David Barton took to his Facebook page yesterday to pen a defense of Kentucky county clerk Kim Davis and her refusal to allow her office to issue marriage licenses to gay couples, asserting that requiring her to do so violates the Constitution’s prohibition on ex post facto laws.
Ex post facto refers “to a criminal law that applies retroactively, thereby criminalizing conduct that was legal when originally performed,” and Barton, like others, bizarrely argues that since gay marriage was not legal nationwide when Davis ran for her county clerk position, requiring her to issue gay marriage licenses now is unconstitutional:
The third major criticism of Davis is that she is she knew what she was getting into and therefore should never have run for office. But this is a factually inaccurate statement. Davis ran for office in 2014; the Court issued its personal opinion in 2015 – a year after she was in office. She did not know that she was going to be asked to implement a federal policy that no American in the history of the Constitution had ever before been asked to enforce: issue a license for a homosexual marriage. She is now being punished for refusing to do something that was not part of her job description when she took office. In fact, her punishment smacks of an “ex post facto” policy. As even the very progressive Wikipedia explains, “An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.” The Constitution explicitly prohibits this in Article I, Section 9, Paragraph 3, yet this is dangerously close to, if not exactly what is happening to Davis – except that it is not a law under which she is being jailed but rather the decree of a judge; but the results are the same.
Barton’s understanding of ex post facto laws is laughable and therefore his entire argument is ludicrous since Davis is not being punished retroactively for something that was legal at the time she did it, but is rather being held in contempt of court for violating a judge’s orders to stop preventing her office from issuing licenses to same-sex couples in the wake of the Supreme Court’s decision.
Davis is currently breaking the law and that is why she is facing legal troubles.