What’s Wrong with the World

When you call the "do her job or resign" position nominalist, I think you're missing the implied reasoning behind it. It's not (only) about the question of whether or not positive law is in accord with natural or divine law. It's about the Hobbesian question: Who decides?

It's one thing for a public servant to say, "I couldn't live with myself (as a Christian or whatever) if I obeyed this corrupt law." It's another to say, "I declare that this positive law is contrary to natural law and is therefore no law at all." No individual person has the authority to make that claim. The objection to Davis' behavior, or at least my objection to it, is about authority, not truth. And, to emphasize, that is not to say that truth is irrelevant to the law, much less to say (nominalistically) that such a metaphysical truth doesn't exist.

Here's a hypothetical alternative. What if she had resigned from her office in protest, called up all the media, then physically blocked the entrance to city hall to prevent marriage licenses from being issued to same-sex couples, until she was arrested and thrown in jail?

I see that as at least as strong a statement as the one she actually made. I also think it would have been received much more sympathetically and respectfully. I understand that her primary goal wasn't to persuade people, rather to glorify God. But why wouldn't this hypothetical example have been just as glorifying? She'd have been acting more ethically, her message would have come across better, and she would not have been sacrificing any integrity or loyalty to God.

Let me take a few points one at time here, Aaron, because there really are many layers to this particular case.

First, in this particular case (as I argue in the body of the post), a strong argument can be made that Kim Davis is upholding the law--namely the law of Kentucky, duly passed, which declared marriage to be between one man and one woman. SCOTUS was acting lawlessly by telling lies about the Constitution and declaring that Kentucky law to be unconstitutional. SCOTUS was acting beyond its bounds of authority within our constitutional system of government by attempting to make positive law and "making" homosexual marriage "legal." Hence, aside from all natural law arguments, Kim Davis's position is legally defensible. Hence, even given your position that only the duly constituted legal authority "gets to decide" what constitutes marriage (or whatever), she is on the right side here for refusing to cooperate with the lawless federal judiciary. This position seems to me to be a direct consequence of what has *always* (which is to say, ever since the whole question of originalism and judicial tyranny came onto the radar) been the conservative position concerning wacky SCOTUS rulings. SCOTUS can't just "find" it in the Constitution that Mickey Mouse is President, strike down all the states' electoral colleges, and "make" Mickey Mouse President. It lacks the _legal_ authority to do so.

Second, your position (based on your last paragraph) appears to be that it is literally _unethical_ for a person in a public position to continue to operate under the understanding of that public position under which he was hired and to use his staying in that position to prevent his office from endorsing a new and (in his view) grossly wicked and immoral understanding of "the job."

Why is that unethical per se? Consider a thought experiment similar to one I give in the main post: Suppose someone or other in a legal position that usually confers authority (let us say, to make it simple, that it is an elected legislature) declares that the class of humans to which Aaron Gross happens to belong are all non-persons and that therefore no one may stop anyone who wishes to kill those human beings. Now, let us say that in your town your police chief and all of his deputies are horrified by this. Some people come to kill you. You call the cops. They come and defend you. Your would-be killers bring suit in the proper court, claiming that the police, by protecting you, are defying the new definition of their job, which says that humans of this kind are non-persons and may not be protected by those in public office.

Is it then _unethical_ for the police in your town to continue to protect you from your killers? Are they _ethically obligated_ to resign, to give up their badges (and their town-provided guns and power of force!) to those who will instead hold back your friends and family while you are shot? Is their _only_ ethical course of behavior to resign and then passively try to block the entrance to your house, while the newly constituted police drag them away and respectfully escort your killers into the house?

Suppose that Kim Davis's job description had been changed by those who, you believe, "get to decide" to include raping children. All county clerks must now rape children as part of their job. Would she, as an elected official, be required either to resign or to rape children?

You see, all _general_ principles that the individual public servant _must_ defer to someone else who decides and must therefore either corrupt his own job or else step aside for someone else who will are subject to reductio of this kind.

Therefore, the _general_ principle you seem to be relying on about "who decides" cannot be correct. which brings us down to the specifics of Kim Davis's case. Which raises the question as to why, in her case, she is _not_ ethically permitted to continue to occupy the position while refusing to issue "marriage" licenses to homosexual couples.

"I declare that this positive law is contrary to natural law and is therefore no law at all." No individual person has the authority to make that claim.

Aaron, would it be fairer to say this in a qualified way, rather than in a blanket fashion? "I declare that for purposes of my own behavior, I understand this positive law to be contrary to the natural law and is therefore no law at all. Each person must determine whether he has the same understanding or not."

Now, I am not a moral relativist, and I am not advocating moral relativism. Catholic teaching cannot be squared with moral relativism. But Catholic teaching also recognizes a distinctive role of conscience in moral action: a person cannot morally act contrary to what his what his conscience is telling him is simply wrong to do. A person also has a grave responsibility to FORM his conscience according to due moral norms, and this means having recourse to SOURCES of moral norms, which includes the Bible and the Church and human nature and after these even - in a certain way - human society (which is why this is not moral relativism).

That said, every person who is an intelligent agent, an acting person, has to remain a rational being while being obedient to rules. Humans are rational social animals. So, even as our nature implies that we are required to consider the needs of others and therefore we must conform to rules and therefore there must be rule-makers making rules which are binding, so also at the same time each acing agent has to, on the basis of his or her reason, decide 2 questions: "does this rule bear on this situation I am in"; and "was this rule made by an authoritative act of someone with the authority to so rule?" If a person refuses to ask the first, she acts like a machine, applying behavioral patterns without reference to the circumstance ("The last speed limit sign I passed was 30 mph, that's why I was doing 30 mph on the freeway."). If a person refuses to ask the second, she acts like a slave.

When Davis asked the second, she (roughly speaking) came to the conclusion that the rule was NOT made in an authoritative act by someone with the authority to so rule. We all know examples of authorities trying to rule outside their jurisdiction, for example a president trying to declare war instead of Congress. Even though the president REALLY IS an authority, he hasn't THAT authority. So if he tries to declare war, the army should not behave as if war was declared by an authoritative act by someone with authority to so rule.

Similarly, if an authority tries to command in a way that violates a higher authority, it is not an authoritative act. If Congress tries to pass a law that makes Islam the national religion, this is contrary to a higher law, the Constitution - the very body of law that erects the Congress to have its authority. Congress acting contrary to the Constitution means the congressional act is not an authoritative act.

Since all human authority is received from God, who is the author of human nature and holds all authority in its origin, no human authority can give a rule that is directly contrary to God's law and have that rule be an authoritative act. Similarly, no human authority can express in a binding way a rule that defies human nature, such an act cannot be a binding rule.

All we need say is that Davis, just like every rational agent, has the obligation to check the "law" with her conscience duly informed and with God's law as she understands it, and act according to her conscience. She is not claiming some special prerogative of county clerks in so evaluating the law. Nor is what she doing something that undermines "law itself". Law, for intelligent agents, implies precisely that intermediate act of checking with conscience and giving intelligent obedience thereto, not the mindless behavior of a machine or the compelled "consent" of a slave.

This is why we held German soldiers at fault in the Nuremburg trials: EVERY intelligent agent has the obligation to test a law for its validity. For a rational being to follow a law morally requires that they first determine "this law binds me", which is, of its nature, a determination about the law evaluated by their conscience. To be a rational free agent in _obedience_ to law means taking the law in and making it to be your own rule of behavior (for that act), and that very act of taking it in and making it your own is precisely the action of conscience. The moral free agent says "This rule speaks to my circumstance, the rule was duly made by valid authority, the rule is consistent with all higher law, therefore this law binds me, therefore I act well by choosing to follow this law. The virtue of obedience is the virtue of a free agent, not the submission of a slave: it is the free and willing conformance of the will to the rule recognized as binding. It isn't virtue if it does not proceed from the will freely, and it isn't obedience if it does not proceed in recognition of the bindingness of the imposition.

With regards to "doing her job" does the fact she is an elected official instead have any bearing on this? If all that was needed was some official signature or stamp on marriage licenses, there would be no need to elect someone to the office. An automated system could even do that. It seems to me that by its very nature to have an elected position means giving that official some real authority and along with that some power to interpret what she ought to do.

The "doing your job" part of this might make more sense if the elected clerk was willing to issue the licenses and someone she had hired objected (even then it would be reasonable to accommodate the hired person).

I think that there are a couple of difference that her being elected makes, though neither of them is central. First, a practical difference. The judge literally cannot fire her, and he cannot order anyone else to fire her. She can be impeached, but she can't be fired. So her own sacrifice is greater (in a sense), because had she been a mere employee, she could have been fired, in which case she would not have gone to jail. Second, the fact that she is elected does complicate talk of "doing what your employer tells you," because she could argue that the people of her county, her constituents, are her employer.

However, if we can imagine a case in which you do have people under you, you can refuse to resign, and your employer actually does tell you to do something immoral, then you should refuse and it also (if your authorization is required) refuse to authorize your underlings. At that point, yes, you can more easily be fired than Kim Davis, but if for some reason your employer chooses to leave you in your position, you could end up in Kim Davis's position facing a judge.

If you yourself were just an underling, then you should refuse. If you tried to stay on, presumably you would be fired post haste.

Nurses who refuse to perform or cooperate in abortions are _right_ to stay in the profession and seek to have their conscientious objections accommodated. The bizarre thing is that that whole notion of accommodation has been worked out over decades of employment law, and now suddenly all the liberals and some conservatives are talking like the crudest of libertarians--how dare you seek any accommodation? If you won't do "the job," then quit.

It's one thing for a public servant to say, "I couldn't live with myself (as a Christian or whatever) if I obeyed this corrupt law." It's another to say, "I declare that this positive law is contrary to natural law and is therefore no law at all." No individual person has the authority to make that claim. The objection to Davis' behavior, or at least my objection to it, is about authority, not truth. And, to emphasize, that is not to say that truth is irrelevant to the law, much less to say (nominalistically) that such a metaphysical truth doesn't exist.

Suppose a simple order was passed by Congress: "local officials that have received criminal justice grants within the last five years must gas all of the blacks within their jurisdiction."

No one in their right mind would argue that the local chief of police or sheriff lacked the authority to simultaneously tell Congress to go to Hell and issue an order to his subordinates to shoot any officer caught in the act of enforcing that "law." It would be taken for granted that such a thing violated the natural law and was no law at all.

Gay marriage is simply different in only one respect (aside from its origin in the SCOTUS, not Congress): there's a sizable contingent that likes the idea of it. That may explain the liberal response, but conservatives who balk at the authority aspect of the case are simply fools. They are claiming that because a large chunk of the population won't respect that truth, she has no authority to declare the truth and live by it.

I posted this in a previous thread, but it's topical here too. Anyone who hasn't read it should. Some of America's biggest corporate names are backing that code of conduct. It's the future that even moderate leftists face as long as we continue down the "just find another job" line of argument on these issues. Take a stand now and say it's unacceptable, or face having your conduct judged by mutaween of the left.

Gay marriage is simply different in only one respect (aside from its origin in the SCOTUS, not Congress): there's a sizable contingent that likes the idea of it. That may explain the liberal response, but conservatives who balk at the authority aspect of the case are simply fools. They are claiming that because a large chunk of the population won't respect that truth, she has no authority to declare the truth and live by it.

Interesting point. Back in 1960, not one public institution and no state or other jurisdiction had approved gay "marriage". If the Supreme Court at the time had managed to locate a constitutional "right" to it, nobody thinks that everyone would have knuckled under and said "yessir, boss". A vast panoply of public officials from governors to state legislatures to local officials (not to mention the FBI as a body) would have told them to stuff it. And they would have been right to do so, both on the grounds that the SC hasn't the jurisdiction and because it's an ontological self-contradiction. Every person who said "I declare that this positive law is contrary to natural law and is therefore no law at all", until some more authoritative source came along and CONFIRMED their understanding of natural law, would have been doing the right thing. That's how civil resistance to tyranny happens around here: you refuse and keep refusing until the rest of the country catches up with you. It can't be OK when liberals use the tactic and wrong when conservatives do.

Another thing, even many of her critics from the right acknowledge the questionable (to put it charitably) legality of the ruling. Where is the wisdom in teaching people to follow raw diktat in the name of public order? They claim to fear that everyone will do what is right in their own eyes and yet that is the license they give to the authorities. No pleb can do whatever is right in his own eyes, but a patrician sure can is the natural result of their approach. The result of that is far more pernicious. It creates a rule-by-man culture under the facade of the rule of law.

If someone were to actually claim to my face that they're a conservative and afraid of her "breaking the law here" I'd have to just say FFS, she was enforcing an actual positive law, duly enacted by a valid and constitutional process that was struck down by five judges two of whom were showing impeccable restraint by officiating for gay couples while the case was before the court. If that's anarchy, much of Somalia yearns for a piece of that Kentucky living.

And from Hell, Marx gazed upon the final state of class struggle, wherein a gay, black billionaire could be considered oppressed by a broke poor white prole who wouldn't cater his "wedding," and wept.

Another thing, even many of her critics from the right acknowledge the questionable (to put it charitably) legality of the ruling.

I have now seen two people (arguably, not independent, as they are friends with each other) on Facebook literally state that they _oppose_ her and think she was obligated to do "the job" or resign _because_ the reason she has given is religious but would have _supported_ her if she had happened to give the judicial tyranny reason instead and had not mentioned her religious motivations. How's that for warped?

How's that for warped?

It's not warped, it's bull#$%^. It's the sort of line that SJWs who want to appear as moderates use to make their position more reasonable than it is.

I would challenge them by saying that they clearly cannot support the Muslim stewardess who won the religious freedom argument on serving alcohol because it hits the same religious freedom notes and this moral prohibition is more or less unique to Islam.

