Rowan County Clerk Kim Davis, with Republican presidential candidate Mike Huckabee, left, at her side, greets the crowd after being released from the Carter County Detention Center, Sept. 8, 2015, in Grayson, Ky. (PHOTO: Timothy D. Easley/AP)
Why do so many who castigate Kim Davis for flouting the law routinely cheer on President Obama for actions far more lawless and consequential?
Why are those demonizing the Rowan County, Kentucky, clerk so indifferent to the Supreme Court’s rank abuse of power that created the atmosphere of conflict from which her actions arose?
Who died and made the Supreme Court god? Well, the Supreme Court made itself god in 1803, with the case of Marbury v. Madison, in which it asserted its power of judicial review — the right to declare acts of the legislative and executive branches unconstitutional.
The Constitution guarantees liberty by conferring powers and imposing restraints on the government. If one branch can, with impunity, inflate its powers by ignoring the plain language and original intent of the Framers, then how can the Constitution do its job?
From the beginning, people have debated the Supreme Court’s propriety in establishing itself as the final arbiter of the Constitution, seeing as the Constitution does not expressly grant this power to the court. But the principle is now permanently enshrined.
Judicial review works best, if applied by honorable judges who respect our republican system and will honor the rule of law themselves. But sadly, the court has often rewritten laws instead of interpreting them, making itself an enemy — rather than a guardian — of liberty.
In Wickard v. Filburn (1942), for example, it grossly contorted the Constitution’s interstate commerce clause and allowed Congress to regulate intrastate matters that had but the remotest connection to interstate commerce. Since then, there has been virtually no matter too local for Congress to regulate. The court also rewrote the plain language of the Constitution in the landmark abortion cases of Roe v. Wade and Doe v. Bolton in 1973 and thereby severely restricted the states’ power to regulate abortion.
Examples of such judicial tyranny abound, as activist judges are innovative in reshaping the Constitution to serve their policy agenda. The court tied itself into linguistic knots to avoid overturning Obamacare. Chief Justice John Roberts would have done far less damage to his integrity had he just issued a summary decree rather than a convoluted opinion explaining that two plus two equals five. When he had a second bite of the apple, he disgracefully compounded his sin instead of opting for a noble path of redemption.
Surrealistically, he wrote a scathing dissent in the Obergefell v. Hodges case, lambasting the majority for adding two and two and getting five. He blasted the court for “stealing” the issue of same-sex marriage “from the people” by taking “the extraordinary step of ordering every State to license and recognize same-sex marriage.” “But this Court is not a legislature,” wrote Roberts. “Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.'”
Finally, Roberts got it right. There is not an iota of legitimacy in the court’s lawless edict making same-sex marriage a constitutional right.
Hardly with clairvoyance, critics predicted that this fiat was on a collision course with religious liberty, but scoffers scoffed. Please don’t tell us that Kim Davis was spoiling for a fight. She was democratically elected to issue marriage licenses in a state that did not recognize same-sex marriage. As a recently converted Christian, she refused to issue or allow her deputy to issue licenses for same-sex marriage under her name, and she instantly became Lizzie Borden.
Despite what propagandists say, Christians aren’t haters, and they are not the aggressors in this dispute. They are not the ones spewing hatred or lawlessly shoving their views down their opponents’ throats.
I am a rule-of-law guy, and my natural instinct is to side against a person who ignores or disobeys laws, even if I, too, believe they are wrong. As much as I agreed with Roy Moore’s position on the Ten Commandments, I parted ways with him in defying the order of the court.
But there is so much wrong with this case that I am somewhat conflicted. The Supreme Court assaulted the Constitution and the democratic process in Obergefell. If it can say the 14th Amendment guarantees same-sex marriage, it can pretty much say any clause says anything. Its reasoning isn’t a harmless fiction; it’s Orwellian totalitarianism.
Then there’s the matter of the left’s hypocrisy and the right’s complacency. State officials in California have defied laws on marriage and sanctuary cities with barely a whimper. Obama has flouted the Constitution repeatedly with impunity.
Authorities could have easily accommodated Davis and issued these licenses without affixing her signature and violating her conscience. But that wouldn’t be enough because the left rejects the conscience rights of its opponents, under the Orwellian principle that some are more equal than others.
Just as with the case of the Lakewood, Colorado, bakery that refused to cater a same-sex wedding, the left isn’t just seeking freedoms. It wants to force its opponents into submission. No, it demands the full-throated endorsement of its ideas.
It is very sad to say, but we’re going to see more Kim Davises until we see less tyranny.
