Gay Marriage

Rand Paul Argues for Private Marriage Contracts but Also Defends Clerk Not Doing Her Job

Guess which part of the answer gets the most attention?


Wedded to his talking points.
Credit: Gage Skidmore / photo on flickr

Sen. Rand Paul (R-Ky.) spent 60 seconds on a radio show explaining how everybody should have the right to enter into private marriage contracts, and the government should stay out of it. Then he spent five seconds explaining that Kentucky clerk Kim Davis (she who is refusing to hand out marriage licenses because of her religious objections to same-sex marriage) is "making a stand" by doing something that is "part of the American way" (listen to the response here).

Guess which part is ending up in headlines? It's his vague defense of Davis, obviously. To be fair, it is part of the American way for government functionaries to just not do their jobs, but that's not what he means. The problem here is that Paul is trying to stick to his consistent talking point—get the government out of marriage—in a situation where the argument doesn't quite apply.

He brings up the Alabama example in his response as an alternative to Kentucky's current system. Alabama legislators have proposed eliminating any responsibility for probate judges to "issue" marriage licenses altogether. Instead couples will fill out and turn in forms stating they are married (signed by two witnesses) for recordkeeping. Judges or clerks would have nothing to do with either solemnizing or having to care one way or another about the sexes of the people on the forms. They're just there to file the marriage forms away, and if there are any problems that require government intervention, it would be up to the courts to determine the validity of the marriage based on current law.

This is how Alabama is getting around conservative judges who don't want to support same-sex marriages (and state law gives probate judges the ability to decline to issue marriage licenses altogether).The important thing to understand, though, is that this system would be in complete compliance with the Supreme Court's Obergefell v. Hodges ruling. The state will recognize same-sex marriages under the law. And it's not going to stop same-sex couples from getting legally married. It's just removing itself from playing a role in the marriage process.

That's a little different from what's going on in Kentucky. Davis' refusal to hand out licenses prohibits couples who go to her office from having their marriages recognized by law. It's almost pretty much the opposite of what Alabama has done.

There's also North Carolina's solution, where clerks can refuse to hand out marriage licenses due to religious objections, but it would be up to the county courts to make sure somebody else will pick up the slack. It's an imperfect solution that could end up being expensive, but it's an attempt to let everybody get what they want.

These aren't options actually being presented here, so Paul's response ends up feeling like a digression rather than an answer. The defense of Davis more directly responds to the debate non-libertarians are having in the media, so that's the part that ends up in headlines. 

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  1. Guess which part is ending up in headlines?

    THIS IS WHAT I’VE BEEN SAYING TO REASON. Stop at the first part and don’t even delve into the second when you’re speaking libertarianly.

  2. There’s also North Carolina’s solution, where clerks can refuse to hand out marriage licenses due to religious objections, but it would be up to the county courts to make sure somebody else will pick up the slack.

    This is ludicrous. This isn’t a private business owner refusing to bake a cake. This is a taxpayer funded public position that you either do based on the law or you resign with dignity.

    1. to be fair, government employees not doing their job has a long tradition, for example joe.

    2. Exactly right, FoE

    3. Its an elected position. Does that change the analysis?

      Is an elected official answerable primarily to the feds, or to the voters? Should the feds be able to force an elected official out of office and replace them with someone who will do the bidding of the feds over the objection of the voters?

      I’m not seeing an obvious answer to that, to tell you the truth. I think there’s examples on both sides.

      1. Well, local officials, elected or not, are still bound by federal laws. SCOTUS has spoken on this issue, so I’d say the clerk is bound by that. She has to treat gay marriage applications like those of straight marriage applications. If she treats them differently then the Feds have standing to deal with her. Otherwise, I’d say its up to her constituents.

        1. “Well, local officials, elected or not, are still bound by federal laws.”

          No, they are bound by the constitution and laws passed in pursuance there of.

          “SCOTUS has spoken on this issue, so I’d say the clerk is bound by that.”

          Please point to the clause in the constitution that gives SCOTUS the sole authority to decide what is and isn’t constitutional.

          “She has to treat gay marriage applications like those of straight marriage applications.”

