Everyone apparently feels obliged to have and to express an opinion on clerk Kim Davis down south of here in Kentucky.
For my money, Jonathan Adler at the Volokh Conspiracy, quoting Justice Scalia, nails it:
Writing in “First Things” in 2002, Scalia explained that if he were to conclude that the death penalty is fundamentally immoral, he should no longer serve on the bench.
[W]hile my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral. . . .
[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.
Davis is in a similar position. Her official position obligates her to take part in the state’s licensing and recognition of marriages. Insofar as the state’s definition of an acceptable marriage differs from her own, Davis is obligated to follow the state’s rule so long as she maintains her current office.
Think of it this way. Someone who objects to war due to his religious conscience has a right to be a conscientious objector and not serve in the military, even were there to be a draft. But he does not have the right to serve as a military officer, draw a paycheck from the military and then substitute his own personal views of when war is justified for that of the government. The same applies here.
This is nothing new and it is not rocket science. C.S. Lewis made a very similar point back in the 1940s or earlier, in discussing Christian ministers who had, over the course of time or by some little epiphanies, lost their Christian faith. Giving them full faith and credit for the sincerity of their apostasy, he nevertheless said the to retain their integrity, they needed to resign the ministry. They had no right to continue hypocritically affirming, or slyly subverting, the faith to whose ministry they had been called.
If I had unlimited time, I could tilt at windmills by arguing that the federal judicial imposition of same-sex marriage nationwide is a nullity because it was an illegitimate exercise of power by a branch of government that’s not competent to make marriage law.
Or I would magnanimously concede, maybe, that Obergefell (and only he) was entitled to a marriage license, in which argument one ought to hear the echoes of Abraham Lincoln conceding that judicial finality meant that Dred Scot remained a slave, while the status of others in similar situations remained to be litigated. But it looks as if it’s going to be a very long time before anyone other than cranks like me is willing to listen to that argument.
Meanwhile, Sir Thomas More in A Man for All Seasons telling Roper why he’d give the Devil the benefit of the law, has the winning argument:
This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—d’you really think you could stand upright in the winds that would blow then?
Notably, not a single one of the bloggers I read has defended Mrs. Davis, and the bloggers I read are overwhelmingly conservative as opposed to same-sex marriage. That ought to tell you something about whether Mrs. Davis is going to become the darling of the Right.
UPDATE: One Very Right Orthodox Tweeter I follow wishes there were 1000 Kim Davises and an anti-abortion website reports, as if it’s newsworthy, that Carly Fiorina and Lindsey Graham think she should issue the licenses or resign.
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)