My impression is that they're trying to burnish their libertarian credentials, so no doubt they'd toss the Muslim stewardess to the winds while they were at it. In fact, it's an odd feature of some "conservative" responses to this whole thing that suddenly everywhere one looks one seems to see a conservative who has turned into an utterly curmudgeonly defender of "the employer" (an entirely fictitious entity in Davis's case) or "the (current) definition of the job" uber alles. Accommodation, what's that? Do "the job" or get out, peon.

I have my sympathies for employers asked to make what I consider to be unreasonable religious accommodations, and I think Muslims tend to ask for unreasonable accommodations, but this gets pretty ridiculous pretty fast.

Gay marriage is simply different in only one respect (aside from its origin in the SCOTUS, not Congress): there's a sizable contingent that likes the idea of it. That may explain the liberal response, but conservatives who balk at the authority aspect of the case are simply fools. They are claiming that because a large chunk of the population won't respect that truth, she has no authority to declare the truth and live by it.

I think this is absolutely correct, and in general you've been on a roll in this thread, Mike.

In fact, I think what this reflects is sheer desensitization to the wrongness of homosexuality even among those who claim to consider homosexual acts wrong. For example: The concnern that Kim Davis makes Christians appear unloving. Anyone who _really_ believed in the grave evil of the homosexual lifestyle would realize that it is not an act of love to approve of it. In witnessing to its utter unnaturalness and to the impossibility of homosexual "marriage," Kim Davis is being more loving to homosexuals than anyone who would bake them a celebratory cake for their "wedding," sign their "marriage" license, etc.

A similar desensitization has occurred already w.r.t. abortion. Imagine the horror among _conservatives_ if some state were to collude among the branches of its state government to outlaw abortion and to prosecute and imprison abortionists according to its own laws. Suppose that they called the bluff of, say, a *Republican* presidential administration to come and try to free the abortionists from prison by force. Suppose they made it known they were planning to do that--all at one. Suppose that they scared the bejabbers out of the abortionists so much that they all left the state without a shot fired or a single person arrested.

That would be a glory and a wonder. We're talking about child murder here. If we really believed that at a gut level, we'd see that that would be just as noble an endeavor as the cops continuing to protect the black people in your scenario above. But there are many conservatives who would think it was terrible.

Lydia and Mike,

I also noticed how liberals (and presumably conservatives who support them) shift their rhetoric as you argue with them over this issue because at the end of the day they want to normalize homosexuality. So for example as I was arguing with some nasty liberals (it's an interesting story I'll save for another day) they begin by saying 'if Davis can't do her job she should resign.'

Then, when I make all the arguments you've made about civil disobedience and standing up for the truth and a righteous cause; suddenly their rhetoric shifts to 'how dare you compare her to Rosa Parks -- she's trying to deny people rights -- blah, blah, blah.'

For these folks, it doesn't even compute that some conservatives have serious, principled reasons to oppose so called "gay marriage" and attempts to normalize homosexuality.

Suppose a simple order was passed by Congress: "local officials that have received criminal justice grants within the last five years must gas all of the blacks within their jurisdiction." No one in their right mind would argue that the local chief of police or sheriff lacked the authority to simultaneously tell Congress to go to Hell and issue an order to his subordinates to shoot any officer caught in the act of enforcing that "law." It would be taken for granted that such a thing violated the natural law and was no law at all.

Okay, this is a seriously terrible analogy. First, because you all have constantly and consistently claimed that sexual orientation is not comparable to race. Second, let's pretend this was, bizarrely, an order from Congress or SCOTUS. The situation the police chief would find himself in is that he had previously been gassing only the whites (of a certain age) within his jurisdiction but had refused to do the same to the blacks. I have no idea how this situation could obtain in reality, maybe gassing was considered a good, clean death which blacks didn't deserve or something. To make it even more bizarre, let's say the police chief knows, with absolute certainty, that one white couple are truly awful for each other and for society in general. Doesn't make a bit of difference under the law, they still get a good, clean death simply because they are white.

Accommodation, what's that? Do "the job" or get out, peon.

Lydia is sticking up for the employee now? After all these years I thought the Job Creators were infallible beings. If she starts supporting unions, today being Labor Day after all, I'll know the world has turned upside down.

I suspect that you would find conservatives who would want to prosecute the chief of police in the scenario that I described. There are some on the right who are simply secular pagans who worship procedure and the perception of law and order so much that they would literally allow evil to be done so that no breach of the peace is risked. Supposedly Sunni Muslims used to say "better tyranny than anarchy." Setting aside the irony that tyranny often causes anarchy, it's a mindset that should be offensive to everyone. So fearful of a little disorder that they prefer to let blatant evil slide.

As the article I linked to about "Middle Class Anarchy" said, the real danger is that the middle class is waking up to the reality of how corrupt the system is becoming. We see the rules only applying to favored groups, people in the right groups getting away with anything and end up saying "screw the rules." Yet law and order conservatives are prone to just dismiss such people and bleat on and on about "teh lawz" even though everyone else can see that the authorities are increasingly in conflict and what is and isn't "legitimate law" is increasingly in doubt (to say nothing of how legitimately it is actually applied).

Okay, this is a seriously terrible analogy.

If you think it's a terrible analogy, then read what I actually responded to and hopefully you can appreciate just how non sequitor your response was...

It's another to say, "I declare that this positive law is contrary to natural law and is therefore no law at all." No individual person has the authority to make that claim. The objection to Davis' behavior, or at least my objection to it, is about authority, not truth.

Taking Aaron's argument to its natural end, a member of the security services of the state has no authority to declare an order to commit murder to be invalid and conferring no obligation to follow it. Aaron may take exception to that or even find that to be offensive, but it's right there in his objection to Kim Davis.

So precisely how is my analogy so terrible if you take it context to what it actually addressed?

Lydia is sticking up for the employee now? After all these years I thought the Job Creators were infallible beings. If she starts supporting unions, today being Labor Day after all, I'll know the world has turned upside down.

Sometimes yes, sometimes no. I think it can be wise for an employer to make *reasonable* accommodations. I think it's usually better if those reasonable accommodations are not micromanaged by bureaucrats. I think Muslims (as I said) often demand extremely unreasonable accommodations. I think it would be entirely possible to make reasonable accommodations for clerks in Davis's position, though I would not (like one other conservative unfortunately said) call that a "win-win situation." I wouldn't call it a win-win situation because there shouldn't be homosexual "marriage" at all, and at some point someone is going to be required to acknowledge the "marriage." However, it's absurd that in a country that forces the most _unreasonable_ accommodations on employers (a meat packing factory having trouble keeping open at sundown when all its Muslim employees want to pray, and so on ad infinitum) suddenly when it comes to Davis everybody, liberals and some conservatives included, doesn't believe in _any_ accommodations of any kind but takes the most extreme position on the "do the job as we've now redefined it or get out."

Which is more or less a repetition of what I said before.

Mike is completely right. His analogy to shooting all the blacks was an attempt to answer a faulty premise that there is only one right answer to "who decides" or "who has authority to decide" what is a law that is gravely evil--the higher level of government. His was a reductio ad absurdam of that premise.

It's odd how many people seem to have trouble with the reductio argument form in the context of the Davis discussion, even when the principle in question is _extremely_ sweeping. When one makes a principle that sweeping, it's quite easy to counterexample, yet people get all flustered and say, "That's not analogous." In some ways yes and in other ways no, but one way it is analogous is that *by the principle in question*, the person in question should "do the job or quit" because he somehow lacks authority just to keep on doing the job he's been doing all along and refusing to do the evil being now enjoined upon him. This really isn't logically very difficult.

If you think it's a terrible analogy, then read what I actually responded to and hopefully you can appreciate just how non sequitor your response was...

It doesn't matter because it left out so much contextual information about the actual situation of Kim Davis as to be little more than misdirection. I don't care if you want to make your response only about Aaron's comment completely isolated as some sort of ideal, if you don't attempt to preserve any similarity to the actual case at hand you are being deceptive.

No, he's not being deceptive at all, Step2. The argumentative "ball" here concerns a particular set of soundbites about this case, which not only Aaron but plenty of others elsewhere are touting. Those soundbites are obviously _false_, and extreme cases do very well to refute false slogans. Look, there's a long, time-honored tradition in America of civil disobedience, both on the left and the right. Yet to hear some people, including some conservatives, talk now, everything is determined in a cut and dried manner by "the law" or "the authority." Once we can clear the slogans out of the way, then they can debate the merits of civil disobedience *in Kim Davis's case*. But plenty of people are acting like her case can be decided on the basis of some overarching principle like Aaron's "who decides" principle. It can't. That was Mike T's point. I think this is all pretty clear.

If you, Step2, want to articulate some different and far more limited principle that you think condemns her, you can try to do that. But it isn't going to be the principle that someone other than the individual always has "the authority to decide." It isn't going to be, "The government employee has to do the job as defined today or resign, that's always a duty." It isn't going to be, "You don't get to decide on the law, you just have to obey the law or get out," or any such simplistic principles. All of those are quite easy to counterexample, but a lot of people don't seem to realize that. There's nothing deceptive about pointing this out.

Okay, this is a seriously terrible analogy... To make it even more bizarre, let's say the police chief knows, with absolute certainty, that one white couple are truly awful for each other and for society in general.

And so this is a GOOD analogy? C'mon, Step2, you can do better than that.

But we don't have to scratch around and create some incredibly bizarre scenario that would never, actually, come to be. We can just take an actual example from within the past 100 years: The German soldier told point blank to round up Jews so they could be gassed.

According to Aaron,

It's one thing for a public servant to say, "I couldn't live with myself (as a Christian or whatever) if I obeyed this corrupt law." It's another to say, "I declare that this positive law is contrary to natural law and is therefore no law at all." No individual person has the authority to make that claim. The objection to Davis' behavior, or at least my objection to it, is about authority, not truth.

And this objection simply doesn't give the German soldier the room to do what we hold he had the obligation to do: to refuse. He couldn't just "resign his position". And if he were a general in the army, he darn well should have been willing to use his position and authority to block murdering Jews - to the extent possible - rather than simply resign. We held Germans liable, even to the death penalty, for failure to deal with these immoral and unlawful "laws".

Lydia is sticking up for the employee now? After all these years I thought the Job Creators were infallible beings. If she starts supporting unions, today being Labor Day after all, I'll know the world has turned upside down.

Think it through a little. Kim Davis is an elected official, not precisely an "employee" who can be fired by a boss. But what about other people who are coming under the gun of situations without a conscience clause? Doctors being told to refer for abortion are often self-employed, they have no boss to fire them. But the state can penalize them if they don't follow the "law". And consider a doctor employee of a firm. When he was hired, he was hired to be a "doctor", say a pediatrician. Along comes a 14 year old girl who is pregnant, and he is required to refer her for a scheduled murder, even though he doesn't think being a "doctor" includes "scheduling a person for murder"? And when he was hired it wasn't part of the job description? Well, if his employer decides it wants to ADD that duty to his job description, and he objects, then yes, of course they are going to fire him. But there is no reason to call that event "refusing to do the job he was hired for". Let's get that straight: in at-will employment, the employer may have the power to change at will the description of the job for which he wants to employ you, and fire you if you decline that new job, but even then that doesn't fit with "refusing to do your job."

In any case, any person has the ordinary, moral default right to assume that a job entails only morally licit acts (unless the employer explicitly states otherwise), and to have THAT be understood to limit "the job". And when a job is posted or listed, using ordinary English, under a well-understood title such as "doctor" or "fireman" or "astronaut", the employer doesn't get to simply MAKE UP a whole boat-load of ancillary duties that are included in "what I hired you for" later on, as if the term "fireman" means "anything the employer decides it means as the whim strikes him." That latter is the nominalizm that Lydia is calling out. These jobs have a body of duties implicitly and the words already mean something determinate, and pretending that they are infinitely pliable at the will of anyone who wants will only confound social reality.

Step2, unlike you, I was arguing against what Aaron actually said. Aaron's comment actually made it clear that his principle was a general one and not limited to this case.

Furthermore, the example I used was a bit silly by design, but it's hardly outside the realm of real orders that real state actors have faced as Tony pointed out. Furthermore, there have been many cases where state employees have been ordered by a high authority to go commit terrible harm to people for no lawful reason. Pogroms in Eastern Europe and the Middle East being just the tip of the iceberg. A general order to harm or kill a lot of people "just because" has happened on many occasions in world history.

It's important to remember too that some of these principles are being brought forward by people who either

a) say they _agree_ with Kim Davis's objection to homosexual "marriage" or

b) say that it _doesn't matter_ whether she's right or wrong on the merits of homosexual "marriage."

Obviously, Step2 objects to her actions in part because Step2 _disagrees_ with Kim Davis on the merits. Hence the insistence on "making analogies similar," etc.

But our whole point is that whether you sympathize with her, and how much, is _of course_ going to depend in large measure, and should depend in large measure, on whether you think she's right on substance. It can't be decided purely on the basis of some procedural meta-principle like "the authorities decide" or whatever.

Sure, there are borderline cases where one might think the person has some unnecessary scruple but can still be accommodated. It's easy to think of such examples. But in this case, the left thinks that she is denying people some sort of super-important, fundamental right. The conservatives allegedly think she's being asked to endorse serious sin. So there is really very little room for looking at her attempts to avoid granting licenses as a mere foible. I still think liberals should have a bit of a sense of perspective. After all, it's not like these people can't fairly readily travel to another county. If the liberals are so concerned, they can offer them transportation, for crying out loud! And some people did (I've read) even come _from_ another county to provide a test case and get her in trouble. So, yeah, they could recognize the opportunity for some flexibility and consider that as an option if they cared anything about pluralism. (Yeah, right.) But they're still going to think she's a bigot, and they're still not going to like her. There's really no avoiding the substance of the case. It's hardly "deceptive" to use exaggerated examples to make that clear.