          She is. She isn’t issuing any marriage licenses.

          1. “Well, local officials, elected or not, are still bound by federal laws.”

            No, they are bound by the constitution and laws passed in pursuance there of.

            Yes, and the Supreme Court has ruled. She needs to do her job.

          2. Please point to the clause in the constitution that gives SCOTUS the sole authority to decide what is and isn’t constitutional.

            lolwut? Per Wikipedia:”Established pursuant to Article III of the United States Constitution in 1789, it has ultimate (and largely discretionary) appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, plus original jurisdiction over a small range of cases. In the legal system of the United States, the Supreme Court is the final interpreter of federal constitutional law…” Last I checked, the Constitution is the supreme level of federal law. That would be Article 6, Clause 2, you know, the Supremacy Clause. So to answer your question, they absolutely have the sole authority to “decide what is and isn’t constitutional.”

        2. “Well, local officials, elected or not, are still bound by federal laws…”

          Isn’t that what christie, as well as every other neo con prohibitionist, is saying about marijuana laws and that’s why he will shut down every state that has voted to legalize pot? So, according to your argument, he is not only right to do so but has the obligation to do so. Let’s at least be consistent.

          1. Same applies to sanctuary cities with regard to immigration laws.

            Basically a lot of people here are arguing that everyone should be bound to the Federal law, but only the ones they personally like.

      2. Being elected to do a job doesn’t give, in my opinion, an officeholder carte blanche to ignore laws to suit personal convictions. If the position to which you were elected changes, while you’re in office, to degree with which you are not comfortable, resign.

        1. And she also has a legal way to follow her religious beliefs, and that’s to do what many other clerks have done and refuse to issue any marriage licenses. Then I think it would remain a local issue (national media notwithstanding).

          1. She already is refusing to issue any licenses.

            1. The linked Reason article from yesterday says that she’s refusing to issue licenses to same-sex couples, so that’s what I was going by. If she’s already refusing all applications then I don’t see why the state of Kentucky is involved unless they have some law saying all local governments must issue marriage licenses in a timely manner, or something.

              1. A specific complaint was filed in court about her no issuing to sme-sex couples and her dodge around discrimination charges was to stop issuing to all.

                And the state is involved because a vote of impeachment by the state legislature is the only way to hold any court clerk accountable for malfeasance or dereliction. There is no local control of County Clerks because of their ability to lay and collect taxes for real property and vehicles.

                1. I see, thanks for clarifying.

            2. SF, I don’t know Kentucky law, but where I’m from, County Clerks are elected locally, so they are accountable locally. If the district she’s from doesn’t like her or what she’s doing, a recall election can be held. There are other ways than the State Legislature to hold elected officials accountable.

              1. KY County Court Clerks handle voting in the county. She would be the person to organize, oversee, and hold a recall election. That’s why it is up to the state to remove her.

                And she has enormous local popularity, so I doubt a recall would even pass if it was organized from outside the county. (And the state would have to organize it and the votes wouldn’t be there to authorize it or fund it.)

                She will have to be fined or jailed into compliance, and that will just make her a martyr.

                There aren’t a lot of viable avenues to deal with her that won’t make her a bloody shirt for the Christian Right to wave.

              2. If the district she’s from doesn’t like her or what she’s doing, a recall election can be held. There are other ways than the State Legislature to hold elected officials accountable.

                What if the district she’s from approves of her refusing to issue marriage licenses to inter-racial couples? Or Jews? Or Republicans? The issue isn’t whether or not the majority approve of her actions, it’s the minority affected by her refusal to do her job that’s the issue. “Holding her accountable” assumes that there is someone who wants her to be held to account and someone who can and will.

          2. My understanding was that that is what she was doing, not issuing any. I agree it’s a local issue, that’s for sure. My opinion is that what’s she’s doing is akin to taking office and refusing to fulfill the requirements of that office. It’s a kind of fraud.

            And she has a way to prove her faith. Disassociate herself completely from the den of iniquity and resign the office. But she’s not willing to go that far, it seems.

