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Posts for September, 2015

Marriage equality comes to Jersey

Timothy Kincaid

September 23rd, 2015

Jersey shoreDespite what “reality” television might try to convince you, Jersey is not the state immediately south of New York. Rather, it is an island in the English Channel, just off the coast of France.

Jersey is a possession of the British Crown, but is autonomous and self governing. Although the United Kingdom is responsible for Jersey’s defense and international relationships, it is not part of the UK.

Earlier this week, the unicameral State of Jersey Assembly voted 37 to 4 to include same-sex couples in the island’s marriage and divorce laws.

Truly ridiculous bill proposed in Tennessee

Timothy Kincaid

September 20th, 2015

Either Tennessee politicians Rep. Mark Pody, R-Lebanon, and Sen. Mae Beavers, R-Mt. Juliet, are phenomenally dense and lack even the most rudimentary understanding of law or else they are about the most pandering creatures on the planet. Even grade schoolers know that the US Constitution, as measured by the Supreme Court of the United States, is of a higher order than state law. But that makes no matter to these nincompoops. (Tennessean)

On Thursday two state Republican lawmakers unveiled their answer: a bill that they believe voids the Supreme Court decision and continues to define marriage under Tennessee law as a union between a man and a woman.

“Natural marriage between one (1) man and one (1) woman as recognized by the people of Tennessee remains the law in Tennessee, regardless of any court decision to the contrary,” the bill states.

“Any court decision purporting to strike down natural marriage, including (a recent U.S. Supreme Court decision), is unauthoritative, void, and of no effect.”

Their bill consists primarily of seven pages of WHEREAS statements quoting freely from the dissents penned by the Justices on the losing side of Obergefell v. Hodges. For some reason, they seem to think that the determination of Supreme Court Justices are legally compelling, but only when they agree with them.

This bill will go nowhere. Even should the legislators in Tennessee unanimously pass the bill with trumpet flare and dancing nymphs, it has no legal basis and will impact nothing. This sort of cynicism is a sad reflection on our political system and on the gullibility of these lawmakers’ constituents.

Nepal gets LGBT protections, possibly marriage

Timothy Kincaid

September 17th, 2015


In November 2008, it came to our attention that the Supreme Court of Nepal, a small Himalayan landlocked country between India and China, was pushing the nation to include protections and rights for LGBT citizens (it should be noted that Nepalese perspectives about gender and sexuality are probably different from that of Western societies, but LGBT likely adequately encompasses the ruling.)

In January of 2010, it appeared that LGBT protections, including marriage rights, were to be included in the nation’s new constitution and that the deadline for implementation was May 28, 2010.

But that date passed and political turmoil in Nepal’s parliament hindered the passage of the constitution. And not just for a brief while. Year after year has passed and nothing resulted but turmoil and strife.

But in April of this year, an earthquake registering on the Richter Scale at about 8.0, changed the nation’s priorities. About 9,000 people died and tens of thousands of others were injured. Ancient architectural landmarks were destroyed and entire villages were wiped out, leaving hundreds of thousands homeless. The nation’s response was abysmal, and much of the chaos was blamed on a lack preparedness due to political squabbling.

Suddenly the political differences seemed less important.

And finally, more than five years late, the constitution has been approved. (Time)

The landlocked Himalayan nation’s parliament passed the constitution on Wednesday with 507 out of 601 members of its Constituent Assembly voting in favor, Agence France-Presse reported.

The new charter replaces an interim constitution that has governed the country since 2007, when a decadelong civil war culminated in the end of its Hindu monarchy.

And it does appear that specific LGBT protections are in place: (HRC)

Article 12 states that citizens will be allowed to choose their preferred gender identity on their citizenship document. The choices available are male, female or other.
Article 18 states that gender and sexual minorities will not be discriminated against by the state and by the judiciary in the application of laws. It further adds that the government may make special provisions through laws to protect, empower and advance the rights of gender and sexual minorities and other marginalized and minority groups.
Article 42 lists gender and sexual minorities among the groups that have a right to participate in state mechanisms and public services to promote inclusion.

It remains to be seen whether these changes include marriage rights. However, as the Supreme Court has in the past directed that the government provide such rights, it seems likely that they will broadly interpret Article 18 and marriage equality may finally come to Asia.

Alabama House fails (again) to abolish marriage licenses

Timothy Kincaid

September 17th, 2015


Legislators in Alabama have been approaching the issue of issuing marriage licenses with creativity. Instead of coming up with escape clauses for those who go into conniptions at the thought of handing a piece of paper to an actual homosexual (gasp), the Alabamians just want to get out of the marriage business altogether. Rather than giving someone license to marry, they want to just record – after the fact – that people have entered into a contract of marriage, just like you would record a deed.

