Throughout the online battles over Kim Davis, the counterfactual I’m most presented with is along the lines of the following: “You wouldn’t support or respect a clerk who refuses to issue concealed-carry permits, so why do you support Davis?” I have two thoughts in response.
First, I do — in fact — respect genuine conscientious objections, even when I disagree. While I obviously wouldn’t agree on substance with the clerk’s stance on handguns and the Second Amendment, my response would depend to a great degree on the real-world effect of the clerk’s actions. If the situation is truly analogous to the Davis case, then I’d simply drive 20 extra minutes to get my carry permit then work to defeat the dissenting clerk in the next election. I may also try to impeach them (depending on the political environment). If I had no way to obtain a handgun without the clerk’s assistance, then the situation is dramatically different — necessitating immediate legal action with escalating penalties for noncompliance. Critically, however, jail is the last resort, not the first resort, for conscientious objection, and courts have broad powers to craft equitable remedies that vindicate constitutional rights without resort to imprisonment. In Kentucky, Judge Bunning’s focus was on punishing Davis, not granting marriage licenses.