By David Tulis
Local officials in the states remaining that haven’t gone gay are considering how they can stand on principle in what appears an overwhelming onslaught. For those who haven’t caved or who haven’t faced their crisis of conscience, an important concept offers itself to that upgirds the loins of their thinking.
They should be belligerent claimants in person in holding their offices and maintaining a defense of marriage through their constitutions. Yes, the next opinion apparently will be from the federal supreme court, and the question they have to answer is: Does that court have authority of marriage, or does my state have authority over marriage?
My light reading into the subject suggests that federalism and the rights of the people will perhaps not be defended by the federal court. So their rights have to be defended by common low-level officers and clerks in cities and counties. If federalism and the constitution is to live, it will have to be among miracle workers who hold public office and who say, “enough is enough.”
These state actors are, indeed, friends of liberty even though often in their official duties they manage an oppressive regulatory, licensing and tax-collecting authority. In this matter they are potential defenders of ancient rights, namely that of marriage, its common law form and its statutory variety.
Good faith should be their primary motive and all-absorbing thought as they defy the shrieks of ACLU attorneys and happy gays trying to tie knots reserved by creation for one man and one woman.
Bad faith and its bitter fruit
Bad faith could be understood as a state of mind involved when one is not being faithful to one’s duty or obligation. It implies a tainted or fraudulent motive and it is palpable when it is perceived. A government employee acts in bad faith for purposes of official immunity only when he could not have reasonably reached the decision in question.
It is the antithesis of good faith, and carries a suggestion of dishonesty, which state of mind in some instances is a question of fact for the jury. It may contain elements that are unreasonable, frivolous, untenable, unfaithfulness to one’s obligation or duty. It bears the badge of malice. It is a tort, a breach of duty imposed as a consequence established by an agreement, contract or oath. Bad faith contains the idea of intention; it’s worse than a mistake in judgment or an error made in ignorance. It’s worse than negligence
An official who intends to establish his good faith in a controversy has firmer ground on which to stand if he can show his reasoning based on law, tradition or precedence. He refuses to unite two gays in marriage not because of cultural animus, hatred, disgust or disregard or because he is a Christian and the petitioners are pagans.
He refuses them not in a shadow, in a murk, like the shadow in the last men’s restroom toilet stall out of reach of the neon lamp over the washstand. He acts in the radiance and effulgence of good faith, of good intention, of obedience to statute and constitution, of prudent care for the interests of the people with whom he covenanted when he took public office.
Acting in good faith
Black’s Law Dictionary defines good faith to suggest the proper spirit.
A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty and obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or, (4) absence of intent to defraud or to seek unconscionable advantage.
A public official, a person of simplicity of heart and conscientousness, who stands for marriage stands on the firm ground of good faith, refrains from entering the way of evil.
My essential good-faith clerk analyses
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 glad defense of democratic processes, states’ rights, federalism