Which is not necessarily a horrible thing. There may be issues with how such a contract is seen by the Federal Government or by other states, but the marriage license process is pretty rote anyway and one less visit to the local petty bureaucrats is a blessing, not a hardship.

I had thought this issue had died in June when a House committee failed to advance the bill. But it was brought up for a vote this week in the House in special session. It failed again (

The House voted 53-36 in favor of the bill. But it required a two-thirds vote for approval because it was not part of the governor’s call for the special session.

It should be noted that the bill received majority support in the House and passed the Senate in June by a vote of 22 to 3. So there is a very good chance that this bill will be resurrected in the next session.

Meanwhile, Nick Williams, the Judge of Probate for Washington County (think County Clerk) has filed a petition with the Alabama Supreme Court expressing his concern about having to issue “a license to engage in sodomy”. I am not myself familiar with the Sodomy License and wonder whether, as with a Driver’s License, one has to take a test to show proficiency. Perhaps there’s a training course and a learner’s permit?

Williams has asked the Alabama Supreme Court for an order “upholding and enforcing the Alabama Constitution ans Alabama’s marriage laws, notwithstanding the decision in Obergefell v. Hodges.” In other words, he’s asked that the federal ruling by the Supreme Court of the United States be reversed by Alabama’s Supreme Court.

Of course the Supremacy Clause in the US Constitution prohibits states from overruling the US Constitution. But the yahoos on the Alabama Supreme Court have little regard for the rule of law or constitutions and they just might rule for Mr. Williams.

From Sarasota FL comes another Christian cake baker

Timothy Kincaid

September 16th, 2015

Spanish Prime Minister comes around

Timothy Kincaid

September 15th, 2015

RajoySpanish couples are now celebrating ten years of wedded bliss. But in 2005, they were fighting for their equality and their primary opponent was Mariano Rajoy, leader of the People’s Party (the conservative, Christian democratic party).

The People’s Party brought witnesses against equality and vetoed the bill in the Senate. But ultimately President Zapatero and the Socialist Worker’s Party were able to get the legislation passed, much to Rajoy’s ire.

But the sky didn’t fall.

And six years later when the PP gained power and Rajoy became Prime Minister, marriage equality was already a comfortable status quo. Rajoy inquired with the Constitutional Court as to whether the law was Constitutional. The court found it so, and that was as far as the matter went.

Now Rajoy may find himself even more comfortable with the concept. I don’t know whether he still opposes same sex marriage but, if so, it is a theoretical rather than personal opposition. (thelocal)

The Prime Minister’s words have come back to haunt him this week as he faces the prospect of attending the gay wedding of his colleague and close friend, Javier Maroto, an under-Secretary within the Popular Party and former mayor of the city of Vitoria.

Maroto, 43, will marry his long-term partner, Josema Rodríguez on Friday September 18th in Vitoria, the capital of the Basque Country.

But sources close to the Prime Minister have confirmed that it is “99 percent sure” he will attend the wedding:

“Javier is more than a colleague, he is a great friend,” the source told El Mundo.

(Also ElMundo in Spanish)

Kim Davis capitulates UPDATED

Timothy Kincaid

September 14th, 2015

kim davis loses

Rowan County Clerk Kim Davis has tearfully reached the exact position that the County, the Governor, the federal judiciary, and her gay constituents have been demanding of her. Marriage licenses will continue to be issued. (Huffpo)

“I want the whole world to know … If any [deputy clerk] feels that they must issue an unauthorized license to avoid being thrown in jail, I understand their tough choice, and I will take no action against them,” she said. “However, any unauthorized license that they issue will not have my name, my title or my authority on it. Instead, the license will state that they are issued pursuant to a federal court order.”

Of course no one else is questioning their validity and Davis’ only purpose in doing so is a whiny pretense that her efforts to impose her religious values on the county were not in vain.

They were.

UPDATE: new twist: Davis has altered the marriage licenses to remove any reference to deputy clerk. By “unauthorized”, she means “altered”. They likely are invalid.

McDowell County is not like Rowan County

Timothy Kincaid

September 11th, 2015

McDowelFollowing the story of Rowan County, Kentucky, Clerk Kim Davis and her refusal to follow the law and issue marriage licenses to residents of her county, attention has turned to the magistrates in McDowell County, North Carolina. (

Magistrates in McDowell County are refusing to perform same sex marriages.

A supervising judge confirmed to News 13 on Thursday that four workers in the office – Hilary Hollified, Thomas Atkinson, Debbie Terrell and Chad Johnson – have recused themselves under the North Carolina’s religious exemption law.

Some are seeing this as discrimination and bigotry just like in Rowan County and Something That Must Be Stopped. I see the situations as very dissimilar and am not much troubled by McDowell County or their magistrates.

