Law & the Courts

Kim Davis, Rightful Prisoner of Conscience

Demonstration outside the federal courthouse in Ashland, Ky. (Ty Wright/Getty)

I must confess to harboring a sneaking admiration for Kim Davis.

Davis, the county clerk in Kentucky who was jailed for contempt of court after defying a judge’s order to issue marriage licenses to homosexual couples, is in the wrong, inarguably: The proper course of action for a government official who has a moral objection to carrying out his public duties isn’t obstruction but resignation.

Jonathan Adler, writing in the Washington Post, reminded us of Antonin Scalia’s argument about the death penalty: If the justice believed that his official participation in the legal machinery of death was immoral, then he could not be a judge while capital punishment remained on the books. Scalia offers this position in contrast to the practice of Justices Blackmun, Brennan, and Marshall, who voted categorically to overturn death sentences in direct contravention of their legal duties. For the four and one half minutes they spent reading Adler’s article, our so-called liberals were at one with the jurisprudence of Antonin Scalia. Would that the moment had lasted.

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

Davis is a convert to something the New York Times calls “Apostolic” Christianity. Christian congregations without exception think of themselves as apostolic, but here is meant a species of Pentecostalism. It is one of those great do-it-yourself American religions that make one grateful for the glacial conservatism of the Catholic magisterium, even (especially) during a Peronist papacy.

Doctrinal disagreements to one side, prison is an excellent place for a Christian.

#share#It is also an excellent place for a patriot. Legally speaking, American marriage is debased: The “traditional marriage” we hear about from time to time simply has not existed as a legal institution in the United States for about 40 years. Under current law, marriage is a purportedly life-long union that is in reality rather less durable than a federal student loan; that being the case, extending marriage as a legal institution to homosexual couples is a peculiar hill to die on. I might have had more sympathy for a Los Angeles county clerk who declined to issue Zsa Zsa Gabor her ninth marriage license. Context matters. But the Obergefell decision is nonetheless illegitimate.

Davis’s transgressions are trivial next to the entrenched criminality of the government that Judge Bunning serves.

Every act of principled noncompliance with the law is a miniature Declaration of Independence, which is to say, a revolution in one person. There is an excellent history of that among our own patriots, from the Reverend Martin Luther King Jr. to the great newspaperman R. C. Hoiles, who was threatened with prison by Franklin Roosevelt’s government for the ghastly crime of giving his employees a raise without federal permission, which was at the time illegal. (Rumor is that this was the last time the staff of an American newspaper received a pay raise.) The heroic example is that of Henry David Thoreau, who was put in prison for refusing to pay a tax in support of James K. Polk’s slaving and warmongering government. Prison, he wrote, is “the only house in a slave state in which a free man can abide with honor.” Thoreau was very annoyed to be set free when a benefactor paid the tax on his behalf.

RELATED: In Rowan County, Kentucky, a Clerk Answers Revolution with Revolution

The legal enshrinement of homosexual marriage is not slavery or its moral equivalent, nor is it Jim Crow, nor is it abortion, the definitive moral issue of our time. And a society that is to have the rule of law cannot abide very many revolutions in miniature, especially those conducted by the people we still describe, with almost-straight faces, as public servants. As much as one might admire Davis’s conviction, David L. Bunning of the District Court for the Eastern District of Kentucky is right to put her in jail.

#related#But maintaining that rule of law is a broader imperative, and Davis’s transgressions are trivial next to the entrenched criminality of the government that Judge Bunning serves: The Internal Revenue Service under the Obama administration was converted into a crime syndicate; Hillary Rodham Clinton is a rolling crime wave; the Justice Department is an enabler and protector of felons in high places; our law-enforcement agencies have been made into instruments of political intimidation, as in the matter of the ATF’s persecution of Jay Dobyns. There are many honorable men in the federal government, but there are no honorable federal officials, because one cannot honorably serve a dishonorable government. We may call Judge Bunning “His Honor,” but that is purely vestigial.

“Under a government which imprisons any unjustly,” Thoreau reasoned, “the true place for a just man is also a prison.” That we breathe the same free air as Lois Lerner, Eric Holder, and Hillary Rodham Clinton is a testament against us, that we may have a finer understanding of the distinctions necessary to republican self-government but lack the conviction necessary to act on it.

CORRECTION: This article has been amended since it first was posted. There are several churches characterized as “apostolic” in the United States, and the Apostolic Church in America, which is related to the Amish-Mennonite tradition, is not the one that Davis belongs to, contrary to my first report. Hers is an “Apostolic Pentecostal” church, which is a different flavor.

— Kevin D. Williamson is National Reviews roving correspondent.



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