Kim Davis & Rule of Law

Those critical of Kim Davis, the county clerk who refused to issue marriage licenses to same-sex couples and was jailed for being in contempt of court, often appeal to a rule of law principle. The main principle used seems to be that individual belief cannot be used to trump the law.

Some of those who support Davis have made the point that some state and local governments are ignoring federal laws in regards to drugs and immigration. To be more specific, it is pointed out that some states have legalized (or decriminalized) marijuana despite the fact that federal law still defines it as a controlled substance. It is also pointed out that some local governments are ignoring federal immigration law and acting on their own—such as issuing identification to illegal immigrants and providing services.

Some of Davis’ supporters even note that some of the same people who insist that Davis follow the law tolerate or even support state and local governments ignoring the federal drug an immigration laws.

One way to respond to the assertions is to claim that Davis’ defenders are committing the red herring fallacy. This is a fallacy in which an irrelevant topic is presented in order to divert attention from the original issue. The basic idea is to “win” an argument by leading attention away from the argument and to another topic. If the issue is whether or not Davis should follow the law, the failure of some states and local governments to enforce federal law is irrelevant. This is like a speeder who has been pulled over and argues that she should not get a ticket because another officer did not ticket someone else for speeding. What some other officer did or did not do to some other speeder is clearly not relevant in this case. As such, this approach would fail to defend Davis.

In regards to the people who say Davis should follow the law, yet are seemingly fine with the federal drug and immigration laws being ignored, to assert that they are wrong about Davis because of what they think about the other laws would be to commit the tu quoque ad hominem. This fallacy is committed when it is concluded that a person’s claim is false because it is inconsistent with something else a person has said. Since fallacies are arguments whose premises fail to logically support the conclusion, this tactic would not logically defend Davis.

Those who wish to defend Davis can, however, make an appeal to consistency and fairness: if it is acceptable for the states and local governments to ignore federal laws without punishment, then it would thus seem acceptable for Kim Davis to also ignore these laws without being punished. Those not interested in defending Davis could also make the point that consistency does require that if Davis is compelled to obey the law regarding same-sex marriage, then the same principle must be applied in regards to the drug and immigration laws. As such, the states and local governments that are not enforcing these laws should be compelled to enforce them and failure to do so should result in legal action against the state officials who fail to do their jobs.

This line of reasoning is certainly plausible, but it can be countered by attempting to show a relevant difference (or differences) between the laws in question. In practice most people do not use this approach—rather, they have the “principle” that the laws they like should be enforced and the laws they oppose should not be enforced. This is, obviously enough, not a legitimate legal or moral principle.  This applies to those who like same-sex marriage (and think the law should be obeyed) and those who dislike it (and think the law should be ignored). It also applies to those who like marijuana (and think the laws should be ignored) and those who dislike it (and think the laws should be obeyed).

In terms of making the relevant difference argument, there are many possible approaches depending on which difference is regarded as relevant. Those who wish to defend Davis might argue that her resistance to the law is based on her religious views and hence her disobedience can be justified on the grounds of religious liberty. Of course, there are those who oppose the immigration laws on religious grounds and even some who oppose the laws against drugs on theological grounds. As such, if the religious liberty argument is used in one case, it can also be applied to the others.

Those who want Davis to follow the law but who oppose the enforcement of certain drug and immigration laws could contend that Davis’ is violating the constitutional rights of citizens and that this is a sufficient difference to justify a difference in enforcement. The challenge is, obviously enough, working out why this difference justifies not enforcing the drug and immigration laws in question.

Another option is to argue that the violation of moral rights suffices to warrant not enforcing a law and protecting rights warrants enforcing a law. The challenge is showing that the rights of the same-sex couples override Davis’ claim to a right to religious liberty and also showing the moral right to use certain drugs and to immigrate even when it is illegal to do so. These things can be done, but go beyond the scope of this essay.

My own view is that consistency requires the enforcement of laws. If the laws are such that they should not be enforced, then they need to be removed from the books. I do, however, recognize the legitimacy of civil disobedience in the face of laws that a person of informed conscience regards as unjust. But, as those who developed the theory of civil disobedience were well aware, there are consequences to such disobedience.

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27 Comments.

  1. Failure to be consistent can also be found in her biblical argument. Her bible may condemn mem who lie with each other, but it says nothing about women. She should be issuing licenses for lesbians. But then the bible is a morass of inconsistent nonsense.

