Cakes, Clerks, & the Precarious Rule of Law

By Julian Dunraven, J.D. M.P.A.

Recently, one of my Constitutional Law students asked me to distinguish between the case of the Christian cake bakers judicially ordered to bake a cake for a gay wedding against their will, and the case of Kim Davis, acounty clerk in Kentucky currently in jail for refusing a judicial order to begin granting gay marriage licenses.  My student already had an inkling that the principles underlying these two cases were quite different, and thus was unsurprised to discover that although I have great sympathy for the bakers, I have none for Ms. Davis, and believe she is exactly where she belongs. 

On first glance, these two cases do appear to be similar.  Both involve deeply pious individuals who belong to particular sects of Christianity which happen to teach that same-sex marriage is sinful.  Due to this belief, both the bakers and the clerk sought to abstain from any type of participation in same-sex marriages through their professional work.  Both were also thwarted by the courts.  However, it is the difference between them that really matters:  while the bakers were private citizens operating their own private business, the clerk is a publicly elected official operating a government office.  

In the case of the bakers, as private citizens, they have a property interest in their labor and products.  While government has a legitimate interest in ensuring they fulfil their contracts without fraud, when the government starts telling them who they must take as clients, even if they do not wish to do so, the government begins to impose a type of slavery, however minor it may be.  The Constitution’s Equal Protection and Due Process Clauses were never intended to prevent private citizens from discriminating as they saw fit; they were designed to ensure government did not do so, and treated all its citizens equally under the law.  The right of expressive association (and disassociation) contained in the jurisprudence of the First Amendment further supports this idea. 

Things changed during the Civil Rights Movement.  Then, the U.S. faced the loathsome problem of racism.  Congress tried to address the issue through the Civil Rights Act and other remedial statutes to forcibly eradicate such discrimination—in both the public and private spheres.  Knowing that this noble endeavor would fail under traditional readings of the Constitution (at least in the private sector), the Court supported the effort by taking an astonishingly expansive view of the Commerce Clause of the Constitution.  In short, the Supreme Court declared that, if you were engaged in a business that somewhere, somehow, used a part or ingredient that had been shipped in interstate commerce before it became your final product, then the government could regulate you as engaging in interstate commerce.  In other words, if you bake cakes in Oregon, but use flour from wheat which was grown in Nebraska, then you have engaged in interstate commerce.  That rather all-encompassing rationale allowed the government to carry out a variety of anti-discrimination efforts, not just in the public sector, but in private business as well.  

Of course, with that sort of rationale, one wonders if there is anything the government cannot regulate.  For many years, the answer was that there was nothing the government could not reach.  It is only in the last few years the Supreme Court has recognized that it may have built a bridge too far, and begun to scale back the scope of its Commerce Clause interpretation.  After all, today it may not be needed.  Any business that openly discriminated on the basis of race, gender, or even sexual preference would quickly be boycotted and driven out of business.  The market might have been seen as too slow for the days of the Civil Rights Movement, but our various media forms allow it to act quite swiftly today, and it has shown a distinct distaste for intolerance.

   

Allowing the market to function on its own would be the best way to deal with the bakers.  It would allow them their fundamental freedom of association and expression, as well as protect their interest in their own labor and property.  It would also allow others to freely decide whether to frequent that shop.  If enough people did not like buying cakes from bigots, they would go out of business with no help from the law.  Unfortunately, our legal system has not returned to such a free market solution.  The courts are still largely using the interpretation of the Commerce Clause established during the Civil Rights Movement to navigate anti-discrimination legislation.  As a result, we get a situation in which private bakers find their fundamental freedoms oppressed by the very courts charged with protecting them.  Those courts also find themselves in the untenable position of making absurd balancing tests between someone’s fundamental freedoms on the one hand, and the government’s interest in obliterating invidious discrimination on the other.  It is unsurprising that individual freedoms rarely weigh more on such inappropriately weighted scales. 

So what do we do?  Well, the easiest solution is to appoint more judges who have greater respect for private property and labor, and are willing to restore the Commerce Clause to its original limited purpose of eliminating interstate tariffs and shipping requirements.  Although it would be more difficult, we could also narrow the scope of the Commerce Clause with a constitutional amendment, which would have the advantage of being far more lasting.  Until then, though, under our Constitution, as Justice Marshall stated, “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v Madison 5 U.S. 137, 177 (1803).  It may take quite a while to overcome the precedents already set.  What we cannot do, though, is discard the Constitution and the Rule of Law itself.  Yet, that is the very approach Kim Davis is advocating

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Kim Davis is an elected clerk for Rowan County, Kentucky.  Like the bakers, she is religiously opposed to the idea of same-sex marriage.  Thus, as County Clerk, she has refused to grant marriage licenses to same-sex couples.   She was sued, and asked the courts to allow her an exemption from the duty to issue such licenses because of her religious beliefs.  She lost: at the district level, on appeal, and before the U.S. Supreme Court (which refused her request without comment).  Now, a federal judge has jailed her for continually refusing to comply with his order to issue the licenses.  She remains in a cell.

