Kim Davis, Democrat, went to jail rather than violate her Christian values. For this, she is getting hammered by those who think they own the Democratic Party and can decide who gets to be a “real” Democrat.
Donald Trump, Republican, supports sending her to jail. Meanwhile, Republican Governor Bobby Jindal has issued an order in his state protecting court clerks’ right to religious objection.
It’s all kind of a mess, isn’t it?
This jibes nicely with a comment by Robert George, who is Chairman of the United States Commission on International Religious Freedom. Professor George said, There really ARE two kinds of people in the world: those who will go to jail rather than do what’s wrong and those who will send them there.
In addition to being willing to send people to jail, Mr. Trump appears to also be willing to demolish the separation of powers that keeps us free.
That’s a huge problem with this whole scenario that most people are overlooking. Mrs. Davis is not an administrative appointee. She is not an at-will employee. She is a duly elected official who holds her office by the direct will of the people. Let me clarify what that means: Her authority comes from the people. Courts do not have the power to imprison elected officials based on how they perform their elected duties.
I wrote a couple of posts about this for Patheos a few days ago. Here is part of what I said:
“ … back in the 1980s, the federal courts issued orders about certain requirements concerning population density and facilities for the Oklahoma prisons. There was a riot at one of our prisons and we had to rebuild the prison. During the planning for that, we took the court order into consideration.
But if we had not, the court would not have been able to put any member of the legislature in jail for non-compliance. The federal government could have punished the state of Oklahoma by a withdrawal of funds. The courts might have issued draconian orders putting the prisons under direct federal oversight. There might even have been an attempt to fine the state in some way.
However, none of us who voted on this legislation worried that soldiers were going to come on the House floor and cart us off to jail for non-compliance if we failed to adhere to that court order. Courts don’t — and shouldn’t — control how elected officials do their duties. It is a gross expansion of judicial powers for them to try.”
Elected officials have been stirring things up by ignoring court orders throughout the history of our Republic. President Andrew Jackson ignored the Supreme Court when he forcefully removed members of the Cherokee Nation from their hereditary lands to Oklahoma in what is known as the Trail of Tears. Several Southern governors ignored the Supreme Court during the Civil Rights era.
None of these elected officials were arrested, nor should they have been. If an elected official is remiss in the performance of their duties, they are subject to the will of the voters, or, depending on local constitutions, impeachment. In some instances, they may be censured by legislative bodies. What they are not subject to is summary arrest and imprisonment by the courts.
The reason for this is a little thing in American government called “the separation of powers.” Without it, we would lose our freedoms. In the case of Mrs. Davis, what we have is a judicial over-step in which the courts have taken it on themselves to imprison an elected official based on how she performs her duties.
If we allow the judiciary to do this, we will be setting ourselves up for a judicial dictatorship. Mrs. Davis was elected. Elections are sacred in democracies, for the simple reason that without elections, there is no democracy.
The courts have already assumed legislative powers with their rulings by fiat. Both Roe v Wade and the ruling forcing gay marriage on the Republic is a case in point. Are we going to allow the courts to also assume enforcement power over the elected representatives of the people by the means of imprisoning the elected officials?
Mr. Trump is right, even when he’s wrong. We do live by laws in this country, and the pre-eminent law is our Constitutional right to elect those who govern us and know that they are free to represent us without threat of imprisonment by a run-away judiciary.