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
.
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.
