The American Vision

Culture Through the Lens of Scripture

The legal futility of relying on SCOTUS to abolish abortion

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A lot of people, including many lawyers, are misinformed regarding the legal status of abortion in America. Without correct information regarding the Supreme Court’s decisions, pro-life activists are inevitably bound (1) to appear foolish and (2) to fail in their fight for abolition because they have not taken all the facts into consideration. Based on these shortcomings, this short article is intended to demonstrate the futility of mainline, pro-life activism.

A brief history of abortion jurisprudence in America

Most people are shocked to learn that today, Roe v. Wade holds little to no precedential value. In the vernacular, most people talk about abolishing abortion as an effort to “overturn Roe v. Wade.” Perhaps as an analogy, some Southerners refer to all carbonated beverages as “Coke”—sometimes the vernacular can be misleading. During the twenty years that it was the law of the land, Roe v. Wade stood for the proposition that abortion is a constitutional right found in the penumbra of the Constitution (specifically the penumbras of the Ninth and Fourteenth Amendments).[1] Have you ever looked at the moon on a clear night? When the moon is either waxing or waning, you can still see the darkened, shadowy portion of the moon. This shadowy portion is the moon’s “penumbra.” The Court from Roe v. Wade held that abortion was a right found in the “shadowy” portion of the Constitution.

Of course, this interpretation was contrived, and was utter nonsense.

In 1992, pro-life activists were getting excited because the composition of justices on the Supreme Court had almost completely changed since Roe. The constitutionality of abortion was set for a rehearing. With many scholars agreeing that the age of abortion was about to come to an end, Anthony Kennedy and David Souter shocked the country by voting to preserve the legality of abortion in Planned Parenthood v. Casey. The Court from Casey held that states may not place an “undue burden” on women seeking to procure an abortion. In Casey, there were no more penumbras. Thus, today it may be said that overturning Roe v. Wade would be a legal nullity (pointless), given the Court’s alternative approach to legalizing abortion under Planned Parenthood v. Casey. Because Casey explicitly preserved the “essential holding” of Roe, abortion would be abolished by the Court’s decision to overturn Casey, a point which family law professors stress today.

The actual controversy that led to Planned Parenthood v. Casey involved the challenging of a series of Pennsylvania statutes (1) mandating a 24-hour waiting period between informed consent and the performance of an actual abortion; (2) requiring a minor to obtain a guardian’s consent before obtaining  an abortion; (3) requiring a married woman to notify her husband before obtaining an abortion; (4) enumerating which situations constitute a “medical emergency” (an emergency would override the requirements from the other sections); and (5) requiring certain reports to be filed after an abortion. Only the portion of the statute requiring a wife to inform[2] her husband was found to be an “undue burden,” and therefore unconstitutional.[3] The result of the Court’s ruling in Casey was that a state could not create an undue burden on a woman’s ability to procure an abortion.[4]

Standards of review

One must always be aware of the various standards of review that the Supreme Court assigns to specific types of rights. When the Supreme Court examines a state statute, the Court employs varying presumptions with respect to the states’ legislative intent. In other words, the Supreme Court asks, “How much discretion did the legislature have to perform this action?” The most permissible standard of review from the state’s perspective is called “rational basis scrutiny.” If rational basis scrutiny is warranted, the Court will typically presume that the legislature had a “rational basis” for creating and enacting the legislation in question. Under “intermediate scrutiny,” however, the state must prove that the challenged statute advances an important government interest through means that are substantially related to that interest. The most stringent level of scrutiny from the states’ perspective is “strict scrutiny,” wherein the state must prove that the challenged statute advances a compelling government interest through the least restrictive means.

In the context of Planned Parenthood v. Casey, the court applied the most lenient, rational basis scrutiny, to Pennsylvania law, thereby affording the legislature the presumption that they had a rational basis for enacting the five challenged statutes.[5] As previously mentioned, only the Pennsylvania statute requiring a wife to certify that she had informed her husband prior to obtaining an abortion was found to be unconstitutional.[6] (Between Casey and the present era, there were two notable cases that will not be discussed here, one of which had the effect of maintaining the legality of the Partial-Birth Abortion Ban Act, and another which upheld the constitutionality of a state statute requiring all abortions to be performed by a physician.)

