Well?
SNIP:
10 Questions For Rule-of-Law Critics Of Kim Davis
By
Joe Rigney
There’s much talk of late about Kim Davis, the Kentucky county clerk who was jailed for refusing to issue marriage licenses to gay couples. She actually stopped issuing
all marriage licenses, to avoid the charge of discrimination. She’s now out of jail, although it’s possible she’ll be sent back.
Among those who are sympathetic to her plight and the religious-liberty implications of the case, many (if not most) still think her decision to refuse to issue licenses was wrong.
For example,
Russell Moore and Andrew Walker carefully distinguish between private actors (like bakers and florists) and agents of the state. The former should be allowed to refuse participation in a gay wedding, while the latter, when faced with the prospect of violating their sincere religious beliefs, should seek accommodation from the state, and, failing that, should resign. Others who agree with this principle include
Eric Teetsel and
Rod Dreher (Dreher mentions others in his post).
For all of these commentators, Davis’s refusal to issue the licenses is a radical move that threatens the rule of law and our fundamental constitutional order. Conservatives, they argue, rightly object when government officials refuse to perform their duties (see
here and
here). Therefore, we ought not join them in similar lawlessness. (Breakpoint has collected a bunch of additional reactions
here.)
I respect many of the men making these arguments. Some of them are good friends. But I have some questions about this framing of the issue.
1. Did You Consider if Kim Davis Isn’t the Law Breaker?
Who has violated the rule of law here? Is it Davis or the Supreme Court? If, as many conservatives argue,
Obergefell v. Hodges is a legal abomination, and there is no right to same-sex “marriage” in the Constitution, isn’t Davis actually seeking to
uphold the constitutional order, the one that we wrote down so we wouldn’t lose it (as opposed to the one that’s rattling around in Anthony Kennedy’s head, which, like all marbles, tends to get lost rather easily)?
2. Is Kim Davis Required to Endorse Lies?
When Davis promised to fulfill her duties, did those duties include “tell lies about the fundamental institutions of society”? If that duty has been added in a blatant power grab by the judiciary, why does she have to go along? Why can’t she continue to fulfill the duties she promised to do (which, I think, incidentally, would mean that she should issue licenses to eligible heterosexual couples)?
3. Whatever Happened to Acting Like Lincoln?
Isn’t Davis doing more or less what Robert George recommended in this post-
Obergefell First Things symposium (quoted in full, bolding mine)?
How shall we respond to
a lawless decision in which the Supreme Court by the barest of majorities usurps authority vested by the Constitution in the people and their elected representatives? By letting Abraham Lincoln be our guide. Faced with the Supreme Court’s
Dred Scott decision,
Lincoln declared the ruling to be illegitimate and vowed that he would treat it as such. He squarely faced Chief Justice Roger Brooke Taney’s claim to judicial supremacy and firmly rejected it. To accept it, he said, would be for the American people “to resign their government into the hands of that eminent tribunal.”
Today we are faced with the same challenge.
Like the Great Emancipator, we must reject and resist an egregious act of judicial usurpation. We must, above all, tell the truth:
Obergefell v. Hodges is an illegitimate decision. What Stanford Law School Dean John Ely said of
Roe v. Wade applies with equal force to
Obergefell: ‘It is not constitutional law and gives almost no sense of an obligation to try to be.’ What Justice Byron White said of
Roe is also true of
Obergefell: It is an act of ‘raw judicial power.’ The lawlessness of these decisions is evident in the fact that they lack any foundation or warrant in the text, logic, structure, or original understanding of the Constitution. The justices responsible for these rulings, whatever their good intentions, are substituting their own views of morality and sound public policy for those of the people and their elected representatives. They have set themselves up as superlegislators possessing a kind of plenary power to impose their judgments on the nation. What could be more unconstitutional—more anti-constitutional—than that?
The rule of law is not the rule of lawyers—even lawyers who are judges. Supreme Court justices are not infallible, nor are they immune from the all-too-human temptation to unlawfully seize power that has not been granted to them. Decisions such as
Dred Scott, Roe v. Wade, and
Obergefell amply demonstrate that. In thinking about how to respond to
Obergefell, we must bear in mind that it is not only the institution of marriage that is at stake here—it is also the principle of self-government. And so we must make clear to those candidates for high offices who are seeking our votes, that our willingness to support them depends on their willingness to stand, as Abraham Lincoln stood, for the Constitution, and therefore against judicial decisions—about marriage or anything else—that threaten to place us, to quote Jefferson, ‘under the despotism of an oligarchy.’
4. Doesn’t This Response Legitimize Obergefell?
ALL of it here with comments. :
10 Questions For Rule-of-Law Critics Of Kim Davis
