Appealing to a higher authority.

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Kentucky Clerk's Contempt Is Different

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Kim Davis, the Kentucky county clerk who refused a federal judge's direct order to issue marriage licenses, was freed from jail Tuesday. But some conservatives have questioned why she was there in the first place, comparing her stand with that of President Barack Obama, who says he won’t deport some immigrants in the U.S. without legal authority; with the noncooperation of "sanctuary city" mayors with federal immigration authorities; and with the refusal of California Governor Jerry Brown to defend Proposition 8 when it was challenged in federal court.

These public officials, the conservatives point out, refused to follow the law. Yet they are not only free, but also lauded by liberals. This charge of hypocrisy requires a serious response.

The easy part is to explain why these other officials don’t end up in jail: They haven’t refused to follow a court order. Davis was specifically commanded by the federal district court to do her job, and issue marriage licenses to same-sex couples, or resign. It may be bad policy for a judge to order Davis jailed rather than, say, ordering her to pay a fine. But the judge is within his discretion to do what it takes to see the law enforced. If he’d ordered a fine and Davis hadn’t paid it, he would’ve have had to jail her anyway.

Even Alabama Chief Justice Roy Moore, who instructed state officials to ignore the judgment of the U.S. Court of Appeals for the 5th Circuit that gay marriage was a constitutional right, never expressly told the Alabama officials to disobey an order directed at them individually. (Moore himself had disobeyed a court order to remove a Ten Commandments monument he ordered erected in front of the state Supreme Court the last time he was chief justice. That resulted in his being fired from the job.)

The more challenging explanation is to distinguish the conservatives’ other comparisons. Start with Obama’s immigration order. As a disclosure: I’m not crazy about its constitutional implications. The president has a constitutional obligation to “take care that the laws be faithfully executed.” Announcing that he won’t enforce the law in its entirety is therefore troubling. A federal judge in Texas has frozen Obama’s deferred action plan, and the 5th Circuit upheld his stay order.

Nevertheless, there’s a major difference between Obama’s immigration plan and Davis’s refusal to issue the licenses: No one’s individual rights are being violated by Obama’s plan. Suppose the Obama administration wins the court case, and implements the plan. Who, exactly, will have been harmed? No one. The most you could say is that perhaps some Americans might have to compete in the job market with a marginally expanded employment pool.

In contrast, Davis’s actions are directly blocking real American citizens from exercising their right to the due process of law and the equal protection of the laws as understood by the U.S. Supreme Court. Every moment that their rights are denied, they’re subject to real constitutional harm.

And to be sure, Obama very likely won’t lose if and when his immigration plan makes it to the high court. Everyone acknowledges that, in enforcing the law, the executive must have discretion. Not every criminal is prosecuted, and not every undocumented person is deported. It’s simply not a practical possibility. Consequently, you have to admit that the president’s duty under the so-called take care clause of the Constitution isn’t to deliver 100 percent  enforcement. That leaves the question of whether the president can openly state the priorities he will use in enforcing the law. It’s hard to defend proposition that he shouldn’t be allowed to announce priorities that he’s clearly permitted to set.

The mayors of sanctuary cities are in an even better situation. (Sometimes city councils are involved, too.) True, they have to uphold federal law. But they don’t have to enforce federal law, at least not unless they’re given the resources to do it. The Supreme Court has held that the federal government cannot “commandeer” state enforcement resources. Local officials are simply saying that they won’t spend a cent of their budgets or a second of their public officials’ time enforcing federal immigration law. Conservatives should actually like these mayors for their aggressive assertion of states’ rights.

That leaves Brown’s refusal to defend Proposition 8, the 2008 California constitutional amendment that banned same-sex marriage, which he considered to be an unconstitutional violation of equal protection for gay people. What, legally, should a state governor do when a public initiative that circumvented the state legislature and his signature becomes law? Follow his oath, that’s what. Brown’s oath required him to uphold California law and the Constitution of the United States. Brown judged that Proposition 8 violated the Constitution, which overrules California law.

He was right -- eventually, the 9th Circuit agreed with him, and the Supreme Court refused to hear the case. But the key point is that when Brown refused to defend the law, no court had obligated him to do so -- and the highest court in the land hadn’t spoken.

Davis is arrogating to herself the authority to disobey not only the federal district court but also the Supreme Court itself. It should be obvious that no legal system can operate without an identifiable final judicial authority. Before the Civil War, the Confederate states insisted that they were justified in interpreting the Constitution to allow secession. Davis’s claim is in the same tradition -- but it’s even more preposterous. The seceding states, after all, held state constitutional conventions to ratify their decision to secede. Davis is one person. She can’t even claim to speak on behalf of a state or states’ rights. She’s speaking on behalf of her own opinion.

No serious conservative can really believe every public official should have the right to define the Supreme Court’s interpretation of fundamental liberty. Let me borrow a phrase: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

That’s a direct quote from an 1879 case called Reynolds v. Sims. But the modern case that cited it was 1990's Employment Division v. Smith. The author? Justice Antonin Scalia. Conservative enough for you?

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net