Why Didn’t Kim Davis Comply? Shouldn’t We Care about the Rule of Law?

Why Didn’t Kim Davis Comply? Shouldn’t We Care about the Rule of Law? September 4, 2015


On National Review, Harvard Law graduate and Constitutional expert David French has written the definitive article about why Kim Davis was right to resist.  He writes:

The legitimacy of Davis’s protest is inseparable from the illegitimacy of the court opinion that made it necessary. And it is this very illegitimacy that means she should neither resign nor comply. Instead, she has chosen the proper response: resist.

Why didn’t she just comply?

… compliance in this case would have meant not merely participating in an immoral act but also bowing before an unlawful judicial oligarchy. There are Christians who disagree in good faith, who would say that Biblical commands to obey authority apply. Others, also in good faith, would note that obedience to authority does not mean and cannot mean participation in evil. My own opinion is that the relevant “authority” a public official is to obey is the Constitution of the United States and the Constitution of the Commonwealth of Kentucky. The judicial branches’ power to interpret the law does not include the power to rewrite those constitutions.

Why didn’t she just resign?

Resignation in response to the Court’s ruling would have represented an unacceptable surrender. Indeed, from the perspective of the ideologues, it would have provided them with a complete victory — with the twin benefit of changing the law and cleansing public service of the devout. Resignations hand over the lever of power to the truly lawless, to those who will engineer social change by any means necessary.

Shouldn’t Christians care about the rule of law?

The defiance Davis chose was mild indeed. She did not take up arms. She did not try to escape punishment. She did not even truly deny any single person a marriage license. Any citizen of Rowan County could get in the car and drive a few extra minutes to a neighboring county. I grew up not far from Rowan County, and I’m not sure there’s a single point in the county that’s further than 30 minutes from a neighboring jurisdiction.

Indeed, her defiance was far less consequential than the Left’s flouting of the rule of law throughout the same-sex-marriage fight. NR’s own Nicholas Frankovich outlined multiple examples of mayors or county officials issuing marriage licenses in the face of controlling, democratically enacted state law. Leftist lawlessness included the government of California essentially attempting to fix the outcome to legal challenges to Proposition 8, which defined marriage as the union of a man and a woman, by refusing to defend the law in court.

Read all of David’s article here.

(Oh, and if you’ve heard about Davis’s previous marriages and are prone to discount what she’s doing, click here first.)

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What Are Your Thoughts?leave a comment
  • Brian In WA

    “The legitimacy of Davis’s protest is inseparable from the illegitimacy of the court opinion that made it necessary.”

    Wrong, thereby making all the other assertions here wrong. Just because you disagree doesn’t make a court opinion illegitimate.

    Next ‘expert’ please.

  • Lukas Moffett

    Assuming you were correct that the assertion was wrong, does that alone provide you grounds to discount “all the other assertions”? Seems like you may have committed ‘ad locigam’ don’t you think?

    Furthermore, you fail to show that his assertion is wrong and instead cite a fact that could be just as effective if used against the very statement you made it in.

    Regardless of his, your, or my opinion on allowing gay marriage (which I happen to be for… why should the government tell us who we can and cannot marry if all parties involved are able make rational decisions?) the fact that the supreme court forced something upon the states that it did not have authority to force makes it unconstitutional…Unless I have missed something with the ruling (which very well may be the case), the judicial branch did not have the constitutional grounds to rule that it is unconstitutional for states to deny marriage licenses for gay couples (if you think I am incorrect on this point, please show me how their decision was constitutional so that I may learn!)

  • 1no Yamanaka

    Two different worldviews – in one, the only sacred thing is sex. Naturally they will hate anyone who doesn’t share that.

  • NWaff

    The goal of the government is to BREAK the Christian spirit into compliance

  • Why didn’t she follow Matthew 18:8-9?

