embedded decisions take generations to remove from our legal landscape. All the more reason for the Kim Davis immediate reaction. She may not win the battle, but hopefully history will prove that she started a worthy and successful war!