Clerk facing gay mudslide can act in good faith, say ‘sorry, boys’

Farce and fun mark a Boston gay procession while good faith marks a quiet parade of county clerks in the South who say, “Ain’t marryin’ you guys.”

Farce and fun mark a Boston gay procession while good faith marks a quiet parade of county clerks in the South who say, “Ain’t marryin’ you guys.” (Photo

But the fruit of the Spirit is love, joy, peace, longsuffering, kindness, goodness, faithfulness, gentleness, self-control. Against such there is no law.                             

— Galatians 6:22, 23

By David Tulis

A virtue of local economy as an idea is that of personal economics. Rather than disappearing into the category of American consumer, you are a person who “trades.” Like an agrarian out of I’ll Take My Stand, you view buying and selling from a personal perspective. Trading brings into view not just yourself, but buyer and seller. Local economy is holistic.

In the same vein, constitutional government exists for the protection and benefit of a free people, such as those envisioned by that term in the Tennessee constitution. It is government that lives and breathes because its people deserve it, and its people insist on being under its protection — even though our friends and acquaintances care not to bask in its radiating warmth, and even though signs of state plunder obscure constitutional government and put it nearly out of reach. Constitutional government, keeping the state at bay, is highly personal. It’s nearly physical. Office holders take a personal oath, come what may, to uphold their constitutions and the liberties implied therein. They put their persons on the line, and keep their promise even to their own hurt.

An office holder’s oath makes the constitution a personal thing. An oath doesn’t come home to a man when the sea is calm. When dark clouds and buffetings come, however, when a storm breaks overhead — the oath becomes one of two things — an insufferable burden or a means of comfort.

In Alabama, county clerks (called probate judges) have stood their ground on the constitutional forms of government, defended by chief justice Roy Moore who also is administrator of the state’s court bureaucracy. Tennessee clerks have faced similar trials. Right now they are getting a breather from the threat of having to perform homosexual unions, and they expect in June an opinion from the federal supreme court in Washington, D.C., on whether marriage law belongs to the states or to the national government.

Good faith defense for naysaying clerk

It would appear that the final say on their duties vis a vis marriage belongs to the supreme court. Or does it?

A clerk such as Bill Knowles is a constitutional officer, which means that as a local economy player he doesn’t see everything as abstract and impersonal legal realities, but in terms of his own person and his own duty, carried out in the flesh of his person in the form of his office.

The number of probate judges in Alabama who have “defied” a series of missives from a federal district court has shrunken. Initially 51 of 67 judges said no way to gay theory and the ACLU’s demands they record two men as married. Now the number is about 15.

That number need not shrink. Because he cares for the voters who elected him and the people of his county he represents, a county clerk with ordinary moral scruples can stand his ground and reject a judge’s orders for five reasons.

— His oath of office. He dare not disregard the oath to uphold the constitution, a vow made publicly before God.

— Care about democratic government. Obeying an order or a pretended order from a Yankee court violates his care for the people, who in Alabama and Tennessee overwhelming defined marriage in their constitutions.

— Fear of perjury. The state perjury statute makes clear that stating as a fact something one knows subjectively is not true is perjury. Even if one is wrong legally, one cannot affirm as a fact something he knows is not.

— Concern for oppression and misconduct statute. The oppression statute forbids an officeholder to do anything to injure a person’s constitutional right under color of law (TCA 39-16-403) and misconduct  where he “commits an act under color of office or employment that exceeds the public servant’s official power” (TCA 39-16-402)

— Good faith vs. bad faith. Rejecting a claim by a U.S. district judge or a U.S. supreme court, dare I say, is done in good faith, in light of the provisions above.

What is good faith?

Good faith describes a relationship between two parties. In contract, the “implied covenant of good faith and fair dealing” is a general presumption in the mind of each party that the other will act honestly and fairly so as not to destroy the interests of the other party in the arrangement. Good faith could be described as mutuality, amiability and “care for the other,” and is implied in the biblical admonitions of loving one another and putting the other person first. “Be kindly affectionate to one another with brotherly love, in honor giving preference to one another” (Romans 12:10). Good faith encompasses the idea of a sincere belief in the malice-free nature of the relationship. Good faith covers a multitude of sins and errors. Good faith is often heard in reference to state actors who violate the law — who make illegal searches without a warrant or probable cause — but whom are innocent of fault or offense because they act in “good faith.” Bona fide, in Latin.

Probate judges in Alabama, seeing their constitutional duty affirmed by Judge Roy Moore, act honorably and at high personal price to maintain a covenant among themselves, the people and God on His throne, the guarantor of their promise to keep faith with the state’s law.

Good faith is better understood by considering its enemy and opposite — bad faith.

Bad faith is fraudulent deception of another person, a tort on someone that is intentional or malicious. Bad faith is an “intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others,” by one online definition. Synonyms include lack of fidelity, lack of principle, lack of probity, mala fides, malversation, mendaciousness, mendacity,misfeasance, misrepresentation, obliquity, perfidiousness, perfidy, pettifoggery, pretense, pretext, recantation, recreancy, reprobacy, sedition, spuriousness, subterfuge, subversion, subversive activity, suppression of truth, surreptitiousness, traitorousness, treacherousness, treachery, turpitude, unauthenticity and unconscientiousness.

Moral high ground

Acting in good faith is acting in accordance with the “clean hands” doctrine. For a clerk to throw aside his oath of office and obey a malicious diktat is not acting in good faith. It is possible that it could be shown as acting in bad faith. Clean hands implies that one acts without covering up anything, and acts without guilt or sharing in any guilt. A clerk dubbed “defiant” in his local newspaper is better described as obedient and faithful, without shame. He holds up clean hands.

Good faith is a high ground upon which the obeyer of constitutional government stands. To self-consciously act in good faith defeats claims by critics and by judges that the clerk is acting in bigotry, spite or with class hatred. The clerk denies the presumption of good faith claimed by federal officials ranging from the U.S. district court all the way up to Scotus, the supreme court of the United States.

The clerk who opposes the LGBTQ mudslide serves to guarantee the rights of the people exercised in marriage and in family. He is defending, indirectly, the common law right of marriage which inheres to every man, regardless of the state of law around him. I say indirectly because he is defending the authority of his state to define marriage as solely between one man and one woman, parallel to the common law and ancient human tradition starting with Adam. This authority is wrongly seized by all the states that voided (or pretended to) common law marriage and replaced that with statutory marriage. Still, people exercise their rights according to record-keeping forms provided by the state. The national government, in our system of federal law in which a covenant is implied, has no authority to define marriage, as the supreme court admitted in the Windsor case.

Clerks and probate judges have a duty to God, through their oaths to God, even if they are not practicing Christians. They have a duty to record true things, to state only facts in the public record, and should not grow weary doing good, even if authorities high and remote demand otherwise.

— David Tulis hosts 1 to 3 p.m. weekdays at Hot News Talk Radio 1240 910 1190 AM, covering local economy and free markets in Chattanooga and beyond.

My good-faith clerk series

Clerk facing gay mudslide can act in good faith, say ‘sorry, boys’

Gleanings from sniveler’s lips: Oath of office controls duty of marriage clerks

Truth be told; how clerks, judges may cheerfully reject gay fibs in public record

Judges give cheerful defense of democratic processes, states’ rights, federalism

U.S. judge defends authority of states to define marriage



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