Rowan County Clerk Kim Davis makes a statement to the media at the front door of the Rowan County Judicial Center in Morehead, Ky., Monday, Sept. 14, 2015. Davis announced that her office will issue marriage licenses under order of a federal judge, but they will not have her name or office listed. (AP Photo/Timothy D. Easley)
There are many unfortunate things about the case of Kim Davis, the Kentucky county clerk who refuses to issue same-sex marriage licenses. There was, for instance, the unseemly spectacle of desperate Republican presidential candidates jostling for face time with Davis, an elected Democrat, to a blaring soundtrack of bad ’80s rock music. Less farcically, there is the astounding fact that many people seem to be taking Davis’s legal arguments seriously.
Davis was sued by same-sex couples to whom she denied marriage licenses; she defended her actions on the grounds that her anti-homosexual religious beliefs exempt her from Obergefell v. Hodges, the Supreme Court’s recent decision recognizing same-sex marriage as a constitutional right. When a federal judge rejected her arguments and ordered her to obey the Constitution, Davis ignored the court’s order, and the judge sent her to jail for contempt of court. Her deputies issued the licenses in her absence and she has since been released. As of Sept. 16, Davis has told reporters she will not comply with the order going forward.
Davis’s core contention is that her religion entitles her to violate the constitutional rights of same-sex couples. That argument is flatly wrong.
First, there is no constitutional right to religious exemptions from generally applicable laws. The First Amendment protects “the free exercise” of religion, but that protection applies only to laws intentionally targeted at particular religious beliefs. In a diverse society, many laws impose incidental burdens on someone’s religious practices; controlled-substance laws, for instance, might have the effect of preventing the use of peyote in Native American ceremonies. Sometimes we choose to grant religious or moral exceptions to these laws, as with exemptions to the draft for conscientious objectors. But nothing in the Constitution requires us to do so. Such a requirement could render every religious person a law unto herself.
Second, government officials like Davis take an oath to support the Constitution – Article VI of the Constitution itself requires it. That oath demands obedience to the entire Constitution, not just to those parts an official happens to like. If an official finds she can’t obey the Constitution, she has a simple option: resign her office (or don’t seek office in the first place).
Third, as a practical matter, obedience to the Constitution means obedience to the Supreme Court’s interpretations of the Constitution. It’s true that the Court sometimes gets the meaning of the Constitution wrong. But we often disagree about what the Constitution means, and someone must have the authority to resolve these disagreements. In our system, that someone is the Supreme Court. Of course, an official might get away with disobeying the Court’s decisions until she herself is sued in a court of law. But once she is sued, as Davis was, the court deciding her case is legally obligated to follow Supreme Court precedent, and arguments that “the Supreme Court got it wrong” will fall on deaf ears. People who dislike the Court’s constitutional rulings can seek to amend the Constitution – or to gradually change the Court’s membership through the political process.
So Davis’s contention that her religion puts her above the law is just wrong, and demonstrably so. By metaphorically thumbing her nose at the law, Davis has behaved not just illegally, but undemocratically; she has insisted that she’s not subject to the laws that bind the rest of us because, well, she knows better.
Surrounded by Rowan County (Ky.) Sheriff’s deputies, Rowan County Clerk Kim Davis, center, with her son Nathan Davis standing by her side, makes a statement at the front door of the Rowan County Judicial Center in Morehead, Ky., on Monday, Sept. 14, 2015. (Photo: Timothy D. Easley, AP)
Of course, there is a long and honorable American tradition of disobeying the law in the name of legal change. The colonists who rebelled against British rule, the northerners who helped slaves escape bondage, the Civil Rights Movement activists, today’s Black Lives Matter protesters – all of them have engaged in civil disobedience in pursuit of a greater good, and many have done so at least in part for religious reasons. And here we confront perhaps the most unfortunate aspect of the Kim Davis debacle: the fact that some of her defenders have compared her to Dr. King and other heroes of the fight against Jim Crow.
In case it’s not obvious: Kim Davis is no Martin Luther King Jr. For one thing, King and his colleagues willingly accepted legal punishment for their actions, while Davis apparently wants to avoid punishment for hers. An important difference between civil disobedience and mere lawlessness is that the former is willing to face the consequences of its actions while the latter is not. King understood this well. Resisting particular unjust laws calls attention to their injustice; accepting punishment for this resistance shows respect for the law as a whole by affirming that no one is above it.
And there is another important difference between Davis’s actions and Dr. King’s. Almost paradoxically, King’s legal disobedience actually furthered the rule of law, because the segregationist laws he resisted were themselves inconsistent with the principle that all are equal before the law. Where the rule of law truly governs, there are no second-class citizens, no persons outside the law’s protections. King’s carefully calibrated acts of lawbreaking helped us perceive this greater legal truth.
In stark contrast, Davis’s disobedience aims to perpetuate inequality, not to redress it. In asserting her own supposed right to religious freedom, Davis is denying the legal rights of a class of fellow citizens, and thus undermining rather than advancing the rule of law. In this she resembles not Dr. King, but the diehard segregationists King faced down so bravely and effectively.
Christopher J. Peters is a Professor of Law and Associate Dean for Faculty Scholarship at the University of Baltimore School of Law. He can be reached at cpeters@ubalt.edu.