Liberals and the Rule of Law: What Law?

By David Harsanyi

Friday, September 04, 2015

Working for the government is not an inalienable right. So Kim Davis, a county clerk in Kentucky, was wrong to refuse same-sex couples marriage licenses in her office. If you’re unwilling to enforce the law, you shouldn’t be an officer of the state. After all, it’s not a clerk’s job to ascertain the constitutionality or practicality of a law. If it were, we’d have anarchy. There are hundreds of other vocations she is free to pursue if this one doesn’t suit her.

So Davis’s stand isn’t about religious freedom. Not really. Signing off on state documents is not tantamount to being forced, as bakers and photographers have been, to participate in a wedding ceremony. There are certainly bigots out there intent on coercing Christian businesses to choose between their faith and their livelihood; this isn’t one of those instances. If you want to participate in civil obedience, don’t work for the state.

But jail? Davis was taken into federal custody Thursday. She was held in contempt of court for refusing to issue same-sex marriage licenses. She now faces potential penalties, fines, and prison time. She will almost certainly be destroyed.

So there are a few things that are worth contemplating here.

Let’s start with the prevailing hypocrisy surrounding the attacks on Davis, a Democrat, and what it tells us about the state of American political debate and policymaking in 2015 — because as you may have noticed, the rule of law only seems to be sacred when it happens to comport with liberal values.

As far as I can tell, there are only three unassailable constitutional rights left in the United States: the right not to be “discriminated” against, the right to have an abortion, and the right to have a gay marriage. In the eyes of liberals, nothing — not the freedom of association or religion or anything else mentioned in the First Amendment or Second Amendment — will ever supersede these consecrated rights.

The rest? Well, it’s malleable, depending on the situation.

When GOP presidential candidate Marco Rubio commented that Kentucky should probably respect the beliefs of county clerks, John Podesta, chairman of Hillary for America, tweeted: “SCOTUS says LGBT couples can marry. Officials should uphold the law. Period. What’s next, Professor Rubio?”

Professor Podesta, you may not know, makes his living advocating that presidents should ignore the rule of law by circumventing the legislative process and creating regulatory regimes to battle climate change. Now, obviously, there are legal distinctions, but in the grand scheme of things, Podesta embraces the same kind of moral authority to exhibit contempt for the rule of law.

But a pliable deference to law is not unique. When Democrats say states should find ways to undermine the First Amendment by weakening the Supreme Court decision on Citizens United — as unfettered political speech from a couple of libertarian billionaires is problematic to their mission — they are applauded for the effort.

In America, we have a city council in Denver that advocates shutting down a business such as Chick-fil-A because the CEO once took a public position against gay marriage. In this country, people who are here illegally can march in the streets to proclaim their rights without any genuine fear of being rounded up and expelled. They are celebrated. Moreover, we have cities across this country that ignore immigration laws they don’t like and create sanctuaries from law. We have cities that ignore federal drug laws because they find them oppressive. Yet no one finds himself in jail. When Californians approved Proposition 8, which banned gay marriage, a number of officials refused to enforce the law. They were celebrated. I may even agree with the impulse. But not one elected official has been hauled off to jail for any of these stands.

Yet a Christian struggling to come to terms with the implications of a decision that the Supreme Court reached only a couple of months ago — and that our progressive president embraced only a couple of years ago — is hauled off to jail. In the end, the state is creating martyrs. Christians will have no choice but to take more obstinate positions in these battles of the culture war — battles that could easily have been avoided if a judge had exhibited more compassion and come to an accommodation. There are about 125 other marriage clerks in Kentucky who can issue licenses to gay couples. And they should.

Or we could go the other way. And if we’re going to be rigid about the rule of law, let’s throw all officials who ignore it into cells. We can start with the president and work our way down.