No Church-Stamped Permission Slips for Abusing Societal Rule of Law

David Blankenhorn, Deseret News, 9/9/2015

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Subject: Civil Society

More by: David Blankenhorn

Last week Kim Davis, the clerk of Rowan County, Kentucky, went to jail as a result of her refusal to permit her county to issue marriage licenses to same-sex couples in the wake of this year's U.S. Supreme Court decision legalizing gay marriage. This story is attracting much attention, including mine. In a search for first principles, let's consider two ways to violate a law.

Principled civil disobedience is when private citizens refuse to obey a law, on the grounds that the law is morally wrong. The concept is that refusing to cooperate with legally enacted injustice, and accepting the penalties for that refusal, can ultimately change the hearts and minds of others and society as a whole. This idea makes me proud of my country.

Principled lawlessness is when public officials refuse to execute a law, on the grounds that the law is not really a law. The concept is that, when public officials believe that a law is unconstitutional, those public officials may lawfully ignore or reject it. This idea makes me tremble for my country.

As ethical stances, these two ideas are more opposite than alike. Principled civil disobedience is ultimately a form of engagement, aimed at conciliation. Because the practitioner takes the suffering upon herself, and because she appeals to the conscience of those who can legally punish her, her project is joint redemption through the discovery of shared humanity. Historically, our nation's most notable practitioners of civil disobedience were the leaders of the African-American civil rights movement of the 1950s and 1960s.

Principled lawlessness is ultimately a form of defiance, aimed at rupture. Because the practitioner arrogates to himself the right to decide what is and is not law, and to insist that others bear the consequences, his effort is the separation of him and his co-believers into a protected sphere of shared belief. America's most important historic practitioners of principled lawlessness were white leaders from my native South who declared the right to nullify U.S. laws threatening slavery and, later, racial segregation.

Principled lawlessness and the politics of gay marriage are not strangers. In San Francisco in 2004, Mayor Gavin Newsom won praise from the left by directing a county clerk to issue marriage licenses to same-sex couples, ignoring the California state law prohibiting him from doing so. And today Kim Davis, an elected county clerk in Kentucky, is winning praise from the right by refusing to issue marriage licenses to same-sex couples, ignoring the Supreme Court decision requiring her to do so.

I accept Kim Davis' good faith and respect her religious sincerity. I'm disgusted by those who are vilifying her personally. I admire her willingness to go to jail for her beliefs. If she were practicing only civil disobedience instead of principled lawlessness as well, I would be writing this article in her defense.

I also favor reasonable accommodations for conscientious objectors to gay marriage. If Davis had been hired by a supervisor rather than elected by the voters, and was only one of many clerks standing behind windows serving the public, I'd fight for her right to transfer without penalty to a job that does not require her to process marriage licenses.

But Davis' supporters assert that her right to religious freedom should permit her -- and other officials like her -- to obstruct a law without penalty. Many of her supporters -- including some legal scholars, think tank analysts, and political leaders -- further suggest that Davis acted lawfully in refusing to issue the licenses, since the Supreme Court decision legalizing gay marriage is unconstitutional. Asked if public officials like Davis are obligated to obey the law, former Arkansas governor and presidential candidate Mike Huckabee said: "Well, you obey it if it's right."

This concept endangers us. It always has, mainly because it can render important conflicts irresolvable. Thankfully, most U.S. leaders since the founding have forthrightly rejected it. James Madison famously described the "nullifying doctrine" in our political life as a formula for "uncertainty, confusion, and violence." He was right. Just ask the generation of Americans who fought the Civil War.

In America, an elected official charged with faithfully executing the laws does not have the right, based on religious conviction, to decide which laws to execute and which to rescind. She does not have the right to decide on her own, any more than you or I do, which laws are constitutional and which are not.

If you as a public official want to break a law, break it. Maybe you should. But in a society based on the rule of law, we can't give you a church-stamped permission slip to break it with impunity, and we certainly must never accept the anarchic and quite extremist notion that what you're breaking is not, according to you, a law.

David Blankenhorn is president of the Institute for American Values. You can follow him on Twitter @Blankenhorn3.

This article originally appeared here.

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