by Brendan Beery
The Kim Davis story isn’t the gift that keeps on giving; it’s a sort of mule-animal that won’t stop shitting.*
There is a remarkable legal fallacy emerging from the right, and Mike Huckabee is running with it:
The argument goes like this: Kim Davis is not breaking the law because there is no law on the books in Kentucky that compels her to issue marriage licenses to gay people; although the Supreme Court has ruled in favor of gay marriage, Kentucky hasn’t had a chance – or the inclination – to codify (that’s fancy law-speak for give effect to) that ruling. And since Kentucky hasn’t passed a new law telling Kim Davis what to do, why, what is she to do but keep enforcing the old law? The poor dear languishes like a helpless toddler who’s been ordered to change her clothes without being told what clothes to change into.
(This argument ignores that Davis is not in jail for violating a written law, but rather for ignoring a written court order that tells her exactly what to do: issue the licenses. But let’s proceed anyway.)
Huckabee is right about this: generally speaking, courts do not make laws; they interpret laws. What Huckabee seems not to understand is that one of the laws courts interpret is the United States Constitution. Huckabee thinks that only statutes passed by legislators are laws; he doesn’t know that the Constitution is itself law.
To be fair, many people, when they conceptualize what a law is, probably default to Schoolhouse Rock: a law is a thing that started as a bill but then passed both houses of Congress and was signed by the President (or, in the case of a state, passed through the Legislature and was then signed by the Governor):
But Schoolhouse Rock isn’t the whole story. Although some laws are passed by Congress or state legislatures, other laws are superior (or inferior) to those laws. The Constitution, as one might expect, is superior law. The Constitution itself says, “This Constitution … shall be the supreme law of the land …” Pretty clear, no?
It so happens that one part of that Constitution provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Like so many legal rules that get mangled by right-wingers, this law isn’t that complicated: hey states, your statutes and policies can’t treat some groups worse than other groups for no good reason. The Equal Protection Clause might as well say, “Stop being a dick.”
But Davis and Huckabee are confused by a Supreme Court order that tells Kentucky, collectively, to stop being a dick. They await further instructions. Well too bad, because that’s not how it works.
Courts don’t propose new legislation; they strike down existing legislation. And that’s the end of it. So, to comply with a court judgment finding a state’s legislation unconstitutional (unlawful), a state doesn’t start enforcing new laws; it stops enforcing old ones. The Supreme Court’s order doesn’t require Kentucky to codify same-sex marriage; it requires Kentucky to stop applying laws that ban same-sex marriage. Rocket science, this.
The Supreme Court traffic signal is never green. It’s either yellow (that’s called a “stay”), red (that’s called a “judgment”), or nothing at all. And when it’s red, you can’t drive through it on the ground that it commands you to stop without telling you where to go next. The Supreme Court doesn’t give a shit where you go next so long as you stop going where you’re going.
So here’s some guidance for Kim Davis: you need not countenance, approve of, celebrate, or recognize the fabulousness of marriage licenses for gay couples. All you must do is stop denying marriage licenses for gay couples.
Got that, Kim? Got that, Huckabee?
*The reference is to Thomas Paine, Rights of Man: “By engendering the church with the state, a sort of mule-animal, capable only of destroying, and not of breeding up, is produced, called, The Church established by Law. It is a stranger, even from its birth to any parent mother on which it is begotten, and whom in time it kicks out and destroys.”