  2. It seems awfully convenient to exclude principled stands as “beyond the scope” of the essay – with a false dilemma fallacy to boot! That fallacy is the only choices are rights of the same-sex couples or Davis’ claim to a right to religious liberty. Both can be supported within well tried solutions of the past.

    If classical liberalism’s expansion of rights to a greater slice of society generally appears morally justified to us in a way the freedom to restrict rights does not, then the case for restriction has a heavy evidencial burden which freedom does not.

  3. Buck Field,

    Well, I can only crank out so many unpaid words a day-so I can’t cover everything. 🙂

    What well-tried solutions do you mean?

    Religious liberty does not seem to include the right to impose one’s religious views on other people. For example, suppose I had a religious objection to having female students in my classes. That would not seem to override their right to attend class. Or, as another example, imagine a Jainist who was in charge of issuing hunting and fishing licenses. Her faith would not seem to override the right of other people to get their licenses to hunt and fish. Likewise, Davis’ freedom of religion does not seem to grant her the right to impose her faith on others. Now, if she wants to put a disclaimer on each license (“I am Kim Davis and I do not approve this union”) and that will make her feel better about doing her job, then sure.

  4. True: we can’t cover everything, but I think covering the thing to cut first is whatever seems obviously weak arguments.

    People of good conscience can disagree about whether a particular law is a good one, yet still recognize that failure to support a punitive action (e.g.: arrest/prison for drug possession) can be distinguished from refusal to support a freedom-increasing (or harm reducing) action (issuing licenses).

    This article describes what seems a simple and reasonable analogy: http://www.latimes.com/opinion/readersreact/la-le-0912-saturday-kim-davis-conscientious-objector-20150912-story.html

    “A more apt military analogy than conscientious objection would be the head of a recruitment station who objects to killing. He not only refuses to allow legally qualified applicants to enlist but forbids his subordinates from processing enlistees as well.”

  5. Point of order dude. States have no legal obligation to enforce federal drug laws. States do have a legal obligation to enforce individual constitutional rights. I think states legalizing drugs is a mistake that will come back to haunt them. But there isn’t anything legally wrong with it.

  6. PPNL,

    The supremacy clause and the doctrine of preemption make it clear that the states are legally required to follow federal law. http://litigation.findlaw.com/legal-system/the-supremacy-clause-and-the-doctrine-of-preemption.html

  7. Mike LaBossiere,

    “Well, I can only crank out so many unpaid words a day-so I can’t cover everything. :)”

    You’re not not being paid for the number of words. You’re not being paid for the quality of words. You’re not being paid for quality over quantity.

    (I would like to thank the universe, for the opportunity, at least once in my life, to have made such a nonsensical statement, as above, that is in fact true. Stop slacking and get back to work, LaBossiere; time isn’t money.)

  8. well since they say its a free country then let them leave them worship or believe in what they feel is right for themselves

  9. Mike Labossier,

    Yes federal law is supreme but that does not mean states are required to enforce them. Pot was made legal in Colorado by an amendment to their constitution. Federal officials can still enforce federal laws but they cannot force the state to help in any way.

    This isn’t a close call dude. Google is your friend.

  10. Sometimes this whole discussion appears to be a kind of insane.

    The same people that boldly, adamantly and intransigently claim for compliance of the law in areas of their interest, decry and condemn the other areas they do not agree with. It seems to be a very unsophisticated version of “my way or the highway mentality”, not reminiscent a bit of the true democratic american tradition.

    Kim Davis has an absolute right to her religion, no one discuss that, but what about the american’s that do not agree with her. Do they have the same rights? Doesn’t she as a public official has the obligation to enforce and assure those rights?

    If Kim Davis public duties interfere with her religious beliefs, shouldn’t she resigned? Wouldn’t that be a more honest position?

    Kim Davis has a right to her religion but she does not has a right to impose that religion in the rest of americans. The american government is there to serve and protect the rigth of all americans not a fraction or sector of them.

  11. ppnl,

    “Yes federal law is supreme but that does not mean states are required to enforce them.”

    No. The states are required to enforce federal law. The ‘states rights’ in the federal constitution is often misinterpreted to mean ‘we can do whatever the hell we like’. And it’s inclusion was with the protection of the institution of slavery in mind.

    Individual states often abuse the right to make laws, that are either in violation of federal law or the federal constitution because the process of forcing a state to abide by federal law or the constitution is such a pain in the ass.