In the intervening years from Casey until very recently, the Court’s standard of review seemed very lax—until the 2016 case of Whole Woman’s Health v. Hellerstedt. As some will remember, the state of Texas attempted to make it illegal for abortions to be performed in areas not equipped to be an “ambulatory surgical center.” This action had the effect of consolidating and confining the number of operational abortion clinics to six urban areas in Texas. Whereas one could have reasonably anticipated that the Supreme Court would have typically deferred to the state legislatures to make these kinds of “safety” assessments under rational basis scrutiny (the same standard used for the previous cases),[7] the Supreme Court drastically switched standards. It went so far as to weigh the medical evidence available to the legislature.[8] Clarence Thomas noted in dissent that the Court’s action in hearing the available medical evidence illustrated the Court’s shift to applying “something more akin to strict scrutiny” to abortion statutes.[9]

This means that when protecting the alleged “right” to an abortion is in its interest, the Court would arbitrarily switch to whatever standard of review best fit its agenda. Moving forward from Hellerstedt, states in defense of any limitation on abortion would have to show a that the statute advances a compelling government interest through the least restrictive means.

What can we learn from these cases?

What options are left to those hoping to end abortion in America? If anything, a reader will hopefully have a heightened sense of what it means both to answer and not to answer the fool according to his folly on this topic. When pro-life activists appeal to the ambiguities of language from the Supreme Court, it should be expected that the Supreme Court will work (even outside the parameters of their own tests and rules, as Justice Thomas noted in his Hellerstedt dissent) to maintain the legality of abortion in America. Pro-life activists who answer the Supreme Court in the Supreme Court’s preferred way are acting in futility.

In order for abortion to become illegal once again in America, it seems as though there are only a few “viable” solutions. One option involves altering the composition of the Supreme Court. Given the existence of lifetime appointment, however, it does not seem as though this is a probable outcome. Also remember that Republican appointments to the Supreme Court have historically been some of the most vocal and damaging proponents for the legality of abortion.[10]

Perhaps another option could be for Congress to outlaw abortion by statute and limit the appellate jurisdiction of the Supreme Court to hear abortion cases (this is theoretically possible under Article 3, section 2). The Supreme Court, however, would still have original jurisdiction over any matter in which a state is a party, so this would likely also be a nullity.

Lastly, a jurisdiction could extricate itself from the stronghold of the federal system altogether. This seems to be the most certain way that abortion could actually become illegal, although the vicious addiction of state governments to federal funding would reasonably lead one to be pessimistic as to the ability of a state to free itself from irresistible money.

In short, the only promising avenue to abolishing human abortion is for states to outlaw it by statute or state constitutional amendment, and then ignore the Supreme Court when it strikes the state law down. Ignore Roe. Ignore Casey. Ignore Hellerstedt. Ignore SCOTUS. States have a duty to interpose between all wicked tyrannical branches of government and the people, especially the innocent, unborn, the little ones.

Donald Soles, III, is in his final semester at Regent University School of Law, and a Senior Editor for the Journal of Global Justice & Public Policy.

 

Notes:

[1] Roe v. Wade, 410 U.S. 113, 152­­­–53 (1971).

[2] Note that the statute did not require a wife to receive consent from her husband to obtain an abortion.

[3] See Planned Parenthood v. Casey, 505 U.S. 833, 888 (1992).

[4] See id. at 878.

[5] See id. at 888.

[6] See id.

[7] Consider that Planned Parenthood v. Casey proscribed “unnecessary” health restrictions, but consider then how under rational basis scrutiny, the Supreme Court would likely defer to a state legislature’s assessment as to which restrictions were “unnecessary.”

[8] See also Gonzales v. Carhart, 550 U.S. 124, 158 (2007) (upholding the Partial-Birth abortion Ban Act, a case to which I previously alluded). The court said, “[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to regulate abortion procedures, ‘all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn’.” Id.

[9] Whole Women’s Health, 579 U.S. ____ (Clarence Thomas, dissenting).

