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[Bauglir]

The Courts had not issued a judgment on the matter when illegal certificates were issued, but they had when this clerk illegally withheld certificates. Truean has the legal principles correct, as might be expected of a lawyer. Yes, it's technically the case that you can do stuff like this in the hope of getting the Supreme Court to override a past ruling of theirs but when the decision was made by the same Court that currently sits, within the past year, it's so practically the definition of frivolity that it could be used in a textbook.

[Rolan7]

She wanted this to go back to the courts (which is ridiculous, considering the previous Supreme Court ruling).  So she got standing by breaking the law.  Then, despite all reason, her case actually *did* make it back to the Supreme Court.

It shouldn't have, but it did.  And I don't see how her case is inherently different from what the people on the other side did.  Except that her case was trivial, and should have been thrown out or handled in a lower court.  But apparently the justice system thought that it was worth hearing, for "some reason" (Christian privilege, as I've said).

[Bohandas]

It did make it back to the Supreme Court, though.  Which it *shouldn't* have because they already decided, so this was a massive waste of time.  But I guess she was trying to get another day in the highest court of the land, and got it.

Where did you hear that? That wasn't in any of the articles i read about it.

[Rolan7]

That the Supreme Court itself made a fresh ruling against her?  Not sure if this was one of the original linked articles, but it was linked off the most recent one:
http://news.yahoo.com/reckoning-nears-clerk-resisting-same-sex-marriage-ruling-202230268.html#

[Wolock]

You missed that one : http://news.yahoo.com/clerk-issue-gay-marriage-licenses-court-ruling-083217111.html#

The SCOTUS ruled against her yesterday and today she defied the ruling.

[Rolan7]

Oh, cool.
I hope she gets a massive fine or something, what a nutjob.

[WealthyRadish]

My main point by mentioning the earlier clerks was that it seemed to me that you were opposing her use of her official position for political activism in this way, and that by mentioning other clerks who did the same thing on the opposite side of the issue, it might suggest a bias. Of course it would be silly if the Supreme Court reversed its ruling after two months, but you said yourself in the original post that Davis doing this could end up furthering the "religious liberty" proponents' goals, through her being a martyr and all that, so it was still political activism (though you're right, it's not the same as trying to get a case ruled on by a higher court).

[Truean]

Ok, let's presuppose you're possibly valid here and work from there. Also, thank you for being nice in the last post. That said, "structure" or HOW you reach conclusions matter. Let me try this....

What I believe you are attempting to say is something like:

Clerk A = Gay marriage issuing clerk
Clerk B = Her.

If Clerk A is doing X to further a political cause, then Clerk B doing X for similar reasons is reasonable.
Note: as you've thankfully acknowledged, there's a difference between doing that to start a lawsuit v. doing it to disrespect the law. Ignoring this fact so we err in your favor.... Here's where that breaks down.

Assuming for the sake of argument that the following is deemed valid:

I.) Both "Gay Rights," and "Religious Liberty" are valid and opposing causes people can legitimately further (I don't believe this, but if we assume I do for argument's sake).
II.) One can use one's political office for the furtherance of said causes.
III.) We are ignoring the previous "Standing" argument for this post's argument purpose only.

Assuming Also the following are principles to be followed when possible:
i.) harm avoidance, 
ii.) harm mitigation,
iii.) consistency,
iv.) practicality.

then it still doesn't work well.

Even assuming "I," "II," and "III" are true countervailing principles still invalidate her actions being reasonable. Namely, "i," "ii," "iii," "iv," cast doubt on the reasonableness of Clerk B's actions, when compared with Clerk A. Clerk A's actions did not directly harm anyone, because issuing a marriage license is not a form of direct harm, whereas denying one is under "i." Clerk A's actions required no mitigation as there was no harm, whereas Clerk B's did and she failed to provide it (lessen the harm she did, under "ii." This brings us to consistency  under "iii," Clerk B isn't (Ignoring that she's been divorced multiple times); namely, she is denying marriages to ALL people, both gay and straight, which goes to "ii" (mitigation, she's hurting straights too). Finally, "iv" practicality also makes her unreasonable, as she knows there is no way any of her actions will legitimately advance her cause, as say ... legislative, lobbying, or or literary action might. All her actions will bring nothing but unmitigated pain and harm with 0 chance of accomplishing what she wants, and probably backfiring on her cause, badly.

