Disclaimer: This commentary submitted by the moderator of TBK Adrienne Gilbert. It is not intended to speak for TBK. 

Update 9:10 – Slight draft change, mostly the same but correct version is now posted.

There has been plenty of information and misinformation regarding the ACLU case against Kim Davis. After attending both evidentiary hearings and reviewing the judge’s final order, a few things come to light that are not being discussed. Here is a re-cap of the entire saga:

The first hearing was nearly 2 hours long, with the judge asking several questions of detail both legal and factual. At the beginning, the ACLU seemed to be doing fine while the out-of-state pro hac defense was struggling to get their bearings. Once they finally answered the legal question of standard of review, the ACLU started faltering on actually answering questions and the whole case landed squarely on their ability to prove one issue: does a person waive their first amendment right when they take a public job? They were not able to cite a single case of precedent in that hearing, so we waited eagerly for the written filings to see what they would say. The issue for the defense was whether Kim Davis actually had a sincerely held religious belief, because that would trigger a Kentucky law protecting actions so based under the strictest standard of judicial review.

The second hearing was not quite as long, and mostly focused on Kim Davis’ thoughts and feelings. It became clear that she is extremely serious in her religious belief, and there was no discussion of legal questions in the oral arguments. That all came out later in the written responses.

The judge’s final ruling of 28 pages lacked any grand statements save perhaps one on page 17: “Traditionally, a free exercise challenge to a particular law triggered strict scrutiny. See, e.g., Sherbert v. Verner, 374 U.S. 398, 407 (1963). A statute would only be upheld if it served a compelling government interest and was narrowly tailored to effectuate that interest. Id. However, the U.S. Supreme Court has retreated slightly from this approach.” This explains everything that is wrong in this country. We have evolved far enough now that the original intent or interpretation of the Constitution is long gone. When we depart from the rule of law in that sense, there is no longer a compass for making further decisions. Thus, decisions such as Obergefell can be made under colour of law. And everyone supporting such decisions can call it supporting “the rule of law.”


In the judge’s 4 main points, the 2 already mentioned were addressed in a lack-luster manner. First, the issue of Kim Davis’ religious belief was justified away in the mind of the judge. Because he did not have a religious objection himself, he projected his view onto her and essentially put words into her mouth that conflicted with her actual words. In his order on page 22, he said, “Davis repeatedly states that the act of issuing these licenses requires her to “authorize” same-sex marriage.” That is true. She did say that multiple times on the witness stand. Her belief is backed by KRS 402.100: “Each county clerk shall use the form prescribed by the Department for Libraries and Archives when issuing a marriage license….The form shall consist of: (1) A marriage license which provides for the entering of: (a) An authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named;”

The judge then walks out on a limb with his own interpretation of the statute, explaining why he doesn’t think it’s as serious as Davis thinks it is: “The form does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds. It simply asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law. Davis’ religious convictions have no bearing on this purely legal inquiry.” Whether the judge thinks it would violate his conscience or not, Davis says it violates hers. For a judge to brush off her objection as if it didn’t hold water is to subjugate her conscience to his. That is the not way the first amendment was intended in this country. The right of conscience is a personal “free exercise” rather than only protected if it makes sense to a bystander.

Under this reasoning, the judge swept away Davis’ entire first amendment objection, which was the bread and butter of her argument. No legal cases were cited that show how a judge can interpret someone else’s religious belief. No cases depicting the struggle between two constitutional rights. The entire 1st amendment vs 14th amendment case mentioned in the first hearing disintegrated under the judge’s determination that the 1st amendment really didn’t apply very strongly to this case. Thus, we never got a ruling on how it interacts with the 14th.

If there has ever been a question of which amendment trumps the other, the standard of review would look to several factors. Perhaps the clearest distinguishing factor in this case would be the level of harm inflicted on the party if their right was trampled by the other. On the one hand, we have someone’s conscience wounded. On the other, we’re incurring a 30 minute drive. Which is more important? It becomes clear which right trumps the other if one is to be trumped.