Obviously, Step2 objects to her actions in part because Step2 _disagrees_ with Kim Davis on the merits. Hence the insistence on "making analogies similar," etc.

That still doesn't help Step2 out here because I wasn't even addressing liberals who believe homosexuality is morally neutral or good and who support gay marriage, but a conservative who ostensibly does not. Even Step2 should see the absurdity of Aaron's position which seems to be this homosexuality is morally wrong, gay marriage was imposed incorrectly, but we have to just live with it anyway.

If you take the "law and order" conservative approach here, you end up in a worse state than if you take the liberal side because the law and order conservatives agree it was all wrong, but would bind you to follow it. Liberals do not. They think it's right and to that extent are mistaken. I have no beef with them compared to the law and order types.

A lot of liberals are happy to play the "law and order" card as well. They will use any weapon that comes to their hand, and they are only too happy to thunder, "Law of the land!" with the best of them. Indeed, they've been planning on that all along. Many is the time in a blog thread that I have argued that the intent is a legal suppression of dissent, and some liberal has come in and "blown the gaff" by smirking, "Yes, if we win, then that will be the law, and you will just have to deal with it." There was one leftist commentator here at W4 whose name now escapes me whom I used to say was very useful in that regard. He scarcely tried to hide his totalitarian side.

I agree though that there's something peculiarly schizophrenic about conservatives who allegedly aren't smirking about it but still say we just have to "follow it" or "deal with it."

Just look at Joe Biden. He's a case study on the "law and order liberal." He'd have been public enemy #1 in the Senate if he were a Republican with some of the extreme "empower law enforcement" stuff that came from him. In particular, the man was a strong advocate for civil asset forfeiture like letting the DEA seize entire venues where drugs were being sold and as I recall, his legislation didn't even much factor in the extent to which they tried to self-police.

If you, Step2, want to articulate some different and far more limited principle that you think condemns her, you can try to do that.

Conscientious objection doesn't provide a right to take hostages. There are two different ways Kim Davis was taking hostages: her subordinates and the heterosexual couples who were denied their rights. It has just been assumed by conservatives that all her subordinates have similarly strong objections to issuing the licenses even though only one, Kim Davis's son, has actually refused to do so since she was forcibly removed from office. Their rights to do what they think their jobs legitimately entail was being "trampled on" by the tyranny of Kim's order but we don't hear a peep from conservatives about that. Regarding the heterosexual couples denied marriage licenses, it didn't make any sense at all. Kim had already professed her discriminatory reason for her action which legally supersedes any attempt to "indirectly" discriminate by refusing all marriage licenses. I don't know if she did this under advice from lawyers or not but it was utterly useless as an attempt to legally shield herself.

In any case, any person has the ordinary, moral default right to assume that a job entails only morally licit acts (unless the employer explicitly states otherwise), and to have THAT be understood to limit "the job".

I've only had one supervisor who ever demanded I do something immoral although nearly all of them have changed my job description at some point or another to require things I dislike doing. That one supervisor knew what he was demanding was a violation of company policy as it was essentially a type of theft, and he knew I knew, so when he threatened to suspend me for disobeying a direct order I ignored him. That same night I went to my union meeting and told my craft representative what happened. The next afternoon I was called into the office and my supervisor apologized to me. Needless to say I've been strongly pro-union ever since. If for whatever reason the company policy had been changed I could have then been in a situation where I needed to leave my job, but I would have considered it good riddance in that case.

A general order to harm or kill a lot of people "just because" has happened on many occasions in world history.

Bestowing a right to a group of people isn't a harm unless such harms can be proven in court, and despite many, many legal attempts SSM hasn't come close to being proven a harm. And fulfilling the truth of Godwin's law there is another reason why the Nazi analogies fall apart because the Final Solution was never, ever codified in law. It was a secret order, passed down verbally from Hitler to his lieutenants and they only referenced it in the most oblique ways in their own written communications. We've only been having the debate about gay marriage for a couple of decades, in the courts and in the public square, so to anyone who doesn't live in a cave the SCOTUS decision can't have been a complete surprise. I don't think it unreasonable that Kim Davis should have expected her job could include issuing gay marriage licenses, given the massive swing in public opinion, the number of states that had approved it, and of course the legal victories in court. At the very least it should have been something she seriously considered when she ran for the position.

It has just been assumed by conservatives that all her subordinates have similarly strong objections to issuing the licenses even though only one, Kim Davis's son, has actually refused to do so since she was forcibly removed from office. Their rights to do what they think their jobs legitimately entail was being "trampled on" by the tyranny of Kim's order but we don't hear a peep from conservatives about that.

Then you haven't been paying attention. The subordinates are merely passing out licenses *with her name on them* as the authorizing official. It is her authorization that still goes on them. *That's* why she objects. If Kentucky had some different structure whereby the subordinates could issue a license under their own signature and she were preventing that, then we could have a different discussion about whether she was exceeding her authority in ordering them not to do so. But that isn't how it in fact works in Kentucky. As a matter of fact, sheerly to avoid future conscience issues, the simplest solution for the KY legislature might well be to say that in the event the main clerk has a conscientious objection for any reason to authorizing a marriage license, the signature of a deputy clerk shall be legally valid. That would not even have to require the legislature to endorse homosexual "marriage." But it doesn't happen to be the present set-up, which fully explains her actions. She would still be authorizing what they were doing. In fact, even in prison she has been harassed to authorize it. This isn't merely "letting" them do something, it's authorizing the licenses by way of her signature and authority as the relevant legal official.

As far as the heterosexual couples are concerned, if she's done it under legal advice, then stop making a big song and dance about it as if it makes her a mean person "holding hostages." I've already pointed out, interestingly enough, that that in itself would have provided a seemingly legitimate reason for the judge not to intervene, so maybe that was why she received that legal advice. If I'd had a friend or grown child wanting to get married in Rowan county and having to go to a different county while this was going on, I would advise them to put their big boy and girl pants on and not whine. We're having a mini constitutional crisis here, you can drive a few extra miles to get your marriage license for your real marriage.

despite many, many legal attempts SSM hasn't come close to being proven a harm.

Well, there we disagree, so once again, it comes back to the substance of the matter.

In any event, your entire discussion of the example of a general order to harm shows that you _still_ don't get the point in the context of the extreme examples (orders to kill and what-not). I'm sorry that you don't get the point of those, and the reason why they don't have to be analogous to this case but merely be examples of patently immoral orders from legal superiors, but I'm not going to keep retyping the argumentative structure and the point of those examples over and over until my fingers fall off.

"despite many, many legal attempts SSM hasn't come close to being proven a harm."

Is it not enough to simply show that same sex "marriages" are not marriages at all? This has been shown, I will even say it has been proven beyond reasonable doubt. What more can you ask for? On top of that, what is socially good about marriage...a man and woman committed to a lifelong, monogamous union...makes no sense in a world that believes two men can marry each other as being more good/beneficial than anything else. Again, what more could you ask for?

I don't think it unreasonable that Kim Davis should have expected her job could include issuing gay marriage licenses, given the massive swing in public opinion, the number of states that had approved it, and of course the legal victories in court. At the very least it should have been something she seriously considered when she ran for the position.

And I don't think that "expected" is the relevant criterion. Everybody who was over the age of 2 knew in 2014 that there was a reasonable chance the SC would attempt to overturn 37 state laws (and, for most of those, state constitutions). That reasonable chance doesn't compute into "what my job consists in" for people whose job involves doing, helping, or approving marriages. For a couple reasons (at least): Since (according to many conservatives, and some liberals such as liberal Catholics who hold what the Church teaches), it is IMPOSSIBLE for 2 gays to marry, so there is no power on earth which can make a job description include "helping 2 gays get married". And even if it were ontologically possible, if it remained inherently morally disordered (like, for example, rape is ontologically possible but inherently morally disordered), then no power on earth could licitly add the act to a real job description. Thirdly, there are other pathways to "we will allow gays to get married" under state law than that of "we will force people who object to helping gays get 'married' and make it part of their jobs". Kentucky could, for example, set up an office staffed by volunteer clerks to run the process so that gays can do what the SC says they have a right to do. No changing the job description of elected county clerks needed. There is no logically necessity from "gays have a right to 'marry'" to "all county clerks now have the job of issuing said licenses."

Kentucky could, for example, set up an office staffed by volunteer clerks to run the process so that gays can do what the SC says they have a right to do. No changing the job description of elected county clerks needed. There is no logically necessity from "gays have a right to 'marry'" to "all county clerks now have the job of issuing said licenses.

Exactly. As could the federal court system which has assumed the power to hold county clerks in contempt and jail them and has also introduced meaning into the 14th amendment even they admit was never intended. It'd be easy to grandfather in conscientious objectors (like judges or clerks) who don't want to participate while ruling the states must make accomodations in these cases.

Step2,
Final Solution was not the only objectionable act of the Nazis towards the Jews. What about the Nuremberg laws? There were literally thousands of such decrees. Just to give a random example, in January 1942, the Jews of the Warsaw Ghetto were required to surrender all their furs. And what about the legally pasted notices on Ghetto, that all Jews escaping from the Ghetto would be summarily shot?

Lydia, first of all, the main point I was making is that there are arguments against Davis that are not nominalist. Now to respond to your points:

1. I don't know enough to say whether a decision/order was correct under positive law, but this seems clear-cut to me: Davis does not have authority (competence) to decide any question of positive law per se, i.e., within positive law itself. If she believes that the Supreme Court ruled wrongly, and she ignores the ruling, then that's just civil disobedience, the same as if you or I did so. Deciding Supreme Court cases is not fulfilling her official duties, regardless of whether issuing fraudulent marriage certificates is doing so.

2. In your example of the police officer, that's an imminent life or death situation so of course the officer should protect innocent life. The fact that he's wearing a uniform at that instant doesn't matter. The next day, though, yes, I think he should resign. (Another option would be to sabotage the regime from within, but that's not something we're talking about here.) Practically, any regime tyrannical enough to act that way wouldn't allow him to stay in office anyway, so in effect it would be the same.

Let me do the same thing and change the substance of the example: Suppose a police officer believes that America is a white nation, that allowing mass immigration was illegitimate, that non-whites are effectively soldiers in a genocidal war against whites, and that therefore they are not entitled to police protection. Is there anything wrong per se with his decision to stay in office and fight the war against non-whites, rather than resign and fight the war as a "civilian"? And to answer the question you'll ask me: No, there's nothing wrong per se with his staying in uniform while acting that way in an imminent situation, though of course his actions are evil whether he's wearing a uniform or not.

But these policeman analogies are misleading, I think. My premise is that the current US regime is legitimate. It's not tyrannical. Otherwise, there'd be no value in rule of (positive) law. Maybe some of you do believe that the US is a tyrannical, illegitimate regime, like Nazi Germany or North Korea. That's how the policeman analogies sound, too. My whole view is premised on the overall legitimacy of the regime.

And this whole argument over Davis is in a way artificial, because in a typical case, someone refusing to carry out the duties of one's office (as the authorities view them) would be fired, so in effect the result would be the same either way. It's only because she can't be fired that this is an issue. We all agree that disobedience to positive law is sometimes a moral obligation.

Another point, which might not be that important, is that even given your metaphysical assumptions about marriage and positive law, Davis was not carrying out the duties of her office, properly understood. She stopped issuing any marriage licenses so as not to have to issue them to same-sex couples. In your policeman analogy, it would be as if a policeman stopped enforcing the law at all so as not to have to use force unjustly against minorities. Does it matter that Davis is not carrying out the proper duties of her office, regardless of whose fault that is?

Tony, I basically agree with your "qualified" way of deciding for oneself. My point in using language like "declare" is that someone would be placing themselves in a position of moral authority over others.

Of course there are other foundations besides natural law to oppose positive law. Personally, I like Hanna Arendt's Socratic approach: "I couldn't live with myself if I did this." This does not claim any metaphysical knowledge of the essence of the Platonic ideal of County Clerk.

In your example of the police officer, that's an imminent life or death situation so of course the officer should protect innocent life.

And that would be what you call an unprincipled exception.

Another point, which might not be that important, is that even given your metaphysical assumptions about marriage and positive law, Davis was not carrying out the duties of her office, properly understood. She stopped issuing any marriage licenses so as not to have to issue them to same-sex couples. In your policeman analogy, it would be as if a policeman stopped enforcing the law at all so as not to have to use force unjustly against minorities. Does it matter that Davis is not carrying out the proper duties of her office, regardless of whose fault that is?

I regard her decision to stop issuing licenses as a prudential judgment to direct attack the line of argument that the Supreme Court forced on her which is "if straight couples get it, so do homosexual couples." She's applying that in a negative way, "if homosexuals can't have it then neither can straight couples." Whether intended or not, it's a straight up kick in the pants to the logic used by the SCOTUS.

With respect to the police officers, I would actually have no real quarrel with them refusing to do their jobs either. If the authorities said "the law protects no black man" then the officers could say rightly "then the law protects no man, period." The Supreme Court has authoritatively declared that there exists no individual right of police protection anyway, so anyone who lives their life even right now with the assumption that the police must act is a fool. In this world, right now, the police have no legal obligation to arrive on time or even within time to collect the evidence untainted by the elements and passersby.

It doesn't help Davis's critics that the straight couples are merely inconvenienced; they could just go to another court to get the license. I suppose you could raise some scenario wherein all of the clerks of court had an attack of conscience, but then they could just drive to the next state. Works for Nevada, gotta work elsewhere.

I don't think it accomplishes anything good for you to even "tut tut" her, Aaron. Do you really think liberals and SJWs are going to just look at you and say "wow, there's a conservative who can convince me to change my mind?" Instead, I think in general you'll find them happy that you are criticizing Kim Davis on details that are really not that serious. There's a time and place for that, but it's not here. The other side won't nitpick the way you are picking at her.