Magistrates do not have any gate-keeping duties as to who can marry in the county. Those who choose to can officiate civil marriages, though they are not required to do so (nor, I believe, have they ever been so required). And McDowell County has provided replacements, magistrates from another county, so as to ensure that anyone wishing a civil marriage may have one. No rights are being denied.

But a more important distinction, to me, is the motivation. In McDowell County the issue is “what I must do” while in Rowan County the issue is “what you cannot do”.

For all that Kim Davis protests that she only wants to not have her name associated with marriages of which she disapproves, her actions show a different motive. The minute that her deputy clerks issued marriage licenses without her name – substituting “office of Rowan County” for “office of Kim Davis” – her attorneys insisted that the licenses were invalid. Davis’ goal is not removing herself from association with same-sex marriages but rather it’s prohibiting all such marriages in her county.

There have been a number of judges and magistrates and mayors and other officials across the country who have quietly removed marriage officiation from their list of services in order to avoid participation in same-sex marriages. And while this is a decision that is in conflict with my own values, so long as this is not a significant or relevant part of their duties and so long as an adequate replacement is provided, I am not much inclined to force people to do things that are contrary to their conscience.

Further, I think that throwing energy into coercive efforts (“they must follow my values, not their values, or they should be fired”) distracts from situations that truly are egregious and abusive. It makes our cause seem more about forcing or punishing others and less about achieving freedom for ourselves.

Seeking to block legal public services and deny civil rights, such as the efforts of Kim Davis, is a matter that deserves our attention and our ire. And, rightly, our community fought back and, if polls are correct, we won the debate.

But insisting that individual magistrates personally participate in same-sex marriages does not deserve our time nor serve our cause.

Kim Davis ordered released

Timothy Kincaid

September 8th, 2015


U.S. District Judge David Bunning issued an order Tuesday saying Rowan County Clerk Kim Davis shall be released from Carter County jail.

The judge’s order, filed Tuesday in U.S. District, says Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.

Bunning is requiring the clerks to file a status report with him to confirm that they are remaining in compliance. Should Davis interfere with them in any way, she will be sanctioned again.

The Huckabee rally is set to start shortly. It will be interesting to see how Davis/Staver/Huckabee will spin this latest twist. I suspect that we’ll hear about ‘the power of prayer’ and how this is a victory. But it’s difficult to see anything but defeat in this for Kim Davis.

Of course, she may declare that she’ll stop the licenses again and the circus may go on.

Meanwhile, a Rasmussen poll suggests that Davis only has support from about 26% of likely voters.

Marriage comes to Rowan County, Kentucky

Timothy Kincaid

September 4th, 2015

James Yates and William Smith Jr. paid $35.50 and filled out paperwork early Friday to become the first couple to get a marriage license in Rowan County since the U.S. Supreme Court legalized same-sex marriage June 26. Another couple soon followed.

With Rowan County Clerk Kim Davis in jail on civil contempt charges for defying a judge’s order to resume issuing licenses, deputy clerk Brian Mason ended the office’s two-month license ban by politely serving Yates and Smith on Friday, even congratulating them and shaking their hands afterward.

As for Kim Davis, she sits in jail. Where she will remain, I suppose, until she promises not to interfere in the issuance of marriage licenses by her staff.

After today the cameras will leave. Public services are now being issued in a manner that is equal under the law and daily life will resume in Rowan County.

Mike Huckabee and Brian Brown and others of their ilk will continue to rally and to point and scream, “they’re persecuting Christians” and some small segment of society will stay all worked up over this for a while. But the public has moved on and the professionally butthurt will soon find another ‘victim’ to champion.

And eventually Kim Davis will tire of her cell and decide that since she can’t prohibit gay people from marrying, she might as well stop being a martyr. Once the spotlight is off, jail isn’t much fun. And the small blip in the local press indicating some ‘compromise’ of some sort and Kim’s release will be the last of this story.

Judge to clerk’s office: issue licenses or join Davis in jail

Timothy Kincaid

September 3rd, 2015

The circus isn’t over


The judge also told all five of the clerk’s deputies, including her son, Nathan Davis, that they are free to issue licenses to all applicants while Davis is held in contempt, but would also face fines or jail if they refuse to comply. He told them to meet with lawyers briefly and consider their fates before returning to his courtroom later Thursday to reveal their decisions.

It appears that five of the six deputies said they are fine with issuing marriage licenses.


After deputies indicated willingness to issue licenses, Judge Bunning called Davis back to court. She refused, but spoke through her counsel.

She refused to allow her deputies to perform their duties according to their own values and religious beliefs. Only Davis’ religious freedom matters, not that of her deputies.

About that liberal Judge who is persecuting poor Kim Davis

Timothy Kincaid

September 2nd, 2015

(not Harry Potter)

Kim Davis is finding that her personal beliefs make it physically impossible for her to perform the task of issuing marriage licenses. And she’s going to court tomorrow to tell Federal Judge David Bunning so.

