State-sponsored discrimination

by | Sep 11, 2015 | Editor's Blog, Gay Marriage | 15 comments

Well, if we ever needed proof that the law to allow magistrates to opt out of marrying gay and lesbian couples is discriminatory, we’ve got it. All of the magistrates in McDowell County have opted out. That’s a clear signal from the government of McDowell that if you’re gay, you’re not welcome there. To hell with your rights.

But in the to-spite-your-face department, that also means those magistrates can’t marry anyone else, either. So all those folks who thought they would have a nice mountain wedding this fall can go somewhere else to spend their money and celebrate their nuptials. I’m sure this is great for wedding photographers, wedding planners and caterers in McDowell County.

It’s a ridiculous law that’s almost certainly unconstitutional. It also opens up all kinds of other questions. Can a Quaker deny somebody a gun permit based on his/her religious beliefs? Can a Hindu deny hunting licenses? Or can a devout Saudi Muslim deny women drivers licenses? Where, exactly, does it stop?

We are a country of laws, not religions. If you work for the government, you uphold the laws. They are not there to pick and choose. Religious freedom does not give the state the right to discriminate. In McDowell County, it’s doing just that.


  1. Tom Hill

    The essence of these verbose comments is that the gay marriage issue is not yet settled, no matter what the advocates pro and con may think. It would have been far better for the federal courts to allow the issue to be settled by the people and their elected representatives, rather than passing a law from the bench. The true democratic process was already well underway.

    Even though they may issue “orders”, we tend to forget that the Supreme Court has no power to enforce anything. Even the federal marshals who maintain security for the federal courts do not work for the federal judges. Does the term “Executive Branch” ring a bell?

    Many of us have just finished watching the restored version of Ken Burns’ “Civil War”. Who of us believes that a ruling by the Supreme Court that the states had no right to secede would have prevented that bloody conflict?

    • A.D. Reed

      “The people and their elected representatives” have proven themselves incapable of guaranteeing the rights of those perceived as “others.” That’s why the Constitution has to be used to override “the people and their elected representatives” who continually write and apply laws inequably in order to maintain unequal rights and benefits that invariably accrue to those with power. The tyranny of the majority was one of the central concerns of the founders, and the courts were established to provide a countervailing force against it. And that force has been proven necessary time and time again throughout our history.
      African Americans still don’t have equal rights, despite statutes, federal laws, and constitutional rulings; nor do women have equal rights with men; nor do GLBT minorities, or Muslims, or atheists. And as long as “the people and their elected representatives” are comprised of those who would prefer that politics guide us rather than justice, they never will.

      So these long-winded replies all tend to point out the same thing: those in power, especially Republicans in power (though it’s been Democrats in the past), are generally unwilling to share that power with anyone who doesn’t look, act, and believe as they do. And despite not having its own little army to enforce its rulings, the Supreme Court and lower courts must step in, over and over, to remind “the people and their elected representatives” that they MAY NOT trample on the right of all people to enjoy equal treatment under our laws.

      In the case of marriage, that includes over a thousand legal and financial benefits that married heterosexuals enjoy and that, until Obergefell, were withheld from same-sex couples. Which was the basis of the Court’s ruling: it had NOTHING to do with religion, ergo the religious objections to the ruling are specious.

  2. Lan Sluder

    Most of Dale White’s analogies and comparisons don’t hold much water. Money and ethics are the real issues.

    The issue of conscientious objectors and Kim Davis aren’t good analogies to NC government officials refusing to follow the law, as these officials are at least temporarily protected because a recent NC statute (which is as Thomas Mills points out could lead to a morass of other bad choices by government officials and which most legal scholars agree will be held invalid on Constitutional grounds) allows NC government magistrates to refuse to perform a certain job duty for what they claim are religious reasons, even though they have taken the paying state job and have agreed to conduct their sworn duties. Yes, it’s a silly statute, and, yes, the McDowell magistrates who hide behind it are doing a disservice to the citizens and the economy of the county and are making McDowell a laughing stock, but they are taking advantage of a situation contrived by homophobic Raleigh Republicans. I put the blame not on the magistrates but on the unethical and illogical right wingers in Raleigh.