The judge’s job in a civil case is to mediate between parties essentially. To legislate from the bench is to depart from the dispute of the parties and start painting new colors with a broad brush. A great example of judges not doing their job is Judge Bunning in his decision to send Kim Davis to jail on the contempt motion. The plaintiffs asked for a fine. The defense naturally would have disagreed to any punishment. The judge ordered jail. Since when was that a mediation between parties? Since when was that serving as a referee in a civil disagreement? Nobody was asking for jail. On his own motion the judge went beyond the scope of the parties in the case to mete out his own idea of justice. Not to mention, the judge said that he wanted to send her there till she changed her mind. If anyone recalls, the Russian KGB sent Christians to psychiatric units until they changed their mind about spreading their faith. It was a form of torture. We have drifted far from being American and respecting differences in this country. There is a way to respect even a felon or a criminal. Kim Davis hasn’t even been charged with any criminal act, so this does not imply that she falls in that category, but serves as a highlight to just how inappropriate this type of treatment is.

A theme we keep hearing is that Kim Davis should do her job. What job are they referring to? The job to follow Kentucky statues? Or the job to follow a federal court ruling?

KRS 402.020(1) says, “Marriage is prohibited and void: (d) Between members of the same sex;” and KRS 402.990(6) says, “Any clerk who knowingly issues a marriage license to any persons prohibited by this chapter from marrying shall be guilty of a Class A misdemeanor and removed from office by the judgment of the court in which he is convicted.”

What is the balance of powers between the state and federal government? It’s found in the 10th amendment. This country was started by the states. All the states together decided to purposefully give up some of their power for the greater union good in certain areas (federalism). These are known as the enumerated powers of the Constitution. The 10th amendment specifically tied a knot in the expansion of Constitutional interpretation. Anything not specifically listed would not be able to be included in federal authority. Fast forward to Obergefell. We have discovered a “new right” which is in essence an expansion of Constitutional authority, and which specifically targets state authority. Whose authority overrides the other? In matters enumerated, the federal has the power. In matters not enumerated, the state holds the power.

So if state law stands, Kim Davis loses her job if she issues the license. If federal court order stands, Kim Davis is pushed out of her job if she does not issue the license. Whose authority should control? That will determine the proper outcome of the ACLU case against Kim Davis.

It is quite perplexing that those associated with the liberty movement would even consider joining the majority in this case for the following reason: (from http://www.marxist.com/religion-and-secularism.htm) “Marxists support the right of all religious people to practice their religion in full. Indeed many of the best class fighters will first come into the movement still carrying the religious trappings of their traditional culture. But Marxists also support the idea of the complete separation of religions from the state and from civil society. Education, government, the courts and all aspects of public service and provision should have no connection at all with religious practice.” What we are dealing with in the promotion of this ideally non-religious clerk is simple furtherance of the goals of communism, which frankly have plenty of traction so as to not need our assistance. http://www.uhuh.com/nwo/communism/comgoals.htm It is important to note this country was not founded by an oligarchy, but rather members of the general population serving part-time as public servants for the benefit of the represented. It appears from the attitude of the founders, having freshly pulled free of the British, that anything coerced on anyone in public life may not have been too well received. Certainly those in private life were the same as those in public service.

The ACLU’s main point to prove was that people waive their first amendment right when they took a public job. There were cases cited to dance around that theme. However, no citation ever specifically handled this situation, specifically of a government elected official invoking their first amendment right in a named duty of office added by unconstitutional authority. In view of court decisions stating that the Bill of Rights cannot be waived either knowingly or unknowingly, it is difficult to stand solidly on two feet with these tedious arguments. While the government can weigh in with an individual employee as far as what can and cannot be coerced when it comes to speech, the arguments came quite short of nailing down the boundaries especially in light of complete absence of Kentucky law and Constitution in the judge’s order (even though it had been discussed at length during the first hearing).

Another sticking point surfaces at this juncture, namely the decision of a federal judge in a state-based case. There has been a growing trend of multi-venue, double-jurisdiction cases, and this only further erodes the mechanics of our nation the way it was intended to operate. The Constitution specifically says in Article III that the judicial power extends to cases arising under the Constitution or the laws of the United States. It does not cover cases of Kentucky law. The judge’s total lack of understanding of the basics of Kentucky law during the hearings, his absence of comment on its details in his order, and his unfamiliarity with marriage licensing as a whole should give anyone pause as to the merits of his decision, not to mention the lack of constitutional authority for federal judges to be deciding cases of state law anyway. And what was the petition in the first place? Was it not related to state law at all? There was such a vague mixing of issues, which seems to also be the trend in court cases, that nobody was ever sure of what relief was really sought and under what jurisdiction. Perhaps because the triggering reason for the case is not a definable law with a chapter-and-verse citation either.

