Written by Daniel Burton and Curt Bentley
Roper: So now you’d give the devil the benefit of law?
Thomas More: Yes. What would you do? Cut a great road through the law to get after the devil?
Roper: I’d cut down every law in England to do that.
Thomas More: Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man’s laws not God’s, and if you cut them down — and you’re just the man to do it — do you really think that you could stand upright in the winds that would blow then?
Yes, I’d give the devil the benefit of the law, for my own safety’s sake.
–From A Man for All Seasons by Robert Bolt, 1960.
Kim Davis, a previously obscure county clerk from Rowen County, Kentucky, has been jailed for refusing to issue marriage licences to gay couples. By refusing to support the rule of law, her actions do more to harm rather than to advance religious liberty.
Late in July, Davis refused to issue marriage licenses to gay couples because of religious convictions. The gay couples seeking the marriage licenses appealed for a federal court to enjoin Davis to apply the US Supreme Court’s ruling in Obergefell v. Hodges. Davis appealed to, and was denied by, the Kentucky Supreme Court for protection from the action. On Thursday, after Davis refused to comply with the federal court’s requirement that she issue licenses, the judge ordered her jailed and issued directions to five deputy county clerks to begin issuing licenses. With the exception of Davis’ son, they began issuing licenses.
Shortly after Davis was jailed, her attorney told reporters that “Today, for the first time in American history, an American citizen has been incarcerated for having the belief and conscience that marriage is a union of one man and one woman.”
Davis’ actions, and subsequent imprisonment, raise some interesting questions about the rule of law.
How is Davis violating the rule of law? Doesn’t she have a right to exercise her First Amendment right of freedom of conscience?
The Supremacy Clause of Article VI of the Constitution provides that the United States Constitution, federal statutes, and treaties are “the supreme law of the land.” However, as Sasha Volokh observes, the Constitution can be interpreted differently by different people.
The need for a single, consistent interpretation of federal law was the principal reason for the creation of the Supreme Court and the federal courts in general. Article III, § 2 provides that the Supreme Court has appellate jurisdiction for constitutional questions (to wit: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution[.]” Even if the Supreme Court got Obergefell wrong, and rational minds can disagree on that point, it is the law of the land, binding on all lower courts, federal and state alike, as well as state and federal governments.
Elected officials can’t ignore court orders, and that places Davis actions squarely in the violation of the rule of law realm.
In Utah, last session’s religious liberty/antidiscrimination compromise allows an official to personally abstain (on religious objections) from issuing marriage licenses provided that another official is on hand to issue marriage licenses to same-sex couples. But Kentucky has no such law. Notably, even if Kentucky had passed legislation similar to the Utah compromise, it would not address Davis’ concern. As the elected county clerk, Davis has forbidden her deputies from acting in her place since her name appears on all marriage licenses issued from the county (regardless of who issues the license…though a legislative means to remove her name, and still issue the marriage licences is an intriguing solution for Kentucky to examine).
Since her elected duty is to issue the licences, Davis cannot legally refuse to comply with the law. If Davis has a moral objection, Justice Antonin Scalia (in writing about judge’s objections to the death penalty) might argue that she should resign.
[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty” and if that fails, lead a revolution. But rewrite the laws he cannot do.
Essentially, you’re welcome to join the revolt against the law, but you need to do it from outside the bounds of your office. The law does not permit you to keep your job in government while simultaneously violating the law.
And for good reason. When elected officials refuse to support the law it undermines the very foundations of democracy (or republicanism, if you prefer). The people elect representatives, the representatives enact the laws, and…the elected executive chooses their own law? Even when the dictate comes from the Supreme Court rather than from the people’s representatives, the principle is the same. Elected officials, of all people, cannot become a law unto themselves.
But what about Dred Scott? And civil disobedience?
This is why this is a moral question as well as a legal one. Even setting aside Davis’ oath to uphold the law (maybe taken with one hand on the Bible?), it’s hard for us to see the act of allowing same-sex marriage to happen, by resigning her office, in the same light as slavery (or even Nazi Germany, as I’ve seen the occasional Godwinian do). If you’ve got a moral objection to same-sex marriage, there are a lot of ways to express yourself, in and out of government, without flouting the rule of law. If you really think that allowing same-sex marriage to happen is on par with the evil that slavery and the Nazi killing machine were, then we don’t know that we’re going to agree (and that’s to say nothing of the fact that Nazis came to power in Germany not by application of the rule of law, but by violation of almost every aspect of it).
Some have pointed to Dred Scott as a case that the Supreme Court got dramatically wrong, and they’re right…to a point. Pointing to Dred Scott ignores that the Constitution had enshrined within it slavery, the original sin of the Founders. It took the Civil War and the Fourteenth Amendment to overturn the case and fix the error.
Is a second Civil War really where we want to go on same-sex marriage?
And what happens when someone else decides not to fulfill their duties because of a moral objection?
Davis has become a cause cé·lè·bre for many who see religious liberty under attack by the rapid legalization of same-sex marriage nationwide. Correspondingly, Davis also provides a boogeyman for those who would point to religion as a tool of oppression and discrimination. She has given Liberals and Progressives who don’t have any qualms about elected officials of Colorado, California, and Washington thumbing their nose at the federal government over marijuana legalization someone who they can attack for anachronistic religious beliefs. If she had refused to issue an arrest warrant (if County Clerks did that sort of thing) for some two-bit pothead, she would be lauded as a hero in Berkeley; instead, she has religious qualms about gay marriage, and as such is a pariah and should be lynched.
When push comes to shove, both the police and county clerks are bound as elected officials to follow the law, even if they don’t like it. But no one actually sees it that way. As it so often is in politics, what is good for the goose is not good for the gander.
Like most things in politics, the reality of whether Davis is a hero or a villain is probably somewhere closer to the middle; in other words, she is neither. How we can be a country of laws if we allow elected officials violate the law with impunity, whether it be over marijuana or gay marriage?
The fact of the matter is that the rule of law protects all of us, Christians and atheists, conservatives and liberals, straight and gay. If you don’t like the law, you should agitate to change it, not gain political office and commence to ignore it. That way leads to tyranny.
Perhaps we are naive to hope that America is still a nation of laws. Arguments that this President or that has declined to follow the law are relevant–but levying religion to excuse government discrimination is not acceptable (apropos: Title VII of the federal Civil Rights Act requires employers to make accommodations for religious employees–elected officials being different since their not just employees, but elected officials. For an interesting discussion on these issues, see Eugene Volokh, here).
By no means should Rowen County Clerk Kim Davis be seen as a modern-day Rosa Parks for religious liberty. Religious liberty can only thrive when the rule of law protects it. In the opening, we quoted Robert Bolt’s A Man for All Seasons. His version of Sir Thomas More is a jurist, a lawyer, a man who argues for the equal application of law to all.
“This country is planted thick with laws from coast to coast,” More argues, “man’s laws not God’s, and if you cut them down — and you’re just the man to do it — do you really think that you could stand upright in the winds that would blow then?”
If we cut down the rule of law to get at one person’s devils, we leave our country unprotected when the winds come to blow. That’s a chaos that serves no one and endangers everyone’s religion.
Special thanks to Marco Brown for his comments during drafting.