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The Law of the Land is the Law of the Land

gay-marriage

There’s a lot of pandering and outright nonsense in the wake of the Supreme Court’s legalization of gay marriage.

Perpetual presidential candidate Mike Huckabee went on the Sunday shows and declared that he would refuse to enforce the decision were he elected. Coming from a former two-term governor of Arkansas, that’s embarrassing. Still, one can dismiss it as stump speech bravado from a has-been desperate to connect with the social conservative base of his party.

More shockingly, the sitting Attorney General of Texas has issued a bombastic press release declaring the ruling ”lawless” and stating that “County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses” and that “Justices of the peace and judges similarly retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections.” While simultaneously allowing that “The strength of any such claim depends on the particular facts of each case,” he declared that “numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”

This is not only nonsense from a legal standpoint but dangerous coming from a state’s chief lawyer. While religious officials undoubtedly retain the right to refuse to conduct  and private business owners arguably have the right to refuse to accommodate same-sex marriages, it’s simply absurd to argue that state employees have the right to refuse to follow the law of the land on religious grounds.

While I’m sympathetic to his position that “the United States Supreme Court again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist,” there’s no question that its ruling is binding on the United States government and those of the several states. It would create quite a burden, indeed, if exercising one’s Constitutional rights required finding state and local officials who didn’t object.

Thankfully, most of the Republican candidates are taking the responsible position. Ohio Governor John Kasich said, “I believe in traditional marriage, but the court has ruled and it’s time to move on.” Even Louisiana Governor Bobby Jindal, who’s on the far right religiously, was unequivocal on the matter, declaring, “We don’t have a choice. Our agencies will comply with the court order.”

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Liberal Capitalist says:

    Not enough popcorn to go around… so many candidates vying for a platform that has shifted.

    Like watching a comedian fall on his butt after the chair is pulled away.

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  2. Lenoxus says:

    In a way, the ones who aren’t fighting it are being more inconsistent. Remember that the sky was supposed to fall? One could grant that this is the law of the land while still refusing to support it on the grounds that “God’s law” trumps it, or something.

    That said, accepting the decision is the smarter approach not only in the short term, but for the long-term purpose of rewriting history so that it was always Republicans fighting for gay rights against homophobic Democrats.

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  3. OzarkHillbilly says:

    I had no idea that having a gov’t job was a religious right. The things I learn here.

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  4. Argon says:

    Huckabee can wrap himself in the Confederate flag while he’s at it.

    This is a pretty conclusive demonstration that he’s not in the race to become President. There’s no way to win with that position.

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  5. Ron Beasley says:

    Juan Cole wonders how these jokers get the idea that it is gawds will that marriage is between one man and one woman since in the old testament polygamy was the norm and it is not mentioned in the new testament.

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  6. JohnMcC says:

    Here’s a little question that’s bothered me for months — since the business of SSM came up lately. What is the meaning of the marriage ceremony conducted by those county officials and justices of the peace compared to the marriage license that they issue?

    When I got married (both times) getting the license seemed like the necessary connection with the gov’t and the ceremony like a great big public display for friends, family, community, etc. I might be sympathetic to a Clerk of the Court or such who wished to avoid performing the rite; refusing to grant a license would seem frankly illegal.

    Is the AG of Texas confused? Am I? Does the controversy have such strong centrifugal force that two separable things being sucked into it together?

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  7. OzarkHillbilly says:

    @Ron Beasley: Linky no worky. As to where they got the idea, Anita Bryant was conversing with a burning orange tree and amongst the things it told her was that marriage should only be between a God fearing Republican man and a G-F Republican woman.

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  8. Kylopod says:

    @Ron Beasley: Polygamy is still practiced today in America (illegally, of course) among certain religious groups such as Mormon fundamentalists. One of the ironies of the “religious freedom” argument offered by SSM opponents is that it actually opens the door to polygamy much more than SSM does.

