As I write this, Clerk Kim Davis of Rowan County Kentucky has refused to obey an order issued by a judge of the United States District Court. She appealed the decision to the Sixth Circuit Court of Appeals and to the United States Supreme Court. Both rejected her appeal.
As you are probably aware Ms. Davis objected, on religious grounds, to issuing marriage licenses to same sex couples as required by the U.S. Supreme Court’s decision in Obergefell v. Hodge. She was held in contempt, incarcerated and then released with the condition that she not interfere with the issuance of marriage licenses by her deputy clerks.
The United States was a democratic republic whose constitutional foundation rested upon the rule of law.
We Are a Democratic Republic
We all learned in school that the United States was a democratic republic whose constitutional foundation rested upon the rule of law. We were all taught that anyone can disagree with a particular law or court decision, however, that disagreement does not allow a government official to disobey it.
Writing in “First Things” in 2002, Justice Antonin Scalia explained the impact of rule of law on public officials: “[I]n my view the choice for the judge who believes…(a law)…to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws…..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……and if that fails, lead a revolution. But rewrite the laws he cannot do”.
Taking An Oath to Support the Constitution
Close-up of a man’s hand on the bible
Clerk Davis is not a judge but, she too took an oath to obey the law when she swore: “(That) I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of county clerk according to law…” Kentucky enshrined the concept of official obedience to the rule as law :“A public servant is guilty of official misconduct in the first degree when, with intent…to deprive another person of a benefit, knowingly…refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office or violates any statute or lawfully adopted rule or regulation relating to his office.” (KRS 522.020).
A Public Official
Our founders created a representative democracy where the people elect their officials. These representatives’ personal beliefs can be given expression only when they do not conflict with the requirements of the office that they hold in trust from the people. Clerk Davis’s refusal to obey a federal court order is a rejection, not only of her oath, but of the constitutional structure of the United States. No matter how heartfelt her religious belief, it is personal, and cannot be given expression in her official actions.
First published on the Justice Speakers Institute website.