The author of the Supreme Court ruling that legalized same-sex marriage nationwide has a suggestion for Kim Davis and other county clerks who feel torn between their religious scruples and their duty to issue marriage licenses to all legally qualified couples: Follow the law or resign.
"The rule of law is that, as a public official in performing your legal duties, you are bound to enforce the law," Justice Anthony Kennedy told students at Harvard Law School.
After the court's 5-4 decision June 26 declaring that gays and lesbians had a constitutional right to wed their chosen partner, Davis and other local officials stopped issuing marriage licenses, saying it would violate their religious beliefs to sanction a same-sex marriage.
Davis, the elected clerk in Rowan County, Ky., was held in contempt of court by a federal judge and jailed for five days last month. The judge released her after she agreed not to interfere with marriage licenses issued by subordinates in her office. But she has refused to issue them herself, and she changed the license forms to remove the county's name and include a statement that the licenses were issued under federal court order. Kentucky's governor and attorney general say the licenses are still legally valid.
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Davis is appealing the judge's ruling requiring her to issue the licenses. Similar cases are pending in Alabama.
Kennedy, an appointee of President Ronald Reagan who has written the court's major rulings on gay rights, was asked by a law student last week during a campus visit whether public officials were bound to follow the justices' "new insights" on issues such as abortion and marriage.
Without mentioning Davis by name, Kennedy said he sympathized with officials who face "difficult moral questions" when their consciences collide with legal authorities. He said he honored three German judges who resigned rather than follow the dictates of the Nazi government.
"Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong," Kennedy said before adding that public officials have a legal duty to follow the law.
The clash of personal beliefs and legal obligations "requires considerable introspection," he said. "But certainly, in an offhand comment, it would be difficult for me to say that people are free to ignore a decision by the Supreme Court." In response, Davis' lawyer said Tuesday that Kennedy and his fellow justices in the majority should step down in disgrace after issuing such a ruling.
"I think it's a two-way street, that justices who don't follow the Constitution ought to resign if they can't do their job," said Mat Staver, president of Liberty Counsel, a conservative Christian legal organization that represents Davis and dissident clerks in Alabama. "I think the Supreme Court does not have unlimited authority and that five justices cannot say what they want to if it's not based on the Constitution." He noted that Chief Justice John Roberts, in a dissenting opinion, argued that the Constitution "had nothing to do with" the newly declared right to same-sex marriage.