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  9. JohnMcC says:

    @Argon: It seems Gov Huckabee is just a little too slick for the rebel flag brouhaha to trip him up. I’d thought ‘what fun to find a picture of Gov H actually wrapped in the flag’ and used the google only to discover that “Huckabee won’t be ‘baited’ into Confederate flag debate” according to the Fox “News” site. And by claiming that as President he would “refuse to enforce” the ruling he is playing on the right-wing complaints about the administration’s ‘prosecutorial discretion’ such as the ‘dreamers’.

    Huck is pretty quick for an old country boy.

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  10. dmhlt says:

    @Ron Beasley:

    Somehow the “l” in “html” of your hyperlink was dropped.

    Try this one:

    http://www.juancole.com/2015/06/biblical-marriage-between.html

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  11. Ron Beasley says:

    @Kylopod: We will try it again

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  12. stonetools says:

    I’m hoping the Republican presidential candidates follow the Texas AG’s lead and double down on the crazy. We Democrats need as big a landslide as we can get in 2016.

    That said, accepting the decision is the smarter approach not only in the short term, but for the long-term purpose of rewriting history so that it was always Republicans fighting for gay rights against homophobic Democrats.

    The rewriting is well under way. Did you know Bill Clinton signed DOMA? As to which party introduced the bill and pressed hardest for its passage? Hey, who can remember these things?

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  13. Hal_10000 says:

    It’ a public job and we live in a secular state. If you have a moral problem with conducting sam-sex marriages, quit your job.

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  14. Jen says:

    Even Louisiana Governor Bobby Jindal, who’s on the far right religiously, was unequivocal on the matter, declaring, “We don’t have a choice. Our agencies will comply with the court order.”

    Jindal must have calmed down considerably then. On Friday The Hill posted a piece wherein he’s quoted as saying:

    “The Supreme Court is completely out of control, making laws on their own, and has become a public opinion poll instead of a judicial body,” the 2016 contender said in a statement.

    “If we want to save some money, let’s just get rid of the court,” Jindal added.

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  15. Tlaloc says:

    I have no problem with pharmacies or even government offices allowing employees to opt out of services they personally object to SO LONG AS that organization guarantees to always have individuals on duty who will do the job (and is liable if they fail). Then the burden is simply on the employer to figure out scheduling difficulties and to decide if they really want to employ someone who won’t do part of their job.

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  16. James Joyner says:

    @Jen: Jindal was being hyperbolic in expressing a sentiment that many people have when the court reaches a decision they don’t like, especially one where they write into the Constitution something that was never there previously. President Obama has made similar pronouncements, in office, when SCOTUS rules against him. The key isn’t liking the court or even showing it proper deference (although I think presidents should do the latter) but obeying the rule of law.

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  17. Joe says:

    Even Jesus had a better understanding of state action than the Texas AG. When asked whether it was appropriate for G-d-fearing Jews to pay taxes to Rome, He said, “whose face is on the coin?”

    A state marriage license is not (or certainly should not be) a religious statement. If people don’t want their faith communities to bless certain marriages, that is their First Amendment right. If people want to use their state authority and state action to advance their religious beliefs they are confused and acting against the Constitution as it has been duly interpreted.

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  18. Ron Beasley says:

    @dmhlt: Thanks

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  19. wr says:

    @James Joyner: ” President Obama has made similar pronouncements, in office, when SCOTUS rules against him. ”

    Boy, I’d like to see a cite for when Obama said anything like “We should get rid of the Supreme Court” after an adverse ruling…

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  20. Scott says:

    @Ron Beasley: You know, when they talk about marriage they talk about holy matrimony between one man and one woman. They really have restricted the marriage space to Christian marriage. I’m surprised that hasn’t been called out. They are also saying that Jewish, Islamic, Buddhist, atheist marriages are not valid either.

    Of course, the whole argument is based on a ton of false information.

    http://thinkprogress.org/wp-content/uploads/2012/08/Biblical-Marriage-Infographic.jpg

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  21. Scott says:

    More shockingly, the sitting Attorney General of Texas has issued a bombastic press release declaring the ruling ”lawless”

    What is shocking is that Ken Paxton is AG at all. His qualifications are weak. He’s had Security Act violations and is still under investigation for financial matters. AG is an elected position and in Texas the qualifications for any position is ideological correctness.

