The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There are a few common ways to condemn Kim Davis. One way is the most obvious: if you disagree with Davis's views (as I do), then you can easily condemn her on substantive grounds. Refusing to issue licenses for gay marriages is the wrong thing to do, and so Davis is wrong to refuse to issue the licenses.
Because there are court orders involved here, the procedural route seems even easier. Whatever you think about gay marriage, the Supreme Court has ruled the other way, and moreover there's an existing court order in Davis's case. And public officials should follow the law. So far, I agree as well.
(Just a short note on what makes her acts illegal: I don't think the Supremacy Clause of Article VI is enough to get you there. The Supremacy Clause says the Constitution trumps state law, but Davis is following the Constitution as she understands it. She's violating the U.S. Supreme Court's view of the Constitution, but what makes the Supreme Court a privileged interpreter of the Constitution? The Supremacy Clause certainly doesn't.
I think what gets you the rest of way is Article III, § 2, which establishes the Supreme Court's appellate jurisdiction. That makes the Supreme Court's interpretation, no matter how wrong, binding on all lower federal courts and also on all state courts, so it's now binding on the state and federal judicial branches in Kentucky.
Even now, we're not all the way there. But add in that it's an important aspect of the rule of law that executive officials should obey court orders, and now we reach the conclusion that Davis's actions are contrary to the rule of law.)
So it's clear that Davis has no legal right to keep her government job and at the same time refuse to issue the marriage licenses. As to her moral right, we can consult Justice Scalia (see Jonathan Adler's recent post) who wrote, in First Things, in the context of judicial participation in the death penalty:
[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty-and if that fails, lead a revolution. But rewrite the laws he cannot do.
So, in Scalia's view, you either keep your job and do your job, or you resign and engage in political action or revolution. I quote this not to pick on Scalia specifically, but because (as in many cases) Scalia has expressed a view nicely and can serve as the poster child for everyone else who holds the view. (This is why he's also a frequent foil of mine in my judicial non-delegation paper that I've been blogging about recently.)
Here's where I cease to follow. Remember that, from a substantive perspective, I don't sympathize with Davis, because I think she's on the wrong side. But suppose I did agree with her and think that gay marriage, and the Supreme Court's decision on gay marriage, were profoundly immoral. Do I really have no options other than (1) keeping my job and doing my job, and (2) resigning, perhaps to engage in political action or revolution?
If disobedience or some form of revolution were acceptable here, why should it be off-limits to keep my job while undermining it? Why isn't undermining one's job from the inside, in the service of a larger moral goal, an acceptable form of revolution? The "quit or do your job" folks, to the extent they hold out the extreme option of revolution, seem to be all implying that revolution must, at a minimum, require quitting. But if gay marriage justifies revolution, it's hard for me to see why a form of revolution can't be fifth-column undermining on the job.
Scalia and others have an answer: public officials have a duty not to engage in this form of revolution because of their oath. But that assumes that the oath is really valid in immoral conditions. Surely there can be oaths that, while not immoral on their face, cease to be binding once it's clear that they require one to engage in immoral acts. Imagine you're a public official in Nazi Germany—I don't know what kind of oaths they took, but suppose you took an oath when it wasn't clear that you were serving an immoral regime, and the regime gives you orders that are more and more immoral. And suppose there's nothing to prevent you from resigning—and, if you like, joining the Allied armies or the armed resistance. Are you required to do that rather than keep your job and seek to undermine the regime? I don't think so.
Admittedly, I don't think that all resistance that's justifiable in Nazi Germany is also justifiable in the contemporary United States. As Dale Carpenter says in his recent post, "not every moral problem is like slavery." I agree: in fact, Dale and I think Davis is wrong on the merits, so of course we don't think this is comparable to slavery (or Nazi Germany). But it's tough to put ourselves in the position of people who believe differently: I've observed some hard-liners who really do think that gay marriage is a comparable evil. Not that we have to agree with that view, but the question is whether the (possibly oath-based) proceduralist argument ("do your job or engage in revolution, but if you do that you have to quit, because OMG the oath") should carry any logical weight with adherents of that view. While I think acceptable resistance against Nazis differs from acceptable resistance against liberal democratic governments, the reason I think that has nothing to do with oaths, and it's not clear to me how an oath-based theory would successfully distinguish between the two situations.
Bottom line: I'm fine continuing to criticize Davis on substantive moral grounds. And I'm fine showing why Davis's actions are illegal under the positive law; but once you get to the point where you're making the illegality serve a normative goal, you have to confront issues of legitimate disobedience, and I'm not sure that a purely procedural ("quit or do your job") argument will work to exclude Davis's "keep your job but follow your ideals" strategy of disobedience.