    The Kim Davis situation is different, because she refused to do her job under Kentucky law, even though she was elected and swore under oath to do the job and was being paid very well for it (along with her child, whom she appointed at a high salary to also not do the job). Subsequently, she was held in contempt of court for not following the legal directions of a court that had jurisdiction over her and her office. She was jailed, and later released, not for reasons of religion but for reasons of law. If she were truly an ethical and religious person, she would have resigned rather than continue to take taxpayers’ money for a job she wasn’t doing and then could have worked to try to change the laws that she felt were contrary to her religious beliefs.

    Conscientious objectors during the Vietnam war and other wars who refused military service, or certain types of military duty, for religious or simply personal moral reasons, in fact subjected themselves to the law and accepted either alternative service or in some cases prison. No, the COs are not like Davis, because the COs did not benefit from a big salary while posing as religious victims, nor are they like McDowell magistrates, who are hiding behind the temporary color of law. Even though I served in the Army in Vietnam, I admire the COs for their convictions; I have only contempt for Davis and the GOP politicians who supported her.

    In the case of Jim Crow, these were indeed laws (almost entirely in the South, though given national support by the U.S. Supreme Court in Plessy v. Ferguson in 1896 in its infamous “separate but equal” ruling). Government officials who enforced these terrible laws were “just doing their job,” in the same way that concentration camp officials in Nazi Germany were just “following orders” or that government bureaucrats in South Africa were following the apartheid rules. The work of Nazi functionaries, South African bureaucrats and Southern political toadies of course are today rightly considered reprehensible, a part of racist social and political systems that used a variety of techniques, from legalized segregation to semi-legal lynching to the “Final Solution,” to control and suppress a feared or hated group of people.

    In the U.S., these laws, after almost a century of infamy, were done away with through a combination of legislation (notably the Civil Rights Act of 1964 and the Voting Rights Act of 1965), judicial decisions (such as Brown v. Board of Education of Topeka, 1954) and of course the brave efforts of civil rights proponents using tools such as civil disobedience.

  3. Ty Rammstein

    justifying prejudice and ignorance in God’s name is the same kind of ignorant blasphemy that was used in the usa when religious folks used the bible to justify slavery and women’s inequality. now legal scholars on the extreme right have manufactured the term ” religious liberty” and are insisting it makes usa constitutional law irrelevant…treasonous and dangerous.

  4. brotherdoc

    So, will the ACLU, or Equality NC, or some other agency challenge the NC law that makes what is happening in McDowell legal? Maybe some aggrieved straight couple who are inconvenienced or turned away can bring a case? (I am not an attorney). The NC statute is just one more salvo in what promises to be a lengthy culture war across our nation. If a Republican gets elected and names a bunch of right wingers to the Supreme Court, with the kind of continuing agitation by the so-called religious liberty crowd seems to me we might very well see the court overturn same-gender marriage.

  5. Dale White

    Oh, I don’t know, Thomas. You don’t deny that Kim Davis is refusing to issue gay marriage licenses out of sincere religious conviction, do you? I’m guessing you’re okay with Quakers and Mennonites refusing military conscription during the Vietnam era. You probably didn’t get too steamed about magistrates in California issuing gay marriage licenses before it was legal there, did you? You do recall that Jim Crow laws, however abhorrent, were still laws, right? Like the war resisters and the civil rights demonstrators, Mrs. Davis went to jail because she believes the law is wrong. Oh, wait! She didn’t violate a statute, she bucked the views of an unelected federal judge (on a state matter). Well, hell, that’s different.

    Um, we are, after all, a country of laws, not religions, right?

    • Matt Phillippi

      Yes Dale but unlike mormons or menonites Ms.Davis was not forced into her service, she chose to run and was elected. The simple fact is that whatever your religious persuasion you must follow the policies set down by your workplace. If a Muslim got a job as a bartender but refused to serve alcohol because it was against their religion or an Orthodox Jewish person worked in a BBQ resturant but refused to handle pork they would be fired for not fulfilling their duties. That is exactly what Kim Davis is doing. She is picking and choosing her responsibilities and refusing to do the duties of her job. If she wants to stand by her religious principles I respect that, but don’t expect the county she works in to keep paying her if she doesnt fulfil her end of the contract.