  • Brian In WA

    It isn’t a fallacy and here is why: David French based every assertion off of a point he thinks is irrefutable. Unfortunately for him, it is completely refutable. SCOTUS decisions can and often have the secondary effect of changing how law is applied nationally. I would refer you to cases like Brown v. The Board of Education (segregation), Gideon v. Wainwright (courts must provide a lawyer), Miranda v. Arizona (Miranda rights), Citizens United v. FEC (Corporate campaign contributions), and most applicable, Loving v. Virginia (Interracial marriage). In each of those cases, SCOTUS decisions radically changed how laws are applied. And while there was uproar around some of the decisions at the time, they have been woven in to the fabric of our society while changing it – for better or worse, depending on your position. Other than this, I couldn’t explain the actual mechanisms that made the decision, as I’m not a Justice. Finally, what makes it a ‘legitimate’ decision, is that SCOTUS made the decision, because the Constitution gives them the power to make them. Those aren’t my opinions, that’s the way things are.

  • 1MiddleRoader

    Excellent examples!
    (But your avatar kinda freaks me out. What the heck is it?)

  • Beth Grant DeRoos

    Mr. French and what if she had denied marriage licenses to people who were divorced because her faith/denomination did not approve of divorce? Would you say that would have been within her rights?

  • Brian In WA

    Smirk. My shoulder and bicep.

  • Ima Lindatoo


    popped up in my TL. IMPORTANT. SEE, this is how they act….throw
    OPPOSITION*** no discussion, no conversation, silence.

    throwing back. “So Gays don’t respect or are tolerate others not like
    them?” “When exactly was the conversion for Gays to hate, target, harass
    and destroy a person who’s NOT LIKE THEM?” “Since when did Gay’s stop
    believing in rights, freedom of religion and American Capitalism”
    “Preach to your choir”.


  • Shadeslinger

    Your question makes no sense. For starters there are biblical reasons for divorce and there are no biblical reasons where homosexuality is accepted.

  • Shadeslinger

    Because that particular scripture would apply to the gay community. It refers to those who are unable to resist temptation because of what they see or touch and it is not taken literally but is a figurative reference to be strong and resist temptations.

  • Shadeslinger

    And it won’t work. I have read the end of the book…we win. 🙂

  • Shadeslinger

    Actually it is an illegitimate decision as marriage is not referenced in the constitution. The correct decision would have been to not accept the case to begin with and leave it to each state. Eventually gay marriage would have been accepted in all states…it was just a matter of time.

  • But her job was causing her to sin, so she should leave it.

    And no, that doesn’t apply to the gay community because we don’t sin except in your delusions.

  • There are so many reasons to be concerned why Kim Davis uses the religion card to not do her job. What is great is that there are so many, and looking like a clear majority, in the religious community that get it. Even the Blaze and Briebart agree that she is wrong. Here are 3 examples from here at Patheos alone.

    From Brandan Robertson at Revangelical, “While religious institutions are guaranteed protections against any government regulation or involvement in their religious life, the government is also protected from religious institutions attempt to garner political power over the nation. What this means is that anyone who functions as an agent of the state must remain religiously neutral, providing equal service, treatment, and rights to all people of all religious, ethical, social, and cultural backgrounds.” He continues, “Kim Davis posed a great threat to the religious liberties of our nation by refusing to carry out her duties as an agent of the state, issuing marriage licenses to all couples, regardless of their sexuality or gender identity. Davis forced her Christian faith on the people of Rowan County, and violated their right to be able to receive equal treatment from the government, regardless of their sexuality, race, religion, or values.” http://www.patheos.com/blogs/revangelical/2015/9/3/how-kim-daviss-imprisonment-is-a-win-for-religious-liberty.html

    From Father Longenecker at Standing on My Head, “While I respect Kim Davis’ courage and unwillingness to compromise her faith, I think the right course would be for her to resign. The King pursued the matter from the realm of state employee to that of private citizens, and when that happens a Christian must stand his ground. Within the government workplace however, I think the first sacrifice is for the person to resign and look for another job. A resignation is not a compromise and it is not condoning something the religious person cannot condone.” http://www.patheos.com/blogs/standingonmyhead/2015/9/kim-davis-and-thomas-more.html