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  22. C. Clavin says:

    @James Joyner:

    President Obama has made similar pronouncements, in office, when SCOTUS rules against him.

    Really? That we should de-fund SCOTUS? I’d need to see a link for that.

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  23. Neil Hudelson says:

    The Texas AG is right that the clerks have a right to refuse to do a ceremony.

    The state also has a right (and duty) to summarily fire them.

    And if they don’t, citizens have the right to sue the state for all of the money.

    I don’t think the Texas AG has thought through those last two parts.

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  24. Scott says:

    I’m waiting for the situation where a County clerk or JP engages in some action contrary to the direction of the AG and then claims religious freedom. The exposure of hypocrisy should prove amusing.

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  25. James Joyner says:

    @wr: @C. Clavin: Obama has made some bombastic, grandstanding remarks about judicial activism after decisions he didn’t like and to poison the well ahead of close rulings that actually went his way. No, he hasn’t called for the abolition of the court.

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  26. Gustopher says:

    The Texas AG’s press release says:

    Justices of the peace and judges similarly retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections, when other authorized individuals have no objection, because it is not the least restrictive means of the government ensuring the ceremonies occur.

    Unless I am misreading that, it means the employee does have to be involved if they save religious objections, AND there is someone else who can do the work. That seems like a reasonable accommodation for someone’s religious beliefs.

    The rest of his press release is kind of ridiculous and over the top, but the part that has meaning seems pretty reasonable.

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  27. Sonya says:

    @Ron Beasley:

    Obviously you’re clueless when it comes to “gawds” Word..yeah cute by the way. If you had an OUNCE of understanding of the will of GOD..you’d back down off your high and mighty horse. And trust me you WILL…you’ll be on your knees come Judgment Day.

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  28. OzarkHillbilly says:

    @Sonya: Boy are you going to be disappointed when the inevitable day comes and you find…. Nothing.

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  29. CB says:

    @Sonya:

    Can I subscribe to your newsletter?

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  30. Kauf Buch says:

    What GARBAGE!
    Imagine prattling on about how “the law is the law” about
    the DRED SCOTT decision.
    (Democrats LOVED that one, too…)

    What moronic nonsense the author is attempting to pass off as “thinking”!

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  31. Xenos says:

    @Ron Beasley:

    Juan Cole wonders how these jokers get the idea that it is gawds will that marriage is between one man and one woman since in the old testament polygamy was the norm and it is not mentioned in the new testament

    The answer is obvious – these idiots are as ignorant about the bible and the Christian religion as they are the constitution and legal history. Bumpkins, grifters, and fools, all of them. Certifiable idiots. Morons.

    You shall know the tree by the fruit it bears. In this case, the conservative movement is essentially a moron tree.

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  32. Xenos says:

    I was just a kid when Loving v. Virginia came down. Does anyone here know of clerks refusing to issue marriage licenses and certificates to mixed-race couples?

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  33. JohnMcC says:

    @Kauf Buch: But you see, my friend, the Dred Scott decision WAS the law of the land after 1856. If a fine Christian like yourself had harbored an escaped slave and been caught doing so he WOULD have been prosecuted and might well have suffered crippling fines and jail time. Is it your idea that the County Court Clerk should risk prosecution, civil suits and all the risks associated with that? Dr King, Gandhi and various other saintly people would applaud. The nice lady in the courthouse might not think that’s such a great option.

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  34. Xenos says:

    I guess I should have googled.

    Here is one example, and I expect there were many more.

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  35. JKB says:

    @Argon: Huckabee can wrap himself in the Confederate flag while he’s at it.

    Huckabee is not a Democrat, so why would he wrap himself in a symbol of the Democratic party from 1861 to 1965?

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  36. Xenos says:

    @JKB:

    Um… never mind
    Not worth a response.

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  37. OzarkHillbilly says:

    @JKB: I’ll take a stab: Because you are an idiot?

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  38. Lenoxus says:

    @JKB: Here’s a more serious response.

    Can this pleeease be the Republicans’ new line of argument? “The Confederate flag represents treason in defense of slavery… committed by Democrats!” (Proceed to burn Confederate flag and a Democratic seal.)

    It would help us all heal.

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