It needs to be remembered that a judge is an attorney. Any attorney could argue for and against any case. It is not some nugget of truth that must be found to create a judgment, but rather a justification of whichever side the judge particularly wants to lean. There would have been equal amounts of evidence on the opposing side to return an entirely opposite ruling. It is a just a shame that we don’t have more people willing to stick their neck out and say what needs to be said in positions of power.

As if we have forgotten our entire history, consider the founding of our own nation. “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people….We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States;…” When there were 56 people signing on, living in 15 different states, somehow that was enough authority to throw off the bad laws of the British. It seems that we have at least 1 still willing to do the same who needs 55 more to help.

A plain reading of the marriage statutes chapter in Kentucky will expose the history of marriage licensing and its completely unnecessary role in government today. There used to be all sorts of tests, verifications, signing off on this and that requirement by a variety of professionals. It has now degraded to a 30-day permission window to have a wedding ceremony based on the honor code. Perhaps the best part of this departure from strong legal authority in this case is that marriage licenses are just about down to the value of one sheet of paper. Authority and meaning are evaporating before our eyes. This may be all it takes to shutter the government’s improper insertion into the family unit in the most fundamental way, that is, ending the cross-jurisdiction of family and government through permission to marry. Once the government is released from the institution of the home, we may have a chance to push it out of other areas of family and build our society back up with the family at the core, free from improperly-placed government interference.

I will leave you with this according to

Thomas Jefferson noticed that the supreme court was out of control in 1800. What we probably need is a re-education on the third branch of government. He said that according to the Federalist, “The judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.”Jefferson gets a bit deep, but describes exactly what we are still seeing 200 years later. “For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scarecrow; that such opinions as the one you combat, sent cautiously out, as you observe also, by detachment, not belonging to the case often, but sought for out of it, as if to rally the public opinion beforehand to their views, and to indicate the line they are to walk in, have been so quietly passed over as never to have excited animadversion, even in a speech of any one of the body entrusted with impeachment. The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law.




2 Responses to “Legal Thoughts on the ACLU Case Against Kim Davis”

  1. Richard Lewis says:

    Do We Need To Pass A Law Defining The Rule Of Law?

    Who has the authority to change the meaning of words?

    In these United States all legitimate government is based on the informed consent of “We The People”!

    The rule of law ceases to exist if a branch of government can change the meanings of words to avoid achieving the informed consent of the governed!

    In 1974 congress ignored the plain meaning of “Congress Shall make No Law” when it presumed to change the definition of “Free Press” with 2 U.S.C. 431 (9) (B) (i).

    We The People were not informed and did not consent to changing the definition of “Free Press”!

    Our failure to defend the definition of “Free Press” emboldened our republics domestic enemies and set the stage for changing the definition of “Marriage”!

    Do we need to pass a law defining the rule of law?

    Rule Of Law: A: constitution or contract can be amended by adding new sections or changing the wording with the informed consent of the contracting parties. No constitution or contract originating in these United States may be amended without the informed consent of the contracting parties or by changing the definition of words!


    Informed Consent:

    If Congress had proposed an amendment to restrict the “Free Press Rights” of natural persons, while extending “Free Press Rights” to legal persons they would have been defeated!

    Please contact me at 502-403-5534 or 503-377-6330

  2. Annie Zachery says:

    I commend your diligence to this editorial and the research and time invested to efficiently write an editorial on this event of major proportions on the future of our 1st amendment rights in the the state of Kentucky.

    Having read it in it’s entirety, I am now on much firmer ground myself with the legal facts to support my emotional feelings. Kim Davis really stepped in the mess created by our country’s misguided attempts to squash the fight taken up by the Christians for their 1st amendment rights to follow their conscious moral compass while performing a secular government duty. I feel that all the bases were covered and after reading this, I realize that the judge really muddied up the water in his interpretation of settling the dispute between the parties; instead adding insult to injury in this case.

    It is now more apparent to me than ever, that we have a great system of checks and balances, but we do not have fully informed judges or citizens, or even deputy clerks in our state offices. Had all of the deputy clerks under Kim Davis felt as sure of their positions and the laws they are to follow in their duties, they would have stood with her and refused to follow the judge’s orders as well. The fear of jail for contempt was too much of a big stick by a federal judge for them to defy. Kim Davis from somewhere, whether her heart, her knowledge, or her simple faith and beliefs was surely the recipient of good counsel from somewhere.

    As Christians, as fellow citizens, we are all tested at some time. Kim Davis past her test.

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