[10] Harry Blackmun is a prime example. Appointed by Nixon, Blackmun authored the majority opinion in Roe v. Wade, and authored a special concurrence in Planned Parenthood v. Casey. In this special concurrence (which my professor mockingly called the “abortion is the light of the world” concurrence), Blackmun actually compares the abolition of abortion to the extinguishing of a small, flickering flame of hope for women. Also consider the Republican appointment, Anthony Kennedy, a “swing vote” in Planned Parenthood v. Casey.

Restoring States’ Rights

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Restoring America One County at a Time

Chapter 4: States’ Rights

4.3 How to get freedom back

If we are to discuss how to restore freedom in regard to States’ rights, we have to make some acknowledgments and qualifications up front. Nevertheless, there is work we can do and which needs to be done.

Remember that this project focuses mainly on things average individuals can do to restore freedom in this country. We have already addressed those areas where we can have to most impact by far. These are education, welfare, and local government. Taking control to the maximum extent possible in these areas has got to be main priority. And much of what needs to take place in these three areas will keep the average family busy for years to come. If we can’t start here, we shouldn’t expect to do so where the treading will be more difficult. Trying to concentrate on issues above and beyond these—in both scope and governmental power—will only detract from the primary tasks for most people. As we shall quickly see, most of the steps that need to be taken in regard to States’ rights will have to come at the level of State representatives, State assemblies, and above. There simply is no key we can turn, hand we can shake, organization we can join, or person we can vote-in (should we even be so lucky as to have such a “perfect” candidate), that will magically transform the nation into a States’ rights paradise (should such a thing exist) over-night. With that said, however, there are still things average people can do toward restoring freedom in States’ rights.

First, self-education is always in order. Just as with local government, most people have no idea even of the names of their State legislators. Learn who they are and everything about them. Learn their beliefs, platforms, and everything about their voting history. Learn about your State governmental system in all of its branches, departments, procedures. Why not learn some of its history while you’re at it. (Do your State and local historical societies or museums? Check them out.)1 You’ll probably find out some interesting connections and wealthy families stretching from way back all the way to the seats of power today. Special interests tend to be homebrewed and inbred. At any rate, knowledge of who representatives are, how the system works, what various laws are, and what issues are on the floor or in queue are all part of this learning process.

Second, individuals should start websites monitoring State officials just as we described for local governments. This site should be dedicated only to State matters, and not mixed with either local or national political campaigns, etc.—except inasmuch as local or national political matters directly relate to State sovereignty, etc. The goal here is ultimate transparency. This is the ultimate form of education: revealing to people things they would not normally know and understand. It is also a great service to your fellow citizens: since most people have no clue about such things, don’t even think beyond the normal media, and wouldn’t know where and how to find important information even if they did consider it, you can provide an invaluable service with a State-politics clearing-house website or blog. Since so few people will take the initiative on something like this, it could be the greatest contribution you could make to the cause of liberty. Especially if you have the skills (not a whole lot required!) and time available to do it, and are looking for a way to contribute, it is almost imperative that you begin now.

Part of your own educational process will include learning the vast array of issues where States’ rights can restore freedom. One of the best places to observe some of these, currently, is in the work being done by the Tenth Amendment Center (TAC). Now, this acknowledgement is by no means a blanket endorsement of that organization, although it is also not to say otherwise either. I simply don’t know that organization inside-and-out enough to say at this point. But the work they are doing is in fact admirable in both scope and detail. They have drawn up model legislation for a host of issues which States can apply in their own jurisdictions. Consider just a few of the areas in which they are currently working:

Nullification of Federal Health Care

State control of State National Guards

Freedom from federal firearm registration and regulations

Protection of intrastate commerce

Protection of local food and food commerce

Protection from national ID (REAL ID, etc.)

Protection from TSA offenses, etc.

Nullification of unconstitutional legal tender laws

Nullification of “Cap and Trade” and other EPA regulations

regulation of federal tax collection and revenue

Sheriffs First” laws against unwarranted federal policing activities

Industrial hemp freedom acts

This is an impressive list, but the potential is even greater than this. As I will discuss in a moment, a move to practically nullify Roe v. Wade could be effected at the State level, and indeed has already been attempted at least once (it failed by an 11% margin, almost certainly due to a refusal to allow any exceptions at all, such as mother’s life in danger, etc.). It can probably go beyond this as well. At any rate, it will be helpful to find your local chapter of TAC, and ask how you can help get the word out in your community.

