Working for the government is not an inalienable right. And so I happen to believe that Kentucky clerk Kim Davis is wrong to refuse same-sex couples marriage licenses in her office. Not evil, just wrong. If you’re unwilling to enforce the law, you shouldn’t be an officer of the state. After all, it’s not a clerk’s job to ascertain the constitutionality or practicality of law. If it was, we’d have anarchy. There are hundreds of other vocations she is free to pursue if this one doesn’t suit her.
There are certainly bigots out there intent on coercing Christian businesses to choose between their faith and their livelihood. But Davis’ stand isn’t about religious freedom, it’s a protest against the law. Signing off on state documents is not tantamount to being forced, as bakers and photographers have been, to participate in a wedding ceremony. If she wants to participate in civil obedience, she shouldn’t work for the state. Or she can stand on principle and deal with the consequences. Which is what she’s doing.
But jail? Davis was reportedly taken into federal custody on Thursday in contempt of court for refusing to issue same-sex marriage licenses in Kentucky. She now faces potential penalties, fines, and more jail time. A lesson will be taught.
So there are a few things that are worth contemplating here.
Let’s start with the prevailing hypocrisy surrounding the liberal attacks on Davis, and what it tells us about the state of American political debate and policymaking. Because, as you may have noticed, the rule of law only seems to be sacred when it happens to comport with liberal values.
As far as I can tell, there are only three unassailable Constitutional rights left in United States: The right not to be “discriminated” against. The right to have an abortion. The right to have a gay marriage. In the eyes of a liberals, nothing—not the freedom of association or religion or anything else mentioned in the First or Second Amendment—will ever supersede these consecrated rights. The rest? Well, it’s malleable, depending on the situation.
When GOP candidate Marco Rubio asserted that Kentucky should probably respect the beliefs of county clerks, John Podesta, chairperson for Hillary Clinton for America (because Hillary is an obvious champion of law and order) tweeted:
SCOTUS says LGBT couples can marry. Officials should uphold the law. Period. What’s next, Professor Rubio? http://t.co/0VLuYRfeOM
— John Podesta (@johnpodesta) September 3, 2015
Period? Surely no one is arguing that SCOTUS always gets it right? Or that accommodations can never be made for employees of the state? Surely he is not maintaining that his own deference to law is not pliable, as well? In recent years, Professor Podesta made his living advocating for the president ignore the rule of law by circumventing the legislative process and creating a regulatory regime to battle climate change.
This is not unique. When the administration undermines the First Amendment by weakening the SCOTUS decision on Citizens United—since unfettered political speech from a couple of libertarian billionaires is problematic to their mission—it applauded for the effort. Lois Lerner will never see a day behind bars.
Imagine if Obama’s IRS decided it just wouldn’t approve certain nonprofit applications because they were bastardizing democracy.
— David Freddoso (@freddoso) September 3, 2015
Now, obviously, there is an important distinction. The FEC never refused to comply with the law. And Davis doesn’t have the backing of a powerful agency like the IRS to help her undermine decisions she finds morally troubling. Davis doesn’t have a giant bureaucracy to protect her when she does. She doesn’t have Obama to re-imagine and rewrite the law for her as she goes along. Yet, in the grand scheme of things, people like Podesta and Lerner brandish the same moral authority when they ignore process.
There are many ways to show disdain for law. In America, we have a city council in Denver that advocates shutting down businesses like Chick-fil-A because the CEO once took a public position against gay marriage. That kind of abuse of power and contempt for the Constitution doesn’t get national play, because it’s the right kind of contempt. In this country, illegal immigrants can march in the streets to protest their station without any genuine fear of being rounded up and expelled. They are celebrated. The president ignores the legislative process and gives millions amnesty. We have cities that ignore federal drug laws because they find them oppressive. As Sean Davis points out, when California passed Prop 8, which banned gay marriage, a number of officials refused to enforce the law. But not one elected official has been hauled off to jail for any of these stands.
Yet, a Christian struggling to come to terms with the implications of a decision that changes over two hundred years of law that SCOTUS only reached a couple months ago—and our progressive president only embraced a couple of years ago— is now hauled off to prison. In the end, the state is creating martyrs. Christians will have no choice but to take more obstinate positions in the culture war—battles that could easily have avoided if a judge exhibited more compassion and came to an accommodation. There are around 125 other marriage clerks in Kentucky who could issue licenses to gay couples. And they should.
Or we can go the other way. And if we’re going to be rigid about the rule of law, let’s throw all officials who ignore it into cells.