« Fjeld Repudiates Obama's Policies, Despite Having Voted for Him | Main | Tillis Fails to Answer Important Question on NC Family Policy Council Questionnaire »

10/19/2014

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

Your wrongness on this issue is stunning. No magistrates are being robbed of their religious liberty. If they don't feel they can do the job out of religious conviction, they can quit with their convictions intact. They don't have a right to those jobs, after all.

Calling Cogburn and Osteen judicial activists shows that you don't know what the term means. They issued very circumscribed rulings based on the case law that was effectively handed to them. You may not like that case law, in particular the SCOTUS's decision to let stand appellate-court rulings that approved same-sex marriage, but that doesn't mean it was an activist decision to apply it to NC law.

Andrew, there is so much to say.

First, the decisions by both Cogburn and Osteen were activist. Judicial activism occurs when judges make rulings that are not consistent with the text and structure and logic and history of the Constitution. The state of North Carolina had never even had the opportunity to make its case fully. And there is nothing in the Constitution to suggest that Cogburn and Osteen are bound by other case law-- even to the extent they did not need to hear a fully developed case in North Carolina.

It is very "charitable" of you, Andrew, to suggest that people are free to quit their jobs if they are being forced to violate their religious convictions. Of course, that is a smug, dismissive position that suggests it is OK to force people to throw away all they have invested-- and all they have at stake-- with their work and career, or their business.

Christians should not be faced with that awful choice. That is a violation of their religious conscience rights guaranteed in the North Carolina Constitution. And when your ideological and religious compatriots suggest that it is acceptable to violate the conscience rights of orthodox Christians, that is where we part our ways. That is what reveals the ugliness of the worldview that animates all of you.

(As if it is not enough that your crowd also tends to be pro-abortion.)

Judicial activism is about more than just the written Constitution. It's also about precedents and case law. Cogburn and Osteen didn't make law out of whole cloth. If they had, that would indeed have been judicial activism. But they didn't do that. They applied a very closely related ruling by the highest court in the land. So the definition of judicial activism that you're using is: If Joe Guarino really, really doesn't like a decision, then it's judicial activism.

Would you like a valid example of real judicial activism? I've got one right here. Wait for it...

Allowing mere magistrates to refuse to apply the law, simply because they don't want to: THAT's judicial activism!

I'm just looking at this like the conservative you should be. I can just imagine your complaining if a public official were allowed to retain his or her job after refusing to perform key requirements of that job!

In fact, aren't you upset at AG Roy Cooper because you believe he's not doing his job? Of course you're wrong, because unlike a magistrate, the Attorney General is allowed discretion and judgment. But the Cooper example illustrates how malleable your principles are. In his case, I'm guessing that you object to what you see as someone placing his judgment before his duty. For the magistrates, that objection goes out the window.

No one, Christian or otherwise, should have the right to act in ways that violate the law, or in the case of a judicial official, to undermine it. But belief is a different matter. No one's stopping your breed of Christian from believing that same-sex marriage is wrong. Your right to that belief is absolute and not even remotely affected by this. But such a belief doesn't give a magistrate the right to refuse to apply the law.

Sorry, Andrew. You fail.

Paying obeisance to precedent and case law is not a proper test for judicial activism. You are effectively arguing that judges must always follow precedent, even if the precedent itself is activist and wrongful.

Cogburn and Osteen were following activist precedent! In any case, your definition of judicial activism is tailored to deliver the outcome you want. It bears no relationship to reality.

Cooper's excuse for failing to make his case was not religious conscience. Instead, he was intentionally dragging his feet and deferring to the 4th Circuit with the expectation they would deliver the activist decision he wanted.

Cooper is bound by the NC State Bar to serve his client faithfully. He failed to do that, and therefore violated lawyers' rules and ethics.

Your position regarding religious liberty is plainly contrary to the North Carolina constitution. Read the section in Article I regarding religious conscience.

Andrew, your distorted worldview leads to some wacky arguments.

Do you mean Section 13 of Article I?

Sec. 13. Religious liberty.
All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.

That's great stuff, but it doesn't mean what you think it means. No one is infringing upon the magistrates' right to worship G-d. And no one is controlling or interfering with their conscience. They are free to worship and believe what they want. They are free to refuse to conduct same-sex marriages if they don't want to.

What they are NOT free to do is blow off the requirements of their job and their duty under state law. You have a funny notion of what conscience means. I think it means that one does what one thinks is right and if there are consequences, one accepts them. You clearly think it means that one should be able to have it both ways, i.e. that there should be no consequences. Yours is a weakling's view of religious conscience and dishonors those of your faith who actually have religious convictions.

Also, I did not say that precedent is the only test for judicial activism. You seem to be saying that it doesn't matter at all, however, which is nuts.

Democrats circa 1940: 'Your wrongness on this issue is stunning. No [Black Americans] are being robbed of their [cultural] liberty. If they don't feel they can do the job [due to cultural] conviction, they can quit with their convictions intact. They don't have a right to those jobs, after all.'

Andrew, you quoted the relevant section. The text is quite clear and unambiguous.

No human authority shall IN ANY CASE WHATEVER control or interfere with the rights of conscience. (emphasis added)

"In any case whatever..."

Seems pretty clear to me. You are effectively advocating a violation of the NC Constitution.

Religious liberty is not just a right to worship. It is much bigger than that. It is a right to live in accordance with one's faith; and to avoid being coerced to violate it. It is a right to live in accordance with one's conscience.

You might want to twist this into an attempt on the part of orthodox Christians to avoid consequences. That certainly serves a worldview such as that which you espouse.

