Many well-meaning conservatives have been impatient with Kim Davis, the clerk of Rowan County, Kentucky, for refusing to issue marriage licenses after the Supreme Court ruling in June on Obergefell v. Hodges.
The response from such critics has been, “Just do your job or resign!”
That’s understandable, and some commentators have advanced the (partially) valid point that we would rightly expect a Muslim to not interpose religious objections when asked to perform her duties as a public servant.*
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But these reactions miss the more fundamental point that there is no law that says Kim Davis is supposed to do what she’s refusing to do. There is only an absence of law, now that Kentucky’s law on marriage has been invalidated by the Supreme Court.
Invalidation of a law does not create another law. It leaves an absence of law. Kentucky, along with most other states, is now operating in a void, regarding what constitutes a marriage and whom an official may issue a marriage license to.
This is not an arcane point. It goes to the very heart of what we mean by speaking of the “rule of law.”
If public officials are to be held to a standard of performance, the basic elements of that standard have to be spelled out in written, statutory law. The same principle applies to things like what constitutes a crime, and what the authorized punishments are for crimes.
We don’t just make up out of thin air what people – public officials or private citizens – are supposed to be doing, based on how someone feels about a public issue at a given time. That’s not how law properly works. It’s not how law works when “the people” feel a certain way, and it’s not how law works when five Supreme Court justices feel a certain way.
And this is of overriding importance: we don’t punish people for doing or not doing things, based on how someone feels about a public issue. If the state (i.e., the government, at any level) punishes a citizen, it has to be in accordance with due process of written, statutory law.
Punishment is the state’s most solemn form of authority. It’s an exercise of otherwise abusive power over a citizen’s life, and it is not to be done without iron-clad authority from statutory law. “Customary” law may apply to what the state recognizes, or doesn’t recognize. But punishment is supposed to be inflicted only when there is specific statutory authority, adopted by due process of law, with a clear and narrow meaning and fully inspectable by the public and all generations of it that will be subject to the law.
Kim Davis has not violated any statutory law. The marriage law of the state of Kentucky – the guide for her performance of marriage-license duties – met the criteria of proper statutory law before the Obergefell ruling. But it no longer does. For Kim Davis’s purposes, there is no marriage law now that meets the criteria of proper statutory law.
No authority exists, moreover, for a public official to take the invalidation of a law as meaning something specific that is now binding on her. Why should a county clerk assume that if the marriage law of her state has been invalidated by a court, that means specifically (and only) that she should issue licenses for same-sex marriages? Why must it mean that? Why, indeed, could it not mean that she now has to issue licenses for interspecies marriages, or marriages between living beings and inanimate objects?
If you want the clerk of Rowan County to perform her duties merely by making popular assumptions, in the absence of statutory authority, then you in fact want to end the rule of law and institute a dictatorship, and/or mob rule.
Kim Davis hasn’t emphasized this particular argument to the public, up to now. But it is telling that in a crisis of the rule of law, the very first casualty is her religious liberty. Having religious objections, she is told to comply, not with a law, but with a default assumption about what she is supposed to do – or resign.
(Why have we reached that point, incidentally? Because there was no way to make statutory law that would impose the requirement on her to issue same-sex marriage licenses. The people and their representatives were, and still are, unwilling to do that.)
So here we are with her case: there’s no law that says issuing marriage licenses in Rowan County, Kentucky is to include issuing licenses to same-sex couples. Nothing written down and actionable by the enforcement mechanisms of the state of Kentucky says that she must do that.
A federal judge ruled that she has to do it anyway, and has now held her in contempt and put her in jail because she continues to refuse. The judge has that authority, in the short term. But it’s quite possible that Davis might win an appeal based on the argument that no statutory mandate compels her to issue same-sex marriage licenses.
Why might she win that appeal? Because there’s a difference between positive and negative implications from the Supreme Court invalidating a law. The negative implication of Obergefell is that states can’t enforce laws that prohibit same-sex marriage (which Kentucky’s marriage law explicitly did, in KRS 402.020).
But the court doesn’t actually write the law anew by ruling that the existing law is invalid. There’s no mechanism for the “positive” implication of the Obergefell ruling to become written down, and begin specifically governing, according to a set of standards, what public officials do, as opposed to not doing.
The portion of Kentucky law that defines marriage for the purposes of a marriage license still reads as follows:
As used and recognized in the law of the Commonwealth, “marriage” refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.
If this language is invalid, there is no statutory mandate to govern what a county clerk must do. There is only a default assumption from the nature of the Obergefell case.
If you think it’s OK to have law operate this way, and that Kim Davis should just get out of the way so it can, I’m sorry to have to be blunt: you’re a fool.
We can’t have our public officials making up what they’re supposed to do based on assumptions and fleeting popular understandings. There’s no end to the assumptions and popular understandings that could come up to start pressuring our public officials, once we stupidly agree to go down this road.
And, again, notice that religious liberty is the first casualty – and in fact probably had to be the basis for crystallizing this issue to the public.
Don’t miss this exceptionally important lesson. When the rule of law starts being undercut, the first thing to go is our liberty of spirit: our liberty to believe what we will in our own consciences, about who we are in a moral sense; about what we’re here for; who created us; to whom our allegiances are owed.
This issue is bigger than how you’ve had to think about law before
So where do we go from here? Kentucky isn’t going to rewrite its marriage law. The votes aren’t there for that; the people of Kentucky still oppose having the state recognize same-sex marriage.
I don’t know if the American people are competent anymore to understand what’s really going on in this case. This is bigger than what you think you know about the authority our courts are supposed to have. This issue is fundamental to the simplest principles by which we expect law to operate. It’s very basic: it’s about what the people have the right to expect from our laws, and the way government performs.
We haven’t had serious public debates about a topic this basic for a very long time. (The Cliven Bundy case tried to get one started last year.) We’ve largely lost the sense of the expectations about law that we inherited from our English forebears, who developed them over centuries of painful trial and error. But that’s what this is about.
It’s not about lawyers and judges having more technical expertise than the people. It’s very much a political, constitutional issue for the people – an issue of what we expect and what we will tolerate – and not for specialists in the law.
In closing, I am saying, most particularly, the following: that when there is no statutory mandate, a public official’s decisions based on religious conviction should never land her in jail, or result in her being removed from office by anything other than a vote of the people.
If there is a statutory mandate that she’s violating, that’s one thing. But there is no statutory mandate, in this case. There is only a default assumption. That’s not a good enough basis for the state to punish someone.
Yet Kim Davis is being punished. It will take politics, not the workings of the judicial system, to correct this problem. Stop looking for the “Save us!” button to push in law, and realize that what’s going on requires the urgent attention of the people – who are bigger than the law, and come before it, not under or after it. Our law isn’t performing properly. We’ve let it get out of hand. The crisis is here.
* One example offered is issuing business licenses for companies that sell liquor or pork. This argument is only partially valid, however, because the expectations of official behavior typically follow first the preferences of a majority of the people. If America were somehow to be a Muslim-majority polity with the same structure of public offices and duties, there would be little objection to public officials refusing to issue licenses to sell liquor and pork. In fact, the law would probably say they shouldn’t.
Perhaps the most important reason why Kim Davis’s case is so freighted is that her religious convictions have not gotten her cross-ways of the majority of the people. They’ve only gotten her cross-ways of a series of judges in the federal court system.
