Bench Memos

Law & the Courts

‘Follow the Law or Resign’

According to this article’s paraphrase, that was Justice Kennedy’s bottom-line take on the choices facing county clerks who have religious objections to issuing marriage licenses to same-sex couples. The article specifically quotes Kennedy as saying: “The rule of law is that, as a public official in performing your legal duties, you are bound to enforce the law.”

“Follow the law or resign” will indeed often be the only choice facing government officials who have religious objections to carrying out their duties. But Kennedy’s statement overlooks the very real possibility (point 3 here) that Kim Davis may have a religious-liberty right under Kentucky law not to issue marriage licenses to same-sex couples (though that right would not extend to barring others in her office from issuing such licenses, at least if the licenses don’t bear her name). Kennedy’s statement also overlooks the distinct claim (point 4 here) that, contrary to the myth of judicial supremacy, government officials have an independent duty to apply their best understanding of the Constitution, not the Supreme Court’s mistaken understanding of it.

Given his career of rulings that barely masquerade his willfulness, Kennedy, in any event, is hardly to be taken seriously as a proponent of the “rule of law.” Had he followed his own advice of “follow the law or resign,” he would have resigned long ago. Instead, he avails himself of a third option: to misread the Constitution to impose his own policy preferences.

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