But these policeman analogies are misleading, I think. My premise is that the current US regime is legitimate. It's not tyrannical. Otherwise, there'd be no value in rule of (positive) law. Maybe some of you do believe that the US is a tyrannical, illegitimate regime, like Nazi Germany or North Korea. That's how the policeman analogies sound, too. My whole view is premised on the overall legitimacy of the regime.

I presume, as an elected official, Kim Davis took an oath of office including the promise to "uphold the Constitution of the United States of America." Not the Constitution "as interpreted by the Supreme Court," just "the Constitution." If she believes the Supreme Court has overreached, has come to a wrong conclusion, has wrongly interpreted the Constitution, it actually *is* her duty to refuse to carry out such an illegitimate interpretation. You really shouldn't take that oath if you don't have some decent understanding of the Constitution, after all.

Must we think that the entire government is "illegitimate" to refuse to acquiesce to any of its laws? Just because we continue to elect and appoint government officials according to Constitutional mandates (I presume that is what is meant by "legitimate") does not mean no law or court interpretation of law can possibly be wrong and require our refusal to submit. In fact, the refusal to submit to unjust laws is exactly what led to the correction of the Dred Scott decision and like injustices. The government at that time was just as "legitimate" as ours today, but it was wrong about some rather significant issues. I would far rather we correct legal injustices through peaceful protest and civil disobedience, if at all possible, than through armed revolution after the government finally makes itself "illegitimate."

Thank God for the Kim Davises of the world.

I address in my post the idea that some kinds of acts might slide over into the "this regime is illegitimate and I'm trying to undermine it" territory and gave an example of a German railroad official falsifying papers so the train wouldn't go to Auschwitz.

I agree with Beth that this is not such a case, and again, there is _no_ principle supported by reason that says that one cannot stay in a job and refuse to do some crazy thing that has been tacked onto that job _only_ if the entire regime is now illegitimate and one is essentially trying to engage in sedition.

Quebec is just about to require all its institutions that offer palliative care to find a doctor who will commit euthanasia if the patient meets the criteria. Institutions whose governing body resists do not need to decide that every Quebec policeman who gives a speeding ticket is working to uphold an "illegitimate regime" in order to go on operating as _real_ palliative care centers rather than killing patients.

Governments are not monolithic bodies, especially deliberately distributed authorities like ours. This is part of the reason why talking of "regime legitimacy" is usually a red herring. There will likely never be a point in which "the government is illegitimate" in any society because you can always find authorities that are doing the right thing. Rebelling against authority can and should be targeted. Here, it was. Davis didn't rebel against the United States Government, she rebelled against the Supreme Court in a specific instance.

The majority of federal functions may be legitimate, but that doesn't mean that a particular body within the federal government is behaving legitimately. You can't say that the fact that the security services are not committing tyrannical acts on a daily basis means the Supreme Court gets a free pass and warm glow from their legitimate conduct. That's like saying "because Physics is very reliable and repeatable we can trust Psychology research and claims" since they're both sciences (allegedly in the case of the latter, but I digress).

Aaron:

The fact that she can't be removed from office just makes more pointed the disagreement between us that someone allegedly (according to you) has a duty to resign in such a circumstance. Of course you are right as a _practical_ matter that, if it's a simple matter of firing, the person will at least _usually_ be fired. (Though not necessarily if the order came from such a high-up level of government that all the locals are agreed against it.) But so what? You are stating an alleged ethical principle. You implied in your very first comment that Kim Davis is unethical. So according to that principle, the very fact that one _could_ retain one's office, that that is an option, while refusing to carry out the new definition thereof, should be precisely the situation that creates a decision to be made and precisely the situation that makes clear the _obligation_ of the person in the office to resign. Otherwise, if the point is moot, it's not worth talking about. It's precisely when you know that you _could_ stay in office "obstructively," or plausibly or possibly could, that the question arises whether that is legitimate to do. You say no, never. I say yes, in plenty of cases we can easily dream up, though not always equally realistic. And I say that Kim Davis's is one of them.

I agree that she is engaging in civil disobedience, but only because she is disobeying a court order. Otherwise, as it happens in her case, she is upholding the law of Kentucky and hence is less lawless than the crazy Supreme Court. So okay, she's engaging in civil disobedience. That isn't wrong per se. Nor does it follow from the fact that she's engaging in civil disobedience that she *has to do it in the way you prescribed*--namely, by quitting and trying to block the courthouse. You have no valid argument to that effect--that all civil disobedience must take such a form or that one may never ethically engage in civil disobedience from within a particular public office.

I could not disagree with you more strenuously concerning the police officer's alleged duty to "resign the next day." That's crazy. That's essentially saying that, in the insane situation thus set up (all the blacks in the county are going to be gassed or you can be killed at will) the local police force has a _duty_ to _make way_ as policemen for others who will gas the blacks (or kill you, or whatever the scenario is). Remember that as policemen they have certain special facilities for protecting people: They have officially issued guns for which they don't have to get permits (and permits are sometimes blockable by the police department, depending on state law). They have squad cars. They have the respect of the public for the uniform. And so forth. *Of course*, if at all possible, the police should work together to continue to use those assets to carry out what is obviously the actual nature of their good job--to serve and protect the innocent citizenry from violence.

And there is no point in your saying, "Oh, well, they'll be removed anyway," because you are trying to articulate what they _should_ do, so as far as I can see, that would apply even if they wouldn't be removed anyway--even if they could still save you at least for a while or protect the blacks for a while or whatever. Even if there was a real chance that the federal authorities, or whoever had issued the order, would not have a simple way of forcing them out.

As far as not issuing licenses to anybody, that was a strategic/prudential decision made in the immediate context. *Since* her job did not involve protecting people from violence, I regard whether to do that or not as a prudential decision. I have already mentioned (twice) in this thread that I can see how perhaps a federal judge could say that there was no place for him to issue a court order otherwise since she was not "discriminating" in her refusal and hence not actually violating the alleged "constitutional rights" of homosexuals any more than (e.g.) a state legislature that abolished all civil marriage in their state. (Which I don't recommend, by the way. It's just a legal example.)

Such prudential decisions will always be specific to the individual cases. I don't think a policeman should retain his position while refusing to protect anyone, even as a gesture, because of the crucial, urgent nature of his job.

In closing, Aaron, your position that people have a _duty_ to resign their jobs if the supposed meaning of their jobs is arbitrarily changed, even to something bizarre, is so easily counterexampled that you have already bitten the bullet on a fairly obvious counterexample. But here's another (in case I didn't already type this one out): Suppose that some higher authority had declared that it was "part of the job" for a county clerk to torture children. Would all county clerks then be obligated to resign, even if they were (like Kim Davis) elected and hence couldn't be fired? This would simply make way for putting in place county clerks who would fulfill the new definition of "the job" and torture children. Do you also say that that is their ethical obligation? If so, you have embraced the reductio, you have a pretty bizarre conception of civilization, and there's not much more to be said.

As I said in the main post:

In order for society to function--at all, much less well--we need good people doing a good job at good jobs. If all or even most of the important jobs in society, the jobs that keep things running, are deeply corrupted, literally defined in such a way that to fill them you are required to be complicit in grave evil, and if it is literally a duty to quit all such jobs if you refuse to be complicit in grave evil, then society is going to collapse. Slowly or quickly, though the speed seems to be picking up. Do we really want all our doctors to be murderers, our teachers to be corrupters of the youth, and our minor public officials to be liars about the nature of reality? Keep on telling all the good people, all the people with a noble conception of their jobs, that they have a duty either to do evil or to quit and that's exactly what you'll get.

Ah, I didn't answer this question from Aaron:

Suppose a police officer believes that America is a white nation, that allowing mass immigration was illegitimate, that non-whites are effectively soldiers in a genocidal war against whites, and that therefore they are not entitled to police protection. Is there anything wrong per se with his decision to stay in office and fight the war against non-whites, rather than resign and fight the war as a "civilian"?

What's wrong per se is that he's gravely wrong on the substance concerning protecting innocent black people!

See, here's the thing: You think you can avoid discussing whether people are right or wrong on the substance by making some procedural or meta-point about having to resign, legitimacy, etc. That's _exactly_ where you are wrong. It is in the very nature of the case in such scenarios (more and more of them coming to a real world venue near you) that the rightness or wrongness of the person's action is intimately intertwined with the actual substantial moral and ethical issues *at the bottom level*. We aren't talking here about relative trivialities (in the grand scheme of the running of society) like a Jewish person wanting Saturdays off of work. We are talking about fundamental matters like marriage and life and death. That's why the whole idea that the employee or person occupying the job can merely _request_ (at most) an accommodation and should resign if he doesn't get it simply doesn't apply to these cases--because they aren't matters of accommodating some person's relatively minor religious preferences that would be fairly easily accommodated but that there is no absolute moral duty for the employer to accommodate. That's why negotiation and pluralism are so difficult in such cases. In the example you raise, the policeman's belief is _crazily wrong_, which is why he's crazily wrong to act upon it! In Kim Davis's case, it's the ruling of the SCOTUS that is crazily wrong. And the same for the Quebec government's requirement that palliative care institutions kill their patients.

You can't remain above it all deciding these matters by non-substantial, procedural principles.

Right. The question of what is true cannot be avoided by public officials (including judges) through appeal to procedure or putative metaphysical neutrality.

Legal and political positivism is a suicide pact.

Another problem with Aaron's original response is that trans issues are matters of biology, not natural law, yet they are open to the same issue. A judge can assert that you have to call a "transwoman" a female, but everyone else says that they are not because factually that is correct. So if a man and a "transwoman" want to get married, Kim Davis would be wrong there too by that critique if she said that it was an invalid order.

Zippy, I wondered if anyone would bring up those old threads on your blog. I fear that if I say more here it will take us off into the issues of constitutional or judicial theory I addressed only briefly in the post at Extra Thoughts to which this is the thread. I have not re-read everything I said in those old threads, and I think (based on looking at the briefer comments in the one you link here) it's possible I have changed my mind about _some_ of it. I base this on the fact that I mention a _governor_ (not only an interpretive judge) in this thread. Now, I'd have to know what sort of governor scenario I and you may have had in mind there to know what I'd say about it today. But my position today is that I can imagine a lot more situations in which a governor would be doing something legitimate in contravening some higher ruling than an *interpretive* judge. Of course, it has *always* been my position that governors have the right to defy crazy Supreme Court decisions, and that as a _legal_ matter, so I'm not sure what sort of governor action I was imagining in that comment.

As far as judges, here is what I said in the most recent post concerning different types of judges:

The idea of staying in a job and trying to carry it out according to the earlier, nobler conception of it on the basis of which you entered the profession has its difficulties. It is particularly difficult in the case of a position like that of federal judge. On an originalist understanding, the job of a federal judge is to "say what the law means" and apply it to concrete cases in accordance with that original meaning. I don't mean to introduce a huge philosophy of law debate, but it should be clear that, on that understanding of the job (which is not new), there might simply be an evil, unjust statutory law, duly passed by the relevant legislative body, which one would be called upon to apply to some concrete case. When that is the job and always has been--saying what the law means and applying it--there is far less room for remaining in the job while refusing to abet evil, if the people making some positive law one is called upon to interpret and apply become bound and determined to do evil. One might, however, be able to recuse oneself merely from particular cases, in that case, while staying on the job to prevent interpretive liars on the other side from striking down good laws. But there are a great many important jobs that aren't in any way limited to expounding other people's laws. Even a family law judge, for example, usually has as his mandate to do what is "in the best interests of the child," which obviously has much wider ramifications.

What I do not intend to be saying, even now, is that just *in general* one "governs according to the natural law" willy nilly, including making up _new_ imperatives out of nowhere. However, I can easily imagine now situations where natural right and wrong are, as it were, already baked into certain aspects of the job one took on from the outset--e.g., for a police officer, protecting the innocent, for a doctor, trying to care for and heal one's patient, and the like. It would have been interesting to see what I would have said about those scenarios back then in order to figure out if I have, in fact, substantially changed my position. I think perhaps at that time I took us to be talking about something rather different--for example, a governor who _makes up_ a law (by executive decree, which is not provided for in state law) to close down all strip joints in the state even though those were (he knew already) explicitly legal in his state when he took office. Or a federal judge who says, "This state law is null because it contravenes the natural law, *but not* because it is unconstitutional," when in fact the only basis for federal judicial review is supposed to be under the claim of applying the U.S. Constitution.

It's pretty complex stuff. But I certainly agree that it is not possible to leave out considerations of right and wrong in governance and in "doing jobs," and that is becoming clearer all the time in contemporary situations.

Mike T., I've been thinking about the "trans" issue when it comes to driver's licenses and other documents. Don't they do something insane like changing their birth certificates as well in some states after they "go through transition"? I can easily imagine a public official who normally has a humdrum job who would have to say, "Whoa, no!" when told to make such alterations in public documents, solely because some man had self-mutilating surgery and declared himself a woman. Especially if the public official's signature were going to go on the new documents.

Mike T. is generally right that our diversified system of government makes it far from a cut and dried question whether some "regime" is "illegitimate." An interesting question does arise to this effect: Suppose that there is some unjust law already on the books in a given state which requires state officers to do intrinsically wrong things. Make up your own example. Tony is right that you ought to be able to assume that this is not the case. But let's suppose that you know already that this is the case. Maybe there was a lot of publicity when the unjust state law passed. There's no question of jurisdiction or of court overreach. It was (let's say) passed by the state legislature and is clearly worded. You run for office and are elected to the position that, according to this unjust law, would already require you to do something intrinsically immoral. You then have to swear an oath of office in order to be installed, and this oath says that you will "uphold the laws of State X." If you swear that oath *under these conditions*, with the unjust law already in place and widely known, are you swearing in bad faith? Is that wrong? Is it subversive? Would swearing and taking office under those conditions involve treating the regime of State X as illegitimate and seeking to undermine it from within?

