Mike Huckabee
Mike HuckabeeYonatan Sindel/Flash 90

Former Arkansas governor and Republican presidential candidate Mike Huckabee on Sunday said that, if the United States were to legalize same-sex marriage, it should be done via Congress, noting that the Supreme Court cannot make a law.

Speaking in a special interview with Arutz Sheva in the wake of the case of clerk Kim Davis who was jailed in Kentucky after refusing to license gay marriage, Huckabee said that a clerk should not be jailed for following his or her personal beliefs.

“This is the first time that I can recall that a person has been jailed, and jailed without bail, for practicing her faith,” he said, “and an unelected judge has put in jail an elected official because she would not violate her conscience on something that she believes very strongly in, and that she should be protected by result of the First Amendment.”

“I think the definition of marriage has historically, as well as Biblically, always been one man and one woman, and that’s how society has treated marriage from the beginning and throughout recorded history,” noted Huckabee.

What the Supreme Court did in permitting same-sex marriage “was essentially illegal and unconstitutional because the Supreme Court cannot make a law, and that’s what they did in effect by creating something that doesn’t exist in the Constitution,” he continued.

“For the Supreme Court to say that there's a constitutional right to have a same-sex marriage when the word ‘marriage’ doesn’t even appear in the Constitution makes it an incredibly bold action on their part,” said Huckabee, who noted the decision was passed by the thinnest of margins.

“The basis for it, according to Justice Kennedy who wrote the majority opinion, was things like spirituality and intimacy. No one has a constitutional right to intimacy or spirituality,” he continued.

Huckabee pointed out an 1857 Supreme Court decision which said that black people weren’t fully human.

“Abraham Lincoln, as president, refused to accept that. I guess that by the standards of some people today, Abraham Lincoln should have been put in jail for believing that black people were fully human,” he added, “because he realized that the Supreme Court didn’t have the power to define personhood as something less than it is.”

“Even if a person believes that there should be same-sex marriage, and I recognize that some people think there should, the process by which that should be accomplished is that the people’s elected representatives in Congress should pass such a bill, codified into law, it would be signed by the President and then it would be enforced by the Department of Justice,” said Huckabee.

When people argue that Kim Davis “violated the law” by refusing to issue a same-sex marriage license, “My contention has been, when they say ‘she violated the law’, [is] what law is that? Can you name the statute? Can you name a specific article in the Constitution that she’s violated? And the answer is ‘no’, because there isn’t one.”

“This defies the constitutional language itself, it defies the long practice of history up until the last 70 years or so when we began to capitulate to this notion of judicial supremacy and, quite frankly, it defies common sense,” said Huckabee. “If the Supreme Court ruled that freedom of speech means that you can’t say things on the internet, does the internet close down and all the blogs cease? Of course it doesn’t. Nobody’s going to enforce that immediately. If you believe that that’s what we should do, then the people’s representatives are the ones who have to pass that law.”

Belief in same-sex marriage, he continued, “is not the fundamental issue. The issue is do we surrender to the notion that the courts can make law and that it’s enforceable from the moment in which they render a ruling.”

A rally is being planned for this coming Tuesday at 3:00 p.m. at the Carter County Detention Center in Grayson, Kentucky, where Kim Davis is being held.

“People have already told us they’re bringing in buses of people from all over. We’ve got people from as far away as South Carolina, Texas, Florida, who are coming to be part of that rally,” Huckabee said. “I think it’ll be a sizeable crowd of people to show their support for Kim Davis and a respect for her courage, but also a means of reminding people to read the Constitution, and do not allow tyranny to rule in this nation.”