National Review’s deputy managing editor Nicholas Frankovich wrote today that Kentucky clerk Kim Davis isn’t being treated fairly. Why, he asks, are some officials praised for defying marriage law but Davis is not?
Antonin Gregory Scalia, aka Antonin Scalia, is an Associate Justice of the Supreme Court of the United States. Samuel Anthony Alito, Jr., aka Sam Alito, is an Associate Justice of the Supreme Court of the United States. Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Caricature by DonkeyHotey via Flickr creative commons. https://www.flickr.com/photos/donkeyhotey/19156454411/
Before the U.S. Supreme Court ruling this summer, there were a series of public officials who openly defied state laws and constitutions by issuing marriage licenses to same-sex couples. San Francisco mayor Gavin Newsom, New Paltz, New York mayor Jason West, California attorney general Jerry Brown, Montgomery County Pennsylvania official Bruce Hanes defied or refused to defend state law.
Frankovich says that Kim Davis is simply doing the same thing:
The history of the movement to redefine marriage is shot through with defiance of laws that those who broke them sincerely felt were deeply wrong. To be consistent, anyone who thinks that Newsom, West, Brown, and Hanes were courageous and principled must now judge Davis by the same standard.
But it is the same standard. It’s called the Constitution.
READ Can clerks refuse to issue same-sex marriage licenses? A guide to the legal debate
Officials cannot refuse to follow a law simply because they felt they were “deeply wrong.” But they can–and must–disobey them if it conflicts with the Constitution. Allegiance to the Constitution trumps state laws and constitutions. A mayor who issues marriage licenses because he concludes that marriage is a constitutional right is upholding the law, not defying it.
Now, Newsom, Brown, and other officials may have really been doing because of their own consciences or political expediency, but they had to defend their decisions as protecting constitutional rights.
Kim Davis is, in a sense, doing the same thing. She is asserting that the law violates the constitution by causing her to violate her sincerely held religious beliefs.
But Davis, just like the other officials, does not get the last word on whether her actions are constitutional. That’s the job of the courts.
When Mayor Newsom issued marriage licenses, he was taken to court. And he lost. So, he did his job. He stopped issuing licenses and worked to change the law. But when Davis lost in court, she decided to defy the Constitution by continuing her actions.
Frankovich could have had a valid argument a month or so ago. But now, when the courts have made it clear that she must issue licenses, her refusal to do so puts her in a category that other officials were not: she is in contempt.
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