    From Jennifer D. Crumpton at Femvangelical, “No one has to marry gay people, go to gay weddings, or believe same-sex marriage is acceptable within their particular faith tradition. But they also absolutely cannot try to take away civil rights, freedom, justice and liberty from those they disagree with. It’s definitely not what Jesus would do. It’s not illegal to be Christian in America. That is an unintelligent and cowardly claim by people like Mike Huckabee. It is, however, illegal to attempt to enforce your personal beliefs on the public, and to use a government job position to refuse to grant the rights of others.” http://www.patheos.com/blogs/femmevangelical/2015/9/kim-davis-is-no-hero/

  • Brian In WA

    Abortion wasn’t in the Constitution either, but the landmark Roe v. Wade decision SCOTUS made changed our country. Was that illegitimate too? SCOTUS makes many decisions every year that aren’t directly referenced in the Constitution. So I’m sorry, but your assertion is incorrect.

  • Carmelo Junior

    There is something bigger here than religious freedom, Bible or dogmatic views. It is called CONSCIENCE and Natural laws. We don’t need a Harvard law school graduate(only 4 to 6 years of study) to know that we have the inalienable right of free conscience.

  • RustbeltRick

    David French wrote the definitive article on this issue says Nancy French, thus getting this blog post off to a humorous start. David then gets it going with a questionable POV. The “illegitimacy” of the ruling is certainly Mr. French’s opinion, but in no way does that opinion help Kim Davis in a court of law. Lots of people see Citizens United as a horrible ruling, but it would be a stretch for, say, the governor of Oregon to attempt to limit campaign contributions from her state’s residents on the grounds that the ruling is illegitimate. The ruling is the ruling, and Supreme Court rulings (by design) are about as close to final as things get.

  • Beth Grant DeRoos

    Show me where lesbians are mentioned in either the old or new testament. And what about those who are divorced contrary to what the Bible allows?

  • stellar1

    It’s against Kentucky stat law… Hello

  • 1MiddleRoader

    Ah, now I see it! Guess the lighting threw me off. Very impressive, but I’m not your type. (just born that way…)

  • The Professor

    Why didn’t Mrs. Hillary Hall stop issuing licenses when told by the the states attorney general to stop? Arrest her. There are many who have broken the laws, here are a few names. Lois Lerner, Hilary Clinton. Hillary Hall, Barack Obama, Mayor Ed Lee. I am pretty sure we can add thousands of more names. So get moving and do your job. Arrest these people.

  • TheMarsCydonia

    Should Kim Davis care about the rule of law? Here are quotes from her lawyers, Liberty Counsel:
    “Respondents (clerks) are obligated to follow the marriage laws as currently written. They cannot disobey those laws simply because they do not like the laws.”
    “Administrative officials must continue to carry out their ministerial duties and enforce statutes until there has been a judicial determination that the statute is unconstitutional”
    “The duties of a Florida clerk of court are ministerial, which means they have no discretion to pick and choose which laws to follow”

    Those quotes come from previous cases regarding clerks and judges issuing license marriages. So as you can see, the opinion of Liberty Counsel is clear: clerks should care about the rule of law and do their duty, unless they are Kim Davis.

  • quillerm

    The real question: Why is Kim Davis in jail for exercising her right to Religious Freedom. While Hillary Clinton has multiple violations Federal statutes, laws, regulations and policies in jeopardizing US National Security and purposely destroying evidence of her wrong doing, but remains free to run for the Presidency.

  • quillerm

    Obama, Hillary and other democrats have absolutely NO regard for any laws that run contrary to their political beliefs. Kim Davis is a saint compared to the Clinton’s or Obama’s.

  • TheMarsCydonia

    So this is what you can come up for an excuse? Unfortunately, I doubt any judge, liberal or conservative, will take “But your honor, I should be free to break any laws I wish and deny any rights I wish because democrats!” seriously.

  • plains-rabbit

    Yep, stat law.

  • guadalupelavaca

    I can answer that. Kim Davis is in jail for not complying with a court order. The court ordered her to comply with the new Federal law which requires that gay couples be issued marriage licenses. Davis is an elected official, which means she IS the government. People have rights. The government does not. The government only has power. David cannot have it both ways–being a government official AND a private citizen asserting her rights.

