News Article: Kentucky Clerk Is Due In Federal Court For Contempt Hearing

[NationalTitles18]

I do not think that she is arguing that her beliefs trump anything. I think she is arguing that she is entitled work without abandoning her beliefs under Title VII of the Civil Rights Act of 1964. With Religious Freedoms Restoration Acts being passed by her state of KY, I think she has much better odds than you proclaim.

Both the courts ( American Postal Wkrs. Union v. Postmaster General ) and the DOJ have weighted in on this. Congress and many of the states have passed some version of RFRA. Her fate is by no means a done deal.

From the DOJ...


I predict that the word "accommodation" will be a key player here. There is still a lot to play out.

Let's get this straight: She is not an employee.

 

[Tide1986]

Let's get this straight: She is not an employee.

The IRS might beg to differ: 26 U.S.C. 3401(c) defines "Employee" for wage withholding:

(c)Employee

For purposes of this chapter, the term “employee” includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation.

http://www.irs.gov/Government-Entit...orkers:-Employees-or-Independent-Contractors?

Elected Officials: Elected officials are employees for income tax purposes under the section 3401(c) provision that applies to public officials. They are subject to a degree of control that typically makes them employees under the common law, and are subject to social security and Medicare taxes. Very few elected officials could be considered independent contractors.

 

[Tidewater]

The IRS might beg to differ: 26 U.S.C. 3401(c) defines "Employee" for wage withholding:



http://www.irs.gov/Government-Entit...orkers:-Employees-or-Independent-Contractors?

I think what we are experiencing here is one of those residual effects of Federalism. Formerly, the US had a federal system in which the general government had been delegated specified enumerated powers, beyond which it could not operate. The states had the residue of powers (at least the ones the people had not forbidden to their states through the Federal Constitution).
The judges at SCOTUS have stepped well beyond the delegated powers. Many say the clerk should be fired. But who gets to fire her? If she is elected, then the electors should fire her. But what if they don't want to fire her? My guess is a Federal judge will step even further beyond the limits the Constitution has placed on Federal authority and impose some crushing fine on the jurisdiction until they "get their minds right."
As I have said before, she should issue the licenses, but it is interesting watching one of these small vestiges of Federalism play out. The Constitution works great when you follow it. When you violate it, you get little bumps in the road like this one.

 

[92tide]

I think what we are experiencing here is one of those residual effects of Federalism. Formerly, the US had a federal system in which the general government had been delegated specified enumerated powers, beyond which it could not operate. The states had the residue of powers (at least the ones the people had not forbidden to their states through the Federal Constitution).
The judges at SCOTUS have stepped well beyond the delegated powers. Many say the clerk should be fired. But who gets to fire her? If she is elected, then the electors should fire her. But what if they don't want to fire her? My guess is a Federal judge will step even further beyond the limits the Constitution has placed on Federal authority and impose some crushing fine on the jurisdiction until they "get their minds right."
As I have said before, she should issue the licenses, but it is interesting watching one of these small vestiges of Federalism play out. The Constitution works great when you follow it. When you violate it, you get little bumps in the road like this one.

the only reason this is a bump in the road is due to the misuse of the idea of "religious liberty". selling religious persecution to rubes is a very lucrative industry.

 

[TIDE-HSV]

I do not think that she is arguing that her beliefs trump anything. I think she is arguing that she is entitled work without abandoning her beliefs under Title VII of the Civil Rights Act of 1964. With Religious Freedoms Restoration Acts being passed by her state of KY, I think she has much better odds than you proclaim.

Both the courts ( American Postal Wkrs. Union v. Postmaster General ) and the DOJ have weighted in on this. Congress and many of the states have passed some version of RFRA. Her fate is by no means a done deal.

From the DOJ...


I predict that the word "accommodation" will be a key player here. There is still a lot to play out.

I disagree when it comes to sworn public officials with specified legal duties...

 

[mittman]

Let's get this straight: She is not an employee.

I think what we are experiencing here is one of those residual effects of Federalism. Formerly, the US had a federal system in which the general government had been delegated specified enumerated powers, beyond which it could not operate. The states had the residue of powers (at least the ones the people had not forbidden to their states through the Federal Constitution).
The judges at SCOTUS have stepped well beyond the delegated powers. Many say the clerk should be fired. But who gets to fire her? If she is elected, then the electors should fire her. But what if they don't want to fire her? My guess is a Federal judge will step even further beyond the limits the Constitution has placed on Federal authority and impose some crushing fine on the jurisdiction until they "get their minds right."
As I have said before, she should issue the licenses, but it is interesting watching one of these small vestiges of Federalism play out. The Constitution works great when you follow it. When you violate it, you get little bumps in the road like this one.

