First we have Rand Paul, saying the clerk’s refusal is “part of the American way.” No, Senator. Adherence to the rule of law is the American way.
Sen. Rand Paul (R-KY) suggested Tuesday that a Kentucky clerk who is refusing to grant marriage licenses to same-sex couples was “making a stand” and “an important part of the American way.” But he argued the whole situation could have been avoided if states stopped processing marriage licenses entirely.
“I think people who do stand up and are making a stand to say that they believe in something is an important part of the American way,” Paul told Boston Herald Radio, according to The Washington Post.
Mike Huckabee is even worse, saying thank God for the clerk. Ted Cruz has a slightly more nuanced version (see the link immediately above), decrying the assault on religious liberty currently taking place in the U.S., but implicitly acknowledging that the law must be carried out, and pleading (without specificity) for “alternative ways” to allow the law to be carried out without trampling on religious liberty.
Which sounds good . . . but unless they want to reassign her, the main “alternative way” I see is: resignation. Even when you don’t like the law, as a government official, you must carry it out (unless to do so would be so immoral that it would represent the very breakdown of society).
Jonathan Adler quotes Justice Scalia on a similar issue: the role of judges:
[W]hile my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral. . . .
[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.
Ed Morrissey makes the argument very well today at Hot Air. I can’t add anything to it.
We’ve written plenty of posts defending religious freedom and the right to choose not to participate in private ceremonies, but this case is different. The other cases about which we have written involve private enterprise — bakers, photographers, venue owners — who do not exercise a monopoly on their markets. Operating a private business should not strip people of the right to free religious expression in all phases of their lives; other businesses can and do wish to participate in those events, and the free market should be free for all within it.
Government is not a free market, however; it is a monopoly backed up by force. If the law says these couples can apply for and receive a marriage license, then government has to abide by that law. They exercise a monopoly on marriage licenses; these couples cannot go anywhere else to get one. This is a denial of access to market by government force, essentially, a much different situation than with bakers, photographers, and so on.
One might sympathize with Davis on her religious objections to same-sex marriage, but that doesn’t give her the authority to deny it if it is lawful. A politician might object to alcohol purchases, perhaps even on religious grounds, but he can’t deny permits to liquor stores in a jurisdiction that allows them just because of his religious objections to alcohol consumption. That would be an abuse of power, the kind conservatives would protest in other circumstances.
Accepting office in government means upholding the law. If that conflicts with Davis’ religious beliefs, then she should resign and find other work.
I’d be open to “alternative ways” that don’t involve rejection of the rule of law (as strongly as we might disagree with the “law” as the Supreme Court has determined it) — but I think Sen. Cruz should tell us what those alternative ways might be.
Whatever they might be, they can’t involve simply refusing to carry out your duty. That is not the “American way” in my book.
Caveat: I have not heard Sen. Paul’s interview. If it turns out he was misrepresented — as Scott Walker was, when he supposedly advocated a wall on our border with Canada (watch the video and you’ll see he was simply being inattentive, and talking over Chuck Todd) — I’ll defend him. Until then, the criticism stands.