I can easily imagine a public official who normally has a humdrum job who would have to say, "Whoa, no!" when told to make such alterations in public documents, solely because some man had self-mutilating surgery and declared himself a woman. Especially if the public official's signature were going to go on the new documents.

Fair enough, but I can also easily imagine a good public official NOT doing that. Here's why: maybe 90% or 99% of supposed trans cases are just cases where a person with sex A wants to be sex B. But a small fraction of cases are where the person is so deeply mal-formed as to be (in the old sense of the word) a sport, something that AS SUCH cannot readily and clearly be assigned either male or female, or even cannot be assigned to either. In those cases, it would be possible for the initial statement by the doctor / hospital / parents was either actually wrong due to mistaken superficial indicators, or not any more right than the opposite statement. Certainly, if there ends up, later on, being supporting evidence that says "we may have gotten our original determination wrong" the birth certificate could be changed.

Now, I don't know what the procedures involved are, but if the process is something like "the county clerk, upon receiving an application requesting corrected birth certificate from the parents (or from the person if no longer a minor), with supporting statement by a qualified doctor, shall issue a corrected birth certificate" then the jurisdiction of the county clerk to consider the matter is limited to "is the doctor a qualified doctor", and not "did the doctor make a good determination."

As a result, I could see a county clerk say "well, there sure doesn't appear TO ME to be any reason for this change in certificate, but there may be evidence I don't know about and I am not qualified to make that determination and this doctor is." And because the clerk doesn't necessarily know which one out of a hundred cases is a "real" instance, he might perforce just have to adopt an attitude that he lets all cases through because he hasn't the tools to sort the real cases from the fake ones, and since he hasn't the tools it isn't his job.

My understanding is that it is "gender reassignment surgery" that is the trigger event for such a change in documentation. In fact, some activist groups complain about that, stating that it is "too restrictive." I guess they'd like to be able to get their gender documentation changed at will, as many times as they want, as the whimsy takes them! That's pretty problematic. Because in that case the requirement is to change the person's birth certificate or other ID document *because* he chose to have some cutting done later on. Or suppose that you are in a *really* progressive state, and you see the same person's application come over your desk repeatedly, and he's in the news, and he's making a huge song and dance about how "gender is fluid" and he's getting his documentation changed on the basis of his yearly feelings, etc.

If you swear that oath *under these conditions*, with the unjust law already in place and widely known, are you swearing in bad faith? Is that wrong? Is it subversive? Would swearing and taking office under those conditions involve treating the regime of State X as illegitimate and seeking to undermine it from within?

Justice Scalia writing in First Things:

I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty and if that fails, lead a revolution. But rewrite the laws he cannot do.

Ah, Step2, I've been waiting for someone to bring that up. Please see my above quotation concerning the *specific* job of the interpretive federal judge. People have been abusing the Scalia discussion of the death penalty all over the Internet. To hear some talk, you would think he had issued a personal statement about Kim Davis!

The Scalia discussion is peculiar to the particular type of situation he is talking about. Recall: In order for him to _stop_ the death penalty in some given case, as a Supreme Court judge, he would have to do one of the following:

1) Declare that all applications of the death penalty are unconstitutional,

2) Declare that this particular prisoner has not received his constitutional rights through some identifiable failure of process in his particular case.

We know from Scalia's other opinions that he definitely believes #1 to be *false*. Hence, he would be telling lies about the Constitution to use that route to block the death penalty.

It is moreover easy to imagine many cases in which he believes #2 to be false, in which case he would have to lie about that particular prisoner's trial and appeals in order to block the death penalty.

Either of these would be lying, which Scalia presumably believes would be wrong.

There is no other route whereby he can block the death penalty. Hence, as a Supreme Court justice, *if* he believed that the death penalty were *always* immoral (if, e.g., he were convinced that that is the teaching of the Catholic Church), and *if* he believed that as a Supreme Court justice he would be cooperating with that evil by adjudging the execution of that prisoner constitutional (I'm inclined to disagree with him on this, but elsewhere in the article he explains why he believes it), then there is no moral option for him to rule in some particular case. Either way he rules, he would either be, in that scenario and given the other premises, either cooperating with the evil of executing the person or telling lies about the constitution or the case. I still think a judge could recuse himself in that dilemma from death penalty cases, but perhaps he thinks they are too numerous or something for that to be a legitimate option.

In any event, the dilemma in question arises from some highly specific issues related to the specially *interpretive* job of a federal judge. Nothing that Scalia argues there translates into a _general_ "duty to resign" for public officials in all the cases we have been discussing.

People don't get that. I just hadn't previously gotten around to writing about it.

To hear some talk, you would think he had issued a personal statement about Kim Davis!

No, but it does bear directly on the questions I quoted from you. If someone believes the death penalty to be inherently unjust they cannot be involved in "the machinery of death" as he called it. I don't think it was meant to be a general duty to resign but it was a specific duty for those who have made an oath and are supposed to apply a law or court decision they view as intrinsically evil. It was also an interesting quote because it cuts in all directions.

Scalia's points usually do cut in all directions. He's that kind of jurist. But exactly how this point applies in a given case is going to vary depending on the specifics of the case, the job, the scenario. For example, I do _not_ grant that his point would apply in the scenarios discussed above where the person swore an oath under circumstances where the laws they were swearing to uphold *did not* require them to do intrinsically immoral acts and where the laws were changed later so that they stated that the person in question was required to commit immoral acts.

In Scalia's case, the reason a change in positive law could create a serious dilemma is because the job of the federal judiciary *is* to interpret and apply the *current* laws. That is a problem special to their particularly interpetive job, as I already discussed.

Step2,

Scalia is a mixed bag. From what I've read, Scalia also seems to think that if a defendant has new evidence, even extreme evidence like the prosecutor himself admitting the evidence was all lies planted by the police, there exists no constitutional mandate to provide an appeal that the law does not provide. Unlike Thomas, Scalia can be an unabashed statist in defense of the "rule of law."

Tony really called it in a previous thread. Here's an update: Kim Davis has been released. The new licenses have removed her name and are issued in the name of the clerk's office, signed by one of the deputies as "recording officer." Davis's _own_ lawyers contend that the new licenses are invalid! The judge thinks they aren't. Tony predicted that questions of validity could arise. Certainly this change has not been countenanced by any higher Kentucky authority with apparent authorization to do so. It appears to be a kludge that the local Rowan County office has made up.

By the way, if this doesn't show the insane folly of overreaching SCOTUS rulings, I don't know what does. They create legal chaos, if nothing else, until the harassed and brow-beaten state judiciaries hurry up, swallow _their_ consciences, and write new laws that SCOTUS will like.

Yet people fault Kim Davis for making trouble for the rule of law? What a joke.

It seems to me that the role of judge or magistrate is far more deeply rooted in essentialist claims than the role of county clerk. I do applaud the actions of this particular county clerk, though.

And I would do so even had she been elected after the legalization of sodomite "marriage". The notion that when taking on a particular role you must necessarily as prerequisite agree in every particular with (some particular interpretation of) current positive law regarding that role, is ludicrous.

And my take concerning judges or magistrates would be that it depends entirely on which judge, doing which thing. That's no doubt where we'll disagree. For example, as far as I can see it simply wouldn't make sense for a federal judge to say, "I think this state law is perfectly constitutional. It conflicts with nothing in the constitution. For that matter, it conflicts with nothing in federal law. However, I qua Supreme Court justice declare it to be null because it's contrary to the natural law." It's the "qua Supreme Court justice" part that is the problem. He can of course hold that opinion, but as far as I'm able to tell, his role in nullifying laws depends only upon their being contrary to some other positive law--such as the constitution. And that, again, is where we will disagree. Which is fine. We've hashed all that before.

There is, however, a surprising amount of space still in American law for the personal judgement of the judge, with family law courts being a good example. Unfortunately, that's usually turned out to be a *bad* thing (because family law judges so often have bad judgement), so I'm not sure it's entirely a good thing, but a particular good judge could certainly turn his duly granted freedom of action and authority to good account.

Indeed, giving judges the power to say that a law conflicts with natural law might be worse than the penumbras and emanations nonsense we have now. What would resolve that is to make jury nullification explicitly legal on that ground and have the judge inform a jury that any law they may vote to acquit based on their view that the law, as-is or as prosecuted, would constitute an act of tyranny.

It should be noted, that if the jury reasonably resembles the victim in terms of background, abuse of nullification is a self-correcting problem. The obvious example conservatives love, lower class blacks letting black felons off, quickly becomes a self-correcting problem when they go back into their communities in a rotating cycle of mayhem (assuming those juries choose that).

vicim = defendant

Actually, many of the most crucial cases of the kind we are talking about don't involve a jury at all but rather a demand for federal court review of an allegedly null state law. E.g. Obergefell itself.

Then that's something that congressional conservatives have a chance to reform.

Not sure what you have in mind. Limiting federal court jurisdiction under Article III? Certainly many conservatives have discussed that, and I would very much like to see it tried.

Indeed, giving judges the power to say that a law conflicts with natural law might be worse than the penumbras and emanations nonsense we have now.

Well, given that even some high ranking judges, (and people generally) cannot tell the difference between "contrary to natural law" and "unconstitutional" and "the result in this case would not be very nice", I see big worries with allowing ALL judges the "jurisdiction" (if that's the right word) to decide cases by reference to whether the positive law is contrary to natural law. As it is, judicial activists seem to think "it's not fair" means "unconstitutional". Do we want to add ANOTHER arrow to their quiver?

I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted,

Assuming a scenario in which the judge actually has discretion about the DP, rather than where the DP is _mandatory_, Scalia seems to be saying that the judge leaves his own judgment at the door when the legislature decides the DP is an eligible punishment. Which I think is probably wrong.

This is, really, the same issue as whether a legislator votes the vote of the majority of his people or his own judgment. If 90% polling in his district says to "vote no" on a bill, but he thinks a No vote is evil and/or bad for the republic, he should vote his own judgment and let the chips fall where they may. His duty is to lend his judgment to the ruling of the society, not to be the sheer conduit of the will of his district. I understand that some people disagree with this, but I don't understand why they still think that way after it is pointed out that we are a republic, not merely a pure democracy.

Assuming a scenario in which the judge actually has discretion about the DP, rather than where the DP is _mandatory_, Scalia seems to be saying that the judge leaves his own judgment at the door when the legislature decides the DP is an eligible punishment. Which I think is probably wrong.

See my discussion above. Scalia is envisaging a case where he doesn't have discretion as I think you are thinking of it. For example, he is not envisaging himself as a judge deciding sentencing where the judge has discretion as to sentencing. Rather, he's envisaging a case where he has to decide the narrow question as a _federal_ judge in some dp case--namely, whether this person's _constitutional_ rights were or would be violated. As I said above, there are two ways that could be the case: If the dp is always per se unconstitutional (as activist judges have said, falsely, in the past), or if this person's trial violated due process or some other specific constitutional guarantee (e.g., he did not receive the opportunity to have counsel for the defense or to call witnesses), which might simply not be the case.

The Supreme Court is, AFAIK, never called upon to sentence prisoners--to decide whether the dp would be a good sentence or a just sentence or something like that. Rather, a dp case is appealed to SCOTUS under some allegation that the person was treated unconstitutionally at a lower level of appeal or at the trial level.

Then that's something that congressional conservatives have a chance to reform.

As to using the legislature to restrict the scope of the judiciary's role, that should indeed be used more (i.e., some). But I doubt the really difficult issues are capable of being framed in a way to make this useful. Could a federal LAW be written so as to take out of the SC's hands a decision such as in Obergefell? I am pretty sure I have read constitutional scholars say no, since (according to con. theory since Marbury) the SC can overturn law as being unconstitutional. All the SC has to do is say "the law Congress tried to pass restricting our oversight defies Article III" or some such.

We need a better judicial con. law theory than Marbury v Madison and the monarchy of SC justices. I am not sure what that is.

The problem is deeply embedded in the Anglo traditions of common law and stare decisis, which conflate the natural role of legislator (who is responsible for crafting the general rules of positive law in conformity with natural law) with the natural role of judge or magistrate (who is responsible for deciding particular cases justly under the natural and positive law).

It cannot be solved by tinkering, and it certainly cannot be solved by insisting that public officials - including judges, county clerks, and other public officials whether elected, appointed, etc - must either embrace legal positivism or resign.

For an official to ignore positive law in favor of the natural law (when these two contradict) or any other moral theory he might favor, it is a revolutionary act and ought to be recognized as such.

For positive law must always be in harmony, more or less, with the natural law.
And that the positive law is in contradiction with the natural law- this is already a revolutionary situation. -- i,e, the nihilists have already carried out a revolution in state and thus the traditionalists need to accept this and revise their political theories accordingly.

The traditionalists need to appreciate that the nihilist revolution can not be opposed by normal political means-revolutions can only be opposed by another revolution.There need not to be hue and cry over split milk i.e. the existing rule of law that is tainted by nihilist elements that are present in it.

From my original post:

When are they carrying out their jobs within the legal system in which they originally took office, and when do they cross over into using their position in a more or less revolutionary or subversive way to undermine or counteract a corrupt system that has emerged subsequently? Imagine, for example, a railroad official who altered documents somehow in Nazi Germany so that trains would go somewhere other than Auschwitz and so that the prisoners might be rescued. I have no idea whether such a thing would even have been possible, but there is an obvious sense in which such a person is working against "the system" as it has come to be, secretly using his authority within the system. On the other hand, if we imagine the "rebellious" local police force pictured above that thumbs its collective nose at the courts and goes on stopping parents who wish to fling their children off of cliffs, that does not seem to me like even a remotely subversive act. Nor does it seem like a revolutionary behavior for a doctor quietly to go on taking out tonsils and treating pneumonia while saying, "No," when asked to perform or refer for abortion. Where precisely the difference lies (does it have anything to do with forging papers in one case but not in the others?) I'm not entirely prepared to say. My point here is merely that opposition to an attempt to twist one's job to the service of evil may take a variety of forms, and legal geeks may have fun (rather grim fun) sorting them out from one another.

