At first blush, the case of Kim Davis, the county clerk who has been jailed for refusing to issue marriage licenses to same-sex couples, would seem to be all about that highly charged subject. But I believe there actually is a more important lesson to be learned, one that is instructive for every public official, as well as every citizen.
Kim Davis is the county clerk of Rowan County, Ky. Based on previous court decisions, the governor of Kentucky ordered the state’s county clerks to issue marriage licenses to same-sex couples. Ms. Davis refused, took her appeal to court, and lost. She still refused to issue marriage licenses to same-sex couples, and, as of this writing, has been jailed for that refusal.
To be more precise, Ms. Davis has been jailed for failing to comply with a court order. She has been found guilty of contempt of court. Incarceration is one of the well-established punishments for contempt; nothing new here at all.
Indeed, if one simply knew that Ms. Davis had refused to comply with a court order to fulfill what the court had determined was the obligation of her office, one probably would conclude that the court was, if perhaps a bit harsh, certainly within its rights. If one adds that the case had been appealed all the way to the U.S. Supreme Court without success, one almost certainly would accept the lower court’s actions.
Of course, what complicates this situation is the subject matter and the public official’s beliefs about it.
I do not question Ms. Davis’ sincerity when she says that it is her belief that same-sex marriage simply is not permissible under God’s law. I do not doubt that her legal appeals were driven by her sincere conviction that she ought not to be compelled to issue marriage licenses to same-sex couples, that the laws of the state and/or the nation ought to allow her to hold her office and not violate her religious beliefs.
But I believe that she is wrong.
The central question isn’t about her convictions (or mine), nor even about the morality of same-sex marriage. The central issue is whether or not we are a government of laws, or a government of . . . well, the familiar phrase uses the word “men,” but we should say “individuals.”
If I, as a public official, may decide which laws I will enforce and which I will not, which court decisions I will honor and which I will not, which executive orders I will honor and which I will not, then we have traded a government based on the law for a government based on the personal convictions of individuals. We have traded a system that provides citizens with clear expectations of what will and will not happen (and clear paths of redress when what is reasonably expected does not happen) for one in which citizens will be dependent upon the will or the whim of individuals holding office.
There undoubtedly are governments in this country that operate this way. There are counties in this country, for example, where the will of the county sheriff is, for all intents and purposes, the law . . . at least until someone has the courage and the ability to challenge that “law” in court (as has happened in Maricopa County, Ariz.).
But that’s not the way this bold experiment in democracy was designed to work. That’s not what our tradition urges upon us.
Which is not to say that Ms. Davis is personally required to violate her sincerely held religious convictions and issue marriage licenses to same-sex couples.
It is to say, however, that it may not be morally appropriate, as she understands morality, for her to hold the office of county clerk any longer. Honoring her convictions may compel her to resign her office.
She would not be the first, nor the last individual to find that a particular public office is incompatible with her convictions.
We have conscientious objectors who never will be military officers. We have believers in the sanctity of all life who will never be prison wardens in states that still impose the death penalty.
People whose deep moral convictions conflict with society’s formal determinations of right and wrong need not agree with society. But we must not demand that society agree with us, either.
Holding public office obliges us to perform certain duties in certain ways. If we believe an obligation is illegal, we may challenge it in court. But once those challenges have been exhausted, and we have lost at every turn, we have an obligation, as public servants, not merely private citizens, to comply. Either that, or we have an obligation, in conscience, to resign.