TAC also works for issues which may sound uncomfortable to some Christians—such as State control over marijuana laws. In defense, the issue here is not about personal stances on marijuana—medicinal or otherwise—but rather jurisdiction. How does the U.S. Constitution apply to this issue? Many would argue it does not, and that acquiescing on this one Constitutional issue legitimizes Federal usurpations in all other areas not explicitly enumerated in the Constitution as well. After all, if we submit to the idea that the Constitutional interstate commerce clause applies to the regulation of marijuana inside the State, then that can be used as a precedent when the Feds move to regulate other commerce within the State as well. But whatever your position on this particular issue (and certainly we must account for our emotions in regard to “drug abuse” and like epithets), it should not take away from the whole range of other issues TAC is addressing in favor of the Tenth Amendment and States’ rights. It is vital that we not throw out the baby with the bathwater (should there be any bathwater to throw out at all). We will return to nullification, etc., momentarily.

Also, having learned about your State reps, you may discover that they themselves have little knowledge or ambition in regard to States’ rights. And they will likely know nothing about the potential State power offers for reclaiming freedom in the many areas just discussed. You could aid your fellow citizens by informing your State reps of these things, and providing them information to pursue these avenues. This is still part of the educational process, and it is something an average person can do toward advocating States’ rights well within the Constitutional bounds of the Tenth Amendment.

From this point, then, we move from “What can I do now,” to “The way things ought to be.” Beyond the immediate practical steps, in other words, there are larger goals—but these are definite if lofty goals at which to aim. Educating your reps is one thing, getting them actually to develop, introduce, and promote States’ rights issues in Assembly are quite another. And it is here that individual efforts will be limited. But this should not stop us from discussing them.

Nullification and Interposition

The doctrine of “Nullification” was expressed in the Kentucky Resolutions written by Thomas Jefferson in 1798. It was a reaction against John Adams’ atrocious Alien and Sedition Acts which enhanced federal deportation powers at the President’s whim, and made criticism of the administration a criminal act. Jefferson and many others deemed these Acts unconstitutional, and argued that when the federal government passes unconstitutional acts, the States have a right to declare them null and void within their own jurisdictions. Jefferson wrote, “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”2 For this State power, the Resolutions appealed explicitly to the Tenth Amendment. Nullification, therefore, is a States’ declaration that a federal law exceeds Constitutional powers, and is thereby considered null and void within that State.

At the same time, Madison penned the Virginia Resolution (singular), which posited the similar notion now called “Interposition.” The Virginia version exposited the same view of States’ rights, although Madison did refer to it as not only a States’ right but its “duty”; in times of federal tyranny, States are “in duty bound, to interpose, for arresting the progress of the evil.” Some view this as going beyond mere nullification to active resistance. This does not seem to me to be a necessary implication of “arresting the progress of evil.” A subsequent review by the Virginia legislature asserted that a State declaration could have no legal force upon the federal government, but was only an expression of opinion, but even this leaves open the possibility that a State may decide in some way actively to resist—either alone, or in concert with other states.

At any rate, the idea of States resisting tyranny from legal lords above comes directly from the history of Reformation theological social theory. Calvin (although to a lesser and less systematic extent, Luther as well) and his disciples developed the idea of the intervening “lesser magistrate” who resists impositions of tyranny from above.3 It is a biblical and historically Christian concept in which a representative civil ruler acts representatively on behalf of the good of civil liberty against the evil of tyranny—the civil magistrate’s job, after all (Rom. 13).

This is what, historically, the American Declaration of Independence was—an interposition of the colonies in concert against King George III. In this sense, we can speak of “interposition” in a more general way without having to accept all of the technical terminology that comes along with Madison’s Resolution. We can also speak generally of nullification in the same way. We can even celebrate Jefferson’s fabulous rhetoric in this regard without adopting every jot and tittle of the Kentucky Resolves. Therefore, “let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution,” by which “man” Jefferson meant our civil rulers, and by which constitutional “chains” he meant the Tenth Amendment.

