Some observations on the Kim Davis controversy, together with highlighting some worthwhile pieces, including this excellent NRO essay from John Eastman yesterday:
1. In the broader picture, it is the Supreme Court’s flagrant lawlessness in Obergefell v. Hodges that ought to deserve the most severe condemnation. As I wrote in my National Review cover piece on Obergefell:
The Court’s ruling also presents a difficult challenge to state officials who understand that they have sworn to uphold the Constitution — not the Supreme Court’s mistaken interpretations of it — and who recognize that their state laws defining marriage as the union of a man and a woman are valid and enforceable under the real Constitution. It is appalling that the Court has put them to a choice between acquiescence to its own flagrant illegality and obedience to the Constitution.
Those who share my view of Obergefell yet lambaste Kim Davis in isolation from the Court’s much larger malfeasance are presenting a very distorted picture.
2. I share the concerns of many conservatives that Kim Davis’s battle is not well picked to advance the cause of religious liberty. But I find it odd that some evangelicals, seemingly embarrassed to be associated with Davis, are faulting her for adhering to her beliefs, as she understands them. As David French spells out, Davis’s stand puts her with “men like Martin Luther, John Calvin, and John Knox—the men who first put the ‘protest’ in ‘Protestant.’”
3. As Eugene Volokh discusses in an excellent post, Title VII rejects the “do your job or resign” argument that so many commentators have advanced, and it instead requires that employers reasonably accommodate an employee’s religious objections to doing what her job requires. Further (per Volokh), although elected officials don’t have Title VII rights, Kentucky’s Religious Freedom Restoration Act would seem to give Kim Davis “at least” as much protection as Title VII would.
With respect to Kim Davis’s religious-liberty claim, it’s essential to discern exactly what that claim is. Is she insisting that no one who works in her office may issue marriage licenses to same-sex couples? Or is she seeking merely not to have her name appear on any such licenses? (Perhaps her claim has evolved; I haven’t followed the matter closely enough to know.)
In sum, “the law” may indeed provide Davis a right not to have marriage licenses bearing her name issued to same-sex couples and a right not to be compelled to issue marriage licenses to same-sex couples. (It’s much more doubtful that she would have a religious-liberty right to bar others in the office from issuing licenses to same-sex couples that don’t bear her name.)
4. Davis’s religious-liberty claim needs to be distinguished from a claim (which I believe she is not making) to have an independent duty, under her oath of office, to apply her best understanding of the federal Constitution, not the Obergefell Court’s mistaken understanding of it. Such a challenge to the myth of judicial supremacy would, in my judgment, be theoretically more powerful than the religious-liberty claim that she is advancing, but that of course doesn’t mean that it would be more likely to succeed (or that it would be prudent for her to pursue it). It would be good, though, if conservatives would avoid saying that Davis is refusing to do “what the law requires.” By conflating the actual Constitution with what the Supreme Court says the Constitution means, such locutions feed the myth of judicial supremacy.