Most liberals and even some conservatives are arguing that Kentucky county clerk Kim Davis must either issue marriage licenses to same-sex couples or quit her post. Where you stand on this issue too often comes down to a case of where you stand on the question of whether same-sex nuptials are now “the law of the land” because Justice Tony Kennedy and four of his black-robed cohorts say so.
Setting aside that thorny question for a moment, let’s look at some other “law of the land” issues that are being skirted. Let’s start with a treaty. The United States and scores of other signatories have each ratified the Non-Proliferation Treaty (NPT). The purpose of that treaty is to prevent signatories that are nuclear weapons states (NWS) from transferring or aiding non-nuclear weapons possessing states (NNWS) in developing those weapons. And for those nations presumed to have nuclear weapons (India, Pakistan, and Israel) but which have not signed the treaty, they are understood to be complying with the non-transferral provisions of the NPT.
The President of the United States takes a formal oath “to preserve, protect, and defend the Constitution of the United States.” He is also charged with the duty to “take care that the laws be faithfully executed.” Article VI, Clause 2 of the Constitution states that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made…shall be the supreme law of the land.”
There’s that pesky “supreme law of the land” phrase again. Since the beginning of the Obama administration, the President and his Secretaries of State (Clinton and Kerry) have been working to undermine the Non-Proliferation Treaty. They have been seeking ways to bring Iran’s lunge for nuclear weapons under some elusive form of international control. Iran has been under sanctions precisely because the Mullahs of Tehran have been openly flouting the NPT. And now, with this atrocious “Iran deal,” the U.S. is aiding them! We have conceded that Iran may get nuclear weapons after a ten-year period. But this concession is itself a violation of the Non-Proliferation Treaty.
By a bold and daring sleight-of-hand, President Obama has declared unilaterally that he can overturn a ratified treaty by Executive Agreement. Tragically, many U.S. Senators felt constrained to go along with his defiance of the text and spirit of the treaty. The Corker-Cardin bill was put forward as a last-ditch attempt to give Congress some oversight of the Iran nuclear dealings of this administration.
Sens. Marco Rubio (R-Fla.) and Tom Cotton (R-Ark.) have sought to amend Corker-Cardin to required Iran at least to recognize Israel’s right to exist. When that attempt failed, only Tom Cotton voted against the Corker-Cardin bill on final passage. Senate Majority Leader Mitch McConnell (R-Ky.) says he will continue to press to require two conditions for lifting of U.S. sanctions against Iran: One, that Iran recognize Israel’s right to exist, and Two, that Iran free the U.S. hostages they currently hold, including most significantly, Pastor Saeed Abedini, a persecuted Christian. Arkansas’ Tom Cotton is the only current senator who has served during this war on terror and has seen the results of Iran’s murderous attacks on our troops in Iraq. He is surely right to resist the administration’s heedless plunge into uncharted waters.
We all should know about this administration’s cavalier defiance of the Defense of Marriage Act. President Obama announced early in his administration that he would not enforce that law. This 1996 act had been overwhelmingly passed by Congress and signed by President Bill Clinton. That law could have passed both Houses without a single Republican voting for it. Long before the Supreme Court unconscionably overturned this essential piece of legislation, the Obama administration failed in its duty to defend it and to enforce it.
State constitutional amendments protecting marriage similar to the federal Defense of Marriage Act had been approved in 32 states over the decade. Fifty million Americans voted in those referendums.
The U.S. Supreme Court—in another act of “raw judicial power” akin to the infamous 1973 Roe v. Wade ruling that overturned the homicide statues of all fifty states—has recently issued a ruling saying marriage is whatever the Court says it is.
The influential Princeton constitutional law professor Edward S. Corwin famously wrote in The Higher Law Background of the American Constitutional Law that the law “cannot make a man a woman.” But Tony Kennedy unconvincingly thinks he can.
By the narrowest of margins (5-4), and citing nothing in the history or text of the Constitution itself, the majority in Obergefell last June overturned thousands of years of societal norms and engaged in the worst instance of voter suppression in American history.
Similarly, this President has flouted U.S. immigration laws. He has turned a blind eye to so-called Sanctuary Cities, where liberal ideologues flagrantly defy “the law of the land.”
There are and must be many ways to protect the conscience rights of public officials. Military doctors and nurses—and many others in the healing professions—have long enjoyed conscience rights not to take part in the destruction of innocent human life. Doctors have successfully lobbied in many states for the right not to take part in lethal injections in state prisons.
Surely, a free republic can find the means to exempt conscientious objectors from having either to violate their beliefs or quit the offices to which they were elected. We are seeing in the Kim Davis case—and in a host of cases of Americans being conscripted into the gay pride movement—a dangerous assault on liberty.
Shall we be ruled by the Supreme Court and only the court? President Lincoln did not think so. With all due respect he told the Supreme Court justices of his day, Lincoln believed they could not overrule the American people. In his first Inaugural Address, he said:
And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
We all should stand with Lincoln on this one, and seek accommodation of conscientious objectors First Amendment rights as we go forward. We thank Kim Davis for having the courage of her convictions. That’s why the Family Research Council will proudly salute Kim Davis at next week’s Values Voter Summit.
Ken Blackwell is a senior fellow at the Family Research Council and the American Civil Rights Union, and on the board of the Becket Fund for Religious Liberty.