When To Defy The Law

Earlier this week, I blogged about Kim Davis, the Kentucky clerk who has refused to issue marriage licenses to same sex couples in defiance of an edict from the governor and a court order. Yesterday, she was jailed for Contempt of Court and her deputies began to issue the licenses.

Eugene Volokh has a great breakdown of the relevant law. Long story short, Davis may have a claim under Kentucky’s RFRA law, which allows the state to accommodate religious beliefs if the accommodation is not a burden:

Davis’s objection, it appears (see pp. 40 and 133 of her stay application and attachments), is not to issuing same-sex marriage licenses as such. Rather, she objects to issuing such licenses with her name on them, because she believes (rightly or wrongly) that having her name on them is an endorsement of same-sex marriage. Indeed, she says that she would be content with

Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.

Now this would be a cheap accommodation that, it seems to me, a state could quite easily provide. It’s true that state law requires the County Clerk’s name on the marriage license and the marriage certificate. But the point of RFRAs, such as the Kentucky RFRA, is precisely to provide religious objectors with exemptions even from such generally applicable laws, so long as the exemptions don’t necessarily and materially undermine a compelling government interest.

If that is indeed the case, it seems that this issue could be resolved relatively quickly. Davis, as far as I know, is mostly pursuing a federal claim which SCOTUS had rejected. Hence, the Contempt order.

I think it is entirely appropriate to charge her with Contempt. As I noted earlier, her choices were to issue the marriage licenses or resign. Religion is something that can be accommodated. It is not a shield with which to defy the law.

However … a second debate has emerged from this with conservatives arguing that liberals defy the law all the time without consequence and that Davis is being persecuted because her objections are religious rather than political. This rebuttal has focused on several examples:

Gavin Newsom, while mayor of San Francisco, had his clerks issue marriage licenses to gay couples in defiance of state law. Is this the same as Davis? No, it isn’t. Newsom was not violating anyone’s civil rights by issuing the licenses. Moreover, it was a publicity stunt, one that paid off for Newsom with the Lieutenant Governor’s position. In the end, the marriages were annulled and Newsom stopped issuing the licenses. There was no defiance of a court order. That having been said, Newsom was in the wrong and had he defied the Court order, I would have supported a Contempt charge. Even if what Newsom was doing was an act of civil disobedience, civil disobedience includes the consequences of your actions.

Sanctuary Cities are another touted example, but this too fails. As Jonathan Adler points out, whatever one may think of sanctuary cities, they are not defying federal law:

The Constitution establishes that federal law is supreme. But it is also well-established that the federal government may not “commandeer” state and local governments to implement federal law. What this means is that the federal government is free to enforce federal law, including immigration law, whether state or local officials like it or not. At the same time the federal government cannot dictate that state and local officials enforce that law on the federal government’s behalf.

This was upheld by SCOTUS when the Court ruled that the Federal government could not force states to carry out firearms background checks on its behalf.

Attorneys general and governors who refused to defend anti-gay marriage amendments in Court have also come in for scrutiny. We’ve debated this in the comments before. As Doug Mataconis points out, it is perfectly acceptable for a governor or President to refuse to defend a law in Court if they believe it to be unconstitutional. In fact, numerous Presidents, including Republicans, have done so before. It would not be appropriate for an attorney general to do it on his own; they are supposed to follow the orders of the President or the governor. But it’s acceptable for an executive. If a new President is elected, there is no requirement for him to embrace the Constitutional theories of his predecessor.

Marijuana legalization has been cited with people saying that it is lawless for the federal government to not go after state marijuana dealers in Wyoming and Colorado (as well as other states with medical marijuana laws). I don’t see this as comparable either. First, the federal government has been going after legal pot dealers, as we’ve documented numerous times. Second, this goes down to prosecutorial discretion, in which federal prosecutors have been told to concentrate their resources on other crimes.

That having been said, I would be much happier about the situation if Congress passed a law to protect state-legalized marijuana shops and clinics.

D.C. clerks have reportedly been refusing to issue conceal carry permits in defiance of a judge’s order. I’m having trouble finding documentation of this claim. As far as I can tell, there is still an ongoing lawsuit over the matter. DC is a restrictive may-issue state, so there is no obligation of clerks to issue conceal carry permits. And it appears that while a judge ordered them to start issuing permits, that order was stayed. If, however, the District receives a Court order to start issuing and refuses to, that would be comparable to the Davis situation.

I’m eager to find examples of people refusing to carry out the law with impunity, but the examples touted so far are not convincing. I’m not seeing any evidence that Davis is being unfairly singled out.

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