Now, you could structure a counterargument against what I just said, perhaps as follows: Counterargument example.

"But Truean, by drawing attention to her cause, showing resolve to galvanize support, getting resources aligned, and providing a spokesperson, she's taking the preliminary steps towards bolstering and perhaps taking legislative, lobbying or literary action to further her cause." Also, she's not providing marriages to anyone in an attempt to show impartiality to both gays and straights. She may have a more difficult tactical position to advance, but she's taking steps she believes will advance it as best she's able."

You see how that works? and now the counter to the proposed counterargument:

Even so, harm, equally done to gays and straights, is still harm. The harm's distribution isn't in question, it's depth and severity is.  She's done nothing to alleviate the harm her actions have generated, and has actually worsened it by refusing to let any OTHER clerk (who doesn't have an objection) perform the lawful order, (even for the straights). She also hasn't referred the straights or gays to another county or resource. Thus, her actions have made everything exponentially worse, and needlessly so. There are so many more effective ways to get "Religious Liberty" bills passed that don't cause nearly as much harm, and some states have recently passed such laws (LA, Ark, etc), without these types of shenanigans, and certainly without thumbing their nose at a court order. She's refused any and all attempts to accommodate her at her job and instead demanded that she control US law and policy, while harming others....


See the difference? See what I did there? I actually provided a reasonable argument, counterargument and counter to that counterargument, as opposed to straw-man arguments. See, this is why structure matters and why the lack of it hurts people so much. I do a couple of absolutely critical things for a reasonable discussion that everybody seems to have completely forgotten how to do these days, a.) I presuppose you may be a halfway decent individual instead of some monster opposition or cartoon villain. b.) I presuppose things are in your favor and fight from there to error on your side and still win, giving more credibility to my argument, because it takes pains to be fair to your side of it.

The internet, and life, needs more of that.

[WealthyRadish]

I wasn't particularly keen on this discussion, since we're in agreement on pretty much everything, but this is actually looking to be more fun than I thought.

Accepting the format of your post as well as principles I-II (not disregarding the argument for the need for "standing" in court procedures) and i-iv providing the basis for preference for Clerk A over Clerk B, I believe you've missed a few key arguments against the actions of Clerk A (some of which also apply to Clerk B). I'm assuming by "harm avoidance" you mean the immediate practical consequences of a protest or action, while "harm mitigation" is the reversibility of harm done and longer term progress gained for either side's agenda.

On harmfulness of Clerk A:
When both Clerk A and Clerk B take political action, either through halting licenses or giving illegal licenses, they are both violating their apolitical position as a minor administrator. In Clerk A's case this is through breaking the law, while in Clerk B's case it is by failing to execute her official duty (for which she is being sued separately from her Supreme Court appeal that was dismissed). When an official holding a purely administrative position (even if elected) decides how the law is to be executed or willfully breaks it, he or she stands to weaken confidence in the law and its execution while encouraging a dysfunctional political system in which the execution of a lawful state or federal policy is subject to an office as low as the county clerk. If this kind of political action were widespread, counties all over the United States could be left a patchwork of violations for issues beyond gay marriage, with state and even federal law left to the (temporary) executive whim of any politically inclined clerk.

Because both Clerk A and Clerk B's actions contribute to this, it only strengthens Clerk B's relative standing in the sense that Clerk A's position cannot be considered completely harmless, while both Clerk A and Clerk B's positions are weakened and the argument for clerks not taking political action in general strengthened.

Further, when considering Clerk A's harmlessness, I believe your argument doesn't fully take into account the conditions under which Clerk A issued licenses. It can be said that no harm was done now, retrospectively, because Clerk A's action succeeded in court and was later affirmed by the separate Supreme Court ruling. But had Clerk A's case failed and the issued same-sex licenses been revoked, more harm would have been done in their revocation than there was benefit in their brief issuance, however unstable the recipients knew them to be.

