Plenty of ink, real and digital, has been spilled recently about the issue with Rowan County Clerk of Court Kim Davis. On one side, you have those who laud what she is doing, standing up for her religious liberty and treating her like a modern day St. Paul, languishing in a latter-day Rome’s jail cell. On the other side, you have the brigades of internet comedians and social justice warriors, mocking her personal life and her faith, cheering that she’s in jail for daring to disagree with their victory in what they consider the greatest civil rights battle since the 1960s.
Whether you agree with the former or the latter, one thing is clear – we cannot continue to undermine the role of the courts in our system of government by ignoring their decisions or supporting those who do.
I’m not going to argue theology here – others are more qualified to do that than I am, but I will say that my own particular Christian denomination has been solemnizing same sex marriages since 2012. I’m also not going to argue whether the Supreme Court’s decision in Obergefell v. Hodges was correct. Those are all debates others can have. My concern with what Kim Davis is doing and many of the arguments that those who support her opinion on marriage are making is that they are shredding the concept of the rule of law and they are spitting on the Constitution and the system of government the framers created.
I’ll be blunt – you can’t call yourself a Constitutional Conservative or claim that you believe in the rule of law if you support what Kim Davis is doing.
The concept of the rule of law underpins our Anglo-American system of jurisprudence. At its most stripped down, the rule of law means that no one is above the law and that every citizen, whether they are within or without the government, be held to the same standards. Our nation and our legal system was built on the idea that while we are all free to hold our own opinions, beliefs – religious or otherwise – and ideas, what ties all of us together is our support for and willingness to abide by the system of government outlined in our federal Constitution. It is that allegiance that makes us all Americans.
Our system of government is designed with checks and balances – a legislature elected by and accountable to the people that enacts laws, an executive that executes those laws, and a judicial system that decides cases and controversies arising under those laws. Each branch is intertwined with the other, and without the three branches working in concert, the entire system fails. When one branch tries to usurp the power of another, it is incumbent upon the other two branches to put the offending branch in its proper orbit. The role of the judiciary in our system of government is one of the least defined in the Constitution, but that does not mean that there is no definition. Article III clearly states that the judicial power is vested in the Supreme Court and such lower courts as Congress may, from time to time, establish. The courts are given the power to decide cases and controversies arising under the federal Constitution.
What happened in Kentucky was a controversy that arose under the federal Constitution. Whether you like it or not, the Supreme Court has held that the 14th Amendment guarantees the right of same sex couples to marry because marriage is a fundamental right. That decision, right or wrong, is the law of the land until it is overruled or a Constitutional amendment supersedes it. Thus, we are all obligated, no matter how we feel on the issue, to abide by the Court’s decision in that matter. And that means in states where they have defined marriage in a way that contradicts the Obergefell decision, the federal Constitution overrides the state Constitution.
Despite what some have claimed – even someone running for President who should know better – the Kentucky legislature does not need to take any action or pass enabling legislation to put the Supreme Court’s order into effect. If you don’t believe me, you can look at Alabama. In 1954, the Supreme Court held that segregation was unconstitutional under the 14th Amendment and ordered schools across the country be desegregated. Alabama’s Constitution, in Section 256, declares that “[s]eparate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.” In 2012, the people of Alabama voted against an amendment to their State Constitution that would have repealed that language, and did so in overwhelming numbers. The provision failed on a 60%-40% vote, with over 1 million Alabamans voting against the repeal.
Alabama’s schools have been desegregated since 1963, even after Governor Wallace stood in the schoolhouse door.
Because the Supreme Court’s holding that the federal Constitution barred segregation had the effect of law, and it was enforced by an executive branch that respected the judicial branch’s authority. Yes, it took the use of the military to force desegregation, but it happened.
Whether you like the Supreme Court or you don’t, no one can argue that their holdings do not have the force of law. We cheer when the Supreme Court gets it right, like they did in District of Columbia v. Heller, where they affirmed the 2nd Amendment’s protection of an individual right to own a firearm. Or like in NLRB v. Noel Canning, when they held that the President had overstepped his authority when he recess appointed members to the National Labor Relations Board. Or like in Town of Greece v. Galloway. where the court recognized that legislative prayer doesn’t violate the First Amendment’s establishment clause. Or like in Burwell v. Hobby Lobby Stores, Inc., where the court held that privately owned companies could not be forced to provide contraceptive coverage that violates their religious liberty. We want those decisions upheld and enforced, and they should be not because they are correct, but because they were validly decided.
All of those decisions were made possible by the authority granted in Article III of the Constitution, and the concept of judicial review the Court adopted in Marbury v. Madison that has never been truly challenged by either the federal legislative or executive branches. Judicial review is fundamental to our concept of jurisprudence, and arguing that the Supreme Court does not have the authority or the power to construe the Constitution is both wrong on the law and wrong on philosophy.
As Chief Justice Marshall said in Marbury, “[i]t is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.”
Without that concept, there would be chaos. We don’t get to pick and choose which decisions we want to follow and which we don’t, regardless of whether we call upon divine justice as our authority. That would nullify the concept of the rule of law – we would be allowing some to be above the law. What would stop a judge somewhere else banning legislative prayer or forcing a company to provide contraceptive coverage if he thinks the Supreme Court’s decision was wrongly decided?
No, the Supreme Court is not infallible. Yes, they got it wrong with Dred Scott. Yes, they got it wrong with Plessy v. Ferguson. But until the 13th and 14th amendments were passed, Dred Scott was the law of the land. And until the Court reversed itself in Brown v. Board of Education, Plessy was the law of the land. There are valid ways of fixing injustices under our system of government, and those who believe that Obergefell is wrong should push for a Constitutional amendment to supersede the Court’s decision. Standing in the courthouse door is not one of those options, any more than standing in the schoolhouse door was an option in 1963.
When Kim Davis swore an oath to support the Federal Constitution, that oath bound her to accept the decisions of the Supreme Court and other lawfully constituted courts on what the law is. That includes when the Supreme Court held that marriage was a fundamental right that could not be denied to same sex couples. She may believe that gay marriage is a sin, that those who engage in it are eternally damned, and that she has a duty to God to oppose it. She’s free to hold, as sincerely or insincerely as she wants, any belief she wants. What she may not do is deny that the Supreme Court’s decision was valid and binding on her through her oath, deny a marriage license to a same sex couple, bar her employees from doing so, and ignore a validly issued order by a federal District Judge. As Judge David Bunning held, “[h]er good faith belief is simply not a viable defense,” and “[she] took an oath[.] Oaths mean things.”
If her personal convictions are such that she cannot, in good conscience, abide by the Court’s lawful order, the proper thing to do is either allow others in the office to issue these licenses, request a reasonable accommodation from a state court under Kentucky’s Religious Freedom Restoration Act (Eugene Volokh walks through the relevant case law here) or resign. The path she chose is not one that’s available to her under our system of government.
The path that Ted Cruz, Mike Huckabee, Bobby Jindal and others are walking down is a path that ends with the destruction of the Constitution and the end of the American experiment. When we have elected officials denying the authority of the government they were elected to be a part of, and defending the willful disregard of valid court orders, we’re inviting anarchy.
This isn’t about gay marriage or religious liberty. It’s about the rule of law and respect for our Constitution. She took an oath, she violated that oath, and she is being held to account for that violation. That makes her more like Benedict Arnold or Jefferson Davis, not St. Paul.
She should not be defended. What she is doing is tearing at the fabric of our society, and inviting others to join her in doing the same. That’s not laudable.