            1. Oh, there’s no doubt that her refusal to resign reveals a serious character flaw.

            2. Wouldn’t doing something the voters didn’t want be more like fraud?

              1. I suppose if the voters expected her not to issue any licenses…

                1. What if the voters had expected her to close Gitmo and rein in the NSA and she didn’t? What if she told the voters not to worry, that if they liked their health insurance plan they could keep their health insurance plan and then they couldn’t? At what point does it become fraud, at what point an impeachable offense?

          3. Unless there is a previous agreement of both employee and employer regarding certain issues, does the employer have the right to demand a person do the job they are being paid to do?

            1. I guess that would depend on who the “employer” was. The people who voted her in?

    4. There’s no law. There’s a SCOTUS decision. I’m not saying the clerk is in the right, just that I’d be not at all sympathetic to her position if this concerned a law crafted by her state legislature and signed by her governor or something done by Congress and signed by the President.

      1. Congress could deal with this issue if they wanted to. Until they do, I think SCOTUS should be the authority on the matter, for better or worse.

  3. “Guess which part is ending up in headlines?”

    Rhymes with Rudolph Blitler?

  4. no wonder people want to work in govt – you get to decide which laws to follow and which to ignore, and at least one public official will justify your doing that.

    I think Rand is done now. You cannot defend the actions of the KY employee.

    1. “you get to decide which laws to follow and which to ignore, and at least one public official will justify your doing that.”

      And if you are the president, and secure from impeachment, then many officials will justify your doing that. And apparently the A.G. of Pennsylvania can pick and choose laws too.
      ALL of them should be disciplined or fired if they can’t find it in their conscience to follow the existing law.

      1. Kane is now being prosecuted, and the Supreme Court of PA has started a motion to remove her from the bar which, if successful, will automatically make her ineligible for Attorney General. She should have been impeached long ago, and it would be nice if she had enough dignity to resign her position in light of her prosecution, but she is finally getting some push back.

    2. The bigger problem is, Rand Paul does not believe an employer has the right to enforce an employer to do the job they are getting paid to do. As a christian and a libertarian, I disagree with this employee. I commend her commitment, but not that she has a right to get paid for not doing her job. If she was truly committed she would quit and tell them why. How far will you defend others from not doing their jobs and demand to get paid because for whatever reasons it violates their conscience. As I said, I commend this women for her convictions, I do not commend her for not doing the job she’s getting paid to do. She should quit if it is an issue for her. She should not be imprisoned, or fined, she should be terminate just as anyone else would be for refusing to do their job.

      1. We do not know for sure what her employers think about what she is doing (SCOTUS is not part of her chain of command).

  5. Sort of OT: If you haven’t yet, you guys ought to go and see, Best of Enemies. It’s a surprisely great and funny documentary about the debates between Goril Vidal and William F. Buckley. Anyway, one of the most striking things about the movie was that it showed how exactly progressives argue and that being arguing in bad faith and using ad hominems to prove their points. Buckley expected an intellectual debate about the ideas but Vidal had no intention of having an intellectual debate and this obviously caught Buckley off guard during the first rounds of the debate.

    This article kind of reminded me of that movie because Rand Paul made two decent points but instead of the media and the progressive left analyzing both of his stances, they will paint him as some sort of extremist that hates gays and want to put them in camps. Even when I debated progressives in college, they always argued in bad faith and unfortunately in order to beat them, you have to stoop down to their level.

    1. Call me a fascist again and I will punch your lights out

  6. It would be interesting to see what the response would be if a Muslim clerk starting refusing to issue various permits because they violated his deeply held belief in sharia law.

    1. What a brave hero!


    2. “All loan contracts of any kind made in this jurisdiction are hereby declared invalid and will not be enforced by local law enforcement.”

      That would be really, really, interesting.

    3. Or a police chief refusing to arrest people for marihuana possession. Or a city refusing to turn in illegal immigrants.

  7. Sould this women do her jobor go to jail or lose her job? Yes,should a baker not have to bake a cake for someone is he doesn’t want to yes.Se how easy that iis.