Quibbling over whether doing the right thing is or is not "a revolutionary act" is not just a waste of time: it is itself prudentially wrong, in my view. It is yet another way (see 'procedural', 'neutral', etc) that modern people distract themselves from the substantive question of what constitutes right action in a particular situation.

Who cares if doing the right thing in particular circumstances is (or is not) subversive, revolutionary, conventional, conformist, nonconformist, etc? Does further characterizing the right action in particular circumstances as 'revolutionary' or 'rebellious' or 'conformist' make it any more or less the right thing to do?

Sometimes it's just an academic exercise and hence not worth doing.

Other times it could make other practical differences. Suppose that you think that misleading (let's say, not lying, but some sort of non-lying misdirection) is _wrong_ when one is working within the system as a part of the system but might be _right_ when one is not. Or suppose you thought that other actions that would normally be illegal and therefore wrong become morally justified under extraordinary conditions where the system or regime is completely flawed. (Probably better if I don't give concrete examples.)

Other possible practical applications: Suppose that you believe because of the interpretation of a Scripture passage that all revolutionary or subversive acts are wrong. If you identify a particular act as such, either you're going to have to change your Scripture interpretation or not engage in that act.

Suppose that you believe as a prudential matter that subversive acts are more likely than non-subversive ones to lead to bad consequences. Then you have an additional prudential reason not to engage in one.

So there can definitely be reasons why it isn't just a pointless exercise, but as I said, sometimes (e.g., when this act is _beyond doubt_ the right thing to do and when it is isolated) there's little or no point in making the classification.

Those don't really address my point. Certainly prudential considerations (e.g. "what does the positive law say", "what are the police likely to do", etc) frequently influence what the right action is in particular circumstances. And doing something intrinsically wrong is never good, by definition.

But once the right course of action has been determined, further characterizing it as "revolutionary" or whatever is just grandstanding, leading the mind and will away from the place where its central focus should always be: on doing what is right under the natural and divine law.

Every materially important good act is subversive and revolutionary against the powers of evil. Every materially important good act is conformist and submissive toward the powers of good. Every materially important good act utterly rejects Hell and obeys Heaven.

Lydia, I think you've pretty much convinced me that I was wrong. I'll think about it some more.

I think my conclusion (but not my reasoning) was right in this particular case, though. She should have resigned, simply because of the "optics." Resigning would likely have been more persuasive and no less morally "clean," and therefore more ethical in this particular case. But that's a contingent reason; if public opinion had been different, I think the choice she actually made might have been the better one.

Zippy, we simply disagree about routes by which one might decide what is the right action in a particular circumstance and whether accurate characterization in those terms could ever be a consideration along a legitimate route for deciding the right action, or even the better vs. less optimal action, etc. I myself think it's fairly evident that if you really believed you were in a position of secret rebellion against a political regime this would be likely to have a variety of practical consequences. Hence, determining that could be relevant or useful. You differ. That's fine.

The funny thing is, Zippy, that you don't seem all that pleased with my probably increasing agreement with you on a variety of particular cases, simply because I don't agree with you about everything in this vicinity of thought. I suppose one should expect that, and it goes without saying that I didn't write the main post with the hope of pleasing you. But as a prudential matter, it's maybe not the wisest course of action to express quite so much impatience towards those who are agreeing with you more than ever before.

Aaron, wow, that's really cool. It's always kind of neat to convince someone in a blog thread.

Lydia:

I myself think it's fairly evident that if you really believed you were in a position of secret rebellion against a political regime this would be likely to have a variety of practical consequences.

We should always resist ("be in rebellion against", secret or otherwise, for those inclined to melodrama) the evil in our societies, and embrace the good in them.

However closer our judgements may have become on particular questions, it appears to me that our basic outlook on this sort of question remains as incompatible as ever. Societies, nations, families, tribes, etc are always a mixed bag, though of course some are far better/worse than others. The worst of them still embody goods which need to be protected and defended; the best of them still have significant moral failings from which they need urgently to repent.

I just don't buy the "either you are in full on rebellion, or you bend the knee always and in every particular to (some particular question-begging interpretation of) the positive rules" way that many folks frame politics (not to pick on you in particular -- my understanding is clearly the exception not the norm).

I just don't buy the "either you are in full on rebellion, or you bend the knee always and in every particular to (some particular question-begging interpretation of) the positive rules" way that many folks frame politics (not to pick on you in particular -- my understanding is clearly the exception not the norm).

I agree with you. I don't buy that either. In fact, I think Kim Davis's case is a perfect counterexample to any such false dichotomy. So is the case of a doctor in Victoria, Australia, who refuses to refer for or participate in abortions. I can think of lots of counterexamples.

I've only made the much more moderate claim that it could sometimes make some practical difference or could sometimes be relevant to something else to decide if a particular act is one of subversion or is working within an existing system.

"Lydia, I think you've pretty much convinced me that I was wrong. I'll think about it some more.

I think my conclusion (but not my reasoning) was right in this particular case, though. She should have resigned, simply because of the "optics." Resigning would likely have been more persuasive and no less morally "clean," and therefore more ethical in this particular case. But that's a contingent reason; if public opinion had been different, I think the choice she actually made might have been the better one."

Seems that Dreher agrees with you: http://www.theamericanconservative.com/dreher/kim-davis-shipwreck-of-religious-liberty/comment-page-1/#comments

Dreher is probably right about the optics. Kim Davis has not put on a "good" show for the liberal/power elite. I think that this more likely simply reveals their views even more rather than saying anything about her, though. In other words, it may be we know better were we stand and where religious liberty as a concept stands with the liberal/power elite because she did not step down rather than it being the case that religious liberty is in an even more precarious state because she did not.

Yeah, Dreher is (to my mind) biased against her and an extremely poor guide to what is or is not good strategy.

If nothing else, Davis's case is beginning to wake up some conservatives to the very issues we have been discussing here and to the possible requirement of civil disobedience in their own future. I don't want to thunder, "We've been too comfortable for too long" or gloat in coming persecution. Indeed, I often advise younger people to guard their Internet privacy jealously when it comes to their opinions on controversial subjects. No need to tell the entire universe what you think about everything when you still have your whole life ahead of you and don't even have a stable job yet! But all of that is highly contingent. What has been both disturbing and a teaching opportunity is the tendency of some conservatives to make Davis's case an opportunity to argue the necessity of absolute submission or quitting. It's been a good chance to challenge that dichotomy. Even my own thinking has been clarified by thinking about the case.

On the issue of rhetoric and strategy and Davis, here is what I said in a comment at my personal blog:

I think what strategists need to recognize is that everything is not strategy. There needs to be room for heroism and for open declaration of the truth. If we gauge everything according to strategy, and if our notion of "strategy" is always, "Don't rock the boat," then we will never have any heroes or open speakers, and we will strategize ourselves directly into secondhand citizenship.

Ironically, this is poor strategy. No good general would agree that the best strategy is always indirect, secret, or undercover.

I think some Christians are so narrowly focused on strategy that they can't recognize a trumpet call when it comes. Kim Davis's action is definitely a trumpet call.

By the way, I don't know where this new use of "optics" came from. It's a new one on me, but now I've seen it twice in a day in this new sense. Be that as it may, it's arguable that the "optics" are favorable to our cause when Christians are marched off to jail, showing courage and being seen (rightly, in my view) as martyrs. It will be interesting to see how this develops now that Davis has been released. I think a lot depends on whether, if she violates the latest orders from Judge Bunning, her reasons for doing so are seen as sufficient. For example, is her name still on the licenses? If not, who took it off, and did they have authority to do so? If not, and if she still objects, why? I think she and her lawyers could lose the rhetorical momentum if they can't continue to make her objections clear. I believe at one time they actually _asked_ the governor to issue an executive order permitting licenses to be issued at her office but not in her name, and he refused. If some underling has just modified the computer template to take the name off now, and she stops that, is her objection to issuing questionably legal licenses, or what? The reports coming out right now about what the current licenses coming out of Rowan County look like and what her position is are, strictly, contradictory. I have seen three different statements that cannot be reconciled. So we will have to wait and see how this plays out. But I think her first imprisonment was actually an "optical" boost for our side. As Tony I believe pointed out earlier in this thread, it doesn't do to be dogmatic about pronouncements on something as nebulous as "who is favored by public reaction to this event?"

Dreher doesn't grasp that there simply is no way Davis could look good to them. They'd denounce her even if she left the office and said "I wish my successor all the best." The act of simply not agreeing with them is like a thoughtcrime to them. This is why I personally like Vox Day's approach better which is to relentlessly make them live up to their own standards and use them against them.

As I said when Dreher's column was first linked, he lacks the generosity of mind to recognize a courageous and inspiring act when he sees one.

Here's the thing: I'm personally a coward. I know it, and I can't avoid knowing it. I hate pain, suffering, all that stuff.

But there is a kind of little mind that takes cowardice and makes a virtue out of it, that projects personal fear onto the world at large and calls it prudence, and that thereby causes itself to shrivel up to such an extent that it literally becomes incapable of applauding courageous action even in someone else. Such are the never-ending tut-tutters, the "strategists" who would have us all crawl away into a corner and die rather than do anything "unwise" that might "make us look bad."

And that kind of small-mindedness I cannot stand. I know full well that in Kim Davis's case I probably wouldn't have done what she did. I wouldn't have the guts. But I recognize that that is a limitation in me, not in her. To invert that judgement is revolting.

Gah. Notice that Dreher's big objection is that Kim Davis looks to liberals like an ignorant country bumpkin. A perfect example of what I mean by a lack of generosity of mind. Yeah, let's not support anybody who will look bad to snobbish liberals. Just throw those rednecks under the bus, no matter what. Faster! Throw them under the bus faster! Sickening.

You run for office and are elected to the position that, according to this unjust law, would already require you to do something intrinsically immoral. You then have to swear an oath of office in order to be installed, and this oath says that you will "uphold the laws of State X." If you swear that oath *under these conditions*, with the unjust law already in place and widely known, are you swearing in bad faith?

Oaths are difficult and dangerous things, as St. Thomas More says.

But not impossibly difficult things. They are not so fraught with danger as to be inherently too dangerous to take on. That would be too high a bar.

One thing to note is that this problem isn't completely new to the American scene. This isn't the first of the matters where the government tries to make people cooperate with evil. The state employee who processes the government check to Planned Parenthood, for example, probably has thousands of other trivial acts that are not in the least worrisome, and processes thousands of checks that are wholesome in every respect. Did that person foully swear an oath to fulfill the laws of the state of NY when he was hired? Does he instead foully fulfill that oath by cutting that one check, out of thousands? I would hesitate to say the former: he probably had no idea that 10 years later he would fall into that role of cutting THAT body of checks, his assistant accounting job could have gone any of 300 other directions. I would hesitate to say the latter too, but would just note that IF he is morally obligated to refuse to cut that particular check, then maybe he was morally obligated not to so swear 10 years earlier, because he MIGHT POSSIBLY land in the situation where it was his duty to cut that check.

Or a third option: since "the job" is not, for 99.999 % of jobs out there, "the job of X" where X is immoral as such (i.e. everything except "henchman to the mafia don"), and since "the law" for 99.99 % of the laws out there are not "immoral law Y", can we say that the oath to "uphold the law" implicitly means "to uphold the law, except when that is contrary to higher principle"? Or that the oath is to "uphold the law" but the natural limit is in the fact that "the law" is not really law when it defies higher law?

I don't think even those qualifiers are sufficient to the reality. We know that police are not taken to task for refusing to "uphold the law" when a guy speeds driving his pregnant wife, in the middle of labor, to the hospital, and they do nothing. Yes, he broke "the law". There is no exception written into the law that says "except if she is giving birth". No, the police have not forsaken their oaths by not giving a ticket.

Likewise in all the cases where officials rightly ignore technical violations when pursuing them would actually institute a graver unjustice than upholding the law would prevent. These officials are not guilty of violating their oaths. We don't call them oath-breakers.

Likewise when a judge invokes equity. In jurisprudence, there are courts whose duty is limited to applying "the law", and other courts whose jurisdiction includes BOTH law and equity. The "equity" part of that expression consists, explicitly, in considering factors beyond merely what the law provides, but also what is an equitable result. A court of equity might, for example, change the terms of a contract in order to make it equitable, where a court of law might only be able to uphold or dissolve the contract. What this means, though, is that it is understood that sometimes particular cases come up in which the law does not provide equity, and justice requires stepping somewhere else than the result the law provides. One of the results of this understanding is that some cases, the result is determined (by the judge) to NOT represent precedent: it is not something that other cases can expect to follow.

Given these groups of exceptions to following "the law" (where it is contrary to higher law (divine or natural), or where it calls for an exception as pragmatic application), I think there is sufficient room for a person to take an oath to "uphold the constitution and the law of the state of X" if the vast majority of his or her duties are clearly moral, and few instances are likely to arise of having a "duty" to do something where following the law is an immoral act. I think that implicit in such an oath is enough leeway to allow for the meaning to entail exceptions and limitations, such that refusing to follow the law THAT time does not make you an oath-breaker.

Was the ENTIRE BODY of German soldiers doing an immoral act by taking an oath when they were inducted into the army, given that some modest portion of them were going to be used to to mistreat Jews? Or do we say, rather, that when they were told to do immoral things regarding Jews, they should have resisted? We say the latter, generally. Which implies that taking the oath of obedience was not itself the immoral act they should have been blamed for. (Or at least, not necessarily.)

