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.
Second, while I generally respect conscientious objection, I reject the notions that all objections are equivalently meritorious. Indeed, American law has long distinguished among various types of conscientious objections, protecting some more than others. A state official who objects to protecting enumerated constitutional liberties is hardly in the same position as a person objecting to facilitating a “right” five justices created out of whole cloth (historically speaking) five minutes ago. If one can’t see the difference in those propositions, then we should just give up on public discourse entirely because reason and logic no longer matter. So, no, supporting Davis does not mean that I “have to” support any other clerk or government official who’s defying a court order. Give me their reasons, and I’ll give you my opinion.