Tidewater beat me to it, and stated it FAR better than I could have.

I agree in principle that she is required to do her job whether or not she agrees with the employer. We will see if the employer agrees with how she did her job in the next election cycle.

 

[Tidewater]

the only reason this is a bump in the road is due to the misuse of the idea of "religious liberty". selling religious persecution to rubes is a very lucrative industry.

It is, but it takes two sides to have a conflict.
If same-sex marriage advocates had not demanded state recognition, there would have been no bump in the road either, especially, since the venue for this debate is a Frankfort, not in a Federal court, or, if you take it to a Federal court, you are going to have problems like this. This woman does not work for the Federal court. She works for the taxpayers of Whatever County Kentucky.
I think what will happen, if push comes to shove, is the court will impose a $1 million/day fine or some such and the elected officials of Whatever County will get her to step down.
I realize you like the equal marriage policy and are impatient with anything that stands in the way of it, but this is another small demolition of the structures of the Constitution. A hundred years from now, when there is a muslim majority (for the sake of argument) that wants all gays executed and a Federal judge rules that they must be killed, if anyone says, "But the Constitution affords them equal protection of the law," etc. etc. the Judge will just say, "We've already established that the Constitution means whatever a Federal judge says it means, and I like this 'kill the gays' policy, so I am ruling that the policy is constitutional and all the might of the Federal government is behind me to back up my ruling. Deal with it."
I know you will answer that the voters will never vote for such bad people, but, if media is manipulated skillfully, the people will support almost anything. Vladimir Putin has a 90% approval rating in a country whose economy is going down the toilet, opposition politicians are murdered in the streets and civil liberties shrink daily.
You probably believe that the telos sought is ever greater freedom and equality (which is commendable, by the way), but teloi are notoriously changeable over time. The telos sought by people one hundred years ago is are not the telos sought today. I am less optimistic that people will always pursue what they are pursuing now and I would prefer to keep the nomos in place to protect future generations.

 

[92tide]

It is, but it takes two sides to have a conflict.
this woman does not work for the Federal court. She works for the taxpayers of Whatever County Kentucky.

but she is subject to federal law.

 

[Tidewater]

but she is subject to federal law.

As defined by the Federal government, and so is the Federal judiciary. In fact, the Federal judiciary is more completely subordinate to the Constitution than her office is. The Constitution created the Federal judiciary. It had no existence prior to it and it has no jurisdiction outside of it.
Allowing the Federal government to define the limits of its own power is like saying I can drive as fast as I want on my home street because there is a 25 mph speed limit and I get to define what an hour is and what a mile is.
I think Jefferson wrote against the view "that the general government is the exclusive judge of the extent of the powers delegated to it, [because it would] stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers."

 

[92tide]

As defined by the Federal government, and so is the Federal judiciary. In fact, the Federal judiciary is more completely subordinate to the Constitution than her office is. The Constitution created the Federal judiciary. It had no existence prior to it and it has no jurisdiction outside of it.
Allowing the Federal government to define the limits of its own power is like saying I can drive as fast as I want on my home street because there is a 25 mph speed limit and I get to define what an hour is and what a mile is.
I think Jefferson wrote against the view "that the general government is the exclusive judge of the extent of the powers delegated to it, [because it would] stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers."

your are pretty far down the rabbit hole with this.

 

[TIDE-HSV]

Again, we can rail on and on about how the direction of the federal government developed and judicial supremacy, but, in the end, it's Quixotic. It is what it is, not what we think it should have been. Discussion is fun, so long as we realize we're not talking about the present real world. Just my view...

 

[NationalTitles18]

The IRS might beg to differ: 26 U.S.C. 3401(c) defines "Employee" for wage withholding:



http://www.irs.gov/Government-Entit...orkers:-Employees-or-Independent-Contractors?

Elected officials are employees for income tax purposes under the section 3401(c) provision that applies to public officials.

I know this is a complicated issue, but the IRS has nothing at all to do with enforcement of workplace issues regarding the CRA. Your quotation only applies to the IRS and only for income tax purposes. A rule from the EEOC would actually be relevant. This is not.