That's an extremely sane and sensible response, Tony, and I'd be inclined to close with it except for worrying about high-profile evil laws. E.g. The bad guys are just waiting around the corner the minute he's installed in office to come and "catch" the new governor (police chief, etc.) ignoring this high-profile bad law that he knew about, and they knew he knew about. For that matter, he would probably be asked about it on the campaign trail (whatever it was) because his political enemies would know that it would be against his principles to enforce it or act according to it. And then what does one say?

You're running for attorney general in a state that requires doctors to refer for abortions or perform them on pain of, say, fines. The AG is supposed to bring the charges. They ask if you would enforce that law while campaigning. If you say, "No," then they'll ask you how you can swear to uphold the laws. I don't think the questioners are going to buy the interpretation of the oath as, "Well, I assume that most of the laws aren't evil like this one, and I reserve the right not to enforce this evil law." Probably even the conservative base is going to be uncomfortable with that. But obviously you can't say, "Yes" if that's not true.

So it's a conundrum.

Well, there's really two problems there, not one. One is the political problem of getting people to vote for you if you won't fulfill that law. Now, it seems at least plausible that if the majority of the people are in the combined class of (a) really don't like the law, with (b) don't give a hoot either way, then you might get elected even with an explicit platform plank of "and I will never enforce that law." I would say pretty firmly that doing this at least avoids the evil of getting the vote by deception, that people at least know what they are getting. There is a kind of honesty in that.

The second one is the matter of taking the oath and "not following the law". Even for an attorney general, he gets to make policy decisions about where to put his resources, where to emphasize and where to cut corners or just let go. Since he expressly thinks the law there is immoral, he quite legitimately believes spending resources on that kind of prosecution is a waste of time and money, so he can quite legitimately decide to put his efforts elsewhere. And THIS he can state, quite honestly and fairly, in the campaign: "in taking the oath, I will be following the law and prosecuting criminals with my best judgment, what you get when you get me is my judgment about the best way to prosecute to achieve justice within the law. This I will swear to." If this be oath-breaking, then perhaps no man should swear.

Kim Davis is actually in a worse position, because for her the law seemingly actively prescribes that she carry out a specific positive act, it does not merely call for a general class of acts (to prosecute well), and does not merely permit her to act. If issuing marriage licenses was the primary duty of that office, and if Kentucky when it takes up the problem again and resolves it by a specific course of action that STILL imposes on a county clerk to positively perform acts of issuing licenses even if against their conscience, I am not so sure that a NEW county clerk should swear an oath to uphold Kentucky law. She might, perhaps, simply state a different oath and let "the authorities" decide how to deal with her, or take no oath, or state the oath with an explicit reservation (like when a president signs a bill with a stated reservation about its being constitutional.)

"To accommodate the Supreme Court’s marriage edict, Kentucky has amended licenses to read “Party 1” and “Party 2” instead of “Bride” and “Groom.” Why not accommodate Mrs. Davis and others like her?
http://www.nationalreview.com/article/423772/accommodate-conscientious-objectors-same-sex-marriage-editors"

This has been bugging me for awhile, even more so since I have recently married and our marriage license is of the "party 1 and party 2" variety. Why did all the states just have to abandon having bride and groom on their licenses post Obergefell? If two people of the same sex wanted a marriage license, it does not strike me that they have any legitimate reason to complain about one being listed as the bride and the other as the groom. More so, I am not aware of anything in Obergefell that demanded states make this change.

It also annoys me because it strikes me as a lost opportunity to resist Obergefell in spirit even while still technically following it to the letter.

One of the more significant reasons why Kim has displayed real courage is because she is not a sympathetic figure, i.e. she has a checkered marital history and is from a "backwards" part of the country. Nor has she had this all figured out...she just knew she had to resist and did it. I think Dreher's concerns about the optics are valid, yet rather than running from her...this strikes me as more reason to embrace her. Her sincerity shines all the brighter *because* of the "optics".

DR84, I really think that her sincerity is clear, even to those who oppose her objectives: she isn't grandstanding. She didn't do this for publicity, or simply to "make a statement", she really does object to giving her consent to these marriage licenses. The fact that she isn't some polished, triangulating politician is going to be recognized by some people at least for what it is, and they will not project onto her the sophisticated lying of a Hillary Clinton.

I really think that her sincerity is clear, even to those who oppose her objectives: she isn't grandstanding. She didn't do this for publicity, or simply to "make a statement", she really does object to giving her consent to these marriage licenses.

You are wrong to think that many liberals don't doubt her sincerity, and even when her sincerity is granted it is rarely assumed for her lawyers. I'll make my determination when she goes back to work. If she tries to retaliate against her subordinates I'll assume she wants another 15 minutes.

Regarding oaths, there is the passage Matthew 5:33-37 which takes a negative stance on them in general, although it is frequently interpreted to allow for oaths in court and other solemn occasions.

http://www.vdare.com/articles/court-clerk-kim-davis-vs-anti-christian-judicial-tyranny

Pat Buchanan nails it. The time to defy tyranny is now.

Clarification from her lawyer: The licenses being issued right now have removed her name but state that they are issued under the authority of "the Clerk of Rowan county," which is, in fact, Kim Davis. Hence, they are still stating that she authorizes them, when in fact she does not. This is why the problem has not been resolved.

http://dailysignal.com/2015/09/10/whats-next-for-freed-kentucky-clerk-her-lawyer-speaks-out/

Regarding oaths, there is the passage Matthew 5:33-37 which takes a negative stance on them in general, although it is frequently interpreted to allow for oaths in court and other solemn occasions.

I completely sympathize with Christians who refuse to swear any oaths ever, citing this passage. I think that there are some jurisdictions that explicitly make room for these, with rules for those who conscientiously object to swearing oaths. I would have no problem at all with Kentucky (and other entities) providing a rule that says "a person elected to X office shall swear X' oath of office, unless they conscientiously object to swearing oaths, in which case they will simply read statement X'' which says "I will carry out the duties of this office and uphold the laws of Kentucky and the Constitution."

This neither offends Matthew nor does it get a county clerk out of the PROBLEM, which is that of saying they will uphold the law and then not upholding positive law in that one particular. Whether they swear an oath or merely say they will fulfill their duties of office, either way they are saying something that SOME may take to be a lie when, like Kim Davis, they refuse to comply with something that they in conscience cannot follow. My point is that I don't think we should call this behavior "lying" or "oath-breaking". We don't when police and prosecutors look the other way for trivial instances of law-breaking, and we don't when we insist that soldier not only may but MUST disobey orders from duly appointed superiors that to do something intrinsically immoral. I think it must be treated as a different category of behavior than lying. In particular, it doesn't deceive anyone when a person runs on a platform that says "I will never do X" and then swears the oath of office and refuses to do X in office, so "lying" isn't a good name for the behavior.

http://www.theamericanconservative.com/dreher/kim-davis-case-a-religious-liberty-loser/comment-page-3/#comment-7616840

“NFR: I’ve been doing interviews the past couple of days with people engaged in this fight at senior legal and political levels. What I’m learning is that it is hopeless to defend a government official, and all but hopeless to defend private businesses against public accommodation laws. What might yet be defended against nondiscrimination mandates are religious nonprofits (e.g., schools) and licensing agencies (e.g., those who would force people to endorse LGBT as a condition of receiving a permit to work in the profession). As bad as it would be if the government Bob Jones’d religious colleges, it would be even worse if the accrediting agencies withdrew accreditation. They would be sunk. This could happen anyway, but we might yet stop it. — RD”

If this culture war is not all or nothing, Dreher's strategy to concede what has been lost and instead focusing holding on to what we might yet hold on may be wise, at least for the foreseeable future. However, I am not aware that that is the case...and if Kim Davis views are too "bigoted" to be accommodated even when doing so would amount to changing a form, then why should we think traditionally believing churches wont be too "bigoted" to be tax exempt?

Dreher, as I've now said countless times, thinks of himself as a canny strategist, smarter than all these dumb, cliche-ridden conservative, but actually is revealing himself as a man without a chest, a man without imagination, a man without a sense of the historic moment, a man without the ability to admire the admirable. Indeed, the bigotry and snobbery of his own characterization of Kim Davis (the "gangbanger" comparison) was so revolting as nearly to make one gag.

Such a man is not wise. He cannot be wise. He lacks the depth of vision to be wise.

Don't listen to him.

I do think Dreher is *partially* right. He writes about legal spaces carved out for people to exercise their faith freely, even when it contradicts LGBT ideology. It seems plausible that his strategy could keep those spaces open. Churches could still be tax exempt, Christians could still seek professional jobs in medicine, counseling, the law, etc., and schools and other non-profits could continue operating tax exempt and with full accreditation while not hiring openly LGBT identified people. BUT open only for awhile, maybe a generation if that? I cant help but think if Kim Davis is too "bigoted" to accommodated, if Jack Philips is too "bigoted" to be a baker, that it is only a matter of time before these spaces that Dreher thinks we can hold onto while conceding the rest is lost will close. I think you are right he is lacking imagination, this "culture war" is almost certainly all or nothing, and if so...we need people like Kim Davis. If Kim Davis can force an accommodation for her because she did not resign and did not back down, it is going to be so much easier for churches, schools, and other non-profits as well. Of course, and also easier for Christians seeking professions.

Lastly, this war, so to speak, is all or nothing because of the Left/progressive/LGBT activists. I am not aware of any LGBT organization that would openly say that of course churches should not lose tax exemptions, Christian schools should not penalized for not hiring open LGBT individuals, anti-discrimination law should protect employees who hold a traditional view on marriage from getting fired, and all professions should be open to those that do not adhere to LGBT orthodoxy.

Thinking that the liberal (and, in particular, the GLTPCSEQKDCJERK) elites are willing to leave Christians with breathing room, instead of pursuing us tooth and nail, is naive at best. For two reasons. First, in their own explanations of what they are about, they make no bones of the fact that they DON'T think Christian schools should be free to fire or not hire gays, they DON'T think that Christian bakers should be free to decline to serve gays, and in particular they DON'T want to be helpless when churches tell them "no, we won't perform your wedding, we won't treat you as "just like" every other couple." They want the power to force all these (and all Christians) say and think and act as if they are really "just like" any other couple.

But the second reason is the more important. QBLTXNCDFUP didn't come out of a vacuum. It has a source, which is ultimately the Father of Lies. He doesn't want to give the Church breathing room, he wants it destroyed utterly with a stake through its heart and the coffin nailed shut. He will drive BQGTLZQVIKs to do things that are only peripherally of benefit to themselves, to meet his goals, not to make things good for them. There is no point to thinking that the agenda items of the PBJPDQLBG groups are rational or coherent, they defy human nature and thus must of necessity defy reality. Of course they are not wholly intelligible. Evil is like that.

Lastly, this war, so to speak, is all or nothing because of the Left/progressive/LGBT activists. I am not aware of any LGBT organization that would openly say that of course churches should not lose tax exemptions, Christian schools should not penalized for not hiring open LGBT individuals, anti-discrimination law should protect employees who hold a traditional view on marriage from getting fired, and all professions should be open to those that do not adhere to LGBT orthodoxy.

Exactly. As I've said all along, this is a zero-sum game. The analogy to race has made that clear from the get-go.

But again, I want to stress that Kim Davis is right for reasons that go well beyond strategy or any particular possible gain or outcome for the rest of us from her actions.

What I'm really waiting to see now is what she will do next week. She and her lawyers have not said what she will do. The licenses are false. They state that they were issued under her authority (under the description "the Clerk of Rowan County") though she expressly de-authorized them. Now what? What can she do to stop her deputies from giving them out? One deputy has said he'll disobey her if she tells him not to. Neither the judge nor the deputies seem to care much about the serious legal dubiousness of licenses issued under these circumstances. The deputies just want to stay out of jail themselves (except her son), and the judge just wants the symbolism of forcing Rowan County to give out the licenses. If she fires the deputies or orders them not to give out the licenses, she'll be thrown back in jail and the dubious licenses will go out yet again.

The obvious thing, if the governor really believes he can't change the licenses to issue under the authority of the state of Kentucky instead of the County Clerk, is for him to call a special session of the state legislature and ask them to change that aspect of the form.

Meanwhile, I don't know what her best next move is.

I've even toyed with the idea that she insist that her deputy clerks issue a separate paper _with_ each license stating something like, "The information on the license you have received is materially false, inasmuch as it states that the license is issued by the authorization of the Clerk of Rowan County. That clerk, Kim Davis, expressly refuses to authorize the licenses issued at this time, due to a constitutional and legal crisis presently occurring and the intersection of this crisis with her duties of conscience. Accept this license and carry out your further actions at your own legal risk."

And _then_ fire the deputies if they refuse to attach this statement to every "license" they issue.

"Exactly. As I've said all along, this is a zero-sum game. The analogy to race has made that clear from the get-go."

Indeed, and it has seemed to me for awhile now that the analogy is not that holding traditional views on marriage is just as bad as racism, but that it is instead worse than racism.

http://www.slate.com/blogs/xx_factor/2015/08/21/josh_duggar_apologizes_for_being_unfaithful_but_not_for_his_attempts_to.html
"Too bad he won’t own up to his even worse behavior, attacking the private and yes, moral choices other people make about their own lives just because those choices conflict with his religious dogma. "

Josh Duggar has done some very very bad things, and the worst of them is not molesting his sisters, nor cheating on his wife, but is actually his advocacy for marriage. At least according to this person. I have a hunch her views are widely shared among the left/progressive/lgbt activists.

"The obvious thing, if the governor really believes he can't change the licenses to issue under the authority of the state of Kentucky instead of the County Clerk, is for him to call a special session of the state legislature and ask them to change that aspect of the form."

