As of Friday morning, Kentucky county clerk Kim Davis sits in jail for her refusal to hand out state licenses for same-sex marriages. She cited her First Amendment religious liberty in her defense. She was arrested after being held in contempt by a federal judge, District Judge David L. Bunning.
Her arrest represents tyranny – not because there is no legal authority to arrest, or because freedom of religion trumps rule of law, but because selective use of legal authority is tyranny. And Kim Davis is right to risk jail in defiance of federal lawlessness. God bless her for that bravery.
There are three issues to contemplate here. First, legally, does the government have the authority to jail Davis? Second, morally, does the government have the authority to put Davis in jail? Third, morally, should Davis have gone to jail rather than quitting?
Legal Authority. The government has the legal authority to put Davis in jail. The First Amendment does not protect the employment of people who violate their job descriptions as a general rule; when it comes to government jobs, the First Amendment does not protect your ability to disobey the law. Of course, the government also had the authority to put Martin Luther King Jr. in jail for unlicensed protests. That didn’t make the jailing or the underlying law being protested morally right.
Moral Authority. The government may have legal authority to jail Davis, but it has no moral authority. This government has become an immoral force, a club wielded against people of certain political and religious perspectives. Supreme Court Justice Anthony Kennedy defied the Constitution of the United States to unilaterally impose his political will on the people of the United States, and he does not sit in jail; instead, the president of the United States shined rainbow lights on the White House to signify his celebration of such a Constitutional perversion. But Kim Davis, who refused to abide by that Constitutional perversion, sits in jail for defying Anthony Kennedy and Barack Obama.
Kim Davis sits in jail, but not the president of the United States who has illegally suspended deportations and sanctions against Iran; a former IRS executive who deliberately targeted conservative nonprofit groups; mayors of major cities around the United States who actively defy federal immigration law; a former attorney general of the United States held in contempt by Congress; Washington D.C. clerks who buck court orders to hand out concealed carry permits; and the current leading Democratic Senate candidate in California, who as attorney general refused outright to defend a popularly-passed proposition in favor of traditional marriage, among others.
If absence of law is anarchy, selective enforcement is tyranny. As John Adams wrote, civilization requires a “government of laws, and not of men.” Selective enforcement of the law – and in this case, selective enforcement of the law against those who stand with natural law – perverts law into a club to be wielded by the powerful against the powerless.
Did Davis Act Immorally? Of course not. Davis’ goal is to stand up against the injustice of the law itself. The fact that the government has transformed rule of law into rule of leftist Democrats means that Davis’ decision to go to jail rather than quitting is actually heroic. She didn’t need to object to handing out same-sex marriage certificates on religious grounds; she could have done so on purely Constitutional, rule of law grounds. Lawless orders should not be followed, and the Supreme Court’s decision in Obergefell is lawless in the extreme. The Nuremberg Defense – the idea that superior orders must be followed – was rejected in the Nuremberg Principles:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
The left used this principle as an argument in favor of burning draft cards during the Vietnam War. But when one judge overturns millennia of civilizational principles because he wants to anoint homosexuality as a virtuous lifestyle, the left believes this argument goes out the window: Davis must obey, no matter the perversion of rule of law she has been told to enforce.
District Judge David L. Bunning, in ordering Davis jailed, stated, “I have my own greatly held religious beliefs. But I took an oath. Oaths mean things… The idea of natural law superceding this court’s authority would be a dangerous precedent indeed.”
Bunning is a coward. He took an oath, all right: an oath to “faithfully and impartially discharge and perform all the duties incumbent upon me… under the Constitution and laws of the United States.”
Under the Constitution and the laws of the United States. Not under the Supreme Court. Not under the President. “Oaths mean things” ceases to apply when your oath has been given to a government that substitutes authoritarianism for Constitutionally-bound authority. Constitutionalists who hail Bunning but deride Davis miss the fact that Bunning could have made an even more courageous stand here: in this case, he could have stood up to the federal judicial system that enshrines anti-Constitutional lawlessness.
But he didn’t. He didn’t because he believes, wrongly, that rule of law and natural law are in conflict. That is simply false. Natural law requires rule of law; when natural law is overthrown, so too is rule of law. And one need not believe that same-sex marriage is wrong in order to believe that natural law has been violated here. The minute government became arbitrary and unjust, the minute the Supreme Court became an instrument of will rather than judgment, natural law was violated. Striving to uphold rule of law while upholding rule of lawlessness violates rule of law. End of story.
That, in fact, was the founding philosophy of the United States, which declared in its Declaration of Independence that violation of natural law meant violation of rule of law itself. Martin Luther King Jr. believed the same thing, which is why he encouraged civil disobedience to lawless legality in his “Letter From a Birmingham Jail”:
You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern…One may well ask, ‘How can you advocate breaking some laws and obeying others?’ The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that ‘An unjust law is no law at all.’
King continues by asking what constitutes an “unjust law.” Here is his answer:
A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law…An unjust law is a code that a majority inflicts on a minority that is not binding on itself. That is difference made legal.
Rule of law is the most fundamental example of just law. The American left has destroyed rule of law; the vestiges of legality they now hide behind are the instruments of despotism. Going to jail to stand up against an arbitrary and lawless government isn’t a badge of shame for Davis; it ought to be a badge of honor. Sadly, many other people of principle will have to stand up against an arbitrary and dictatorial government before a government of laws, not men, is restored.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and The New York Times bestselling author, most recently, of the book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). Follow Ben Shapiro on Twitter @benshapiro.