Ending Abortion Now

What are some of those lofty goals at which State officials could aim? Aside from TAC’s long and important list already referred to above, perhaps the most important and powerful issue for Christians that can be addressed by State power is the abomination protected under Roe v. Wade. This was the subject of an informative lecture by Constitutional Lawyer Herb Titus, given at American Vision’s annual conference in 2009: “Restoring the Sanctity of Human Life State by State.” Without going too far in depth into the arguments, suffice it to say that the Supreme Court decision contains holes that can be exploited, and more importantly rests on factual assumptions that are today disproven by more advanced knowledge. Therefore, a State could set a precedent with a well-designed, thoughtfully constructed statute which would effectively displace the ruling of Roe v. Wade—even if it remains on the books!

Most Christians don’t realize that the legal decision of Roe v. Wade had nothing to do with determining when life begins. This aspect of the situation was explicitly not decided in the case. As the writer of the opinion, Justice Blackmun, states in it:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

He went on to discuss different theories, but all this was superfluous to the overall decision. What this allowed the court to do, however, was subsequently to forbid the States—on the same facts only, by the way—to impose any single view of the beginning of life upon citizens.

The decision was made based on that genius piece of Lincoln’s legacy: the 14th Amendment, period. To whom do the Constitutional protections of life and privacy apply? The State of Texas (Wade) argued that a fetus is a “person” within the language of the 14th Amendment. The Supreme Court acknowledged, “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.” The problem was, that Texas’ application of that Amendment to the unborn was a novelty—there was nothing explicit in the Constitution saying as much, there was absolutely no legal precedent for interpreting it that way, and there was no historical precedent from the time of the Amendment for such an understanding. As such, the Court ruled this application of “person” to be unconstitutional. For the 14th Amendment itself clearly defines exactly who exactly are “citizens” and thus whose rights are protected: “All persons born or naturalized in the United States. . . .” There you have it: the Constitution protects only those who are born, not the unborn.4 This, coupled with the other observations led the Court to conclude, “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Yet since the mother was in fact “born,” she was protected: and thus the mother’s right to life and privacy is all that was deemed to be left standing.5 Thus the famous decision hinged upon a technical argument over a definition, and the application of wording completely unheard-of and unforeseen by the people who wrote the Amendment.

Yet, as I said, the ruling is not airtight and not insurmountable. Even beyond what we have said already, yet another powerful approach is available to States. While the word “person” does not apply to the unborn according to the U.S. Constitution, there is nothing to prevent States from adopting Amendments to their State Constitutions which provide greater protection of life than that of the U.S. And the beauty of this approach is that the Supreme Court consistently defers to the State Constitution or State Court rulings in order to determine the definitions of State laws. Thus, in short, a State could define “person” to include the unborn, and for any laws passed in regard to that definition, the Supreme Court would abide by the State’s definition for that case because it afforded a higher protection of life than the U.S. Constitution. Since the State of Texas did not have this in place at the time, its appeal to the 14th Amendment was judged by Federal precedents and the definitions derived from the U.S. Constitution, and thus, it lost.

But in a future case, if a State did amend its Constitution, decide a case, or even perhaps pass a statute that properly expanded the protections of life to unborn persons, then any Supreme Court challenge would have to deal with the State definition as a higher protection and sustain it. For this reason, today, there are groups advocating “Personhood Initiatives” and working for “Personhood Amendments.” These are at both the State and national levels.

Christians in the right-to-life world simply have to learn that a decentralized solution is best and most likely to succeed. The strategy of a “once-for-all” reversal of Roe has been ineffective for almost forty years now. This is not to say it’s an impossibility; but had the time and money been focused on local solutions for this whole time, you would today very likely see life more properly protected in a vast array of States already, and the forces of infanticide pushed to the blue fringes of the nation. Those who will accept only a single, national solution to abortion are saying that if they cannot outlaw abortion everywhere then they don’t want it outlawed anywhere. The corollary to this is even more startling: if they cannot outlaw abortion everywhere, then they’d prefer it to be legal everywhere. So the power and potential of a decentralized, States’ rights approach should be evident to everyone. Indeed, it should immediately become imperative to everyone who cares about the right to life.