    The federal government are not really interested in forcing Colorado state to enforce the Federal marijuana laws. But if they wanted to, they easily could. Just threaten to suspend payments from the federal government. Or just stop them completely. The Coloradians I imagine would come to their senses pretty quickly.

    If they liked, they could take Kim Davis out with a drone or an air strike……She is after all a religious extremist, anti-American, engaged in her own personal Jihad against the USA…A terrorist.

    Jim Crow laws are another abuse of ‘states rights’. Mr. James Crow is never specifically referred to in the wording of the legislation, but once you have an understanding of how the law functions, it becomes clear. Georgia still has Jim Crow laws. Other states also have laws that really wouldn’t withstand Federal pressure, there isn’t a huge political will to take them on. The Koch brothers get environmental exemptions (EPA), from the Georgia state government, so they can dump toxic waste wherever they feel like within Georgia (mostly where poor people live). Of course this is a flagrant abuse of “states rights”, a reason “states rights” are so popular with billionaire “libertarian” business men. The Georgia taxpayer, or more likely the Federal taxpayer will have to foot the bill for the clean-ups. And the victims of the toxic waste will pay with their lives; Freedum!!!

    American drug laws in general are Jim and Jose Crow laws. In fact they’re specifically structured to target the poor with the intention of incarcerating them. Powdered cocaine, the drug of the rich man, under federal law you need to have in excess of half a kilo in your possession for a mandatory prison sentence. Rock cocaine, and methamphetamine (Hillbilly Cocaine), it’s just a few grams. There isn’t really a substantial difference between any of those drugs. Rich people prefer powdered coke over meth, because meth stings your nose.

    What I’d be interested to know, what is the legal status of people being held in Federal facilities in Colorado for violating federal marijuana laws.

  12. JMRC,

    “No. The states are required to enforce federal law.”

    No you are simply and clearly wrong. Federal officials cannot compel states to enforce federal law. They can compel states to enforce constitutional rights but not general laws and regulations. Kim Davis was violating individual constitutional rights and both the federal and state governments are required to prevent that.

    “The federal government are not really interested in forcing Colorado state to enforce the Federal marijuana laws. But if they wanted to, they easily could.”

    Exactly so. And in the past they have. But they cannot compel state law enforcement to help in any way. In the past state law enforcement was glad to help. Most states will help even today. But it is not required and cannot be compelled.

    “Jim Crow laws are another abuse of ‘states rights’.”

    Jim crow laws are the reverse issue of the federal government seeking to prevent states from enforcing state laws. SCOTUS rejected the separate but equal doctrine making Jim Crow laws unconstitutional. States must enforce individual rights in the constitution. It isn’t an abuse of states rights as it isn’t a state right at all.

  13. ppnl,

    What you are describing was one of the big problems with the Articles of Confederation and why the US adopted the Constitution in the first place. I guess it depends on what you mean by compel, but the federal government has all kinds of ways to force the states to follow federal law. They are unlikely to send an occupying force, but they can sue and cut off funds for starters. And if a state ever did get really out of control, they could send troops (See Abraham Lincoln).

    Obama made a point of saying that the justice department would not pursue marijuana cases in Colorado or Washington. I’m strangely curious what would happen if a Giuliani type got into office and decided to change that particular justice department stance.

  14. Gene,

    “I’m strangely curious what would happen if a Giuliani type got into office and decided to change that particular justice department stance.”

    There is nothing to wonder about here. Giuliani could send in the forces to arrest all the people violating federal drug laws. The local cops are not required to help at all. At this point I can’t see it being anything but political suicide.

    Yes the federal government does have various ways to pressure states. Usually by withholding funds. For example the 55 mph speed limit was enforced by withholding transportation funding.

    None of this has any relevance to Kim Davis because both state and federal law prevents her from violating individual constitutional rights.

  15. ppnl,

    “Exactly so. And in the past they have. But they cannot compel state law enforcement to help in any way. In the past state law enforcement was glad to help. Most states will help even today. But it is not required and cannot be compelled.”

    I think it’s not a case that the federal government cannot compel a state, but there hasn’t been an instance outside of the Civil War and Reconstruction, where the federal government has drastically overridden the legislature of a state.

    As for the Jim Crow laws. Most were very subtle. Barriers to entry in trades like carpentry. In the south before the war, freed men dominated the trades, by the early 20th century they or more black people, were nearly completely forced out. But you also have groups like dentists, who’ll use ‘states rights’, to craft barriers to dentists from other states.

