Beware the Davis trap: Nobody is above the law

Kelly Sloan
Kelly Sloan

Kim Davis, the Rowan County, Ky., clerk, has made quite a name for herself, first by refusing to issue marriage licenses to same-sex couples — or anyone else, for that matter — and then going to jail for disobeying a court order demanding she do so. The reaction to these events has demonstrated remarkable inconsistency on both sides of the political spectrum.

Whatever one’s opinion concerning gay marriage or the Supreme Court decision that ushered it in as the law of the land, the fact remains Davis broke the law. As David Harsanyi recently wrote, “Working for the government is not an inalienable right.” Her job as a county clerk was to enforce the law, not interpret it. She was then presented with a court order, which she proceeded to willfully disobey, and for which transgression she paid a legal price.

To be sure, the Supreme Court decision in Obergefell, whatever your opinion of the outcome, was an act of constitutional mischief. As Chief Justice John Roberts wrote in his well-constructed dissent:  “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

Indeed. It is also true that religious liberty is under threat in modern-day America. But punishing Davis for violating a court order to do her job doesn’t equate to harassing private business owners who make personal decisions regarding how and where to ply their trades. And it certainly doesn’t descend to the level of “human rights tribunals” that have persecuted journalists and pastors in Canada for expressing what are suddenly considered contrarian views.

Predictably, many on the left are ironically celebrating the arrest of Davis. Ironically, because they’re invariably citing The Law as the justification for the proceedings, and rightly so. But this embrace of The Law was mysteriously absent when, for instance, then San Francisco mayor Galvin Newsome illegally issued marriage licenses to same-sex couples in blatant violation of California law as it stood at the time. In pure legal terms, what Newsome did was just as wrong as what Davis did, but where was the left’s indignation?

Probably in the same place that it’s stored in regards to other legal transgressions that happen to support liberal ideology. “Sanctuary cities,” municipal enclaves where those who violate immigration law are allowed to live unencumbered (although one struggles to think of a place in America where such persons are actually routinely encumbered) are flagrant legal violations. Federal drug laws are being broken all over Colorado of late, but no one among the new law-and-order crowd on the left is clamoring for a DEA sweep of Colfax Avenue.

How about Hillary Clinton? The “Teflon Donna” evidently made a game out of seeing how many national security laws she could violate as secretary of state and yet remains the Democratic Party’s leading presidential candidate. On that note, how many liberals cheered with the same gusto at seeing Bowe Bergdahl in handcuffs as they do with Davis? Michael Brown was shot in the course of breaking numerous laws. There was liberal outrage, but it was certainly not directed towards the lawbreaker.

Why the inconsistency? Because liberalism considers the rule of law as merely a tool for restructuring society. When it ceases to serve that purpose, they view it as simply an archaic relic of a Eurocentric, paternalistic and racist past.

Conservatives should not fall into that trap. Consider this scenario: a Muslim county clerk in, say, Michigan refuses to issue driver’s licenses to women, citing his religion. The entirely correct reaction among conservatives would be outrage. The principle of rule of law, the idea that society is governed by laws rather than individual whims, is, and always ought to be, a central tenet of western conservative thought.

The inconsistency among conservatives on this issue is troubling, as it is telling among liberals. Yes, the Supreme Court was reckless in its activism. Yes, there need to be carefully drafted protections for religious liberty. And yes, Davis has every right to obey her conscience and religion.

But under the system put in place by America’s founders, building on centuries of inherited wisdom, nobody, not a president, secretary of state or county clerk is above the law. Violating one principle in pursuit of another is an insult to our cultural and political primogeniture. Conservatives, of all people, should know that.