    1. Much easier then typing, apparently.

      1. Or speling.

  8. It’s a shame that he started so strong — the guy who stood up against NSA spying — and has since become bogged down in SoCon crap. It just reinforces why libertarians need to stand apart from both parties. Trying to run as a wing of the stupid party seems to be a losing strategy.

    1. I’m wondering now if he would have had more success creating another party, and sticking true to his original message. His dad tried that and failed electorally, but managed to inject freedom into the debate, and succeeded in that respect.

      With the groundwork that Ron laid, would it have been possible for his son to pick up where he left off and push it over the finish line? Think about Rand, separate from the RNC clown car, sending volleys across their bow every couple of days, taking them to task, calling out their insane policies like Fed-Exing immigrants and building a Canadian border wall. He’d get all the publicity he needed, and wouldn’t have had to compromise.

      I don’t know, hindsight, blah blah 20, etc.

  9. Oh, come on, Rand. You aren’t getting those Ben Carson votes, no matter how much you suck up to the socons.

    1. He’s really, truly done. It’s sad. The average voter doesn’t know enough about politics and government to understand his substantive arguments, and he just doesn’t have the oomph to be a populist or a demagogue. Oh well. There’s always 2020.

      1. He’d be a fool to run against Kanye.

        1. “I’ma let you finish, Rand, but…”

          1. +1 Beyonce shoulda won!

      2. There’s always 2020.

        Ophthalmology jokes are the corneast.

      3. If he is done, then getting any libertarian involved in government is dead, too. No third party bid has been close to successful, as yet! So, will the Republicans be able to even defeat a weak Democrat?! The future i not looking good for quitters!

    2. Not only that, he will not be going on the big boy debate stage. But, maybe him and the fascist christie can go at it again.

  10. Rand Paul pandering to bigots.

    Sometimes the Internet wastes so many words.

    1. I don’t think he’s pandering. I think he really believes it, which is why I have no tolerance for him.

      1. He strikes me as someone just clever enough not to believe in God but not so clever that he stopped being a libertarian at a respectable age.

        1. Yet clever enough not to subscribe to a collectivist scarcity cult.

          1. How many people do you need before you stop being a cult? Is progressivism a religion yet?

        2. Tony slipped and capitalized God. The God that is referenced in almost any discussion Tony has. The God that made Tony. BUT…not the god that made Tony a queer, wherein lies that which internally gnaws at Tony’s soul. Tony brings a whole new meaning to the term ‘transparent”.

          1. Ugh. DO NOT make me defend Tony!

            1. Defend him from what? Sticks and stones will break his bones, but Harvard’s inane gibberish will just leave him wanting Excedrin.

            2. Hey, I appreciate Tony’s consistent snark at the end of dead threads. I have lol’ed on numerous occasions. Also, Tony is a an expert level sock.

  11. She doesn’t have a problem collecting taxes from gay and lesbian couples already living in a union as married couples. She also doesn’t have a problem with infidelity and divorce. Religion and faith is ultimately subjective to what ever whim hypocrites need it to be at that particular moment. God doesn’t have a revocation wand to every divorce and certainly not a marriage certificate vault filed in the sky.

    If Paul had said religion should stay out of government and government out of marriage–all would be good with Libertarian karma.

    1. She doesn’t have a problem collecting taxes from gay and lesbian couples already living in a union as married couples. She also doesn’t have a problem with infidelity and divorce.

      Is she a tax collector and a family court judge as well as being a clerk?

      1. County Court Clerks in Kentucky collect automotive taxes and fees, and handle deeds and other paperwork involved with property taxes (although the county sheriffs collect the property taxes as such.)

        [son of a deputy court clerk]

      2. She also doesn’t have a problem with infidelity and divorce.

        I believe this is in reference to how she has been married four times. Hard to see someone who has been thrice divorced as a principled defender to the sanctity of marriage (even ignoring that government marriage should already be a violation of the sanctity of marriage to her in the first place).

        1. According to Eddie’s rules she is an adulterer three times over (not counting any other men she had sex with during the times she was not married) and continues to be an adulterer to this day.

        2. Or maybe it’s not a religious thing. Chech is one of the most atheist countries in the world and they don’t have gay marriage.

