On Tuesday of this week, David French offered up a half-defense of Kim Davis, the rebellious Kentucky clerk who, since June of this year, has been refusing to issue marriage licenses to gay couples. I must respectfully disagree with his conclusion. What he is defending is not in fact “revolution,” as he puts it, but secession. As I have written elsewhere, I am in total agreement with David’s contention that the Obergefell decision was nothing less than an act of constitutional vandalism. But I cannot suppose as he does that it will help matters to meet one tragedy with another. If flagrant law-breaking is the way to fight overreach, count me out of the insurrectionary crew.
Until such time as the Constitution is amended, the Court’s attitude changes, or the republic falls to revolution, Obergefell will remain on an equal legal footing with the other precedents that make up our contemporary legal oeuvre. Weak as its reasoning is, there is no such thing as an “almost ruling.” In practice, a 5–4 decision has the same effect as a unanimous one; structurally, an iffy justification is as potent as the most solid of rationales. However much a state employee might disdain a particular judgment, it simply cannot do to have him translating that disapproval into professional action. If he wishes to privately protest a given ruling — or to refuse to abide by its consequences — that is his inalienable right. “Take what you want,” the old proverb holds, “but pay for it.” He cannot, however, credibly work for the government while doing so — or, at least, he cannot expect to be spared the consequences if he insists upon remaining in power. The rule of law is just that: a rule. There is no such thing as a selective revolution.