Interestingly enough an article mentions the following about BUNNING:
Rowan County (KY) Clerk Kim Davis was jailed this morning by a federal judge who said that putting natural law about his authority would set a dangerous precedent.
Rowan County Clerk Kim Davis refused to issue marriage licenses to same-sex couples. She’s an elected official, and can’t be fired except by voters in her county, so a federal judge had her thrown in jail today. I expected as much. Any true civil-disobedience act must come with the willingness to bear the legal consequences of your extra-legal behavior. Davis politely thanked the judge before being carted off to the clink.
If it were me, I also would have submitted to the governing authority, but not without a resounding “SAY WHAT, YOUR HONOR?!” after he said this…
Actually, your honor, the sovereignty of natural law over man-made authority is a founding principle — a starting point of the underlying political theory — of our constitutional republic. These United States separated from the British monarchy because we were entitled to by “the Laws of Nature and of Nature’s God,” and not subservient to the alleged divine right of kings, nor to an imperious Parliament.
We ordained and established a Constitution of enumerated powers, not of general legislative authority, and “We, the People” gave Congress authority to legislate only within the powers granted in the Constitution. The rest belongs to the states, to the people and, obviously, to the great lawmaker and judge of us all.
Not only does natural law supersede the court’s authority, the judge’s authority is utterly dependent upon the existence of such a law, and — whether one wishes to acknowledge it or not — upon the authority of God.
[More/source]The idea of natural law superceding [sic] this court’s authority would be a dangerous precedent indeed,” U.S. District Judge David L. Bunning told Rowan County clerk Kim Davis.
Clarification/IMHOIn 2007, Bunning was part of a three-judge panel on a federal appeals court to overturn a Michigan ban on partial-birth abortion, determining the language of the law to be overly broad with the potential to outlaw other legal types of abortion.
In 2003, Judge Bunning ordered the Boyd County Kentucky School District to allow the Gay-Straight Alliance, a student group, to meet on school grounds. {When were sex-oriented clubs or groups ever allowed to be formed in high schools? If a high school teacher who formed an organization to promote safe sex among male and female students and had safe sex parties he or she would have been fired.}
Boyd County held training sessions on avoiding anti-gay harassment, and penalized students with unexcused absences for not showing up. When parents sued the school district, Bunning ruled in favor of the school district.
I get the sense that *ahem* between the lines, the issue of Natural law or the law of Nature's (it is likely that the Founders understood the word 'nature' be of Egyptian origin and referring to the 'ntr' or 'neteru'--today many would probably prefer you to take the watered down of meaning of 'nature' to do with wild animals having sex in the woods and eating each other but the Egyptian/Ethiopian root is much deeper and might link back to the first few chapters of Genesis) God is viewed in that light by that court because the court is an admiralty court and thusly a contract-enforcement venue. That is its akin to a judge (aware of the nature of the venue) saying "if we allow who someone failed to make a reservation of rights to claim that religious beliefs over-ride their contractual obligations it would adversely impact admiralty proceedings and contract enforcement (i.e. would set a dangerous precedent)". To BUNNING like there is the presumption or evidence is that there are contractual obligations which require Kim DAVIS to issue the licenses.
I suspect had she raise the objection and made the necessary reservations before-hand or if she or others issued demands (writ of quo warranto) to show by what authority SCOTUS or others acted, it would be a different outcome.
From what I gather, David BUNNING requiring performance of obligations under contracts. But you really have to get the idea of the nature of the forum. On the other hand, there is such a thing a law that is directory in nature (i.e. it is not law truly law but is binding on officers and ministers of the state only).
It is very much worth noting IMHO that Kentucky was not subject to military occupation during Reconstruction, however they did create a constitution in 1892 and ratified the 13th, 14th and 15th amendments.Although Kentucky was a slave state, it had not seceded and was not subject to military occupation during the Reconstruction Period. It was subject to the Freedmen's Bureau oversight of new labor contracts and work to institute free labor. A congressional investigation was undertaken because of issues raised about the propriety of its elected officials. During the election of 1865, ratification of the Thirteenth Amendment was a major political issue. Kentucky eventually rejected the Thirteenth, Fourteenth, and Fifteenth amendments but had to implement them when they were ratified.
Democrats prevailed in the election, and one of their first acts was to repeal the Expatriation Act of 1862, restoring the citizenship of former Confederates. --From Wikipedia
Technically, per her oath of office, if she upholds the Constitution of the Commonwealth of Kentucky, she would be upholding the gay marriage ban. The authority of SCOTUS to alter the Kentucky Constitution could be questioned in the style of a Writ of Quo Warranto. More than likely she is operating under the 1891 Constitution in the U.S. State of Kentucky.I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of _______ according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God."
AFAIK the above is the oath of office taken by Kentucky officials.
Clearly, the gay rights thing smells of creation of a federal franchise. Can SCOTUS force the States to create franchises for the federal government? Why don't the district courts issue 'gay marriage' licenses instead of requiring the States to do so? Even the franchise that may have come to former slaves did not require the States to create franchises only to acknowledge them and permit their operation.
IMHO its also worth noting that Kentucky was a county of Virginia but was never officially a territory. The Shawnee ceded their claims to colonial Virginia in 1774. Kentucky became the 15th State of the United States of America in 1792. It was "set apart" as an "Independent State" per Compact With Virginia. Before it was a "State" it was a Virginia "District" (aka the District of Kentucky).
Related:Currently, Kentucky’s Constitution defines marriage as as exclusive union between a man and a woman. Kentucky has several revised statues (KRS) that prohibit same-sex marriage:
KRS 402.020(d) Other prohibited marriages. (Effective 07/15/1998)
Between members of the same sex.
KRS 402.040 Marriage in another state. (Effective 07/15/1998)
If any resident of this state marries in another state, the marriage shall be valid here if valid in the state where solemnized, unless the marriage is against Kentucky public policy. A marriage between members of the same sex is against Kentucky public policy and shall be subject to the prohibitions established in KRS 402.045.
KRS 402.045 Same-sex marriage in another jurisdiction void and unenforceable. (Effective 07/15/1998)
A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky. Any rights granted by virtue of the marriage, or its termination, shall be unenforceable in Kentucky courts.
KRS 402.005 Definition of marriage. (Effective 07/15/1998)
As used and recognized in the law of the Commonwealth, “marriage” refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.
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