        3. Fortunately, no Catholic county clerks refused to issue those bigamous licenses.

        4. According to news reports she found Jesus after her fourth remarriage (to her second husband), and has been forgiven of the extensive fornicating, adultery and having at least two kids out of wedlock before she had her sins wiped clean.

          And now in the grand tradition of people who made mistakes in their lives before a conversion she’s a warrior for God.

    2. If religion should stay out of gov’t, then shouldn’t gov’t stay out of religion or is that only a one way street?

  12. I’m fascinated by the way disobedience of federal laws is a great thing sometimes (sanctuary cities, legal pot), and a terrible thing other times (marriage licenses).

    Its almost like there’s no principle involved, just politics and ends-justifying-the-means.

    1. The big difference is that the defiance of drug laws and immigration laws concern actual law. You can point to them in the US Code. It’s tangible. The marriage stuff? Pulled out of the ether.

    2. Yea, did no one else find it ironic that Attorney General Jack Conway is attempting to prosecute this lady for refusing to do her job because of her principles, when he is kind of known for refusing to his job (defend the state’s gay marriage ban) because of his principles?

  13. My opinion on marriage may be even a little beyond the Libertarian view point.

    I’ve advocated this for about 3 decades, but nobody listens.

    There would be no government-sanctioned marriage. Marriage, unions whatever one wants to label it would be neither legal nor illegal as marriage, union, partnership, etc would have no government involvement or standing.

    There would be no government imposed benefits, tax breaks, obligations or responsibilities toward one’s partners .

    Spousal benefits should be phased out of Social Security If anyone chooses not to work but wants to have Social Security Benefits, then that person should establish an account and figure out a way to fund it through the self-employment section of IRS.

    Those involved could have their own contracts subject to general contract law.

    Partners could call their unions whatever they wanted, and religious institutions could adhere to the tenets of their faith..

    1. Sounds good to me. I don’t see where that’s beyond a libertarian view point. Government has no business in marriage, period. And privatize SS so that the government can’t steal and waste the funds.

      Here’s another crazy idea. Let’s privatize health care.

  14. I simply reject the silly idea that same-sexed unions can have even remotely resemble a marriage. None of our marriage laws have any relevance to same-sex unions, therefore marriage, as defiined by our laws (concerning child support, child custody, alimony,etc) does not apply to same-sex unions.

    1. Many same-sex couples are raising children. They also have all the same non-child-related concerns that different-sex couples have. Also, you lost. Forever.

      1. Tony once again has showed his naievete. This ‘forever’ business is just silly. How’s that ‘forever’ thing going with the Democrat majority in congress?

        And I’m not opposed to gay marriage, so shut up.

    2. Not even remotely? You must not hang around many gay couples.

    3. Bless your heart, Arthur.

    4. You forgot about tax breaks and spousal, benefits. Do you think anyone would care about this without the freeshit?

  15. Except as a protest vote, Rand Paul has already compromised himself out of consideration. There’s no there there these days.

    1. Who’s your man these days?

      1. Def not you. You’re mine.

        *licks chops at the thought of Fist’s lone kidney being served up with fava beans and a nice chianti.”

    2. I don’t know that I would say he has compromised himself – he said he was not his father and he was not a libertarian. What libertarian beliefs do we have reason to believe he holds and which libertarian beliefs do we merely hope he holds and which of those has he compromised?

  16. I have mixed feelings about this. I want to say “give out the fucking licenses or rot in jail ya crusty bint!” But then, I think of “the banality of evil” – about all those clerks who “just followed orders” regardless of their own values. What if the government official in question refused to act in a situation which would lead to a punishment that was unjust? I don’t think anyone here would be complaining. The Progs wouldn’t complain of this lady was holding up a fracking project or suchlike, I’m sure of that.

    I believe I can’t be too hard on someone who stands up for, even if I don’t agree – even if I’m utterly opposed to – their values then just mindlessly follow orders. I think (hope!) that this is where Paul was going (not that anyone in the press will give a shit)

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  18. Bake a cake? Issue a license? That “religious freedom” debate can go on forever. Rand Paul has a practical, Constitutional, viable solution to the whole mess Go back and listen to the tape.

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