On Tuesday of this week, David French offered up a half-defense of Kim Davis, the rebellious Kentucky clerk who, since June of this year, has been refusing to issue marriage licenses to gay couples. I must respectfully disagree with his conclusion. What he is defending is not in fact “revolution,” as he puts it, but secession. As I have written elsewhere, I am in total agreement with David’s contention that the Obergefell decision was nothing less than an act of constitutional vandalism. But I cannot suppose as he does that it will help matters to meet one tragedy with another. If flagrant law-breaking is the way to fight overreach, count me out of the insurrectionary crew.
Frankly, Davis does not have a leg to stand on. It is true that in such cases as overarching constitutional questions remain in play, government officials may enjoy a certain degree of discretion. But that latitude disappears the moment that an Article III court becomes involved. Davis has now been instructed to follow the rules by no fewer than three such institutions — first by a district court, then by the Sixth Circuit, and finally by the Supreme Court of the United States. The only argument she had left to make entering today was that one of those entities lacks jurisdiction — a self-evidently absurd proposition. In consequence, Davis had two real choices: She could either resign from her position, or she could wait to be held in contempt. She chose the latter, and she’s now been bundled off to jail.
She is unabashedly setting herself outside the law, and justifying it on entirely self-interested grounds.
Which is to say that Davis and her sponsors are ultimately fighting the wrong fight. A quick look over her own words reveals that she is not in fact presenting a withering argument against Obergefell; that she is not in fact attacking the concept of judicial supremacy; and that she is not in fact attempting to find a means by which Christians can co-exist with the recent changes in the law. Rather, she is unabashedly setting herself outside the law, and justifying it on entirely self-interested grounds. I comprehend my colleague’s frustration here — this is indeed the direct product of an insidious judicial usurpation — but I cannot help but feel that he is endorsing the wrong course. For my money, Davis’s protest would be far more effective were she to resign gracefully, and, having made clear her reasons for doing so, take up a new role as a champion for limited reform.Certainly, that would be tough. By the reasoning laid out in Employment Division v. Smith, those in Davis’s position are unable to appeal to the First Amendment for protection at work. Nor, currently, does supplementary federal law permit objectors such as herself to hand over controversial parts of their jobs to someone else. But there is nothing to stop those who would enact a legislative fix for these blind spots in the future — either at the federal or state level. Providing that Davis were happy to allow others within her department to issue the licenses to which she objects — and she does not seem to be, which is a problem — a legal compromise could feasibly be reached. What, one has to wonder, is her ultimate end here: Is it to protect her conscience, or to nullify the law?
You can’t win a revolution by fighting on a single block.
— Charles C. W. Cooke is a staff writer at National Review.