    Furthermore, it is common for constitutional rights to bump into other people’s constitutional rights. I cannot express my 1st amendment right and yell fire in a crowded theater. I can go to jail for that. So when Davis says she has the constitutional right to practice her religion, it is not without limits. She cannot assert religious liberty to get out of doing her governmental obligations. The solution is very simple. She should resign her governmental job. Native Americans are not allowed to use mezcaline in their religious practice because it is a violation of the law. Their religious freedom is not without limits. You can’t do what you want and then use religious liberty as an excuse.

    Finally, her incarceration is not punishment. She is in contempt of court and that is not a crime. It is willful disobeyance to an order. Jail is used to force compliance. Once she starts doing her job, she will be released.

  • Jon Hendry

    “Resignation in response to the Court’s ruling would have represented an unacceptable surrender. ”

    What, her taxpayer-funded salary?

  • Jon Hendry

    “Eventually gay marriage would have been accepted in all states…it was just a matter of time.”

    Interracial marriage would probably still be illegal in some states if the Supreme Court hadn’t ruled in Loving.

    Waiting for the hateful backwaters to get up to speed is unacceptable.

  • Jon Hendry

    Divorce may be acceptable Biblically, but not remarriage. You have a funny Bible, it only supports your own prejudices.

  • Jon Hendry

    But you don’t have an inalienable right to $80,000 a year of county taxpayer money when you refuse to do the job and have violated your oath to uphold the law.

    She needs to resign. Unfortunately, she thinks the job is something her family owns, and she doesn’t want to give up the money.

    Honestly the way she’s clinging to the money I wouldn’t be surprised if a look at the books would reveal years of embezzled funds.

  • Jon Hendry

    Because she wasn’t exercising *her* right to religious freedom, she was imposing her religious beliefs on her staff and the county citizens.

    She wasn’t elected to be the Apostolic Christian County Clerk, she was elected to be a County Clerk.

  • Jon Hendry

    “Once she starts doing her job, she will be released”

    Resigning would probably get her out. Though if she were replaced by her own son, it’d probably all start over again and he’d end up in jail.

  • Carmelo Junior

    She does not needs to resign. The only thing the county can do with her is IMPEACH her,(Remove her from office) place her on leave or replace her. She is an elected official. The only ones who decide he fate are the constituents not a judge. This is no matter of money, this is matter of free conscience.

  • Jesusismyquarterback

    She willfully violated a court order.She is not in jail “because of her beliefs.” Court orders are the enforcement tool in civil law. It’s how people get child custody, get paid in lawsuits, get divorce decrees enforced, etc….Any Presidential candidate that supports the violation of court orders is not qualified for office,

  • Dramatic Anti-Climax

    Davis is an elected official, which means that she is the voice of the people of her county, until they either impeach her, recall her, or elect someone else. She ran against 2 other people, so it’s not like the people of Rowan county didn’t have options.
    She actually has the duty to fulfill whatever promises she made to her constituents. And if the people who elected her didn’t do their research and elected someone that they disagree with, that’s not her fault, that’s theirs for being lazy.

  • Dramatic Anti-Climax

    The thing is, all the cases you have cited do have something to do with the Constitution, because of the applicable amendments that are contained in the Constitution. SCOTUS has the power to determine if a law is constitutional or not. Marriage has not been named in the Constitution, so SCOTUS doesn’t have the power yet, it’s still a state’s right to determine what constitutes marriage. It would be up to the Supreme Court of Kentucky ultimately to decide whether gay marriage rulings in Kentucky are constitutional or not (depending on the Constitution of Kentucky).
    What makes it an illegitimate ruling is that there is no Amendment in the giving the federal government power to determine marriage. You can’t get a federal marriage license, you have to get a license from the county you want to get married in.

  • Beth Grant DeRoos

    Actually if a U S Supreme Court Justice marries you you get a license from them which makes it a federal license.

  • Brian In WA

    Incorrect. Equal Protection Clause pretty much covers it, as it did with Loving v. Virginia.