What she might not be considering is that Judge Bunning also has strong personal beliefs and has already determined whether an individual can find within themself the ability to do things with which they may not fully agree. has a profile on Judge Bunning.

David Bunning is the youngest of nine children of Hall-of-Fame pitcher and former [uber-conservative, anti-gay, GOP] U.S. Sen. Jim Bunning and his wife, Mary Bunning. He grew up in Fort Thomas and was nominated by President George W. Bush for federal judge for the eastern district of Kentucky in 2001. The Senate confirmed the nomination in 2002.

Bunning Sr. was narrowly reelected in 2004 by attaching his campaign to Kentucky’s anti-gay marriage amendment. If any family is vested in opposition to same-sex marriage, it is the Bunning family.

But as for Judge Bunning,

“David is an honest person,” his mother Mary Bunning said. “He doesn’t agree with the Supreme Court but has to obey the law.”

Davis contempt defense: it’s impossible to comply

Timothy Kincaid

September 2nd, 2015

Kim Davis simply cannot comply with the orders of Federal Judge Bunning’s order to do her job. She just isn’t physically able to do so. It’s impossible, you see. (Response in Opposition)

Davis should not be held in contempt because she “is presently unable to comply with the court’s order” enjoining her to authorize SSM licenses bearing her name. See Elec. Workers Pension Trust Fund of Local Union #58 v. Gary’s Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003) (emphasis in original); see also U.S. v. Rylander, 460 U.S. 752, 757 (1983) (“[w]here compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action.”); Tate v. Frey, 673 F. Supp. 880, 883 (W.D. Ky. 1987) (“The court’s power to impose coercive civil contempt is limited by an individual’s ability to comply with the court’s coercive order. A party may defend against a contempt by showing that his compliance is factually impossible.”) (internal citation omitted). To prove the impossibility defense to contempt, a person “must show categorically and in detail why he or she is unable to comply with the court’s order.” Elec. Workers, 340 F.3d at 379 (citation omitted).

Impossible? How distressing! But what makes it impossible for Davis to comply with the court’s ruling?

Have all the pens run out of ink? Is there a shortage of documents? Did Kim Davis’ arms fall off?

No. Not that kind of “impossible”.

Davis and her legal team may have a different definition of “impossible” than do you, I, Judge Banning and all other rational people. By “impossible”, Davis means “it irreparably and irreversibly violates her conscience”.

She goes on to list several other reasons why she shouldn’t be held in contempt. I don’t find them very convincing. Maybe that’s because she started with an absurdity.

Why Kim Davis won’t resign

Timothy Kincaid

September 1st, 2015

Rowan County has about 24,000 residents in about 8,300 households. The median income per household (a blend of single-earner and double-earner) is $35,000. The median income for female workers is around $20,000. The average price of houses sold recently in Rowan County is $95,000.

Kim Davis makes almost $80,000.

Davis issues a statement

Timothy Kincaid

September 1st, 2015

Here is Kim Davis’ explanation as to why she is entitled to thwart the issuance of marriage licenses to same-sex couples in Rowan County, Kentucky.

I have worked in the Rowan County Clerk’s office for 27 years as a Deputy Clerk and was honored to be elected as the Clerk in November 2014, and took office in January 2015. I love my job and the people of Rowan County. I have never lived any place other than Rowan County. Some people have said I should resign, but I have done my job well. This year we are on track to generate a surplus for the county of 1.5 million dollars.

In addition to my desire to serve the people of Rowan County, I owe my life to Jesus Christ who loves me and gave His life for me. Following the death of my godly mother-in-law over four years ago, I went to church to fulfill her dying wish. There I heard a message of grace and forgiveness and surrendered my life to Jesus Christ. I am not perfect. No one is. But I am forgiven and I love my Lord and must be obedient to Him and to the Word of God.

I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word. It is a matter of religious liberty, which is protected under the First Amendment, the Kentucky Constitution, and in the Kentucky Religious Freedom Restoration Act. Our history is filled with accommodations for people’s religious freedom and conscience. I want to continue to perform my duties, but I also am requesting what our Founders envisioned – that conscience and religious freedom would be protected. That is all I am asking. I never sought to be in this position, and I would much rather not have been placed in this position. I have received death threats from people who do not know me. I harbor nothing against them. I was elected by the people to serve as the County Clerk. I intend to continue to serve the people of Rowan County, but I cannot violate my conscience.

You see, she has the religious liberty to cause the County to deny civil rights to gay couples. That’s all she’s asking. Why are you so unaccomodating?

After all, our Founders intended that civil servants use their own religion to deny services to those of other beliefs. That’s what the Second Amendment is all about: Congress cannot establish religion; that’s the role of County Clerks.

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