...

Principle III of your argument is that the need for "standing" in a lawsuit can be ignored, but I don't believe this is necessary. The need for standing to bring a case through the courts is true for both Clerk A and B, but I would actually argue that the need for standing is a stronger force in favor of Clerk B's position against gay marriage than Clerk A's position for it. For a lawsuit to be brought in favor of gay marriage, Clerk A does not need to issue illegal licenses so as to provoke a lawsuit and in the process violate his or her position as county clerk. It is enough for a same-sex couple to apply for a license, be rejected under the law, and use this as standing for a lawsuit. Under these conditions, the clerk would not cause any of the harm associated with breaking the law, while the case would be functionally identical in strength.

For Clerk B's position, however, standing for a lawsuit is much for difficult for any party to get, since it has the unfortunate predicament of arguing for the denial of people's rights rather than for equality. It speaks to the weakness of arguments against gay marriage that this is the case, since it really has no effect whatsoever on heterosexual couples that could be used to gain standing in a lawsuit (but hey, I don't agree with the lady, I'm just getting paid to defend her). The main point being, the county clerk is one of the few people among the government and citizenry that can take such a political action, gain standing, and bring a case against a law allowing gay marriage (the others being legislators who can enact whatever laws they can get passed until they're struck down by the courts).

(I don't actually know if the above paragraph is a legitimate argument, but it sounds like it might be, so good enough right? If there have been lawsuits challenging laws permitting gay marriage that weren't dismissed, how did they gain "standing" anyway? It seems impossible to me, unless you do happen to be in a position to provoke a lawsuit as a clerk like Clerk B. Does "my religion says gays can't marry, so this offends me even if it has nothing to do with me" count as personal standing?)

The rest of your arguments I accept. It's for these reasons that my opinion is that neither Clerk A nor Clerk B is justified in choosing to issue or halt issuing licenses for political reasons, and that while preference can be given to Clerk A's actions as being less harmful, this gap isn't wide enough to reasonably accept Clerk A's actions while rejecting Clerk B's (and vise versa).

[Antsan]

Maybe they were excused because they were acting according to their convictions, as if that's actually a valid excuse for breaking the law.

Wow, you should use that defense for political crimes. The implications!

[Wolock]

Actually, there's a big difference between Clerk A and Clerk B. While they both broke the law by issuing/not issuing licenses, Clerk B defied a ruling by still refusing to issue them. Contempt of the court makes Clerk B's case worst than Clerk A.

[Truean]

Well, again, these are "structural" and "for the sake of argument" things. I don't believe personally a lot of what I said, we're just doing it to prove a point. Example, I think standing is a valid thing, but I'm saying "even if it wasn't." And, it's the same deal with the "One can use one's political office for the furtherance of said causes." These are assumptions II, and III, again solely for the sake of argument. They are assumed for purposes of an exercise, and another example of this technique is "Well, fine but even if [insert thing here] is true, then that still doesn't explain [other thing]. You see?

Section A.) In re the section of your most recent post entitled, "On harmfulness of Clerk A" I respectfully dissent and disagree. First, we were structurally assuming both points II, and III (that it was ok to use a political position for activism, and that standing would be ignored as a point). Forgetting that to isolate and address your counter, we still reach an impasse. You state in essense 2 subpoints here, A.) Consistency across geographic locations under one clear rule (for or against gay marriage licenses), and B.) it's only ok because Clerk A was proven right in the end, AKA hidesight is 20/20. Please allow me to illuminate.

What clerk A did is called an act of "Civil Disobedience." That is, Clerk A knew what they were doing was considered illegal by the government and did it anyhow on a moral and legal objection. Here's the difference, Clerk A willfully, obediently, and gracefully accepted any consequences, negative or positive, for the chance to be proven right in court. Clerk B is scoffing at the almost certain consequences, daring the court to impose penalties for her mocking it's rightful place so she gets to play victim, because she knows she won't be proven right in court. This is huge, and I can't say that enough. Clerk A wasn't trying to create any "patchwork" of different standards and applications of the law, but rather Clerk A was trying to formally change the law itself. Clerk B is trying to create just such a patchwork but claiming she is special and deserves an exception. Indeed, the unknowable exception would be whether or not your county clerk holds such religious convictions under Clerk B.... Clerk A wanted and was seeking a uniform standard: acceptance. Motive, and reasonableness of it, matters. If Clerk A won (before Clerk A did win) then there would have been the uniformity you seem to seek, same if she lost. If Clerk B wins, then ... then you have an unpredictable patchwork.