With respect to precedent, judges ordinarily are expected to follow precedent, but that is not a constitutional requirement. However, if they encounter a wrongful precedent, they are free to attempt to oppose or overturn it. The 4th Circuit established a wrongful, activist precedent. Osteen should have tried to put a decision in the pipeline that would have sought to correct its egregious error.

When you argue, Andrew, that judges must follow precedent, you are effectively arguing that the Dred Scott decision should have been left untouched.

At this point, Andrew, I am out. I know that I am not going to change your mind. But it saddens me that the religious tradition of which you are part seems perfectly satisfied that the religious liberty of orthodox Christians is being violated because of gay marriage. You have made your choice.

You're misconstruing my words when you say that my mention of precedent implies that I'm fine with the Dred Scott decision. Either you're dumb or you're dishonest, and I don't think you're dumb.

"Sorry, Andrew. You fail."

The wrong-headed assumption of privilege and the arrogance is pretty astounding, isn't it?

Brod's been peddling his particular brand of nonsense for some time now. I'm amazed he actually moved out of his well-protected safe haven to respond to your post.

Rich Lowry anticipated this specific issue under discussion here back in March 2013.

"By seeking a shortcut in the courts, supporters of gay marriage want to end debate through judicial fiat. In an amicus brief in the case, the Becket Fund for Religious Liberty points out the consequences if traditional marriage is deemed irrational. Religious people and groups objecting to same-sex marriage will 'face a wave of private civil litigation under anti-discrimination laws never intended for that purpose,' and they will be 'penalized by state and local governments.'

In other words, supporters of the exotic-sounding practice of 'opposite-sex marriage' will be marginalized forevermore."

It's worse than the marginalization Lowery forsaw. It's at the level of criminal prosecution, used to implement the judicial fiat. The prgression to "thought crime" persecution has always been a possibility, and now there's ample evidence that it's going to be used in support of this social worldview agenda mandate.

This is what we're talking about here, whether Brod or any of his social agenda con artist pals like it or not.

Bob, you are absolutely right. But I think that Brod and his compatriots openly acknowledge that this is happening. And in fact, they give the appearance that they are cheering it on.

I commented here because I miss Bubba. And he's up to his old demented tricks, taking a simple issue and changing the subject. But I'm not arguing the broader legal question that Bubba wants to turn this into. I mean, sure, it's rich that after packing the courts with ideologues, conservatives are now complaining about judicial activism. But leave that aside. What I'm saying (and do try to follow) is nothing more and nothing less than this:

1. The current law of North Carolina is that same-sex marriages are legal. Like it or not, that's the law. Perhaps something will change next year or next month, but right now the law is clear.

2. A magistrate's job is to implement the law as it stands. Magistrates don't make law.

3. If a magistrate refuses to do his or her job, resignation is the only honorable and conscientious option. Whining in order to eat one's cake and have it too is neither honorable nor conscientious.

As for the broader issues, heck yeah I'm totally cheering it on. If you think that "Brod and his compatriots" are "giving the appearance" of applauding recent court decisions, you're rather dense. We're saying outright that this is a wonderful turn of events. No need to read tea leaves here.

Being that it's unexpected, it's easy for Brod to deny the Secular Inquisition...

Look at Brod run and hide from the truth! And I'M the one changing the subject?

WAY too funny, but utterly predictable.


I don't remember Brod calling out NC AG and probable Democrat candidate for governor Roy Cooper for failing to fulfill his sworn duties to uphold North Carolina's constitution regarding the definition of marriage. After all, the marriage amendment WAS the law in North Carolina at the time ooper was derelict in those particular duties.

On the other hand, we've long known leftist hypocrites have a sordid history of behaving that way, usisng situtational ethics as it fits their purpose, so perhaps we shouldn't single out Brod for that sort of thing.

After all, the ends justify the means, particularly when the system needs to be gamed for worldview agenda enhancement.

AGs are required to use judgment and discretion regarding the enforcement of the law. Magistrates and recorders of deeds are required not to do so. That apple ain't an orange.

For an AG to defend a law that, in his legal judgment, is destined to be overturned sounds like an unwise use of taxpayer money. And as it turns out, Cooper's prediction was right on the money. Not surprisingly, our AG knows a thing or two about the law and the constitution.

"AGs are required to use judgment and discretion regarding the enforcement of the law. Magistrates and recorders of deeds are required not to do so. That apple ain't an orange."

Not even close to the point I made previously, but that's to be expected from some weak minded partisan like you.

AGs of North Carolina are required by their oath of office to defend the state constitution, and the legally enacted laws, of which, the marriage amendment was a part.

Not surprisingly, you don't know what you're talking about. But that never stops you from embarrassing yourself with foolish throw-away rhetoric.

As usual.....

By the way, I agree that the ministers in Idaho (or anywhere else) shouldn't be required to perform same-sex marriages. A church just isn't the same as a county recorder-of-deeds office or a magistrate's court.

However, there is a valid question with the Idaho thing: Is the wedding chapel a for-profit business (and hence a public accommodation) or a church? My view is that it's a church, and therefore the ministers should be allowed to conduct weddings according to how they understand the Christian religion; and if isn't a church, a statutory exception should be carved out to allow certain for-profit wedding chapels to be treated as churches for this purpose.

The example I keep coming back to is a minister who free-lances and conducts Christian weddings for a fee. Suppose he conducts them in parks or country clubs or wherever. Is he a for-profit entity? I suppose he is, but I don't think he should be required to conduct same-sex marriages if he feels that conflicts with his Christianity.

The exception I have in mind would go no further than expanding the definition of what a church is. It wouldn't include bakeries or wedding planners. It wouldn't even include wedding chapels whose business model is clearly come-one-come-all. If an Elvis impersonator will marry you with whatever holy book you provide, I think that's a public accommodation.

The comments to this entry are closed.