Kim Davis and Civil Disobedience

by Nicholas Frankovich

Reactions to the refusal of Kim Davis to issue marriage licenses have included a heavy dose of unexamined reverence for the courts. A mirror image of Davis in Kentucky in 2015 is San Francisco mayor Gavin Newsom in 2004, when same-sex marriage violated state law in California but he directed city officials to issue marriage licenses to same-sex couples anyway. The cases are not parallel, Davis’s critics argue, because Newsom stepped down when a court told him to.

At Religion News Service, Grant Tobin equates Davis’s disobedience to the courts with defiance of the Constitution:

When Mayor Newsom issued marriage licenses, he was taken to court. And he lost. So, he did his job. He stopped issuing licenses and worked to change the law. But when Davis lost in court, she decided to defy the Constitution by continuing her actions.

Tobin assumes the Supreme Court to be the final word and correct by definition, but in Plessy v. Ferguson, for example, it was neither. It was wrong about the Constitution, if we accept as correct the Supreme Court that decided Brown v. Board of Education, which rendered Plessy a dead letter. In Dred Scott the Court was correct about the Constitution, if we take Taney’s word for it, but was that a constitution that anyone should have obeyed?

“The Lincoln administration did not attempt to undo the Supreme Court’s decision with regard to the parties in Dred Scott v. Sandford but also refused to speak or act as though it were correct,” Ramesh Ponnuru notes in a recent article on judicial supremacy and possible responses to it. “It recognized that blacks could be citizens regardless of that decision, and granted passports and patents accordingly.”

A public official who thinks that the Supreme Court’s conclusion in Obergefell is wrong but whose duties require her to act as though it’s right has three options, as David French points out: comply, quit, or resist. If she exercises either of the first two options, she yields to what she thinks is wrong.

Davis chose to resist, like Jerry Brown. As state attorney general he resisted a state law passively, by doing nothing — that is, by not doing his job — when challenges to California’s refusal to recognize marriages other than those between a man and a woman were filed in court.

It’s true that in Brown’s case the Supreme Court had not yet ruled on whether laws that depended on a traditional definition of marriage were unconstitutional, whereas in Davis’s case it has ruled. Dissenting justices argued that the Constitution does not support Obergefell, but they lost. Davis has no higher legal authority to appeal to. In that regard she too has lost, and she is being criticized essentially for not losing more gracefully.

Many observers assume that Davis is seeking only religious freedom for herself — that is, to be treated as a conscientious objector to same-sex marriage and left alone. Now that, unlike Newsom, she has gone to jail rather than yield, she appears instead to be making a statement. It would have been easier for her to resign than to go to jail. She is not just refusing to speak or act as though Obergefell were correct. She is making a point of refusing. She’s practicing civil disobedience.

If by going to jail Davis ultimately helps the cause she feels called to defend, it will be because what she is defending is true, because she is neither mediagenic nor eloquent. Her plain religious language — she appeals to “God’s moral law” and elevates it over her professional duties — alienates even many conservatives.

“A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.” We don’t know whether Martin Luther King Jr. would agree with Davis, but he spoke for her when he penned those words half a century ago in Birmingham Jail.

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