It’s the Law


Editor’s Notes: This article was submitted over the weekend while Rowan County (KY) Clerk Kim Davis remained in jail for contempt of court. At the time it is now being published, she has been released. The opinions expressed in this article do not necessarily reflect the views of The Iowa Statesman.


By Jon the Southern Baptist
On the Front Lines of the Culture War


Jon The Southern Baptist LogoThe Kim Davis situation in Kentucky has become a true litmus test, not just for American politics, but for the American Church, as well. How your politicians and pastors have responded to her incarceration speaks volumes about where they stand.

We as Christians must admit the sad truth, though. There are many who think what she did in refusing to issue marriage licenses to avoid having her name forever attached to court-induced homosexual “marriages” was either wrong or illegal.

They say, “She’s a government official. She must obey the law.”

And to that, I can only say, “She was.”

On the ballot during the 2004 General Election in Kentucky was an amendment to the state’s constitution that would prohibit the state from recognizing or allowing both homosexual “marriages” and civil unions. The amendment, which passed with 74.55-percent support, said:

“Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

I already know what you’re saying: “But, the Supreme Court ruled that homosexuals have a right to marry.”

And to that, I can only say, “That’s nice. The Supreme Court is welcome to its opinion, but only Congress can make law.”

Article I, Section 1 of the U.S. Constitution states: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Article I, Section 8 states, in part: “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The issuance of marriage licenses had already been well established at the time of the Constitution’s writing, dating back nearly 100 years before the American Revolution. With one or two exceptions, it was a function of state government, which is perhaps why the Constitution doesn’t mention it in the powers held by Congress (Article I), the President (Article II), or the Judiciary (Article III).

In fact, nowhere in the Constitution is power or authority given to the federal government to regulate, in any manner, the bonds of marriage. And, as a result, the Ninth and Tenth amendments come into play.

First, let’s look at the Tenth Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, if it’s not a specific power or authority conferred to one of the three branches of the federal government, it belongs to the states, or the people individually.

Marriage and one’s faith are both areas where the federal government has no jurisdiction.

The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This was James Madison’s attempt to establish that the Constitution was an instrument to constrain government, not the people.

Unfortunately, liberal judicial supremacists have used it — repeatedly — to confer upon Americans “unenumerated rights” for all sorts of vile, disgusting, and just plain evil behavior. Then, the “conservative” judicial supremacists surrender, saying, “The courts have spoken. It is the law of the land now.”

We’ll come back to that in a moment, but in the meantime, that’s how you get Roe v. Wade. That’s how you get Obergefell v. Hodges. That’s how a Christian county clerk, who was merely upholding state law, finds herself in jail.

What the Ninth Amendment was supposed to mean is that while the First Amendment specifically prohibits the creation of a state religion, or the government from infringing upon the manner in which people of faith exercise their beliefs, it is not a limited right. If you wish to live out your Christian faith, you are free to do so.

As we noted before, only Congress may make law, and before any new law may be enacted, the President must sign it, or both houses of Congress must override his veto. The judiciary has no role, other than to suggest changes to laws it deems unconstitutional.

That is exactly how the Framers envisioned it, as noted in Federalist 78, authored by arguably the most big-government guy in the trio of Federalist authors, Alexander Hamilton:

“This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”

You’ve got to wonder what kind of nightmares he would be having today, looking at the state of the U.S. judiciary.

And, yes, Federalist 78 does go on to say no law is valid if it violates the Constitution, but it also states that no law — the Constitution included — may violate it originating source. As has been noted previously by other writers to this esteemed website, the Constitution is subject to the Declaration, and the Declaration is subject to the Bible and the Lord.

David Barton lays it all bare in a recent article written for World Net Daily.

So, in the end, we have a judge who is woefully ignorant of his duties and authority, and especially of the limitations upon both. That’s a recipe for disaster that was predicted decades ago by the very men who put together the system of checks and balances that was supposed to protect Kim Davis’ religious liberty.

She should have never been put in jail, and she should be immediately released from federal custody, because that is the law.

•  •  •

Jonathan Montgomery Harrington is the pseudonym for the anonymous author of Jon the Southern Baptist, who is fighting on the front lines of the culture war on a daily basis. If you have a suggestion for his contributions to The Iowa Statesman, write to him at