When a public official cannot enforce the law in good conscience, he or she should resign and work to change the law through regular channels. That is my first instinct with regard to Kentucky clerk Kim Davis’ refusal to issue marriage licenses. Charles Cooke made essentially that argument in National Review. Having read and reflected further on the case, I am starting to wonder if the question is actually much more interesting.
Davis is an elected official. When the people elected her, she had no objection to the law of marriage as it existed. A couple of months ago, the Supreme Court changed the legal definition of marriage in Kentucky—or, at least, asserted its right to do so. (One could argue that the Supreme Court, in fact, only asserted that it is unconstitutional not to allow people of the same sex to marry, but since we have separations of power, it is the duty of the legislatures of our states to change their laws to comply with the court’s demands).
Since the key practical fact is that the law has been changed since Davis was elected, the logical reaction is not simply to resign, but to resign and to campaign for re-election. If the people want to elect someone who disagrees with either the Supreme Court’s power to change the definition of marriage or simply with the new definition of marriage, then she should, with the people’s blessing, continue to follow the law of the land as her district understands it, and be willing to suffer the legal consequences on behalf of her constituents.
Davis views this matter as simply one of her rights of conscience, but it, in fact, implicates many more questions about the rule of law and the democratic process. Were American civil education stronger, that element of the story would getting much more play in the press.
It Would Be Easy to Accommodate Kim Davis
The most interesting analysis of the question is Eugene Volokh’s account. Volokh is one of America’s leading experts on religious liberty, and his account of the case is enlightening and fascinating. Volokh reminds us that religious exemptions to generally applicable laws are common in the United States—from Quakers who refuse to fight, to a “philosophically vegetarian” bus driver who refused to hand out free hamburger coupons. (Note that, in this case, our courts agreed that the word “philosophy” used in this sense means religion—our fundamental moral beliefs, values, or practices.)
Moreover, he points out that what Davis wants is an accommodation that would entail nothing more than changing the legal form of marriage licenses in a small way. He points out that she would be content with, in the words of her legal briefs: “Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.”
Volokh argues that she might actually win such an exemption under Kentucky law, although not federal law. If Davis turns to Kentucky courts and wins such a change, that would conclude the matter. In response to the argument that such an “accommodation” is, in reality, a legislative change that would require an act of the legislature, Volokh finds that Kentucky law already provides for such an accommodation.
What’s Really Happening Is the End of Law Itself
That opens up a whole second set of questions. It is one thing for a religious-freedom law to require accommodations or work-arounds that would, for example, exempt a religious Muslim or Jew from head-covering laws or facial-hair requirements, and another for one law, as if by autopilot, to change the wording of a legal form. But if courts are allowed to, in effect, dictate the content of our legal code rather than, as they traditionally did, simply reject unconstitutional law, that might not be so unreasonable.
That Volokh’s interpretation may very well be correct shows us how far the very idea of legislation has been degraded in the United States. After all, more and more of the laws under which we live are not legislation passed by our legislatures. Instead, they are rules created by unelected bureaucrats or, as in this case, unelected judges—and in both cases they usually have jobs for life, making them, in effect, a postmodern form of robe-nobility.
How to fight against such intrusions upon the rights of we, the people? As in all other fights, we need to fight intelligently. Moreover, we also need to do our best to see the full contours of the fight we are in.
What Do Kim Davis’s Constituents Think?
The case in question involves two things: the changing definition of marriage and the question of who has the legal and constitutional authority to settle such matters. That is why, in this case and other like cases, it matters a great deal that Davis was elected when everyone agreed the law was one with which she could easily comply, but that the Supreme Court has claimed the right to change, as it were, the conditions of her employment.
That being the case, the right thing to do, from the perspective of republican governance, is to appeal back to the people, her bosses. She can no longer apply the law, as the Supreme Court declares it is, in good conscience. Do the people want someone who refuses to comply or would they prefer someone who accepts the change?
If they want someone who agrees with Davis, then it would be fitting for her to go to jail not simply on behalf of her own claim of conscience, but also on behalf of her community’s belief that the Supreme Court is wrong here. The court’s declaration that it has authority in this regard is, they would be arguing, void.
Organized Civil Disobedience Is Not Anarchy
Is that not anarchy? Not necessarily. It is one thing, a la Henry David Thoreau, simply to disregard a law one views as immoral, but it is another to do so as part of a duly constituted democratic community. It is also different to suggest the government misunderstands the law, rather than, a la Thoreau, suggest that the law is simply a bad one.