      • Matt Phillippi

        Excuse me, I meant to say Quakers and Menonites. My love for alliteration got the best of me there.

      • Dale White

        No, I agree. She should have either done her job or quit.

      • A.D. Reed

        Matt: interesting aside: a Muslim stewardess has been fired by her airline for refusing to serve alcohol. That’s in the private sector, and they did try to accommodate her for a while, but when there were no other stewardesses on a flight or the others weren’t willing to “take up her slack,” the airline let her go. Rightly or wrongly.

    • Ty Rammstein

      saying you probably didn’t…and assuming another feelings is just as deep bull as the rest of your message, and your assumption that federal judges do not have jurisdiction at a state level shows how American and educated you really are… and ps..jim crow laws were law but the feds overturned them..or because they were state laws do you think they should still stand?

    • A.D. Reed

      It’s always so valuable to get one’s facts right before spouting off, Dale.

      First, nobody except Kim Davis knows whether she has acted out of “sincere religious conviction” or not; her lawyer has said she might allow her deputies to continue issuing licenses if her name is on them; while he and other legal supporters are claiming the licenses cannot be legal or valid unless her name, as Clerk, on them. So I do deny her sincere religious conviction; I think she’s just a bigot using “religious freedom” as an excuse to be a bigot, and being used by opportunistic lawyers who will do anything to stick it to the Obama administration, and changing her rationale for her refusal every time she loses another appeal.

      As for the Vietnam war resisters, most of those who refused conscription did so under the long-standing Conscientious Objector status; many of them went to jail, others had to leave the country for Canada to avoid jail; and all of them were willing to take the consequences and pay the price for their personal actions. Unlike Ms. Davis, who continues collecting her paychecks.

      The magistrates in California who issued marriage licenses to same-sex couples did so BEFORE the court ruling that stopped them. Also, marriage licenses aren’t gay or straight, they’re just marriage licenses (not “gay marriage licenses”), and the ones issued in that interim period were ruled to be valid.

      As others have mentioned, Jim Crow laws were laws until they were stuck down by the Supreme Court, at which moment they were no longer valid and could not legally be enforced–just as the Supreme Court ruled that laws limiting marriage to male-female couples could not legally be enforced. Yet Kim Davis decided her religious convictions should not be required to follow the Supreme Court’s ruling in June, or its rejection of her appeals since then. So she bucked the views of the Supreme Court of the United States, whose rulings ARE law ever since Marbury v. Madison. And went to jail NOT for her religious convictions but for refusing to obey the law of the land, as iterated by the high court. (There are lots of statutes that are no longer enforceable laws, and lots of laws that have never been written as statutes.)

      Yes, that makes us a country of laws, not Kim Davis’s claims of religious conviction, no matter how hypocritical and phony (like four marriages, three divorces, two children born out of wedlock, unknown incidences of adultery; gee, what does the Bible say about all that!?!?)

    • Bruce

      just so you know those Quakers and Mennonites refusing military conscription during the Vietnam era generally performed some other service in lieu of military service (some of those services quite dangerous) and some of them went to jail

  6. Russ Becker

    McDowell (pronounced Mak-Dowell) County is an interesting place. The first time I went to court there, the Assistant District Attorney kept me waiting for 6 hours–to tender a guilty plea for my client. Many “outside” attorneys won’t go to McDowell. With this story hitting the news, I suspect that you will see many more public servants in the rural mountainous and foothills counties having the same problem–and it may extend beyond the issue of gay marriage to other social issues, just as Thomas has poised the question.

  7. Wacko Bird a gauche

    This is a dog-bites-man story on par with “George Bush is stupid” or “Tom Apodaca’s an asshole.” McDowell’s probably the most intensely socially conservative place in the state, if not the nation. You can feel repression in the air.

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