    In the European Union there are copious abuses, but the EU does have the power to sanction countries who are taking the joke a little too far. I would imagine at the very minimum, the US federal government has the power to sanction a state by withholding funds.

    I have a few friends who live in Kentucky. One refers to it as the developing world.

  16. PPNL,

    It actually seems to mean just that.

    In regards to the drug laws, the feds have elected not to push the issue-but they have the legal right to compel the states to enforce the federal laws.

  17. No they have the right to enforce it themselves. They cannot compel state police to do anything. They may be able to withhold some federal funds.

    But forget about me lets ask a lawyer…

    http://volokh.com/2013/05/07/a-constitutional-law-lesson-for-steve-benen/

    The whole deal is here. No states can not nullify federal law and never could despite some weirdos who claim they can. But nullification means preventing federal officers from enforcing the federal law. Preventing state officers from helping is not nullification. Yes the federal government can conditioning the receipt of federal funds on state cooperation. But no they cannot for example hold any officer, judge, political appointee or elected official in contempt for not enforcing a federal law.

  18. True, Printz does show that the states cannot legally prevent federal agents from enforcing federal laws in the case of background checks. However, there is still the legal question regarding whether or not this extends to all laws. There is currently considerable debate about the marijuana legalization. Some folks do point to Printz and say this sets precedent for marijuana laws: the Feds can shut down pot shops, but the state cannot be compelled to do do. Other folks contend that the supremacy clause requires the states to follow and enforce federal law.

    I’m not a lawyer, but fortunately the issue of whether or not the states can be legally compelled to enforce federal laws is a different issue from the subject of Davis and whether individuals should follow the law or not as a moral issue.

  19. So, ppnl, let me know if I’m understanding this position correctly. A state trooper pulls a man over for speeding. He sees a young girl tied up in the back seat. He has a deeply held conviction that men can do with girls what they please, and kidnapping is a federal crime, not a state crime, so he lets the guy go. After all, he is not required to enforce federal law. The FBI will just have to do the work themselves.

  20. Mike LaBossiere,

    ” True, Printz does show that the states cannot legally prevent federal agents from enforcing federal laws in the case of background checks. ”

    What?!? No! It has always been the case that states cannot prevent federal agents from enforcing laws. You do not need Printz for that. I’m assuming a brain fart here.

    “However, there is still the legal question regarding whether or not this extends to all laws.”

    Not really no. First it clearly does not apply to all law. States are required to enforce individual constitutional rights despite the fact that what those are is decided at the federal level. Thats why a judge can hold Kim Davis in contempt.

    For federal laws and regulations there is also no doubt. You simply cannot make sense of Printz if you deny it’s applicability to drug laws, gambling laws, gun laws or whatever. You would have to overturn Printz to get a different result. I would argue that Printz is good law.

    “I’m not a lawyer, but fortunately the issue of whether or not the states can be legally compelled to enforce federal laws is a different issue from the subject of Davis and whether individuals should follow the law or not as a moral issue.”

    I agree here. But you said…

    “if it is acceptable for the states and local governments to ignore federal laws without punishment, then it would thus seem acceptable for Kim Davis to also ignore these laws without being punished.”

    But it is legal for the states to not help the fed but it also may or may not be moral for the states to not help. Take the aliens and sedition act for example. It was the law of the land and was never declared unconstitutional. Would it be moral or immoral for the states to take advantage of their legal right to not help the feds? No less than Thomas Jefferson and James Madison disagreed with the law and even wanted states to nullify it.

    You made the statement above on the belief that states had a legal responsibility to enforce federal law. They don’t. And their moral responsibilities are theirs to decide. They may not nullify but they may not have a moral responsibility to help either.

    Kim Davis is different. Her legal and moral duty is clear.

  21. Gene,

    “So, ppnl, let me know if I’m understanding this position correctly. A state trooper pulls a man over for speeding. He sees a young girl tied up in the back seat.”

    Yeah, just stop right here. Even ignoring kidnapping there is probably half a dozen state laws being violated here. And then there is the fact that nearly every state has state kidnapping laws. And finally it isn’t a federal kidnapping case unless state borders were crossed.

    Most crimes are local and are covered by local laws. If they aren’t covered that is the fault of the local government. Federal laws are only intended to cover the interests of the federal government.

    ” The FBI will just have to do the work themselves.”