In sum, Clerk A acknowledges the illegality and states a mature willingness to bear any burden, suffer any cost, and respect the court as it imposes said costs. Clerk B is thumbing her nose at the court and saying it has less power than she does via her interpretation of God (as opposed to any other religion).

Section B.) The unlabeled second portion of your last post concerning "standing"

Again, structurally, point III assumed away the standing argument in what I thought was your benefit and as a point to specifically try to be fair to you and your side (see above). Your arguments can be summed up as, -.) It's easier for Clerk A than Clerk B to get standing, --.) Least Disruptive and most efficient method, namely that Clerk A has other, less disruptive methods available than Clerk B who has no choice. Neither hold true. First, Clerk A is challenging a constitutional amendment; whereas Clerk B is (hopelessly and foolishly) challenging a court ruling. Clerk A's method is the least disruptive, and her only choice, as there's nothing she can practically do to alter that constitutional amendment, other than have it declared unconstitutional, which is one of the highest bars there is to reach. Clerk B does not suffer from such an incredibly high bar and her side imposed this high bar upon Clerk A by changing the constitution to add their gay marriage ban. Clerk B is trying to oppose a court case, which could be done by passing a law, whereas, Clerk A can't override a constitutional amendment with a law....

Clerk A's actions are harmless, in that they have NO VICTIMS, and they deny nothing tangible to anyone, while seeing not a patchwork, but a uniformity of law and application/enforcement of said law. Clerk B's actions are harmful because they have ACTUAL VICTIMS, and they deny tangible things (licenses) to real people, while seeking to impose the very patchwork you said would be harmful.

Disclaimer: That said this is an opinion piece and whenever you break the law for civil disobedience or otherwise there will be consequences, so don't say I said it was cool or whatever. It will suck if you try this and don't say I didn't say it wouldn't suck. DO NOT TRY THIS AT HOME. DO NOT go breaking the law to prove a point. You will probably be punished and you shouldn't do it.

Speaking of motives, hers suck: http://theweek.com/speedreads/575077/dan-savage-kentucky-clerk-defying-supreme-court-gay-marriage-waiting-cash

[Rolan7]

Well anyway, she's been jailed for contempt of court!
I assume she expected this and was angling to be a martyr. In which case, win-win I suppose... if book deals and suffering for convictions are worth that to her.
I hope if she ends up regretting it later, it's because she realizes her convictions are wrong.

Pretty crazy that she got this *back* to the Supreme Court and still wasn't satisfied. Enormous waste of resources.

[ArKFallen]

Pretty crazy that she got this *back* to the Supreme Court and still wasn't satisfied. Enormous waste of resources.

Really? Seems (to this uneducated) like she solidified a precedence of ruling against people who do this.
Hope the lower appeals court judges take the hint.

[Rolan7]

As I understand it, there was no punishment for her forcing the issue back to the Supreme Court.  Just like the clerks who illegally issued licenses to gay couples.  In both cases it was basically just creating a case, and apparently that's just okay...

(Though it seems screwy that she forced it *back* to the Supreme Court, so soon, with what sounds like practically the same case.  Really amazed that they agreed to hear it, the Supreme Court is generally choosy about which cases it gets around to)

Nah, she got arrested for being in contempt of court.  Because after the Supreme Court decided against her, she basically said their decision didn't matter.  That she follows her interpretation of God's will instead.  (But she couldn't just resign or something, no, she had to keep going to work but refusing to do her job).

I think it'd be roughly similar to a Hindu accepting a job on a fishing trawler, but refusing to handle the fish (touching animal corpses for a living was a way to become "untouchable", apparently).  If religious convictions stop someone from doing a job, they should resign...