Huckabee backs clerk, says court can't set law

WASHINGTON -- Former Arkansas Gov. Mike Huckabee on Wednesday came out in support of a Kentucky county clerk's refusal to obey federal judges, saying she does not have "the constitutional authority" to issue marriage licenses to same-sex couples.

The Republican presidential candidate issued a statement backing Rowan County Clerk Kim Davis, saying the Supreme Court doesn't have the ability to make laws and can't force states, or clerks, to issue licenses to gay couples. Davis, one of the last clerks in the country known to be denying licenses to same-sex couples, is to appear at a contempt hearing today.

Three law professors disagreed with Huckabee, saying by phone that the Supreme Court had the power to interpret the Constitution in its June decision in Obergefell v. Hodges, which found that laws banning same-sex marriage violate the 14th Amendment's due process and equal protection clauses.

On Wednesday, Davis continued to deny marriage licenses to gay couples, saying her faith prevents her from complying. U.S. District Judge David Bunning has ordered her to issue the licenses, an appeals court affirmed that order, and on Monday the U.S. Supreme Court left her no legal option when it refused to intervene.

Under Kentucky law, county clerks' duties involve issuing marriage licenses. Kentucky Gov. Steve Beshear has instructed clerks to either issue licenses to all couples or resign.

Davis has vowed not to resign, even if she is fined or jailed.

The Associated Press quoted Davis as saying she is acting "under God's authority" when she refuses to issue marriage licenses. Her attorneys on Wednesday asked Bunning to delay his order so Davis can appeal Bunning's decision on a related matter, the AP said.

Huckabee released a statement praising Davis' religious conviction after they spoke by phone.

"Kim is asking the perfect question: 'Under what law am I authorized to issue homosexual couples a marriage license?' That simple question is giving many in Congress a civics lesson that they never got in grade school," Huckabee said. "The Supreme Court cannot and did not make a law. They only made a ruling on a law. Congress makes the laws. Because Congress has made no law allowing for same sex marriage, Kim does not have the Constitutional authority to issue a marriage license to homosexual couples."

Huckabee was campaigning in South Carolina and was not available to speak to the Arkansas Democrat-Gazette by phone Wednesday, his campaign spokesman said. During an appearance on American Family Radio, a conservative Christian radio network, he said that while the courts can rule whether a law is constitutional, Congress or state legislatures have to pass new marriage laws.

"We have essentially surrendered ourselves and our nation to a form of judicial tyranny where unelected judges rule the country rather than the people's elected representatives," Huckabee said. "The court can't make a 50-state law about same-sex marriage. They just can't. Now, they can decide that the way the law is carried out is unfair, but again, it is required that the people's elected representatives go back and create a law."

Huckabee asked which law county clerks like Davis should operate under, pointing out that voters amended Arkansas' constitution to specify that marriage is between a man and a woman and that it hasn't changed.

"They say she has to carry out the law. Well, which law? Which statute is it? Can you name it, can you tell me what number it is? Can you tell me exactly where in the statute books that law can be found?" Huckabee said. "The answer is no you can't, because there isn't such a law."

But University of Arkansas at Fayetteville law professor Mark Killenbeck said Huckabee "may be confusing two different lines of doctrine." Killenbeck teaches constitutional law.

If the Supreme Court had struck down a specific statute or a constitutional amendment like Arkansas', Congress or a state legislature could return to the issue and pass a new law in hopes it would survive judicial scrutiny, he said.

What the court did in the Obergefell decision is say that the 14th Amendment to the U.S. Constitution guarantees a fundamental right to marriage, he said.

Congress can't fix the Constitution by passing a law, so "the only way you're going to fix that one is if the Supreme Court ever changes its mind," Killenbeck said.

American University law professor Amanda Frost said the U.S. Supreme Court is tasked with interpreting the Constitution under the 1803 Marbury v. Madison decision. She teaches about the Constitution, legislation and law.

"The Supreme Court has said very clearly that same-sex marriage is constitutionally protected, and so, that is the law of the land, that is what the Constitution requires," Frost said. "So Mike Huckabee is wrong to think that they have not pronounced clearly on what the law requires."

Frost compared the situation to desegregation in the 1950s and 1960s. Schools had to integrate after the 1954 Supreme Court decision in Brown v. Board of Education even though Congress didn't pass a law requiring them to, she said. The court declared in the decision that state laws establishing separate public schools for black and white students were unconstitutional.

"It's the same idea," Frost said. "It's always been the case that the Supreme Court gets to tell us what the Constitution says, and that is the final word."

Arkansas' refusal to abide by the court's decision led President Dwight Eisenhower to deploy the 101st Airborne Division and federalize Arkansas' National Guard to ensure black students could enter Little Rock's Central High School in 1957.

Huckabee said on the radio show that politicians have allowed the Supreme Court decisions to shape national policy to avoid making tough decisions themselves.

"We have, for about 70 years, observed the idea that the courts can make law, and it's rooted in the notion of politicians that are too cowardly to make political decisions, so they hid underneath the skirts of the Supreme Court justices' robes and therefore pretended that, well, there's nothing we can do about that, that's the law of the land," Huckabee said.

UA associate law professor Danielle Weatherby said the Supreme Court's Obergefell decision is binding, and the argument that Congress hasn't acted on the issue won't stand up when Davis has to appear in court.

"I don't agree with Mr. Huckabee's statement, and I don't think that's an appropriate justification for the county clerk's refusal to issue marriage licenses in Kentucky," Weatherby said.

She said people say the court overstepped its role when they don't like how it interprets the Constitution, but that doesn't mean it has.

"Because this is such a politically charged issue, politicians that disagree with the court's ruling will, of course, make the argument that the court overstepped its judicial powers," Weatherby said.

Huckabee said on the radio show that Christians should be prepared to stand with Davis if she is held in contempt today and jailed or fined.

"Let's hope that there is somebody in the courtroom who might read the Constitution before they try to throw some ridiculous sentence against her, but, if she does go, then let's make sure that we say to America that we are all prepared to go with her," Huckabee said. "She feels compelled to do what her conscience, and what she believes the law, compels her to do, and thank God for her."

Metro on 09/03/2015