By now everyone is familiar with Kim Davis, the county clerk in Rowan County, Kentucky, who refused on grounds of religious conscience to sign her name to, and issue, same-sex marriage licenses following the 2015 Supreme Court decision in Obergefell v. Hodges. The drama of her stand became national news, as reporters, same-sex marriage advocates, and the ACLU descended on Davis' office in an attempt to force Davis to either issue the licenses, resign, or be taken to court.
Davis refused to resign or issue the licenses, and ended up in front Judge David Bunning, a federal district court judge, who found her in contempt of court and sent her to jail for five days. He only released her after her deputy clerks agreed to issue the licenses. But the public debate over her stand continues.
Ms. Davis' legal situation was complicated and misunderstood, but one overarching issue remains: As a public official, did she have the moral and legal right to dissent from complying with the Supreme Court's marriage decision? After all, isn't the Obergefell decision the "law of the land" now?
You may be surprised to learn that our two most famous Presidents, George Washington and Abraham Lincoln, would probably have jumped to Kim Davis' defense.
George Washington's Farewell Address
"The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government." – Farewell Address, 1796
At first glance, this quote from Washington's famous Farewell Address might suggest that he would have been a big promoter of Kim Davis' duty to obey the government, including a Supreme Court decision. However, this is an example of the danger of taking quotes out of a larger context.
If you read the entire quote in the context of the rest of what Washington said, the message is very different:
The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. (emphasis added)
So Washington wasn't advocating giving validity and obedience to a Supreme Court decision that radically changes the accepted understanding of the Constitution. He actually condemned such acts of a small minority (for example, 9 justices) against the Constitution's expression of the will of the majority. In fact, Washington's farewell address served as a warning to the country concerning his greatest fears for the new nation, including that one branch of government (the executive, legislative, or judicial) might interfere in another branch's constitutional duties, leading to despotism:
It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. (emphasis added)
When the Supreme Court acted in 2015, on a slim 5-4 majority vote, to invent a constitutional right to same-sex marriage, it acted legislatively, not judicially, and thereby usurped the power of the legislative branch, and by extension, the people. As such, George Washington would have condemned it as the very danger he warned about in his farewell address. If you want to change the Constitution, Washington warned, the people must do so. Not courts. Not the President.
And what about Washington's view of religious freedom?
He always encouraged a robust view of religion and its free exercise. Washington issued the very first presidential Thanksgiving Proclamation in 1789, asking the nation to pray and give thanks for the blessings of liberty, including the freedom of religion protected by the Constitution and the Bill of Rights. But he also returned to that same theme in his farewell address: "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports."
As a respecter of the Constitution's limits on changes, and as an advocate of the role of religion and morality in our political process, Washington would have stood firmly with Kim Davis' and her stand for marriage.
Abraham Lincoln, the Supreme Court, and the Dred Scott Decision
Even before becoming President, Abraham Lincoln addressed the issue of respect for Supreme Court precedents, specifically the high court's 1857 decision in Dred Scott, a case in which a runaway slave sought his freedom in the courts of the free (non-slave) territories. The case went all the way to the U.S. Supreme Court, which held that African-Americans were not "citizens" of this country and thus could not even seek justice in an American court, and that Congress could not prohibit slavery in the free territories. The decision has rightly been hailed as perhaps the worst decision from America's highest court. But the pressing issue at the time was: Does the country have to respect the decision as binding?
Lincoln argued in an 1857 speech that Supreme Court decisions must meet several conditions before they can be treated as precedent to be respected by the various other branches of government:
If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.
Lincoln rejected the notion that the Dred Scott decision passed these tests. He came back to a discussion of the Supreme Court in his 1861 Inaugural Address, where he was even more blunt:
I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes. (emphasis added)
The Obergefell decision regarding same-sex marriage has been compared by scholars as no more entitled to be considered "the law of the land" than was Dred Scott.
Kim Davis, as an elected official, took an oath to support the U.S. and Kentucky constitutions. As such, she had the same right, even the obligation, to support those constitutions against the lawless acts of the Obergefell majority. Her conscience demanded it of her.
Interestingly, across the country over the last several years, state officials in California, Oregon, Pennsylvania, Kentucky and other states refused to defend state marriage laws (and long-standing court precedents affirming one-man, one-woman marriage) because, they alleged, those laws and court decisions went contrary to their view of the Constitution.
Kim Davis is entitled to no less than the same consideration. Washington and Lincoln would have agreed.