 

[TRUTIDE]

It is, but it takes two sides to have a conflict.
If same-sex marriage advocates had not demanded state recognition, there would have been no bump in the road either, especially, since the venue for this debate is a Frankfort, not in a Federal court, or, if you take it to a Federal court, you are going to have problems like this. This woman does not work for the Federal court. She works for the taxpayers of Whatever County Kentucky.
I think what will happen, if push comes to shove, is the court will impose a $1 million/day fine or some such and the elected officials of Whatever County will get her to step down.
I realize you like the equal marriage policy and are impatient with anything that stands in the way of it, but this is another small demolition of the structures of the Constitution. A hundred years from now, when there is a muslim majority (for the sake of argument) that wants all gays executed and a Federal judge rules that they must be killed, if anyone says, "But the Constitution affords them equal protection of the law," etc. etc. the Judge will just say, "We've already established that the Constitution means whatever a Federal judge says it means, and I like this 'kill the gays' policy, so I am ruling that the policy is constitutional and all the might of the Federal government is behind me to back up my ruling. Deal with it."
I know you will answer that the voters will never vote for such bad people, but, if media is manipulated skillfully, the people will support almost anything. Vladimir Putin has a 90% approval rating in a country whose economy is going down the toilet, opposition politicians are murdered in the streets and civil liberties shrink daily.
You probably believe that the telos sought is ever greater freedom and equality (which is commendable, by the way), but teloi are notoriously changeable over time. The telos sought by people one hundred years ago is are not the telos sought today. I am less optimistic that people will always pursue what they are pursuing now and I would prefer to keep the nomos in place to protect future generations.

WOW! You really know your stuff. From your post, I don't see you as an activist on either side of this debate but you have a really good, objective grasp of the Constitution. Very intelligent. Too often these debates become personal and people start defying logic. Good stuff.

I would like your opinion on one thing. I agree with your reasoning but (to me) you do appear to have a slight federalist lean. Obviously we have what are supposed to be the three seperate but equal branches of government, what is your view of the state's role in the whole scheme of things. How do you see their standing as compared to the three branches.

BTW.. If they do go forward, I personally think that Davis' lawyers will pursue this through the state courts.

 

[mittman]

Again, we can rail on and on about how the direction of the federal government developed and judicial supremacy, but, in the end, it's Quixotic. It is what it is, not what we think it should have been. Discussion is fun, so long as we realize we're not talking about the present real world. Just my view...

Quixotic, maybe, but I hope not. At some point when one branch of our government exerts power (whether it is deemed appropriate or not) over the other two a push back by the others inevitably occurs. Whether or not one agrees with the decisions, or sees the courts as activist, their decisions have caused some monumental shifts, and here recently those shifts are leaning heavily left. One decision or another may not show up in elections, but a trend very well may.

There are plenty of people who consider decisions settled when they are made. IMO these days it is wishful thinking on any side's part. It is becoming obvious to me that in this environment decisions made (with the rationale Tidewater described) are never truly settled law.

 

[mittman]

<snip>

You probably believe that the telos sought is ever greater freedom and equality (which is commendable, by the way), but teloi are notoriously changeable over time. The telos sought by people one hundred years ago is are not the telos sought today. I am less optimistic that people will always pursue what they are pursuing now and I would prefer to keep the nomos in place to protect future generations.

Ethos are a changin'

 

[NationalTitles18]

Ethos are a changin'

Legos rule!!!

 

[GrayTide]

I find it highly unlikely that her constituents would not re-elect her. I am sure her supporters are solidly behind her and believe what she believes. She is now a folk hero in that part of Kentucky.

 

[Jon]

I find it highly unlikely that her constituents would not re-elect her. I am sure her supporters are solidly behind her and believe what she believes. She is now a folk hero in that part of Kentucky.

because if there is anything we like in a civil servant it's useless and expensive grandstanding

the lack of blue font is on purpose

 

[crimsonaudio]

I find it highly unlikely that her constituents would not re-elect her. I am sure her supporters are solidly behind her and believe what she believes. She is now a folk hero in that part of Kentucky.

I dunno, she apparently barely won her last election and her county is one of about 10 in all of KY that's blue.

 

[Tide1986]

because if there is anything we like in a civil servant it's useless and expensive grandstanding

the lack of blue font is on purpose

One person's grandstanding is another person's civil disobedience.