    If it is a federal kidnapping case then the FBI pretty much will handle it since state police cannot investigate across state lines. The FBI could ask for local help and I cannot imagine a state turning them down. But there is no legal requirement.

    But change the context a little and local governments absolutely do refuse to cooperate with federal officials. Sanctuary cities for example. And they feel it is their moral duty.

  22. Ppnl,

    “But change the context a little and local governments absolutely do refuse to cooperate with federal officials. Sanctuary cities for example. And they feel it is their moral duty.”

    “Sanctuary” jurisdictions sometimes have non-cooperation in law.

    The American “system” is often surprising for Europeans. (It’s often surprising for Americans).

  23. “The American “system” is often surprising for Europeans. (It’s often surprising for Americans).”

    Yeah, I fear it is surprising for Americans as often as it is surprising for Europeans. But viewed as a progression of history it makes sense.

    We started as thirteen British colonies. The colonies had a common political and religious history but pretty much ignored each other.

    When the war of independence started the colonies banded together in a government that maybe could best be called a military alliance. Well it didn’t really work well as a military alliance and after we finished kicking British butt it didn’t really work as a government. So they did a constitutional convention and wrote our current constitution.

    It is important to understand that while the new constitution more tightly bound the states together the states were still like separate sovereign nations in many ways. For example the bill of rights supposedly gave freedom of speech, freedom of religion and freedom of press. But these were negative liberties only limiting the power of the federal government. The states were like independent nations and were not bound by the bill of rights. In principle states could impose a state religion and control the press. Most states quickly adopted state constitutions that mirrored the rights in the bill of rights. But they were free to interpret those rights as they saw fit.

    The idea of negative liberty is important here. For example our right to free speech isn’t a right granted by government for “human dignity” or to “promote a free exchange of ideas.” Most people would do themselves and the world a favor many times if they would just shut up. But the power to make people shut up is a power that government Must. not. have. That right as a limitation on government is a negative liberty.

    Anyway fast forward to the civil war. The republican party was a party born to fight slavery and they were all about expanding federal power to do so. After they finished kicking southern butt they passed the 14th amendment which imposed the bill of rights on the states. This greatly expanded the power of the federal government and more tightly bound the states together. That pissed off the southern states no end.

    But while the power and reach of the federal government has expanded the states still have the responsibility to pass and enforce their own laws as if they were sovereign countries. As such they still have the power and right to disagree with the federal government. It is just that there actions are limited to withdrawing their support and even that may cost them.

    Anyway the modern republican party has more in common with the southern democratic party of the civil war era. They are neoconfederate to the core and at war with the very 14th amendment that they passed. Somehow the undead spirit of the old confederacy has possessed the body of the republican party. We need an exorcism.

  24. When a state decides that marijuana should be legal that is not related to how Kim Davis behaves (prejudicially and ignorantly). If Kentucky wishes to outlaw gay marriage in the same way that Colorado has legalized marijuana, then that situation can be compared to the legalization of a drug that is federally outlawed. However, unlike the legalization of marijuana, there are no legitimate reasons to outlaw gay marriage.

  25. Kidnapping was a purposefully extreme example, but it is exactly the same principal that you are describing. It’s a thought experiment. I wasn’t trying to say there is a jurisdiction where it is allowed or that any real cop would ignore it.

    More mundane examples of the feds requiring state and local help would be with the collection of federal gas taxes and maintenance of the federal highways, various parts of Obamacare and quite a bit of federal regulation of insurance. This is from Duke Law School: “Many federal civil statutes explicitly provide for state enforcement. Those statutes single out the state attorney general as the primary agent of state enforcement and empower him or her to bring a civil action to obtain specified remedies.”

    As for sanctuary cities, I’d say that is more the case, like with Colorado and marijuana, that the feds let it go rather than not having the authority to do anything about it.

  26. PPNL,

    So we are agreed on the actual issue, namely that Kim Davis should follow the law.

  27. Oh yes. Absolutely. The only part I disagree with is…

    “if it is acceptable for the states and local governments to ignore federal laws without punishment, then it would thus seem acceptable for Kim Davis to also ignore these laws without being punished.”

    States legally can and morally may disagree with the federal government. While the federal government can impose a financial cost via the commerce clause they cannot generally imprison state officers.

    Kim Davis is different. She took a binding oath at the state level to enforce an individual right that is binding at both the state and federal level. Despite the fact that it is acceptable for the state to ignore federal laws it is not acceptable for Davis to do what she did. What she did is different and far worse.

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