Kim Davis, the Rowan County, Kentucky clerk who refuses to sign marriage licenses for homosexuals, creates a case full of interesting dilemmas, but she is doing the right thing. I would like to focus on the most important angle, and one which is simply not getting much emphasis in the media. This is a perfect case to highlight the nature of true federalism, the role of the lesser magistrates, and the long road Christians have ahead of them in restoring America.
We are all familiar with the Obergefell Supreme Court decision in favor of homosexual “marriage.” We all know Mrs. Davis’ case is fallout from that decision. When I first viewed this on the surface, I thought she would be better off to resign. It seemed to me a little self-serving for her to demand her tax-funded salary while defying the law (like it or not) she professes to represent. It’s simply contradictory to be a paid representative of the law and yet assert your personal view of the law when you disagree with it.
But then I realized this is not the case at all. It is only the rule according to the Supreme Court’s dictates—the dictates of the federal judiciary. Now that may be the last word for many people, but it’s not all, and the rest is in Mrs. Davis’ favor.
She explained in her comments through Liberty Counsel: “It is a matter of religious liberty, which is protected under the First Amendment, the Kentucky Constitution, and in the Kentucky Religious Freedom Restoration Act.” While I might demur on a couple points here, the reference to the Kentucky Constitution is fully relevant indeed. It is central.
In 2004, the Commonwealth of Kentucky voted overwhelmingly to include a marriage amendment to its Constitution. It now reads in section 233A:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
Protecting this Constitutional definition from invasion by outside jurisdictions is a more fundamental provision in Section 26:
To guard against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.
While there could certainly be room for legal wrangling here, the basic point is that the Commonwealth must not follow any laws contrary to its Constitution, but rather must consider such laws void. In my reading, this would include laws that are attempted to be imposed by an outside jurisdiction, or even an overlapping jurisdiction.
Thus, Obergefell is not merely an “oh well” in a State (or Commonwealth) such as this. It is a genuine Constitutional crisis at the state level. Put simply, this is a matter of States’ Rights, and the decision on how to move forward lies entirely in the hands of the people of the Commonwealth of Kentucky, its government, and its lesser magistrates.
So on second thought, I believe Mrs. Davis is making the appropriate stand. She is an elected representative of her county, and as such, she is to some degree a lesser magistrate. She may be the least of all the lesser magistrates, but that just makes the condemnation of all the inactive or compromised officials above her all the greater—especially if they’re professing Christians.
In fact, from this perspective, Mrs. Davis’ courage stands as an open condemnation of every Christian in local or state offices who does not stand for their State and people in defiance of Obergefell. What a shame it is that across this nation barely a story has arisen like Mrs. Davis’s! Why is she virtually alone in this spotlight? Is there only one or two among us who will risk even this little? Are there really thousands—tens of thousands?—of Christians in local offices across the Bible Belt and heartland who were outspoken Christians and opponents of same-sex marriage one day, then suddenly wilted the day after Obergefell? Who work to find a way to rationalize their newly-compromised position totally opposite of what they professed one day before? Who attend church and bow the knee to Christ on Sunday, then bow to Sodom on Monday? And for the sake of what? A pension?
How easily are we as Christians to be bought off, after all?
But not Mrs. Davis. She won’t budge. She stands ultimately under the authority of God, and that authority is reflected in the Kentucky Constitution, section 233A. It is protected from outside jurisdictions by the Kentucky Constitution, Section 26, and by the Tenth Amendment to the United States Constitution.
While I would argue that the Tenth Amendment was so far compromised from day one it is of little practical use, the concept of States’ Rights and separate jurisdictions is still perfectly valid and applicable in general (See my essays on States’ Rights in Restoring America, or here).
The only question will be, will the people of the Commonwealth of Kentucky stand up and exercise the right they have reserved to themselves in their Constitution? Will the leadership in the Governor’s office and Legislature of Kentucky stand for their Constitution? Will the pulpits stand up and motivate both to do so? They could.
Whether or not, it is exactly what should happen. The leadership of the Commonwealth of Kentucky ought to stand up for what their Constitution says, because it is right. They should openly defy the overreaching authority of SCOTUS and force a Constitutional crisis.
After all, the marriage amendment was added in that Commonwealth with an overwhelming 75 percent of the vote. That’s not just a victory; that’s a state-wide mandate.
Stand for it without compromise! Then the ball is in the Federal government’s court. It can issue all the injunctions and stays it likes, but as Andrew Jackson once apocryphally said regarding a SCOTUS ruling he opposed, “John Marshall has made his decision; now let him enforce it!”
Will the Federal government impose sanctions on Kentucky? Deny federal funding (please!)? Depose or imprison officials? God forbid, send in troops?
Because I’ll bet you that if the lesser magistrates of Kentucky did this, so would others: Texas, Tennessee, North Carolina, Utah. You might see a wave of backbone grow across this country—and just the possibility of that is worth the stand by one state. And then what would the Feds do? Send in troops to every State and Commonwealth that resisted?
Should a civil war start over this? Then the Court’s interpretation and application of the Fourteenth Amendment could die the same way it was born. Or not. Either way, we would at least have a clear and definitive answer of whether we live in a free society responsive to the basic tenets of Christian culture or a military-backed dictatorship of a few Ivy League rogues in robes.
I don’t advocate a civil war by any means. I don’t advocate individual vigilantism of any sort. But I do support the biblical and Christian doctrine of the lesser magistrate interposing between the godly will of a people and a small group of tyrannical overlords in high places.
As long as the Commonwealth of Kentucky does not withdraw the state’s role in issuing marriage licenses altogether (a solution already employed in Alabama), then Kim Davis is doing the right thing. Every Christian in Kentucky ought to support her in doing so, for she is exercising the role of the lesser magistrate. Every other conservative and/or Christian magistrate in the state ought to do the same thing. And every Christian in America ought to support them all as they do. “No one who puts his hand to the plow and looks back is fit for the kingdom of God.” Dear Christians in government bodies: quit looking back.
 Btw, we could write a much better one: one that protects the freedoms of all people and races, yet does not create an alleged penumbra for murdering the unborn.