Though her release from jail may have temporarily reduced the drama surrounding Kim Davis’ refusal to issue marriage licenses to same-sex couples, the Kentucky clerk’s case will not be the last that pits a public official’s claim of conscience against our constitutional order. Those of us who believe that the liberty of conscience is an important hallmark of U.S. law may be tempted to rally to Davis’ defense. That temptation should be resisted. We can take conscience seriously and still recognize that the level of deference the community owes conscience is a function, in part, of one’s professional role.
Especially in the legal system, role matters. For example, in the 2004 case of National Abortion Federation vs. Ashcroft, U.S. District Judge Richard Casey struck down a ban on partial-birth abortion — a practice he referred to as “gruesome, brutal, barbaric, and uncivilized” — because he was bound by Supreme Court precedent. In doing so, he recognized that the rule of law constrains his discretion to align his work as a judge with his understanding of moral truth.
The Rev. Martin Luther King Jr. was not similarly constrained in deciding to protest in Birmingham, Ala., without a legally required permit. To apply the principles of civil disobedience so beautifully set forth in King’s “Letter from Birmingham Jail” directly to Davis without accounting for the particular dictates of her role as a public official misses the mark.
The legitimacy of Davis’ refusal cannot be contingent on the correctness of the underlying moral claim. The Constitution invests the Supreme Court with authority to interpret the Constitution. In Obergefell vs. Hodges, the court interpreted the Constitution to require states’ recognition of same-sex marriages. To substitute a single official’s contrary conclusion — even a conclusion widely shared — for this allocation of authority upends a key component of the process by which we resolve deeply divisive issues in our country. (I would say the same thing to San Francisco Mayor Gavin Newsom for issuing marriage licenses to same-sex couples when he lacked legal authority to do so.) Even in cases where critics accuse the Supreme Court of overreaching for prematurely removing an issue from political debate, that overreach does not negate the dangers of empowering a government official to ignore a Supreme Court decision designed to be binding under our constitutional framework.
Further, I’m not sure what moral claim Davis was upholding through her refusal to issue licenses. If she were to issue a marriage license to a same-sex couple, she is affirming the couple’s eligibility to marry under the laws of her jurisdiction, as interpreted by the Supreme Court in light of the Constitution. She is not affirming any particular view about the essence of marriage. A judge or court clerk who signs a divorce decree is not disavowing her belief in the indissolubility of marriage; she is simply affirming that the couple has satisfied the conditions for terminating a legal marriage within that jurisdiction. If Davis violates her conscience by issuing a marriage license on behalf of the state to a same-sex couple without personally affirming the relationship, and the relevant moral act is simply playing a part in a process that leads to an outcome in conflict with her moral convictions, does a pro-life firefighter violate his conscience by extinguishing a fire at Planned Parenthood?
I believe that our debates over conscience should focus on whether accommodating the claim of conscience would jeopardize access to a good or a service deemed essential (by the state) for full participation in society. Because of the importance of religious liberty and the unavoidable messiness of living in a world of moral conflict, I have objected when the state’s disregard of a provider’s claim of conscience appears to be animated by a desire to avoid potential affronts to a customer’s sense of dignity — for example, when the state penalizes a photo agency for refusing on religious grounds to shoot a same-sex wedding even though many other competent photographers are available. While I object to dignity-driven state prohibitions in the market for goods and services, an employer could legitimately decide that an employee’s conscience-driven refusal of service sends a message inconsistent with the moral claims embedded in the employer’s marketplace identity.
By the same token, the government should have some discretion to decide that its public officials must execute the full scope of the law and serve all members of the public legally entitled to a good or service. If the state of Kentucky wants to create an accommodation for Davis that still maintains full access to marriage for same-sex couples, I wouldn’t object. The problem is empowering Davis to decide on her own whether her denial of access is consistent with the public norms that the state wants to champion. If we value a vibrant moral marketplace, institutional actors, not just individual employees, must have a degree of discretion to shape their identities and messages within the marketplace. The government should have similar discretion.
None of this is meant to suggest that government officials should never defy the laws they are charged with upholding. Consider the judges of Nazi Germany. Under my analysis, should they have kept clear consciences in enforcing the regime’s rules? No — the governing legal order is not always coextensive with the rule of law, and there is a tipping point at which judges would be justified in working to avoid or minimize the harm caused by a morally bankrupt legal system. Resignation from the position may be imprudent to the extent that the position maximizes the opportunity for disruption. While I can’t articulate with particularity when that tipping point is reached, I reject the suggestion that our American legal system has reached it. If you think it has, I’d encourage you to read more historical and comparative accounts of societies that have rejected the rule of law. Nazi judges are not helpfully invoked to justify an individual official’s choice to elevate her own moral convictions above the settled law. That remains the case even when the law has been settled only recently, and even if the terms of settlement are unpopular.
Robert K. Vischer is the dean of the University of St. Thomas Law School and the author of “Conscience and the Common Good.”