A few weeks ago, Kentucky county clerk Kim Davis was held in contempt for not issuing marriage licenses to a pair of homosexual couples. On the day of her release from jail, a rally was held in support of Davis, where Republican presidential candidate Mike Huckabee made an appearance. He said in front of a large crowd that “if someone has to go to jail,” he is “willing to go in [Davis’] place.” Besides the clear problems the creation of such a precedent would pose to our entire judicial system, Huckabee’s reasoning behind this proclamation implies a lack of understanding of parts of our Constitution.

Huckabee said he was “tired of watching people be harassed because they believe something of their faith.” He claimed he could not stand “people being denied their basic, fundamental freedoms.”

In 1776, the Constitution was signed by our Founding Fathers. Along with the Constitution came the Bill of Rights, containing the First Amendment, which stated: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Huckabee seems to be referencing the second portion of this clause. It seems he feels Kim Davis is being prohibited from freely exercising her religion. This doesn’t quite ring true to me. I’m sure, had Davis so desired, she could have left her position as county clerk. The only thing prohibiting her from practicing her religion (by refusing to issue marriage licenses to same-sex couples) was her own choice to not voluntarily leave her job. She was not performing the duties of her job. Davis has asked to have her name removed from the marriage licenses, which, despite my own views, seems a reasonable and legal request. But this is essentially a request for a change in contract. Davis must wait for this to be processed, while continuing to perform the job she signed on for, or leave.

Let’s not forget the often-overlooked first half of the clause — the part that says: “Congress shall make no law respecting the establishment of religion.” It seems to me that it is quite possible that denying same-sex couples the right to marriage, while referencing the ideals of Christianity, may have in fact been a violation of the exact statute used to justify it. The government is not supposed to make laws on the basis of any religion. That part actually comes first. Kim Davis is acting as an agent of the government. As such, she is required to not act in a way informed by a specific religion.

In his defense of Davis, Huckabee also said that he was tired of the courts thinking they could “make up a law out of thin air.” Let’s dissect this one, too. Our government is nicely structured for a balance of power between the judicial, legislative and executive branches. Huckabee, to his credit, is actually correct in his statement that the courts — the judicial branch — cannot just fabricate laws. However, that’s not what the Supreme Court did just a few months ago.

In June 2015, the Supreme Court ruled that state governments could not deny the right of same-sex couples to marry. It didn’t just make this up. The decision was made on the basis of the 14th Amendment to the Constitution, the one that ensures equal protection under the law. The Supreme Court functions to interpret the laws of the land. In June of this year, the Court decided the legal interpretation of the definition of marriage has been contradicting the 14th Amendment, and appropriately adjusted the parameters by which marriage licenses are issued. It didn’t just make up a new law.

Also, let’s not forget that while the equal protection clause of the 14th Amendment and the freedom of religion clause of the first are often framed in conflict, the former does in fact also function to confirm the latter. The equal protection clause, in many ways, supports the freedom of Americans to practice whatever religion they desire without being punished or discriminated against as a result of such practice.

So, Mike Huckabee, please review your study of the Constitution. While I doubt it will change your personal beliefs, I hope it might make you see the legality of this issue a little differently.

Melina Hsiao is a sophomore in the College. Behind the Politics appears every other Wednesday on thehoya.com.

One Comment

  1. The Constitution was ratified in 1787. The First Amendment was added in 1789.

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