By contrast, when the American patriots, for example, refused to allow the Stamp Act or Tea Act to be enforced (these were acts of “pretended legislation,” in the words of the Declaration of Independence) they were acting on behalf of the law. It was Parliament, with its claim of the right to legislate “in all cases whatsoever” that was, they held, acting illegally and unconstitutionally.
One of the main reasons the American Revolution did not descend into the kind of anarchy that the French Revolution produced is the Americans always worked within existing legal forms, and acted on behalf of rights already possessed and through existing institutions. In the colonies, of course, large numbers of men could vote, probably a majority in most colonies and perhaps as high as 80 percent of men in some parts of New England. They were used to controlling the instruments of law.
How does one fight a government that is slipping out of its duly appointed constitutional bounds? Law professor Glen Reynolds suggests “Irish Democracy,” non-compliance with laws we find unjust or unreasonably intrusive. When few people comply with a given law or administrative or courtly dictate, it is, in effect, a nullity, a dead letter. There might be a place for that at the margins—I wonder how many Californians have modified their mandated low-flow shower heads?
Too Much Civil Disobedience Destroys Law
If that attitude becomes general, however, the result can be disastrous for the rule of law and for a republic of free and equal citizens. For starters, it teaches the people not to respect the law. When applied at the edges it could be, as Reynolds suggests, a salutary reminder to those who wish to tell us what to do that we will not pay attention. But it also puts more and more Americans in potential legal jeopardy if the government chooses, selectively, to enforce the law: give us what we want, or we will hunt through your life and find something to charge you with. (On that, see Three Felonies a Day.)
That is why it is important, as much as possible, to resist the usurpation of our legislative rights and our personal liberties through the regular legal process, as our ancestors did in the age of the American Revolution. They acted similarly in the years leading up to the Civil War.
Recall all those cases of Northerners, particularly those we today would call evangelical fanatics, who made it very difficult to enforce the fugitive slave law. Didn’t they realize their religious fanaticism was leading us to war, the pragmatic experts of the day shouted? Even so, they often worked within existing legal structures in the North, although not always, as Thoreau’s case reminds us.
As the scope of law increases in our lives, and as more and more of the laws under which we live are not passed by our elected legislators but are, instead, created off the legislative books by unelected judges and bureaucrats with jobs for life, it might make sense, in general, for we the people to return to the remedies that we used to enjoy in the age of the American Revolution, and the early republican era. That would entail restoring the right of juries to rule on both law and fact.
Similarly, it would return us to the legal world the American founders knew quite well, one in which the mere fact that Parliament declared something to be law, and the mere fact that some of His Majesty’s judges declared it to be so, was not a sufficient proof that it was, in fact, legally binding on the colonies. Common law was bottom-up, not top-down, like Continental Civil Law. It was “common” because it reflected the common understanding of what was right, reasonable, and just in the communities of England and, ultimately, of the American colonies.
A Return to the Remedies of the Revolution
In other words, to preserve our liberties in an age of administrative lawmaking it might be necessary to restore the old correctives that our ancestors enjoyed and employed against excessive, irrational, and illegal rule-making and the abuse of legal discretion by the king and his minions. After all, today’s experts are no more likely to be politically neutral than were the king’s appointees. They are human, after all.
In the “Report of 1800,” James Madison’s summation of his arguments of the 1790s, Madison noted that an expansion of federal powers would, inevitably, mean an increase in executive discretion:
One consequence must be, to enlarge the sphere of discretion allotted to the Executive Magistrate. . . . In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regulations for all be increased. From these sources would necessarily ensue a greater latitude to the agency of that department which is always in existence, and which could best mould regulations of a general nature so as to suit them to the diversity of particular situations. And it is in this latitude, as a supplement to the deficiency of the laws, that the degree of Executive prerogative materially consists.
Legally speaking, action necessarily begets reaction. If we are breaking free of the old separations of power, it would be reasonable and proper to increase the available remedies against discretionary power. Turning to the modes our ancestors employed would not be a bad idea. In other words, it would make more sense for Davis not to act as a lone individual asserting her rights of conscience against the law, after the fashion of Thoreau, and perhaps Martin Luther King Jr. in his “Letter From a Birmingham Jail,” but instead to work as much as possible within the democratic-republican system in search of a legal remedy.
Such a course might, if repeated in other like cases, begin to move us effectively against the excesses of the modern administrative state. Following the forms of democratic-republicanism might also have the beneficial effect of reminding the American people that they are the bosses and the government consists of their employees, a reality the Supreme Court ignores when it takes away from the people the right to decide if they wish to change the definition of marriage.