Perhaps the single most important issue in the Kim Davis situation (the County Clerk in Rowan County, Kentucky, who was jailed for refusing to issue same-sex marriage licenses) -- an issue about which most observers and commentators have been completely silent -- is the flagrant violation of the constitutionally-mandated separation of powers.
By way of background, Federal Judge David Bunning ruled that Davis was in contempt of court, which a court can legitimately do. But he then ordered federal marshals enforce his decision and take her into custody, which he cannot do. Federal marshals are part of the Executive Branch, not the Judicial Branch; he has absolutely no authority to order any federal marshal to do anything.
Significantly, the Founders -- and thus the Constitution -- did not give power to the Judiciary to enforce any of its decisions -- they deliberately made it powerless in this regards. They made the Executive Branch alone responsible for enforcement.
So while Judge Bunning can (and did) issue his personal opinion regarding Kim Davis, his personal opinion does not have the force of law. (By the way, check any civics book: a law must originate as a measure proposed in the House or Senate, be passed by both, and then signed by the president. Only then and by this means does anything become law.) Bunning must thus ask (not order) the Executive Branch to enforce his opinion, and if it agrees, it can order its marshals to do so, but the Judicial Branch may order no such thing.
Sadly, not only did the Judicial Branch first take on itself the role of the Legislative Branch by issuing its ruling in the homosexual-marriage decision, but now it has assumed the role of the Executive Branch by attempting to enforce its own opinion. The Founding Fathers vehemently objected to this practice. As George Washington warned:
"[T]hose entrusted with its [the nation’s] administration [must] confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism."
James Madison similarly charged:
"The preservation of a free government requires not merely that the metes and bounds which separate each department of power be universally maintained but more especially that neither of them be suffered to overleap the great barrier which defends the rights of the people. The rulers who are guilty of such an encroachment exceed the commission from which they derive their authority and are tyrants. The people who submit to it are governed by laws made neither by themselves nor by an authority derived from them and are slaves."
Samuel Adams agreed:
"In all good governments, the Legislative, Executive, and Judiciary powers are confined within the limits of their respective departments. If therefore it should be found that . . . either of the departments aforesaid should interfere with another, it will, if continued, essentially alter the Constitution, and may, in time, . . . be productive of such convulsions as may shake the political ground upon which we now happily stand."
Thomas Jefferson thus admonished that we must "cleave to the salutary distribution of powers which that [i.e., the Constitution] has established" and that if we ever move away from its separation of powers that "we shall be in danger of foundering."
Perhaps political philosopher Charles de Montesquieu -- a favorite of the Founders, and the most-cited human source in the political writings of the Founding Era -- said it best when he declared:
"There is no liberty if the power of judging be not separated from the legislative and executive powers."
So while the Kim Davis travesty continues, perhaps the most dangerous aspect of the entire controversy is that Judge Bunning personally ordered her to jail, thus blatantly violating one of the Constitution's most important provisions for securing the liberty of the entire people.
DB
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