State officials who are interested in advancing these measures can seek them out and get involved. Individuals who wish to do what they can—“county rights” style—could get involved with their local and State-wide groups, ask for direction, volunteer their time, and inform any and all of their State representatives, Senators, and other officials of these causes.

This applies directly here to the right-to-life issues, but really applies to any of the Tenth Amendment issues listed above. Contact your officials’ offices. Ask around. Search the web for groups or local committees involved in whatever States’ rights issue you feel most strongly about. Find out what’s already being done, and if you find the work worth joining, then get to it. At the very least, you should find such a cause and such a group and support them with donations. If you don’t think you have any time to spare, or nothing else to contribute (which is almost certainly false), then give money. The causes of life and liberty can employ your $25/mo. better than the movie channels or dinner at Applebee’s this week. But volunteering help, skill, and time is even better yet.

Next section: Taxation and a free society

Purchase Restoring America One County at a Time

Notes:

 

  1. In my experience, State and local history (as well as State and local government) are not well-emphasized in public school curricula. Most students will graduate with little or no knowledge in these areas—to an even worse degree than in other areas. This means that such education is up to you.(↩)
  2. Kentucky Resolution 1.(↩)
  3. See Douglas F. Kelley, The Emergence of Liberty in the Modern World: The Influence of Calvin on Five Governments from the 16th Through the 18th Centuries (Phillipsburg, NJ: P&R Publishing, 1992); and David W. Hall, Calvin in the Public Square: Liberal Democracies, Rights, and Civil Liberties (Phillipsburg, NJ: P&R Publishing, 2009).(↩)
  4. A good argument could be made the other way, I think, but the language of the Amendment is in fact terribly unhelpful. On the surface of it, the idea that the Constitution only protects the rights of the “born” in the word person is like arguing that Jefferson’s Declaration that “all men are created equal” and have the natural rights of “life, liberty, etc.” only technically applies to men and not women. After all, it says “men.”(↩)
  5. Although the Court did go on to allow for some State regulation in regard to the mother’s health, etc.(↩)

Kim Davis and the call to all Christian officials

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As you read two days ago, I am among the strongest supporters of Kim Davis’s stand. But let’s be very clear about things. As you also read, this is not about “religious liberty”; it is about interposition of the lesser magistrates. This is why I said every Christian magistrate should be following her example, and every Christian should be supporting it.

But the Christian leaders representing her (and some probably using her case to advance their own publicity) have made this about religious liberty and individual conscience. As lesser-magistrates guru, Pastor Matthew Trewhella, stated yesterday, “Such a position is fine for an individual. But Kim Davis and the other clerks are magistrates, and as such, they possess lawful authority. Their duty goes beyond mere refusal to participate.”

Constitutional Attorneys Herb Titus and William Olson echoed this crucial point as well: “this case is not a matter of her conscience or her personal religious scruples. It is about her civic duty as a civil government official. She resists illegality not because her conscience is offended, but rather it is her conscience and religious beliefs that gives her the courage to stand against lawlessness.”

Further, “Clerk Davis is constrained by her civic duty as an elected official in Kentucky, sworn to uphold the [Kentucky] Constitution. As a lower civil magistrate, there is only one course of action—to refuse to issue the marriage license to the same-sex couple BECAUSE the federal court order requiring her to issue the license is based upon a wholly illegitimate decision by the U.S. Supreme Court that same-sex couples are constitutionally entitled to marry.”

Every Christian involved and concerned to confront this tyranny needs to get this point very clear. The federal court did not put Kim Davis in jail for exercising personal First Amendment rights. She is in jail over a contest of government jurisdictions. She is in jail because the Supreme Court of the Federal government believes the Fourteenth Amendment trumps the State Constitution of Kentucky on the issue of marriage, and more importantly, because every single civil official between her and the Feds stood by idly and watched it happen, implicitly agreeing with the Supreme Court’s belief.

We can be reasonably sure that the Governor of Kentucky and his Attorney General are politically motivated here—liberal Democrats, pro-homosexual marriage. We cannot expect help from them, though as State (Commonwealth) officials they should support their State Constitution in principle against Federal intrusions.

