Law & the Courts

Breaking the Law Won’t Get Kim Davis What She Wants

A gay couple confronts Davis over marriage licenses. (Ty Wright/Getty)

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.

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Until such time as the Constitution is amended, the Court’s attitude changes, or the republic falls to revolution, Obergefell will remain on an equal legal footing with the other precedents that make up our contemporary legal oeuvre. Weak as its reasoning is, there is no such thing as an “almost ruling.” In practice, a 5–4 decision has the same effect as a unanimous one; structurally, an iffy justification is as potent as the most solid of rationales. However much a state employee might disdain a particular judgment, it simply cannot do to have him translating that disapproval into professional action. If he wishes to privately protest a given ruling — or to refuse to abide by its consequences — that is his inalienable right. “Take what you want,” the old proverb holds, “but pay for it.” He cannot, however, credibly work for the government while doing so — or, at least, he cannot expect to be spared the consequences if he insists upon remaining in power. The rule of law is just that: a rule. There is no such thing as a selective revolution.

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.

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Conservatives are right to be appalled when they see the will-to-power elements within the progressive movement moralizing about the “rule of law,” and they are understandably galled by the expectation that they should sit and listen quietly as the people who cheer on widespread judicial abdication and routine law-breaking deliver lecture after lecture on the responsibilities of the state. But while a more generalized outrage is indeed warranted, they should be careful when arguing specifics that they are comparing like with like. Kim Davis’s case is straightforward not because it is in practice unique, but because Davis’s explanation is so blunt and so wrong. Most of America’s recalcitrant government officials have the good sense to pretend in public that their objections are rooted in the law — or at least that they are derived from some crucial constitutional principle that is wholly external to them. Davis, by contrast, has given the game away.

#share#Yes, we all know that when President Obama pretends that he has found legal justifications for his immigration-enforcement abdications, he is merely attempting to advance his legislative agenda by other means. Yes, it is rather obvious that when Justices Ginsburg and Breyer propose bizarrely that the death penalty may be unconstitutional per se, they are covering up their heartfelt moral preferences with flimsy jurisprudence. Yes, Washington, D.C.’s pretense that it is complying with the Second Amendment is so much Potemkin theater. But — and this matters — unlike Mrs. Davis, these players are far too smart to let on what they are doing. Should a Quaker bureaucrat in Los Angeles County reveal that he was denying all concealed-carry applications on religious grounds, he would be liable for instant dismissal. If, by contrast, he were to claim that the law is unclear or that he was technically operating inside of it or that “right” doesn’t actually mean “right” on a Tuesday, he might have a fighting chance — until the courts stepped in and instructed him to do his job, at least.

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.

#related#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.


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