Kentucky federal judge David Bunning has ordered Rowan County clerk Kim Davis to jail, holding her in contempt of court for failing to affix her signature to gay-marriage licenses. Here’s Judge Bunning justifying his decision:
“The court cannot condone the willful disobedience of its lawfully issued order,” Judge Bunning said. “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”
Don’t make me laugh. Some people will call this ruling a triumph for the rule of law, a matter of harsh but necessary justice. It is no such thing. As I wrote in a piece earlier this week, the rule of law requires both lawful enactment and lawful enforcement. Justice Kennedy’s opinion in Obergefell v. Hodges is nothing more and nothing less than the establishment of Justice Kennedy’s world view as a new state religion — a religion with teeth. As I noted on the day Obergefell was decided:
This isn’t constitutional law, it’s theology — a secular theology of self-actualization — crafted in such a way that its adherents will no doubt ask, “What decent person can disagree?” This is about love, and the law can’t fight love. Justice Kennedy’s opinion was nine parts romantic poetry and one part legal analysis (if that). And that’s what makes it so dangerous for religious liberty and free speech. Practitioners of constitutional law know that there is no such thing as an “absolute” right to free speech or religious freedom in any context — virtually all cases involve balancing the asserted right against the asserted state interest, with “compelling” state interests typically trumping even the strongest assertions of First Amendment rights. And what is more compelling than this ode to love?
In my initial piece about Davis, I described the unfolding drama as a case of competing revolutions — with Kim Davis defying Justice Kennedy’s revolutionary act with a revolutionary act of her own. We knew from the beginning which revolutionary held more power, and we also know that the worst revolutionaries show no mercy to dissenters. There were many options short of imprisonment for Davis (how many leftist legislators are in jail for lawless “sanctuary city” policies that actually cost lives?), but the court was apparently in no mood for moderation. So off she goes to prison. Judge Bunning’s decision is a means of control It is a means of maintaining order. It is the selective application of law to advance a particular radical ideology. But spare me any talk of justice. There is no justice today in Judge Bunning’s court.