A knave in high office, in justifying his tremblings, may see truly the claim subjective conscience has upon elected officials faced with lawless edicts from other authorities. (Photo Gov. Bob Bentley’s website)
Basically when you get sworn in to office, you swear to uphold the laws and the constitution of the Unites States and the constitution of the state of Alabama. So now you have a federal judge that says the constitution of the United States is in direct conflict with the constitution of the state of Alabama. I swore to uphold both of them and it’s difficult.
— Victor Manning, Jackson County, Ala., probate judge
By David Tulis
Sometimes even a coward will make a true statement. Meet Alabama Gov. Robert Bentley, who refuses in face of the gay mudslide swamping his state to grab a shovel and hurl the muck back to Washington, D.C.
The good governor will support probate judges who license and record gay marriages, and those who won’t.
”I think it’s up to the individual probate judges to make the decisions for themselves on what they’re going to do because they’re elected officials,” Mr. Bentley says. “They’re constitutional officers, so they have to make up their mind what they should do in their area.”
He so handily pivots upon the plinth of the state constitution because a judge’s oath of office may bind him one way — or another.
He’s right to assert a judge is responsible to uphold the constitution HIMSELF. A judge has a moral and ethical obligation in his subjective understanding to the pro-marriage state constitution. He must recognize its binding force upon him (or not). An Alabama issuer of marriage licenses may join the gay parade and beam amid the confetti. Or he may stand resolutely on the curb and let prancing flamingos pass.
Gov. Bentley, a Republican, wants to be all things to all people. His own oath to uphold the constitution of his state should compel him to vigorously defend it as an expression of the democratic will of the people who elected him.
Despite his slackness, his mollycoddling, Gov. Bentley acknowledges the power of the oath to bind public officials each according to his conscience and on the strength of his character.
Personal duty to uphold law
In Tennessee, county clerks handle the issuing of marriage licenses and recording of unions between a man and his bride. In Hamilton, Marion and Sequatchie counties are three clerks typical of those around the state — Bill Knowles, Dwight Minter and Charlotte Cagle. They face the problem of the LGBTQ avalanche as do their Alabama brethren in an administrative function.
Gov. Bentley’s comment is relevant because it highlights a basic idea — that of constitutional government being a living, breathing organism that is made so by the good-faith upholding of it by individual state actors. Mr. Bentley is only to happy for county court clerks to ignore Alabama’s marriage law — if they see fit. They’re taking the easy way out, as is he.
But he admits the other side, as well, with perhaps a touch of admiration: That a clerk or probate judge is bound by his oath as it claims and strengthens him subjectively.
The subjective state of the probate judge or county clerk now is in view, and Mr. Bentley makes my argument for me. Messrs. Knowles and Minter and Mrs. Cagle in Sequatchie County can, in good faith, defy the supreme court of the United States if their duty to the constitution requires it. They can defy even the president of the United States if he directs them to perform a squalid or lawless act.
In disregarding the law himself, Mr. Bentley admits to the power of subjective states of mind among the state’s marriage-enabling probate judges.
Defensive posture, restorative goal
But the encouragement for state actors who are contemplating a bold and restorative role is unmistakeable.
Bill Knowles, the popular and aged clerk for the Chattanooga area, is to rally his conscience to himself. In June, if the U.S. supreme court assumes jurisdiction over a state matter and purports to deconstruct marriage by rendering an opinion, Mr. Knowles can sit at his desk in the Bonny Oaks administrative complex and quietly contemplate his future — and his past.
The people of Hamilton County have elected me to be their scribe, their recorder and clerk. Since word of the high court’s ruling came across the headlines, I have checked the Tennessee constitution on Lexis Nexis, and I see that the words on marriage I swore to uphold are still there. The legislature has not met to rewrite the law now that it has been advised by the federal supreme court as to what marriage is, and that two men might marry as a matter of constitutional right. The words are the same ones I swore to uphold in this office for the people of my county.
Let’s see. No, they’re the same ones. They haven’t changed.
Mr. Knowles and the 94 other county clerks in Tennessee should take heart. If they are convinced that marriage cannot as a fact be between any but one man and one woman, they should consider their oaths — made before God — and take courage. An oath is made before God because it is important, and a clerk demands God’s supervision of his promise because he knows he’s too weak to keep it by himself.
By his oath, he declares in public that God will help him keep his promise, no less than that God will judge him if he disobeys obedience to the constitution.
From this connection — among God, the office holder and his public promise — a man such as Mr. Knowles or a woman such as Mrs. Cagle in Sequatchie County can obtain the confidence and inspiration to yield no ground as to the facts and truth established in the state’s law.
Just as chains bind sadomasochists at the gay parade in Boston, so do chains of state constitutions bind the heart and minds of public officials threatened with lawless edicts from courts.
Sources: Erik Avenier, “Alabama probate judges confused over license for gay marriage,” WDEF TV wdef.com, Feb. 12, 2015