But where has the local sheriff (a Christian) been the whole time? County Commissioners, City Council, State Representatives and Senators? Where were countless other local officials across the state in support? Where were any number of other lesser magistrates, many of whom undoubtedly are professing Christians? What a great stand could have been made against Federal tyranny had there been a “Sheriff First” law in effect here!

What we need is for the thousands of these lesser local officials to band together and lead Christians in a unified, mighty resistance of Federal tyranny. Pastors and pulpits across this land should thunder with the message of the magistrates’ duty as God’s minister (Rom. 13), and thus their duty to protect the people from ungodly intrusions from higher powers.

But a great disservice is done here when we focus only on individual “religious liberty.” This is not about Kim Davis the individual; it is about Kim Davis in the official capacity as County Clerk. This is not just about religious liberty but about intrusion of Federal power into state and local government. Focusing on religious liberty diverts all attention from the only avenue of possible victory we have. It is a sure way to lose, as we can see already.

The “religious liberty” defense will, therefore, ensure a failure for the cause, but in the meantime it will provide the image of a bold stand for high-profile conservative politicians. “Religious liberty” will make for good fundraising. It will make for good photo-ops beside Mrs. Davis in court and jail. It will generate publicity—but no substance of change or foundation upon which to build future change.

“Religious liberty” is, in the media, an emotional hook for conservatives and Christians. It has no judicial teeth without multiple levels of active government protection. What we need is not an emotional appeal; we need a judicial bulwark.

What needs to happen? Trewhella puts it:

Other magistrates—sheriffs, district attorneys, judges, and legislators from all spheres of government—should rally around these clerks and defend them against federal aggression.

True federalism understands that all magistrates—whatever their level or sphere of jurisdiction—possess lawful authority. And that whenever one branch of government begins to play the tyrant—all other branches (whether federal, state, county, or local) have the duty then more than ever to uphold the Constitution and oppose that branch—even if that branch is the Supreme Court.

Even before the jail sentence was handed down, Titus and Olson foretold:

Clerk Davis cannot resign, and cannot capitulate; but she must resist by interposing herself as a lower civil magistrate sworn to uphold the law, not just to do what a higher civil magistrate has ordered her to do. . . . Clerk Davis’ courage just might inspire those in authority to have the courage of what they claim to be their convictions and join in the resistance.

We now desperately need to see that inspiration take place and the spark of lesser magistrate courage become a firestorm of interposition across the country.

As I see it, there are a few things lacking to make this successful. I will not blame the local Sheriff, etc., for lack of courage. I think they are merely ignorant of lesser magistrate doctrine, interposition, etc., like the vast majority of the American population. Some education is in order here. But it is not much, nd it can be done quickly. And it will become a true test of their courage once they know the truth. This may or may not be lacking, time would only tell.

The main thing lacking is organization among Christians. Political activism is ineffective without organization. But organization takes 1) leadership, and 2) a unified message with a plan of action. Right now we essentially lack both. And worse, what leadership is at the forefront is preaching the message of “religious liberty” instead of Interposition. This may possibly unify Christian sentiments, but it will not energize them or provide the necessary plan of action.

This is where the pulpits must come in. The foundation for the needed and proper unity will come through the message of the magistrates’ duties before God, and duties to resist the tyranny of godless overlapping jurisdictions.

As you can imagine, repeating “religious liberty” is much easier that training a generation of Christians “the doctrine of Interposition by the lesser magistrate.” But God did not call us to that which is easier. He called us to a strait (difficult) and narrow path. We either take that path, or we’re headed for the destruction to which the easy one leads.

For those of you who would like to hear, Pastor Trewhella will be speaking at the Kim Davis Jailhouse Prayer Rally tomorrow, Saturday, September 5th at 11:00 am at the Carter County Detention Center, 13 Crossbar Rd. Grayson, KY. I am sure his comments will give the proper theological perspective to what has happened and what needs to. I encourage every lesser magistrate possible to attend, learn, and apply this theological basis in earnest service to their Lord and savior.

[Those interested in learning more about the roles of local government, true federalism, interposition, states’ rights, and many more related ideas, see my Restoring America One County at a Time.]

Kim Davis is doing what every Christian magistrate should

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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.[1] 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.

Notes:

[1] 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.