One of my most honorable friends recently described Ms. Davis as a hero of conscience and integrity, a crusader for religious freedom.  This is an easy mistake to make.  Americans love an underdog, and staying true to one’s conscious while facing the entire weight of the American Judicial system is a hard image to resist.  However, it is a false image.  

Ms. Davis is not a private citizen.  She is a publicly elected executive charged with carrying out the functions of government.  Unlike private business, the Equal Protection and Due Process Clauses of the Constitution were aimed squarely at governmental officials.  The government does not get to choose which citizens it will represent and serve, and which it will ignore and deny; the government must treat everyone equally under the Law.  

According to her attorney, Ms. Davis has proposed severalalternatives.  These include having the chief executive of the county, or perhaps a state official issue the licenses.  Alternatively, she has proposed removing her name from licenses issued to same-sex couples.  These, solutions, however, are untenable.  Having some other office grant same-sex marriage licenses amounts to abdicating her duties as a county clerk, as well as imposing an additional hardship on same-sex couples which different-sex couples do not have to endure.  It also adds a disdainful stigma to same-sex licenses, which would be massively amplified by also removing the county clerk’s name from the documents.  This sort of treatment is reminiscent of the separate and not-so-equal practices of the reconstruction era, and stand as flagrant violations of the Equal Protection Clause.

Ms. Davis claims to understand all this, but maintains that, because of her deeply held religious beliefs, she should be granted an exception to compliance.  Were she a private citizen, I would be happy to agree with her.  She is not a private citizen, though; she is a government official.  The First Amendment does not just grant individuals the free exercise of religion; it also prevents government from establishing any particular religion in law.  Yet, that is precisely what Ms. Davis is attempting to do.  

Ms. Davis did at least one thing correctly in making her argument in court, though.  As an elected official, she certainly had an interest in ensuring that her principles, which she was presumably elected for, were at least zealously defended.  But she lost.  Now, if Ms. Davis believes that the law her position operates under has become so onerous that she can no longer perform her required duties without violating her conscious, then she should resign.  Honorable resignation in the face of unethical behavior is, in fact, a recognized duty for many professions, including law.  As a private citizen, she would then be free to work to change the law or amend the Constitution.  Instead, she took the dishonorable approach and rebelled against it.

Unhappy that the courts ruled against her, Ms. Davis decided she did not need to perform the duties required by her executive position.  She went on to appoint herself a legislature of one, and demand legal changes to how marriage licenses are issued that the state has not seen fit to alter.  She has also placed her own interpretations of the law above that of the entire U.S. judiciary by blatantly refusing to comply with the judgement of the courts.  In doing all this, she has not only violated the First, Fifth, and Fourteenth Amendments to the Constitution, she is rebelling against the very framework of the Constitution itself and declaring her own whim to be above the Law.

The U.S. is a nation of Laws and not of Men.  We are governed through our rules and procedures, and not ruled by the arbitrary whim of individuals.  That is a precarious system, though, and requires constant vigilance to maintain.  None of us get everything we want out of it.  Elections and laws pass with winners and losers on both sides.  Yet, even in loss we believe in our Republic and its Constitutional system.  That is, in fact, what defines being an ‘American,’ for we are a people united, not by ethnic, cultural, or even national background—but by principles—specifically those principles embodied in our Constitution.  We expect an election, a legislative vote, or a court decision to go badly from time to time, and we work toward changing the next one.  Such disputes are not huge threats, but part of our democratic way of life.  When one of our own officials, however, chooses to rebel against the Rule of Law itself, they represent a much bigger threat than a single court decision with which we disagree.  They threaten the very heart of the Republic.

For this reason, I cannot applaud Kim Davis in any way.  Her audacious sense of entitlement to her position baffles me.  Perhaps it is because she took over from her mother and, over some decades, began to regard it as an inherited peerage rather as a civil service.  I cannot know her thoughts.  I do know, however, that she has set herself up, not as a defender of our Constitution and Rule of Law, but as its enemy in open rebellion.  For such traitors to the soul of our Republic, I can have nothing but utter contempt.