God did not give us the spirit of fear, but of power and love and self-control. Therefore, do not be ashamed of the testimony about our Lord, nor of me his prisoner, but share in the suffering for the gospel and the power of God.
—2 Timothy 1:7-8, the Bible passage Kim Davis asked Liberty Counsel attorney Harry Mihet to share with her supporters on Monday, September 7, 2015¹—

The checks and balances woven into the fabric of our constitutional republic were designed to prevent each of the three branches of government—executive, legislative, and judicial—from abusing its power. Members of the legislative branch are accountable to the people who have elected them. The same is true of the president. The president can check Congress through his power to veto legislation. Also, if the president acts lawlessly, Congress has the authority to impeach the president and to vote to remove him from office. Although justices of the Supreme Court are appointed, the Constitution gives Congress specific authority to regulate the Court: “Article III, Section 2, of the U.S. Constitution gives Congress the authority to ‘check’ judicial activism, up to and including when justices illegitimately legislate from the bench: ‘[T]he Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.’”²

Unfortunately, Congress today apparently has ceded its authority to restrain a lawless president³^,⁴^,⁵ and its authority to rein in a lawless Supreme Court. We’ll save the subject of lawlessness on the part of the executive branch for another day; for now, let’s consider briefly the overreach of five of the nine Supreme Court Justices in the Obergefell decision.

For the U.S. Supreme Court to justifiably overturn some law duly passed by the United States Congress, its opinion must be deeply rooted in one or more of the following:

• A clear reading of the U.S. Constitution;
• Some prior court precedent;
• History and the Common Law;
• Our cultural customs or traditions;
• Some other law enacted by Congress.

As the high court’s four dissenting justices rightly observed in Obergefell, the “five attorneys” who invented this newfangled “right” to “gay marriage,” failed, abysmally, on each and every requirement. ⁶

With Obergefell, we have a situation where the Court has issued an illegitimate ruling and and where Congress, unless things change dramatically, is not going to rein in the court or work to diminish the ruling’s effects. Sure, Congress still may act, but it has yet to demonstrate any resolve to restrain an out-of-control judiciary, so we ought not to hold our collective breath.

What, then, can “we the people” to do? We must peacefully resist, just as Rowan County, Kentucky clerk Kim Davis has done.⁷ In fact, Kim Davis actually is upholding the law amid the onslaught of a lawless, out of control judiciary.⁸^,⁹ She spent six days in jail,¹⁰ but what law did she break? No one can cite even one!¹¹ Yet Davis is being vilified as a lawbreaker, and by the same people who, not all that long ago, applauded illegal actions taken by government officials to advance same-sex marriage.¹²^,¹³

Some Christians have made the case that Kim Davis should resign. One evangelical who is a very articulate advocate for religious liberty—Russell Moore—coauthored a piece that said

we must recognize the crucial difference between the religious liberty claims of private citizens and government officials. Let us be clear: Government employees are entitled to religious liberty, but religious liberty is never an absolute claim, especially when it comes to discharging duties that the office in question requires. While government employees don’t lose their constitutional protection simply because they work for the government, an individual whose office requires them to uphold or execute the law is a separate matter than the private citizen whose conscience is infringed upon as a result of the law. It means the balancing test is different when it comes to government officials because of their roles as agents of the state. Government officials have a responsibility to carry out the law. When an official can no longer execute the laws in question due to an assault on conscience, and after all accommodating measures have been exhausted, he or she could work for change as a private citizen, engaging the democratic process in hopes of changing the questionable law.¹⁴

Moore essentially said the same thing when Roy Moore, Chief Justice of the Alabama Supreme Court, sought to enforce the marriage laws in Alabama, again, in the face of lawless actions taken by a rogue federal judge. These events occurred in early 2015. The Ethics and Religious Liberty Commission (ERLC) president wrote that

a government employee faced with a decision of violating his conscience or upholding the law, would need to resign and protest against it as a citizen if he could not discharge the duties of his office required by law in good conscience.¹⁵

Here’s an important question: How can this principle apply if the “law” that the official is to execute has been illegally, illegitimately, and blatantly put into place? This is exactly what has happened with Obergefell, and what occurred in Alabama a few months earlier, and what happened countless times before with regard to same-sex marriage in this country.¹⁶ We can be thankful for all public officials, few though they may be, who are willing to work to uphold the law against a tsunami of lawlessness. We need all the law-abiding public servants we can get!

