Kentucky County Clerk and the Rule of Law


The specific controversy of the Kentucky county clerk who is refusing to issue same-sex marriage licenses will come and go, but David French gets at the more important point:

… what we’re watching unfold in Kentucky isn’t so much the “rule of law” as the raw exercise of power. Judicial revolutionaries simply wield more power than Kentucky county clerks — partly because the judges enjoy the popular support of millions of Americans (including public officials), partly because their lifetime tenure almost entirely insulates them from accountability, and partly because even the most vigorous dissenters understand that answering one revolution with another will upend the entire system, a price they’re not willing to pay. At least not yet.

In fact, the rule of law has increasingly become a mere talking point, a weapon wielded by the Courts and the Obama administration when it likes a given legal outcome, but disregarded when pesky things like “democracy” and “procedure” interfere with the demands of social justice. For the Obama administration, even proper regulatory rulemaking can be too burdensome. Rule by executive order or even departmental letter replaces constitutional process, with the social-justice Left cheering every step of the way.

We’ve allowed so much authority to bubble up to the highest level of government that it’s increasingly impossible for people who disagree with the elite to find a place in which to live under the policies that they would prefer.  We’re also allowing deterioration of the sense that the law applies to everybody equally — and means what it says in all cases.  That makes control over the federal government an absolute necessity (including circumventing a body of elected representatives from around the country if they impede that control).

Some see the surprisingly successful campaign of Donald Trump as primarily an expression of frustration that the system appears to be rigged to allow no real choices at the highest level. Unless we give Americans tangible evidence that participation in the political process really does make a difference, even at the federal level, and unless we return to toleration for substantially different government at the local and state levels from one place to the next, and unless our broader civic system (expanded to include news media and social institutions) is more overtly fair and even-handed, we’re guaranteeing tyranny from the powerful and revolutionary unrest from those who have been shut out.

  • Mike678

    Can’t say I agree with the Clerk. It’s her job to issue a license IAW the law. If the law is she give it two consenting life forms, then she should provide it as long as they meet the requirements of the law. If she doesn’t want to, quit.

    • OceanStateCurrent

      I agree with you, but following the law has to be a two-way street… and that goes for both application of the law and expectations in the media and public. We can’t have progressives disobeying laws in order to hand out illegal marriage certificates in order to push radical change and then attack conservatives for playing defense on the other end. You also can’t have the Supreme Court making up law to apply across the entire country.

      • The Misfit

        The Supreme Court has that name for a reason. Third branch of Government. There is a reason behind three branches of government. It seems like you want to change the rules because they do do favor your political positions.

        • OceanStateCurrent

          Not at all. The law, up to and including the Constitution, is premised on a degree of literal meaning to words. Saying that a branch has the “legislative,” “executive,” or “judicial” power has to mean something, or else there really is no law. At some point, one branch is overstepping its boundaries. An executive branch that executes the law in such a way as to nullify or rewrite it is overstepping its boundaries. A judicial branch that reaches into airy notions of philosophy so as to rewrite the laws is doing the same.

          I do not want the Supreme Court to implement my policy preferences by circumventing the law, just as I do not want local politicians doing so, whether they’re California mayors handing out illegal marriage licenses or Kentucky clerks illegally refusing them. Unfortunately, that’s become entirely a one-sided integrity.

  • The Misfit

    I do no think she should quit. If she does not want to perform this task then she could allow someone else to do it. If that is not possible then she should face removal for not following her oath to uphold the law. When you do not agree with a law and you choose not to follow it you leave yourself at legal risk. A public employee has agreed to uphold the law. People in the private sector that ply their wares in the public square agree to the laws governing their businesses. Whatever their personal and religious views may be, they are required to follow the laws.

    • Mike678

      Did she take an oath?

  • ShannonEntropy

    A judicial branch that reaches into airy notions of philosophy so as to rewrite the laws is doing the same.

    Get used to it

    After Sebelius; King v Burwell; and Obergefell you may have thought you saw the worst of it from the last SCOTUS session

    But the absolute Destroyer of the American Dream was
    Texas v Inclusive Communities

    Good·bye Property Rights !! HELLO Rhodent·Map !!!

    • Mike678
      • ShannonEntropy

        Argentina is a unique case … they routinely default on their debts and nobody seems to care and lenders don’t seem to know their history as they line up to lend them even more money

        FTR, I’ve always thought Mar Del Plata would be an excellent place to retire to

        Wine there is cheaper than water … did you know that Argentina produces more wine than ALL of Europe — including such major producers as France, Germany & Italy; and every other country
        — combined !!

        • Rhett Hardwick

          Did you know that French wine comes from California vines?

  • Rhett Hardwick

    I heard on the news that the Clerk has been jailed for contempt, in refusing to perform her duties. (I have not read the text of any decision). The government requested a fine. Unfortunately, a fine would only be punishment for a prior offense. If she refused again tomorrow, it would be a new action. She can now be held in jail until she agrees to “purge herself of contempt” by agreeing to perform her duties. That could mean holding her in jail until she agrees. (most states have a limit on how long you can be held in jail for contempt). Oh my, meanwhile Sikhs can wear knives to school, and Muslims veils, because to order otherwise would interfere with their religious convictions.

    • Rhett Hardwick

      The judge’s solution leads me to other questions. A congressman is elected to represent his constituents, could he be held in contempt for refusing to vote on an issue. Elected Zoning Boards frequently deny “as of right” permits. These are overturned by courts, but I have never heard of Zoning Board members being held in contempt.