No matter where you stand on this, can we come together for a moment and acknowledge the plain truth of this point by Dan McLaughlin?
If elected Democrat Kim Davis was doing this to the death penalty, drug or immigration laws, or voter ID laws, they'd hail her as a hero.
— Dan McLaughlin (@baseballcrank) September 2, 2015
It’s not that she refuses to perform her public duties that has left-wing critics exercised, it’s that she refuses to performs these specific duties. As it is, TNR’s demanding that Davis be thrown in jail — not just fined or fired, but actually imprisoned — until she complies. If she were an ICE middle manager refusing to execute deportation orders, they’d be looking for a blue district in Kentucky for her to run for Congress in.
Anyway. No surprise that Huckabee’s her most outspoken defender among the 2016 crop. He’s also been the Republican who’s most outspoken in urging defiance of the Supreme Court’s ruling in Obergefell. He wants Christian resistance, be it in the form of civil disobedience by private citizens or a de facto boycott by public servants of the legal duties they swore they’d carry out. Davis has an answer for that last point:
Robbie Blankenship and Jesse Cruz acknowledged they could have sought a license in their home state, or in another Kentucky county, but said they had the right to get one wherever they chose.
As reporters watched and protesters shouted, Davis told the couple her office wasn’t issuing licenses. Blankenship argued with her, accusing her of “using God for hate” and accusing Davis, who has been divorced three times, of hypocrisy.
“Your interpretation of the Bible doesn’t trump the Constitution,” Blankenship said.
“Our Constitution was founded on faith,” Davis replied.
Over at the Volokh Conspiracy, Jonathan Adler notes that none other than Antonin Scalia would (probably) side with Blankenship.
[W]hile my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral. . . .
[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty” and if that fails, lead a revolution. But rewrite the laws he cannot do.
It’s fine to have a conscientious objection to the law, notes Adler, but that objection means you give up your public office, not employ it to obstruct those who don’t share your objection. Would Scalia agree or would he distinguish Davis’s objection somehow, possibly on grounds that the state could accommodate her by appointing another functionary to issue marriage licenses? You can’t perform the same substitution with a Supreme Court justice who’s vowed to rule for one party in every death-penalty challenge that comes before him.
As the Davis saga wears on, this is destined to become a new litmus test for the GOP field. On one side, encouraging defiance, are Huckabee, Rand Paul, and, I assume, Bobby Jindal once he weighs in on this. On the other are Kasich, Rubio, and likely everyone else to the left of, say, Ted Cruz. Exit question: Which way will Cruz go on it?
Update: Annnnnd here’s Cruz.
Our nation was founded by men and women fleeing religious oppression. They sought out a new world where they could worship God Almighty with all their heart, mind, and soul.
Sadly, we’ve seen a war on faith break out across our nation, and we must be vigilant to protect the free exercise of religion — a value enshrined in our Constitution.
We should make it possible for believers, such as Rowan County Clerk Kim Davis in Kentucky, to hold government jobs without having to violate their religious beliefs. We can work together to come up with alternative ways to ensure that government functions are accomplished without infringing on religious liberty.