Law & the Courts

For an Example of Lawlessness, See the Supreme Court, Not Kim Davis

County clerk Kim Davis in her offices in Morehead. (Ty Wright/Getty)

I always enjoy reading Charlie Cooke, even when he’s disagreeing with me. However, I must dissent from my friend and colleague’s disapproval of Kim Davis’s refusal to issue same-sex marriage licenses. If the community — including public officials — meekly acquiesces to the Supreme Court’s lawlessness, then the result will be far more harmful to the rule of law and our constitutional republic than is Davis’s lonely stand.

On a number of occasions, the Supreme Court has used the sword of its unaccountable power to rewrite the Constitution and fundamentally disrupt constitutional processes. Notable examples include, as I’ve pointed out before, Dred Scott and Roe. And then, with the damage done, it has used the shield of the “rule of law” to ensure that its lawless acts are respected and enforced, without exception. The legitimacy of Davis’s protest is inseparable from the illegitimacy of the court opinion that made it necessary. And it is this very illegitimacy that means she should neither resign nor comply. Instead, she has chosen the proper response: resist.

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

Resignation in response to the Court’s ruling would have represented an unacceptable surrender. Indeed, from the perspective of the ideologues, it would have provided them with a complete victory — with the twin benefit of changing the law and cleansing public service of the devout. Resignations hand over the lever of power to the truly lawless, to those who will engineer social change by any means necessary.

The illegitimacy of the Supreme Court’s decision in Obergefell means that Davis should neither resign nor comply. She has chosen the proper response: resist.

Moreover, compliance in this case would have meant not merely participating in an immoral act but also bowing before an unlawful judicial oligarchy. There are Christians who disagree in good faith, who would say that Biblical commands to obey authority apply. Others, also in good faith, would note that obedience to authority does not mean and cannot mean participation in evil. My own opinion is that the relevant “authority” a public official is to obey is the Constitution of the United States and the Constitution of the Commonwealth of Kentucky. The judicial branches’ power to interpret the law does not include the power to rewrite those constitutions.

Let’s be clear. The defiance Davis chose was mild indeed. She did not take up arms. She did not try to escape punishment. She did not even truly deny any single person a marriage license. Any citizen of Rowan County could get in the car and drive a few extra minutes to a neighboring county. I grew up not far from Rowan County, and I’m not sure there’s a single point in the county that’s further than 30 minutes from a neighboring jurisdiction.

#share#Indeed, her defiance was far less consequential than the Left’s flouting of the rule of law throughout the same-sex-marriage fight. NR’s own Nicholas Frankovich outlined multiple examples of mayors or county officials issuing marriage licenses in the face of controlling, democratically enacted state law. Leftist lawlessness included the government of California essentially attempting to fix the outcome to legal challenges to Proposition 8, which defined marriage as the union of a man and a woman, by refusing to defend the law in court.

When the Obama administration declined to defend the Defense of Marriage Act, it stated that “much of the legal landscape has changed in the 15 years since Congress passed DOMA.” The Constitution, however, had not changed. Only the ideology of the president was different.

RELATED: Kim Davis, Rightful Prisoner of Conscience

The Left’s ongoing defiance of the rule of law and established constitutional order goes well beyond the marriage battle to include sanctuary cities, lawless expansions of the scope of Title IX and Title VII, executive amnesties that are purported to change the legal rights of millions of immigrants, and nuclear agreements drafted in intentional defiance of the constitutional treaty-approval process. The list could go on. Each of these acts is far more consequential to the rights of American citizens than Davis’s refusal to issue marriage licenses. Some of these lawless acts have cost Americans their liberty, others have cost Americans their lives, and the lawlessness of the Iran deal may cost the world another genocide.

#related#Yet while lawless leftists live in the White House and run for president, Davis goes to jail. Davis’s draconian sentence is instructive. A judiciary secure in its reasoning and constitutional authority would see no need to deprive a peaceful woman of her liberty — especially when her resistance doesn’t deprive a single American of his constitutional rights, real or judicially fabricated. Other legal mechanisms exist to hold her accountable, including fines, impeachment, and — of course — the next election. But Davis goes to jail — shortcutting Kentucky’s own enforcement mechanisms — partly to save gay couples a few minutes’ driving time but mainly to defend the dignity of a court system that long ago forfeited any integrity.

Charlie ends his piece by noting, in essence, that resistance is futile, declaring, “You can’t win a revolution by fighting on a single block.” No, but you can start a revolution with a single act. And with her single act of defiance, Davis has given America’s Christian citizens cause to search their own souls. How much more can we abide?

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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