We need all the law-abiding public servants we can get!

Mat Staver is the attorney for Ms. Davis as well as the founder and chairman of Liberty Counsel (LC), a non-profit law firm. In an email to friends of LC, Staver made these important points.

One fact that is widely misunderstood by many in the media is this: Kim’s case is also about her faithful adherence to Kentucky law and not solely about her fight to protect her First Amendment rights.…

While the Supreme Court struck down federal and state laws defining marriage as being between one man and one woman, the Court cannot create a new law. The five lawyers on the Supreme Court who created a “right” to same-sex “marriage” did so without constitutional authority and have thus created legal chaos. The Constitution states that the creation of laws must always come from the Legislative Branch.

Kentucky’s law still states that marriage is between one man and one woman. It takes action by the Kentucky legislature and governor to change their state laws to reflect the Supreme Court’s ruling. The law cannot simply be “deemed” into place!¹⁷

There’s another issue to be considered as well. With all due respect to Dr. Moore, expecting Christians to step away from public office under these circumstances—or not to seek office to begin with—would exclude Christians from an increasing number of public service jobs. Christians should not be prohibited from public service simply because of their faith. John Jay, a Founding Father and the first Chief Justice of the US Supreme Court, said, “Providence has given to our people the choice of their rulers, and it is the duty, as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers.”¹⁸

Recently Glenn Beck and David Barton had a conversation in which historian Barton explained why Kim Davis actually is upholding the law. Their conversation was captured on camera and has been posted on YouTube (just 1:39 in length). Barton explained,

The Founding Fathers made it real clear that the laws of God are higher than the laws of man. Every one of the Founding Fathers who wrote legal works made that point. You have the laws of God first. So this [the law that is central in the Kentucky case] is a law of God. Man’s law is not allowed to contradict God’s law; this is why we’re a republic, not a democracy. France was without a higher law; it was whatever the majority wanted at the time. But in America where you have a republic, you have a higher law. It’s God’s law, then it’s the Constitution, then it’s the consent of the governed, but in France and other places, it’s whatever the majority wants at a particular period in time, which changes across the years.… ¹⁹ (Minor edits were made for clarity and smoothness.)

The bottom line is this. Kim Davis shouldn’t resign. She should stand her ground and continue to enforce the law. Franklin Graham said, “We need more Americans who are willing to take a stand for religious freedoms and biblical values in our communities. If we don’t, we won’t even recognize the America that our children and our grandchildren will be left with.”²⁰

Sadly, it’s difficult to recognize it even now. Yet, if God can empower one to stand for the truth regardless of cost, and if He can empower a few, then He can empower many—and perhaps the tide can be turned. Are you available?

Read Ted Cruz’s statement on Kim Davis here.
Watch Ted Cruz talk about the Davis case on The Kelly File here.
Article: “Huckabee: Jailing Kim Davis is Christian Persecution” by Alex Swoyer
Article: “Where 2016 Candidates Stand on Kim Davis’ Arrest” by Ben Johnson

Notes:

¹http://www.wnd.com/2015/09/kim-davis-speaks-to-supporters-from-jail-2/

²http://www.ammoland.com/2015/09/why-the-supreme-court-is-not-supreme/#axzz3l51gze2L

³http://news.investors.com/ibd-editorials/081613-667885-obama-presidency-leaves-a-lawless-legacy.htm?p=full

⁴http://www.wnd.com/2014/06/obamas-lawlessness-now-beyond-partisanship/

⁵http://www.wnd.com/2015/04/obamas-wanton-lawlessness-should-disturb-us-all/

⁶http://www.ammoland.com/2015/09/why-the-supreme-court-is-not-supreme/#axzz3l51gze2L

⁷https://www.afa.net/the-stand/news/kim-davis-is-rosa-parks/

⁸http://www.wnd.com/2015/09/the-law-abider-who-sits-in-jail/

⁹http://www.eagleforum.org/publications/column/judicial-tyranny-in-kentucky.html

¹⁰Kim Davis was in jail from Thursday, September 3 until Tuesday, September 8, 2015.