Justice Kennedy: Kim Davis should resign

In an event at Harvard Law School last week, Supreme Court Justice Anthony Kennedy — the justice who wrote the majority opinion in Obergefell v Hodges — suggested that public officials who feel that they cannot fully execute their jobs under the ruling should resign.

From ThinkProgress:

Anthony Kennedy, via Wikimedia Commons

Anthony Kennedy, via Wikimedia Commons

Kennedy’s remarks came in response to a question from a student who described himself as someone who thinks “that rational norms guide the exercise of sexual autonomy.” The student asked whether public officials who disagree with the Court’s decisions on marriage equality or abortion have “authority to act according to her own judgment” of whether the Court’s legal reasoning was sound.

After alluding to the fact that very few judges resigned from the Nazi German government, Kennedy offered his endorsement to officials who do quit when asked to do something they find morally repugnant. “Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong, in order to make a point,” Kennedy told the Harvard audience.

He qualified this remark, however, by adding that “the rule of law is that, as a public official in performing your legal duties, you are bound to enforce the law.”

So while Kennedy’s comments seem somewhat sympathetic to the concerns held by Kim Davis, et al, who feel fundamentally unable to execute the current law of the land as it pertains to marriage, those concerns do not absolve them from their duties. They can either suck it up and do their job, or they can resign in protest of what they feel is an unjust law.

In other words, they can do exactly what the rest of the country has been telling them to do this whole time.

And here’s the thing: As Justice Kennedy said, there is a great deal of respect to be afforded to those who resign their jobs in protest over decisions they disagree with. Had Kim Davis simply stepped down, we may have disagreed with her baseline belief that same-sex marriage is immoral, but we would have respected her decision to get out of the way and let those marriages take place.

Here is the relevant exchange at the event:

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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9 Responses to “Justice Kennedy: Kim Davis should resign”

  1. BigHobbit says:

    Equal rights and justice for all. True American values. If your religion prevents you from acting accordingly in your govt job, you need to resign.

  2. mf_roe says:

    I accept that religion molds believers values, but I reject the argument that because I believe in Purple Unicorns ” anything” that I have an opinion on is totally protected by the fact that I believe——anything. It is the tolerance of the group and what it is willing to abide by, not the individual, that rules. If you don’t like the group accommodation , leave, mind the door.

  3. BeccaM says:

    I love the way you structured that progression towards inevitable religious repression.

    I’d only add how ‘religious beliefs’ has expanded to include just about anything a person wishes to assert as a belief and what’s deemed to be necessary actions in support of it. I mean, the Catholic Church opposes same-sex marriage, but their leaders aren’t ordering the faithful to fire gay and lesbian employees in defiance of civil law or to turn gay couples away from places of business. I’d wager nobody but Kim Davis was involved in her decision to keep her job AND defy the law and the courts.

    What I think it’s come down to is the intolerant are so keen to express their disapproval of other people and other people’s lives, they truly don’t care about being perceived as assholes.

  4. Don Chandler says:

    Or religious practice morphing into religious coercion.

  5. SkippyFlipjack says:

    What’s annoying is this moving of the goalposts over the last several years where “religious practice” has morphed into “religious beliefs”, something reinforced by the language of the various state Religious Freedom acts. “My religion says I can’t wear plaid” became “my religion says I can’t buy plaid for anyone else” became “my religion says I can’t lend money to anyone if they’ll use it to buy plaid” became “my religion says I can’t be civil to anyone who wears plaid” and finally “my religion says that my name can’t appear on the same piece of paper as the word ‘plaid’ because people might think I condone plaid.” Somehow if people can be allowed to think you tolerate something, that’s the same as being forced to engage in it. What?

    Religious freedom is freely granted because it’s important but also because it governs personal conduct. Your religion says you must wear plaid on Thursdays? OK, do it. Your religion says don’t be gay? OK, don’t, and if you’re gay see how that works out in the end. But this rather new idea that being a dick to others is protected seems ridiculous, and trivializes those religious protections. At some point society needs to push back (and that seems to have happened in the case of Kim Davis, courtesy of the courts.)

  6. Don Chandler says:

    Maybe Scalia thought he was talking about Scalia resigning because of the ******* death penalty.

  7. BeccaM says:

    That is indeed the entire point. No one should be forced to do a job they feel — for whatever personal reasons — they simply cannot do. But this same person shouldn’t be allowed then to prevent others from doing it, which is what Davis has been demanding. It wasn’t enough for her to have a problem with the Obergefell ruling, Davis commanded all of her employees to enforce her beliefs as well, even though it resulted in them also breaking the law. (Case in point, ordering the deputy clerks not to sign marriage forms using their name and title as deputized county clerks, but merely as notaries public who, under Kentucky law, have no authority at all regarding marriage licenses.)

    There was a similar spate of cases after the Loving v. Virginia ruling, where public officials refused to obey the law and the ruling and refused to issue and/or process marriage licenses for mixed-race couples. Every single time, they ultimately lost in the court challenges, eventually were faced with the choice “do your job, all of it, or resign.” There is no “but I don’t agree with the law, so I’m gonna ignore it” option, not without consequences.

  8. SkippyFlipjack says:

    Asked for comment, Scalia said in an emailed statement “Kennedy thinks officials should resign, he should ******* resign, that ******* old ****. He can ******* take his ******* **** and stick it in his ******** **** that ******* ************.”

  9. The_Fixer says:

    It’s nice to hear sane thoughts form a thoughtful Justice rather than having to endure the inanity of The Scalia.

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