“But when, as it is true we find it (Dred Scot decision issued by the Supreme Court in 1857) wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country…” Abraham Lincoln explaining why states were not bound by the “Dred Scot” decision of the Supreme Court.
Kentucky Clerk of Court, Kim Davis, who refused to issue gay marriage licenses even after the recent Supreme Court ruling, has become a symbol. As a public official, who took the oath to support the Constitution, Kim’s refusal to issue same-sex marriage licenses seems a violation of that oath and therefore a lawless villain to many on the Left. However, to many who believe the Supreme Court was lawless in disregarding the 9th and 10th Amendments (using a twisted interpretation of the 14th Amendment), Kim Davis is a hero. Also symbolic about Kim: As someone claiming to be “born again” to Christ in recent years, Kim’s life story before becoming Christian would seem to contradict her firm belief in traditional marriage. Yet, Christians are hailing Kim Davis as a modern day martyr and the epitome of living God’s Word and not a hypocrite. Villain or Hero? Lawful or lawless? Hypocrite or sincere? Where to with start with the paradoxes?
First, is to recognize that Kim’s case is not a simple one of a public official purposely breaking a valid “law” due to personal conviction. If that were the case, one would have to question the motivation of seeking appointment to a government job in which the offending law was valid. Kim Davis was elected Clerk of Court prior to the recent Supreme Court decision, and after the people of the state of Kentucky (under 10th Amendment power of states to define marriage), had voted overwhelmingly in favor of prohibiting homosexual marriage. Since Kim Davis was elected, she did not have an executive “boss” to issue her an lawful executive order. She was answerable to the people, who had made their wishes known at the ballot box.
More important to this case, the legislature of the State of Kentucky had not yet changed the laws of Kentucky after the Supreme Court decision. Arguably, the law prevented Ms. Davis from issuing marriage licenses to homosexual couples. By Article III of the Constitution, the Supreme Court is granted power over “cases and controversies”, but is not granted the power of lawmaking. The Supreme Court is Constitutionally authorized to issue Orders for the specific cases they hear. However, the Court cannot make binding law applicable to all like the Legislature is enabled. The Court issues “opinions” about the constitutionality of certain issues. Courts persuade lawmaking bodies to submit to Constitutional holdings through the power of their written opinions. The concept of “Judicial Review”, the Supreme Court having the final say on “all” Constitutional matters, is, itself, a holding of the Supreme Court from Marbury v. Madison. An opinion setting precedence for opinion.
The extreme of Judicial Review was never made part of the Constitution, and was disregarded by various historic figures, particularly in the 19th century. Andrew Jackson famously stated of an 1832 Supreme Court decision in which he disagreed: “Chief Marshal has made his decision, now let him enforce it”, while claiming the opinion had fallen “stillborn” on Georgia, the state at the center of the decision. Jackson similarly opposed the Court’s opinion about the national bank, and reiterated his duty to interpret the Constitution when clear on its face.
Abraham Lincoln famously disagreed with the 1857 “Dred Scot” opinion, holding slaves were not legally recognizable human beings and not able to petition for their freedom. Further, Lincoln did not feel states should be bound by the decision: “If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent. But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country… ” In fact, Lincoln argued that the Court’s decision was only lawfully binding on the parties in Dred Scot, and not the Federal or State governments.
Similar to what Lincoln warned, the Court’s 5-4 gay marriage decision (particularly with the court holding “behavior” as a protected category under 14th Amendment “equal protection” precedence for the first time) has little “public confidence”. Kim Davis had reason to wait until the Law-making body, the Legislature, had enacted new law, as it is arguably possible that might not happen.
In addition to lessons about the Constitution from the Kim Davis matter, many are learning of the grace of Christianity. The Left has been vicious in their personal attacks on Kim Davis, due to her three divorces prior to becoming a “born again” Christian in recent years. The Left has charged Kim Davis with no moral authority to hold back marriage licenses to homosexuals, and have gone so low as to ridicule her appearance. The personal attacks on social media are unprintable. Yet…. Christians are unfazed by the charge of hypocrisy against Kim, and defend this seemingly “sinful” woman.
Interestingly, Kim’s checkered past prior to coming to faith in Jesus Christ is the perfect example of the power of the Gospel. Christians hold to stringent moral standards as set forth by Jesus (particularly Matthew 5-7), and many multi-generational Christian families have few divorces or other such obvious seeming moral issues. However, all Christians are reminded of the Truth of the Gospel in someone like Kim Davis. She is the standard of the transformed lives of many of the early Christians, and what Christians pray for other “sinners”. The Apostle Paul was formerly a zealous Christian-hater and persecutor named Saul. Many of the women who came to follow Jesus, like the woman at the Sychar Well (multiple prior husbands and cohabiting out of marriage) and Mary Magdalene came to Jesus and became transformed to the new moral standard. This is the power of the Gospel, and not a source of embarrassment. Those transformed have all the moral authority necessary through what Jesus did on the cross.
Kim Davis went from the multiple divorces to a “new creature” willing to lose her job and go to jail for what she believes to be God’s Word about marriage. No hatred for other “sinners”, as true Christians are the first to understand “all have sinned”. Kim’s statement before going to jail sums up her heart of following Christ and showing love, even while attempting to hold to his standards on marriage: ” I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s word.”
Hopefully, the example of Kim Davis will bring transformation to many in American. Both in our understanding that the Supreme Court is co-equal, and not above all others, and as a reminder of the grace of transformation in Christianity. America is in desperate need of transformation in this day and age, and this might just be the catalyst.
God Bless America,
By: Bill Connor
Lieutenant Colonel Bill Connor of Orangeburg SC is a decorated 25 year Army and combat veteran. He is an expert in counterinsurgency combat. Connor spent 12 years (1990 – 2002) of full time service as an Airborne Ranger, holding various commands such as Ranger Company Commander and General’s Aide. Connor recently made the Colonel’s List and will soon take the official rank as full bird Colonel. Since leaving full time service, Connor has continued to serve in the National Guard (2003 – 2008) and has served in the Army Reserve 2008 – present.
Connor volunteered for combat duty in Afghanistan where he served as Senior US Advisor in Helmand Province and American military liaison to British forces in Afghanistan. For his service during deployment, Connor was awarded the Bronze Star. He currently is Director of the Army’s Command and General Staff College (ILE) in S.C., and is a member of the U.S. Counterterrorism Advisory Team.
Connor, along with partner W. Thomas Smith Jr. founded National Defense Consultants LLC, a partnership providing clients with military analysis ranging from geostrategy to special operations; counterterrorism; ground, Naval, and air combat; military leadership and military law. Connor is also the author of the book “Articles from War”
Connor is a graduate of The Citadel and the University of South Carolina (USC) School of Law where he earned a Juris Doctorate degree. He is an attorney and Law Partner for “Horger and Connor, LLC where he has earned an “AV Preeminent” rating, the highest peer evaluation rating of ethics and ability for an attorney practicing law in the United States.
Connor is a former candidate for the US Senate, (2014) as well as having run for S.C. Lieutenant Governor (making the runoff election in the Republican primary 2010.) Connor also served as National Security Advisor for presidential candidate and GOP nominee runner-up Rick Santorum, and currently serves as National Director for the Ted Cruz for President military coalition – Veterans for Cruz.
Connor formerly served as GOP Chairman for South Carolina’s sixth district and Chairman of the Board of Orangeburg Christian Academy.
Connor has been a contributing author for The South Carolina Conservative Dot Com since 2012.