Indeed, how hard can this be? I assume it is both very easy and also not happening, and that the governor would rather Kim Davis be in jail than risk going against the left/progressive/lgbt activists and their supporters who obviously think that a public official cannot allowed to be a public official and not endorse/affirm a homosexual relationship as a marriage.

The governor cited cost as his reason for not calling a special session. Fun fact I've read: This same governor spent large quantities of $$ to hire outside counsel to defend Kentucky's marriage protection law in court when the left-wing attorney general, whose job it would normally be, said that it would go against his conscience to do so!

said that it would go against his conscience to do so!

Then he should follow the sage advice of his ilk and resign.

There's a meme on Facebook about how a CA sheriff has refused over 7,000 CCW permits despite a court ruling otherwise. No contempt of court for her. Kinda makes you think this rule of law thing is a farce or something...

...we don't when we insist that soldier not only may but MUST disobey orders from duly appointed superiors that to do something intrinsically immoral.

For soldiers there is a fairly large and well-defined body of secular international laws which delineate war crimes. A possible tangent would be how far a soldier should go to prevent a nuclear strike which includes a civilian population. Obviously he should avoid seeking out any assignment where he would be involved in enacting a launch, but if he was by misfortune assigned such a duty I'm much more ambivalent about the extent he should try to sabotage the evil mission. Should he kill or incapacitate fellow soldiers who attempt to carry out the order? Act with premeditation to discover a way to cause a malfunction? Or is he limited to only refusing to participate, which is the least problematic morally but also does nearly nothing to stop it?

The obvious thing, if the governor really believes he can't change the licenses to issue under the authority of the state of Kentucky instead of the County Clerk, is for him to call a special session of the state legislature and ask them to change that aspect of the form.

I’m not sure that solves the problem either. From Kim’s perspective her office is still handing out the licenses, so even though it isn’t by her authority she is still "recognizing" they are legally married. If her objection is that they are not in fact or law married I don’t see why she would be agreeable to that accommodation either. More troubling, the proposed solution likely means the governor of a state would gain the right to religiously object and refuse to issue licenses statewide. So any solution that potentially makes the situation far worse is just another part of the problem.

Step2

If you think the proposed solutions are far worse please keep in mind the best solution is that the state should not be recognizing people as married that have no interest in marriage.

DR84
You imagine I will adopt the traditional definition of marriage (minus all the traditions you wish to ignore)? Must be Happy Hour.

From Kim’s perspective her office is still handing out the licenses, so even though it isn’t by her authority she is still "recognizing" they are legally married.

False. Her objection is, and has always consistently been, that it states that the licenses are issued *by the authority of* her office and, specifically, herself, the clerk. She has stated that she would _file_ licenses that were merely paperwork. And she and her lawyers have expressly *asked* the governor to make the change so that the licenses are issued under the authority of the state, not her. So perhaps you should ask her how things look "from Kim's perspective" and take her word for it.

If her objection is that they are not in fact or law married I don’t see why she would be agreeable to that accommodation either.

Because her name and/or title are not used to state that she authorizes and recognizes them as married. This is pretty simple.

More troubling, the proposed solution likely means the governor of a state would gain the right to religiously object and refuse to issue licenses statewide.

From my perspective, that would be a wonderful thing, though highly unlikely ever to arise.

But actually, it needn't refer to the governor. Just "the state of Kentucky."

Step2

No worries, I dont imagine for a moment that you care to have a coherent, principled position on marriage. No one who thinks the state should recognize relationships that are not marriages as if they were does. The point I was getting at is that any perceived problems with accommodating Kim Davis have been caused by an illegitimate and fallacious Supreme Court ruling and not at all caused by Kim Davis.

Lydia,
Her objection is, and has always consistently been, that it states that the licenses are issued *by the authority of* her office and, specifically, herself, the clerk.

And? There is the obvious reason she doesn't believe she should issue them. Either she thinks the couples are qualified to be legally married or she doesn't. That is the relevant principle. If she believes her personal religious beliefs were somehow implicated in endorsing any of her previously issued licenses then she is misinformed about that aspect of her job, she isn't a minister acting as God's agent she is the state's agent to determine legal qualifications. Her state authority is necessarily transferable and temporary, meaning her religious liberty appeal can only be based in her rights as a citizen instead of the authority of her office. She has no legal grounds for claiming all future office holders are exempt from issuing licenses, only herself in her capacity as a citizen.

She has stated that she would _file_ licenses that were merely paperwork.

What a strange disconnect this is, if somebody else authorizes an action it becomes completely trivial (and can be communicated freely) rather than being an intrinsically immoral act when she authorizes it.

DR84
Such strong rhetoric, must stay awa...zzzzzzzzzzz.

What a strange disconnect this is, if somebody else authorizes an action it becomes completely trivial (and can be communicated freely) rather than being an intrinsically immoral act when she authorizes it.

The "authorization" with her name on it, the statement that this license is authorized _by_ her, is a statement that _she_ is treating the couple as eligible for marriage and is using her authority to bring about that state recognition. To file paperwork stating that someone _else_ designates these people as married is to make no statement whatsoever about the reality of their marriage.

By the way, Step2, I'm waiting in 3...2...1 for you to repent of having cast aspersions on her sincerity above. Your statement was that you would base your decision about her sincerity on whether or not she took any action against her deputies when she returned. As you see, she has not and has radically revised the form. But I'm hearing crickets from you as far as, "Okay, now I agree with all of you, she's sincere in her objections."

Your statement was that you would base your decision about her sincerity on whether or not she took any action against her deputies when she returned.

I kept it open as a possibility because I'm cynical about most people most of the time but if you think I was casting aspersion then sure, I agree with all of you that Kim's objections are sincere.

The "authorization" with her name on it, the statement that this license is authorized _by_ her, is a statement that _she_ is treating the couple as eligible for marriage and is using her authority to bring about that state recognition.

Which is another way of saying she doesn't think the couple is qualified to be legally married. See next comment for why her proposed solution doesn't make sense.

To file paperwork stating that someone _else_ designates these people as married is to make no statement whatsoever about the reality of their marriage.

Except she is in charge of a government office which files, secures and produces legal documents. Whether or not she agrees with the reflections of reality within those documents, if she is convinced those documents are legally invalid she should not be filing them under anybody's authority. If she believes they are necessarily fraudulent she is becoming a party to the fraud by treating it as a valid legal document.

She certainly thinks they are metaphysically fraudulent. There is enough distance between saying these people are married yourself, being involved in actually constituting their civil marriage, and filing a form that says that somebody else says that they are married that the distinction between the statements of positive law and metaphysics could be relevant to the latter but virtually irrelevant to the former. If *I* am stating that they are married and, in fact, bringing about their civil marriage, then *my* views on the essence of civil marriage are relevant. If, on the other hand, I'm just acting as a custodian for documents someone else ratified which fulfill the forms of civil law but are falsely ratifying as married a relationship that cannot metaphysically be marriage, then I need not be a party to that ratification.

Of course, it is typical of liberals that they try to make up their own principles that would be more radical than those conservatives stand on and then tell conservatives that what they are doing "doesn't make sense" unless they embrace the more radical claim. We're familiar with this kind of concern trolling from away back. For example: "If you really believe that the unborn child is a person, you should require all women of childbearing age to have mandatory pelvic exams from time to time to see if they are pregnant." "If you really believe that the unborn child is a person from conception, you should demand a funeral with a coffin for every miscarriage." And so forth.

Yours is just another version of the same: "If Kim Davis really believes it's metaphysically impossible for two men to be civilly married, then she is obligated to refuse not only to ratify the paperwork with her authority that says they are but even to file and store a legal document ratified by someone else that says that they are."

You can make this stuff up all day long, but you can't make it convincing. And in this case, it isn't.

"If you really believe that the unborn child is a person from conception, you should demand a funeral with a coffin for every miscarriage."

I don't recall reading that claim before but my sister and my cousin both had miscarriages and it seemed to leave emotional scars for years afterward. In that respect a funeral could be a good idea simply because it may provide better closure and faster recovery, although it shouldn't be mandatory.

Back on topic, to borrow from my previous example it would be like the agent who carries the nuclear football claiming he has no responsibility for the result when it is used since he didn't authorize anything, he only provided the resources for the authorization to be transmitted. His supposedly insignificant role (he's only a custodian after all) is easily crucial to the entire mission.

I keep my marriage license in a filing cabinet in the basement. This is how I was able to produce it to get a driver's license in a new state in my married name. It never occurred to me to think that a clerk who does nothing but put an extra copy on file in the county in which I was originally married is "crucial to the mission" of having my marriage recognized in other contexts. I think you're straining. Presumably Kim Davis would think so, too.

The obvious thing, if the governor really believes he can't change the licenses to issue under the authority of the state of Kentucky instead of the County Clerk, is for him to call a special session of the state legislature and ask them to change that aspect of the form.

Initially, I was puzzled about whether this is actually true, that the governor cannot change the form. (Not that the governor "thinks" he cannot change the form.) I will bet that the governor feels perfectly free to make OTHER changes to the license, such as changing "bride" and "groom" to "spouse 1" and "spouse 2", and so on.

Here is the actual law about who issues the license:

No marriage shall be solemnized without a license therefor. The license shall be issued by the clerk of the county in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person or by writing signed by her, in which case it may be issued by any county clerk.

More interesting, though, is the law prescribing the license:

(1) Each county clerk shall use the form prescribed by the Department for Libraries and Archives when issuing a marriage license. This form shall provide for the entering of all of the information required in this section, and may also provide for the entering of additional information prescribed by the Department for Libraries and Archives. The form shall consist of:

(1) A marriage license which provides for the entering of:

(a) An authorization statement of the county clerk issuing the license for any
person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named;

(b) Vital information for each party, including the full name, date of birth, place of birth, race, condition (single, widowed, or divorced), number of previous marriages, occupation, current residence, relationship to the other party, and full names of parents; and

(c) The date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license.

(2) A marriage certificate which provides for the entering of:

(a) A statement by the person performing the marriage ceremony or the clerk of the religious society authorized to solemnize the marriage ceremony that the ceremony was performed. The statement shall include the name and title of the person performing the ceremony or the name of the religious society solemnizing the marriage, the names of persons married, the date and place of the marriage, and the names of two (2) witnesses;

(b) A statement by the person performing the marriage ceremony of his legal qualification under this chapter to perform the ceremony, such statement to include the name of the county or city where his license to perform marriage
ceremonies was issued or, in the case of religious societies authorized by KRS 402.050(c) to solemnize marriages, the name of the city or county where the religious society is incorporated. The provisions of this paragraph shall not be construed to require the clerk of a religious society to be present at the marriage so long as the witnesses of the society are present;

(c) A dated signature of the person performing the ceremony; and

(d) A signed statement by the county clerk or a deputy county clerk of the county in which the marriage license was issued that the marriage certificate was recorded. The statement shall indicate the name of the county and the date the marriage certificate was recorded.

(3) A certificate to be delivered by the person performing the marriage ceremony or the clerk of the religious society performing the marriage ceremony to the parties married. This certificate shall provide for the entering of:

(a) A statement by the person performing the marriage ceremony or the clerk of the religious society performing the marriage ceremony that the ceremony was performed. The statement shall include the name and title of the person performing the ceremony, or the name of the religious society performing the ceremony, the names of persons married, the date and place of the marriage, the names of two (2) witnesses, and the following information as recorded on the license authorizing the marriage: the date the license was issued, the name of the county clerk under whose authority the license was issued, and the
county in which the license was issued; and

(b) A dated signature of the person performing the ceremony or the clerk of the religious society performing the ceremony.

It is particularly significant that the law actually specifies that the county clerk is authorizing the wedding minister to perform the marriage ceremony. And it is clear that even if a deputy signs the license, it is "issued under her authority". The fact that a deputy can be an agent of the license doesn't release the clerk from responsibility too, insofar as she delegates her authority to a deputy. I don't see any way around Davis's thesis that she really is responsible, in a moral sense, for authorizing a wedding when the licence is issued under her authority, which act is what authorizes a wedding minister to perform the marriage ceremony. Which REALLY DOES imply a significant difference between when she acts as an authorizing agent in issuing one, versus merely acting as a recording agent when some OTHER county clerk issues a license in another county and she merely records that it happened in her county.

And to my eyes it really does seem unlikely that the governor can change that aspect of the license process (even if he can order the Department of Libraries and Archives to change the form in various ways). But he certainly can call a special session of the legislature to change the law.

I would also strongly urge Davis's lawyers to pursue the judge on violation of both the federal and state religious freedom laws, since it is manifestly true that ANY county clerk is authorized to issue a license for ANY couple over 18, there is manifestly a less religiously offensive way of effecting the law than demanding of THIS clerk that she issue a license violating her religion. I would particularly aim for state court, since those judges might feel a little miffed about having their authority to speak to state law short-circuited.

I always found it interesting that the judge decided on his own that the _county_ level was the one at which to "enforce" Obergefell. The Obergefell decision, as far as I know, never got into the nitty-gritty details of how much access homosexuals must have to marriage licenses, whether at the county or the state level, etc. If every couple in Kentucky had to travel to the state capital to receive a marriage license, how would that "violate" Obergefell? Kim Davis's action merely meant that any couple in Rowan County had to travel to the next county for a marriage license. It also meant that "couples" who were deliberately coming from outside of the county to "make a statement" wouldn't get what they wanted. Why did Obergefell mean that every county must offer same-sex "marriage" licenses, or any marriage licenses at all?

The judge pretended that his hands are somehow tied by Obergefell, but they aren't. He simply _decided_ that Obergefell meant that everybody had to have access in all counties of any state.

Of course, now what they are getting in Rowan County is arguably phony licenses, which is kind of amusing, in a dark way. If I had friends or relatives who were going to be really married during this period, I would definitely suggest they go to a different county for their license.