My posts are long enough, I think everyone will agree, and often a lot more than that. Believe it or not. I’m always debating whether to include more detailed and footnoted arguments that make the blog more like the New Yorker, and I usually opt for the shorter version. I am always grateful when an articulate commenter expands on the post expands, at any length, on what I present and adds some of the sources I have read and others, putting more flesh on the bones of my position.
johnburger2013 has done Ethics Alarms a service by doing this regarding my posts about recalcitrant Kentucky clerk Kim Davis, now known as Inmate 8522901, and hosanna to that. In particular, I am grateful for his Scalia reference. The Volokh Conspiracy is the best reference for issues like this, as Prof. Volokh and his cohorts lean libertarian but brook no nonsense. You know, like Ted Cruz’s rant. Thanks to jvb also for using that site deftly.
Here is his Comment of the Day on the post, Disqualified For High Office: Senator Ted Cruz (R-Tx):
I saw that interview and I had the same thoughts. Cruz is so much brighter than what he stated. Pure political pandering to the Christian Right. The Kentucky clerk SHOULD be in held in contempt for defying the court’s order. Cruz knows that and his comments were truly mind-boggling. She is not being persecuted for her religious beliefs and I wonder if her lawyers are treading on very thin ice by making arguments that are clearly against the great weight of law.
Her religious faith has no bearing and is absolutely irrelevant to performing her functions as the county clerk. If she is opposed to same-sex marriage on religious grounds, then her avenues are to resign and then attempt to change the status of the laws. By not issuing marriage licenses, she has violated her oath to uphold the laws of the State of Kentucky (just as the Tennessee judge is in violation of Tennessee laws and the Code of Judicial Conduct), and she should be removed. By extension of her illogic, if her religion or religious conviction prevented her from drinking alcohol, then she should deny permits to bars, nightclubs, restaurants, and liquor stores, because her convictions should control over state laws and her duties to execute them faithfully. That is a recipe for lawlessness and chaos.
Sasha Volokh wrote about the “limits of disobedience.” He writes,
“So it’s clear that Davis has no legal right to keep her government job and at the same time refuse to issue the marriage licenses. As to her moral right, we can consult Justice Scalia (see Jonathan Adler’s recent post) who wrote, in First Things, in the context of judicial participation in the death penalty:
‘[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. 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 to abolish the death penalty–and if that fails, lead a revolution. But rewrite the laws he cannot do.’
“So, in Scalia’s view, you either keep your job and do your job, or you resign and engage in political action or revolution. I quote this not to pick on Scalia specifically, but because (as in many cases) Scalia has expressed a view nicely and can serve as the poster child for everyone else who holds the view.”
So did Dale Carpenter: He writes,
“Violating unjust laws and willingly going to jail for it are time-honored acts of civil disobedience. I do admire people who stand up for their beliefs and take their lumps, often even when I find their beliefs profoundly mistaken.
“But Kim Davis is not courageously sacrificing herself for her beliefs. She is keeping the benefits of her government job and insisting that pain must be inflicted on others.
“Davis is not just any person who disagrees with the law and refuses to obey it, imposing costs only on herself. She is a public official charged with administering the law and serving the public that pays her salary. Even if she said God personally whispered to her that thrice-divorced people were not entitled to a fourth marriage license, thrice-divorced people would still be entitled to fourth marriage licenses and she would have to issue them. Either that, or every functionary is a law unto herself.”
She has no legal leg to stand on and for Cruz to support her and encourage her is disheartening. Moreover, Cruz’s bringing the sanctuary city mess into the discussion is pretty bold and despicable. The two are not comparable at all. Jonathan Adler makes this point in a recent blog posting:
“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.”