The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As readers will know by now, Federal District Court Judge David Bunning has ordered Kim Davis, a Kentucky County Clerk, to jail for refusing to issue marriage licenses to qualified couples-a duty clearly imposed on her by state law and reinforced by the judge's own prior order. Davis stopped issuing marriage licenses because of her religious objection to giving them to same-sex couples. She also blocked the deputy clerks in her office from issuing licenses because, she claimed, even that would violate her religious beliefs since her name would appear on the pre-printed forms.
That Davis has a legal duty to issue licenses is not widely disputed beyond her legal team. Maggie Gallagher put it well: "I do not see how we can have a country of laws if public officials flout direct court orders." Neither Kentucky nor federal law authorizes public officials to refuse to serve the public based on their own asserted religious or other moral principles. As Maggie suggests, direct defiance of a federal court order increases the stakes for the legal system.
But Davis's defenders maintain that we should nevertheless applaud her stand for principle, including her willingness to go to jail. Says Maggie: "You have to admire someone like Kim Davis who is willing to sacrifice for her beliefs." No doubt this episode will be used as way to raise funds and mobilize politically, highlighting Davis's selflessness and courage. Maggie can already "smell a victory for liberty."
Violating unjust laws and willingly going to jail for it are time-honored acts of civil disobedience. I do admire people who stand up for their beliefs and take their lumps, often even when I find their beliefs profoundly mistaken.
But Kim Davis is not courageously sacrificing herself for her beliefs. She is keeping the benefits of her government job and insisting that pain must be inflicted on others.
Davis is not just any person who disagrees with the law and refuses to obey it, imposing costs only on herself. She is a public official charged with administering the law and serving the public that pays her salary. Even if she said God personally whispered to her that thrice-divorced people were not entitled to a fourth marriage license, thrice-divorced people would still be entitled to fourth marriage licenses and she would have to issue them. Either that, or every functionary is a law unto herself.
The country is full of diverse and often antagonistic religious beliefs on every side of every issue. Defiance of the law by a government employee based on religious belief imposes a cost on those she is charged to serve (in this case, all marriage license applicants) and erodes the rule of law itself.
Davis magnified the cost to others by also instructing her subordinates not to issue licenses. And now, by continuing to withhold approval from her willing deputy clerks, Davis means to obstruct marriage applications even from her jail cell.
There's nothing admirable about a county clerk refusing to do her job while she insists on keeping both the job and the salary that comes with it. The honorable thing would have been for Davis to affirm her faith by resigning her post.
The same would be true if Obergefell had been decided the other way and an individual clerk refused, even in the face of a direct court order, to issue licenses to any marriage applicants because doing so would facilitate an immoral system of discrimination and exclusion.
At this point in every discussion of the duty to follow court orders someone will start breathing heavily and bring up President Lincoln's disagreement with Dred Scott or his failure to follow a district court order in Ex Parte Merryman (declaring Lincoln's unilateral suspension of habeas corpus unconstitutional). The president's disagreement with a Supreme Court decision validating slavery and his ignoring a district court order undermining his prosecution of the Civil War are of dubious precedential help to Kim Davis. County clerks are rather lower than presidents in the constitutional decision-making hierarchy, not every moral problem is like slavery, and not every stamp on a pre-printed form means civil war.
In a similar epochal voice, Davis's attorney warned today that we have reached a watershed in moral history. This is, he claimed, "the first time in history an American citizen has been incarcerated for having the belief of conscience that marriage is a union between one man and one woman." [UPDATE: Sen. Ted Cruz (R-TX) said pretty much the same thing in a statement released to the media: "Today, for the first time ever, the government arrested a Christian woman for living according to her faith."]
Let's be clear: Davis was not jailed for being a Christian or for believing that marriage should be restricted to opposite-sex unions. She was jailed for refusing to do her job and for flouting court orders while insisting on keeping that job at public expense and obstructing the path of others to marriage.
If clerks or other government officials are to be excused from their duties based on their individual religious beliefs, that policy should be decided democratically. The costs and benefits should be openly weighed. Any accommodation of individual conscience should at a minimum ensure that members of the public will be served and that their rights will be protected. North Carolina and Utah have approved a marriage-license exemption for clerks. The other 48 states, including Kentucky, have not.
In the meantime, Davis had an honorable path out of her personal moral dilemma. She chose not to take it.
UPDATE: This morning, deputy clerks in Ms. Davis's office began issuing marriage licenses:
At the courthouse on Friday, Mr. Smith said he and his partner, who live here in this small Appalachian city, had tried to obtain a license several times, but were denied each time. They spoke softly as they conducted their business with Deputy Clerk Brian Mason. Amid a crush of reporters, a few lines of dialogue could be heard:
"And you're not related, right?" Mr. Mason asked.
"Correct," one of the men said.
Papers were passed. There was a ring of a cash register and change given.
"Congratulations," the county official said, shaking hands with one of the newlyweds.
Joe Davis, Ms. Davis's current husband, greeted the couples with a sign saying, "Welcome to Sodom and Gomorrah" and opined that the newly issued licenses were not legally valid.