Looks like someone enjoyed her time in jail

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Dannyalcatraz

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In no particular order:

1) Yes, basic human decency IS a Christian value. It is just that not all Christians practice it. A saying has often been attributed to Gandhi, “I like your Christ, I do not like your Christians. Your Christians are so unlike your Christ.”

FWIW, the same could be said of almost any major faith tradition- most enshrine some form of The Golden Rule among their fundamental tenets (in Christianity, it's #2, according to JC Himself), but practitioners, being human, often fall short of the ideal.

Look at the history of nearly any major religion, and you'll find at least one period of fanatical, violent, militant "evangelization" or intolerance. To paraphrase a certain commercial series, it's what people do.

2) American religious conservatives have lost sight of the true purpose of enshrining the separation of Church & state, the anti-establishment clause, the Federal RFRA act and countless legal decisions: they're aegises against persecution and arrest, not swords to be used against those who believe & behave differently.

Because the USA is a nation of laws that is merely demographically Christian and not- as some believe- a Christian nation, the religious right has bible-blinders on. They cannot envision scenarios in which- if their interpretation of religious freedom laws were upheld- they would end up suffering because others could make similar religious claims to deny services.

An Inuit clerk whose faith bars women from hunting could deny Sarah Palin a gun license. Orthodox Jewish or Hindu city inspectors could deny key licenses to restaurants serving pork or beef, respectively. There is even a recent case of a Muslim stewardess who may have been been fired for not serving alcohol to passengers who could legally order it.

Heck- it wouldn't even have to be another faith, just another sect: there are over 30,000 sects of
Christianity and not all are OK with divorce. #1 on THAT list would be Roman Catholicism, which also happens to be the biggest branch in the world, and- surprising to some- the most numerous even here in the USA. So what happens if an old-school Opus Dei type clerk decides against issuing marriage licenses to the divorcees out there?

3) there is a very real sense in which the action of the Kentucky clerk may violate not only discrimination laws, but also the anti-establishment clause. The gist is this: she has used her government position to enforce a particular religious viewpoint on a legal practice to the exclusion of other religious or non-religious interpretations.

U.S. Code Title 18 Part I Chapter 13 § 242 covers "color of law" abuses:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Here's a breakdown from the DoJ's website:
Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

So not only could she face more jail time based on renewal of the contempt charge, she could- and should, IMHO- face even more time under Federal law. If you hear about FBI involvement in this case, you'll know it's based on this.
 
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Umbran

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3) there is a very real sense in which the action of the Kentucky clerk may violate not only discrimination laws, but also the anti-establishment clause. The gist is this: she has used her government position to enforce a particular religious viewpoint on a legal practice to the exclusion of other religious or non-religious interpretations.

U.S. Code Title 18 Part I Chapter 13 § 242 covers "color of law" abuses:

I'm not sure how I see it applies. It specifically states it is about "on account of such person being an alien, or by reason of his color, or race"

This law does not seem to apply to action against someone based on sexual orientation. It should, or some law should, but this one doesn't seem to.
 

tomBitonti

Adventurer
I recall hearing of the ancient British tradition of Resigning in Protest (on NPR, so blame them for stereotyping you guys and me for spelling it wrong).

It seems like that would have been the proper way for her to show her objection to the Supreme Court order.

Based on other info about her, instead this is just more data-points in the bucket that she is a low class, hate mongering nepotist.

I can't speak to the latter, but maybe we don't have to go there?

I'm with a resignation in protest, except, as an elected official, she can make a case that she was elected based on her character, and that she cannot in due conscious, administer the laws as they have been newly presented. Then, as an elected official, she could claim a duty to make decisions based on her character as an elected official.

A question would be the particular oaths she was required to take when she took office, and what priorities are expressed by those oaths.

Thx!

TomB
 

Dannyalcatraz

Schmoderator
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I'm not sure how I see it applies. It specifically states it is about "on account of such person being an alien, or by reason of his color, or race"

This law does not seem to apply to action against someone based on sexual orientation. It should, or some law should, but this one doesn't seem to.

Currently, is IS an ill-fitting shoe, but some of the cases under it have included some expansive language where judges have opined about other applications of the law where the discriminatory practices are similar. This dicta (as it is called) would indicate a judicial system that is open to the possibility of applying it to analogous circumstances if such a claim was made.

...which would result in a trip to the SCOTUS, no question.

And it isn't like Title 18 §242 is the only color of law statute out there- they exist at the state & municipal level as well.
 

Dannyalcatraz

Schmoderator
Staff member
Supporter
I can't speak to the latter, but maybe we don't have to go there?

I'm with a resignation in protest, except, as an elected official, she can make a case that she was elected based on her character, and that she cannot in due conscious, administer the laws as they have been newly presented. Then, as an elected official, she could claim a duty to make decisions based on her character as an elected official.

A question would be the particular oaths she was required to take when she took office, and what priorities are expressed by those oaths.

Thx!

TomB

She can't win. Here are the oaths in question:

http://www.lrc.state.ky.us/legresou/constitu/228.htm
http://www.lrc.ky.gov/statutes/statute.aspx?id=21176

The key is in section 228 of the Kentucky Constitution, the first oath:

...I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States...

You'll note that she- like all government officials- is sworn to uphold the laws of the US Constitution. Since marriage has been defined as a right under said document, applicable to hetero- AND homosexual couples, she has no basis upon which to say she won't issue marriage licenses without violating her oath.
 
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tomBitonti

Adventurer
She can't win. Here are the oaths in question:

http://www.lrc.state.ky.us/legresou/constitu/228.htm
http://www.lrc.ky.gov/statutes/statute.aspx?id=21176

The key is in section 228 of the Kentucky Constitution, the first oath:

You'll note that she- like all government officials- is sworn to uphold the laws of the US Constitution. Since marriage has been defined as a right under said document, applicable to hetero- AND homosexual couples, she has no basis upon which to say she won't issue marriage licenses without violating her oath.

Yeah, looks like all she can do is resign in protest. Her duty is to carry out the law. To show character, she would have to administer the law despite her personal disapproval.

Quoting the first, since I'm finding the section on duels to be humorous:

Members of the General Assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of .... according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.

Bold added by me.

Edit: Seems that other folks find it ... odd ... as well. See, for example: http://www.npr.org/templates/story/story.php?storyId=124616129

Thx!

TomB
 
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Some folks feel laws are written by legislature not activist judges.

Me, I'm enjoying the spectacle.

gatto-pop-corn.png
 


Dannyalcatraz

Schmoderator
Staff member
Supporter
As for the idiotic debate over the validity of licenses issued against her will/without her signature...according to KY statute 61.035, “Any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.”

http://www.lrc.ky.gov/statutes/statute.aspx?id=22875

Scarily, it took me minutes to find that, using an iPad & search engine, located in Texas. I didn't even use specialty law databases, just Safari. Imagine what it would be like if politicians, lawyers and media types in KY put in as much effort as I did.

I swear, there is a creeping laziness in legal research being done out there that I first noticed in the run up to Obama's first election...
 

Dannyalcatraz

Schmoderator
Staff member
Supporter
Some folks feel laws are written by legislature not activist judges.

A central function of a judge's job is to interpret laws. Has been throughout US legal history. Conservatives & liberal justices alike use that power.

IOW, "judicial activism" is really just "I didn't like that ruling that went against me".
 

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