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| By David Barton Wall Builders |
An increasing number of media and other voices have
criticized Kim Davis for not issuing homosexual marriage licenses in Rowan
County, Kentucky. Their complaints generally fall into three categories.
First, she is violating her oath of office by following her
religious convictions (comments such as “She is a public servant who took an
oath” – voiced in the LA Times).
Second, gay marriage is the law of the land (comments such
as “By saying she won't issue the marriage licenses while serving in office,
Davis is . . . violating an oath she made before God to uphold the Constitution
and laws of the U.S. The Constitution requires her to issue licenses for gay
couples” – voiced in Bloomberg News).
Third, she knew this was part of her job, so she should
perform it (comments such as “She ran for this office, she knew what was
involved” – voiced in the Chicago Tribune).
Consider an historical and traditional constitutional
perspective on these three categories of complaints.
First, the issue of oaths. Today, the oath of office has
become something perfunctory and almost meaningless – a mere civic formality.
But in previous days, it was an act of high religious significance – a fact
affirmed by those who formed the governing documents Davis and other officials
have sworn to uphold.
Supreme Court Justice James Iredell (a ratifier of the U. S.
Constitution placed on the Court by President George Washington) observed that
an oath was a “solemn appeal to the Supreme Being for the truth of what is said
by a person who believes in the existence of a Supreme Being and in a future
state of rewards and punishments.” So, an oath involves a belief in personal
accountability to God.
Constitution signer Rufus King added: “By the oath which
they [our laws] prescribe, we appeal to the Supreme Being so to deal with us
hereafter as we observe the obligation of our oaths. The Pagan world were and
are without the mighty influence of this principle which is proclaimed in the
Christian system—their morals were destitute of its powerful sanction while
their oaths neither awakened the hopes nor fears which a belief in Christianity
inspires.” Hence, an oath of office includes the conviction of accountability
to God according to Judeo-Christian morals.
Founding Father John Witherspoon further added: “An oath,
therefore, implies a belief in God and His Providence and indeed is an act of
worship. . . . In vows, there is no party but God and the person himself who
makes the vow.”
So to take an oath as required in our Founding documents (1)
presupposes that the oath is an act of worship, (2) recognizes personal
accountability to God, and (3) acknowledges that the accountability occurs
according to Judeo-Christian morals. Therefore, under the traditional American
understanding, an oath of office is to uphold the Constitution with the
recognition that the person taking the oath will account to God according to
how he or she comports with Judeo-Christian morals. On this basis, Davis has
refused to perform homosexual marriages.
The second major criticism of Davis is that she refuses to
follow the “law of the land” – that the Supreme Court has spoken, and thus the
matter is over. But those who make that claim know little about American, constitutional,
or judicial history.
For generations, it was recognized in America that a
decision of the Supreme Court was exactly what the Court says it is even today.
The top of every Court ruling states “The Opinion of the Court,” and an
“opinion” is defined in the Oxford Dictionary (and others) as “a view or
judgment formed about something, not necessarily based on fact or knowledge.”
This hardly constitutes a “law of the land.” But somehow, today the personal
opinion of five of nine unelected American lawyers is the equivalent of the
Constitution ratified by three-fourths of the state legislatures of the
American people. To make the claim that these are legal equivalents defies
logic.
Previous generations did not tolerate this nonsensical
premise. As Thomas Jefferson affirmed, “[T]he opinion which gives to the judges
the right to decide what laws are constitutional and what not, not only for
themselves in their own sphere of action, but for the Legislature and Executive
also in their spheres, would make the Judiciary a despotic branch.” He
continued, “To consider the judges as the ultimate arbiters of all
constitutional questions [is] a very dangerous doctrine indeed, and one which
would place us under the despotism of an oligarchy. . . . The Constitution has
erected no such single tribunal.” He concluded that if we ever allowed the
opinions of judges to become the law of the land, then “The Constitution, on
this hypothesis, is a mere thing of wax in the hands of the Judiciary which
they may twist and shape into any form they please.”
To hold that five unelected individuals can make their
personal opinion the “law of the land” is to believe that those five are
infallible. They are not. As Jefferson affirmed: “Our judges are as honest as
other men and not more so. They have, with others, the same passions for party,
for power, and the privilege of their corps. . . . [A]nd their power the more
dangerous as they are in office for life and not responsible, as the other
functionaries are, to the elective control.”
In the American Republic, the “law of the land” does not
come from the Supreme Court, which did not even have its own building until
1935. (Before that, the Court met – by the Founding Fathers deliberate design –
in the U. S. Capitol, where it conducted its business under the watchful
oversight of Congress.) As specifically stipulated in the U. S. Constitution,
the “law of the land” comes from the body of elected individuals that meet in
the tall domed building across the street from the Supreme Court. Understanding
this, officials in previous generations regularly refused to follow U. S.
Supreme Court decisions, and were rarely criticized for doing so.
For example, when the Supreme Court in its now-famous
Marbury v. Madison decision ordered President Thomas Jefferson and Secretary of
State James Madison to take certain actions, both men ignored the Court’s
order, calling it a “perversion of law.” And when the Court likewise ordered
President Andrew Jackson to take certain actions, he, too, refused, explaining:
“Each public officer who takes an oath to support the Constitution swears that
he will support it as he understands it, and not as it is understood by others.
. . . The authority of the Supreme Court must not, therefore, be permitted to
control the Congress or the Executive.”
And when President Abraham Lincoln took office, it was
following the Supreme Court’s decree in the Dred Scott v. Sanford decision that
Congress could not prohibit slavery – that slaves were only property and not
persons eligible to receive any rights of a citizen. But Lincoln rejected the
Court’s ruling, explaining in his Inaugural Address that “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 . . . the people will have ceased to
be their own rulers, having . . . resigned their government into the hands of
that eminent tribunal.”
The refusal of these officials to follow Court opinions was
not due to personal stubbornness but rather was because they themselves also
had read, understood, and knew the Constitution. Part of the checks and
balances inherent to the American constitutional system is that unelected
officials do not get the final word; the people do.
The third major criticism of Davis is that she is she knew
what she was getting into and therefore should never have run for office. But
this is a factually inaccurate statement. Davis ran for office in 2014; the
Court issued its personal opinion in 2015 – a year after she was in office. She
did not know that she was going to be asked to implement a federal policy that
no American in the history of the Constitution had ever before been asked to
enforce: issue a license for a homosexual marriage. She is now being punished
for refusing to do something that was not part of her job description when she
took office. In fact, her punishment smacks of an “ex post facto” policy. As
even the very progressive Wikipedia explains, “An ex post facto law is a law
that retroactively changes the legal consequences (or status) of actions that
were committed, or relationships that existed, before the enactment of the
law.” The Constitution explicitly prohibits this in Article I, Section 9,
Paragraph 3, yet this is dangerously close to, if not exactly what is happening
to Davis – except that it is not a law under which she is being jailed but
rather the decree of a judge; but the results are the same.
In short, the complaints that Davis is not upholding her
oath of office, not following the law of the land, and that she knew what she
was getting into are all criticisms that ignore facts, common sense, and
traditional constitutional and judicial history.
