Justice Anthony Kennedy is reported to have suggested that Kentucky County Clerk Kim Davis should resign. In an October 26, 2015 article entitled "WATCH: Justice Anthony Kennedy Implies that Kim Davis Should Resign," published in the Advocate, a pro-LGBT organ, Trudy Ring reported that Justice Kennedy “suggested that public officials who object to [Obergefell] or other legal mandates should resign.”
The Justice was speaking at Harvard Law School in October when he reportedly was asked a question by a student about whether public officials can legally decline to enforce such novel interpretations that have morphed into law. Kennedy responded, inter alia, that “it would be difficult for me to say that people are free to ignore a decision by the Supreme Court.”
Simplistic “either-or” questions invite simplistic “black-and-white” answers. However, the issues of where and how to strike the balance between the claims of individual conscience and those of public duty, often are very complicated.
It was very disappointing that Justice Kennedy’s reported answer failed to acknowledge or make any mention of respect for or protection of the rights of those who have strong religious or moral objections to judicial-created rights such as the right to same-sex marriage. Recognition for newly-minted constitutional rights such as same-sex marriage does not require disregard for the long-established constitutional rights of conscience of those who cannot in good faith adherence to their deeply-held religious or moral values support the new judicial invention.
Of course, commitment to the “rule of law” is critical for the preservation of our republican democracy. Certainly, our constitutional system of government generally requires public officials to enforce laws and policies with which they personally disagree – up to a point.
However, the very important duty to enforce the laws is not absolute. It must be balanced with the protection for the individual rights of public employees to follow their own conscience, values and core beliefs. The First Amendment provides powerful protection for rights of religious belief and conscience – even for public employees. Public employees do not have to “park their deeply held religious beliefs at the curb” when they come to work.
Our constitutional system protects the rights of individuals with minority, unpopular, or other policy positions that have become superseded by new laws and rulings to keep, express and try to live in accordance with their beliefs. Even in times of national crisis and war, our nation has protected the rights of conscientious objectors to refrain from engaging in conduct that violates deeply-held religious beliefs.
In the case of Kim Davis, our constitutional system provides a way to respect both the rights of same-sex couples to exercise their newly-minted constitutional right to marry and also to respect the constitutional rights of persons with deeply-held religious or moral values against same-sex marriage. The solution is reasonable accommodation.
When another official or employee is available to provide the controversial service or product (like a license for same-sex marriage), someone with strong religious objections to doing so should not be forced to act in violation of his or her deeply-held beliefs. When another official or employee can provide the service the rights of both the same-sex person or couple and the rights of the public employee with strong objections to facilitating same-sex marriage can be protected.
When Kim Davis sought and obtained her office same-sex marriage was not legal. Now the law has changed. Does that change in the law require that she betray her beliefs or forfeit her public position? Not necessarily.
The public office must follow the new law and make marriage licenses available to same-sex couples. But that does not mean that any particular official or employee working in the public office who has strong, religious objections to same-sex marriage must act to facilitate same-sex marriage even if doing so violates their duties of faith. They generally can step aside and let another official or employee serve the person or couple seeking the controversial service – issuance of a license to marry a same-sex partner, in this case.
Justice Kennedy’s answer to the question at Harvard Law School was deficient in failing to include any reference to respecting the rights of minorities to reasonable accommodation. Certainly, judges and justices should themselves model commitment to the “rule of law” in their actions, decisions, rulings opinions and public expressions. Likewise, they should also clearly model and express respect for and reasonable accommodation of the rights of minorities. Justice Kennedy’s failure to acknowledge the principle and role of reasonable accommodation in his reported discussion at Harvard Law School of public duties re: same-sex marriage was disappointing.
(It also seems to be somewhat hypocritical for justices to ignore the separation of powers embodied in our Constitution while asking the people of the nation to accept their judicially-mandated creation of unwritten new “rights” which override the values and policies enacted properly by the people or their democratically chosen lawmakers. But that is another discrepancy altogether.)
America has never been a “my-way-or-the-highway” kind of nation. Rather, our Constitution clearly protects the rights of persons with minority viewpoints to hold, keep, express and to try to implement those minority positions into law. Our constitutional legal system protects and fosters the adversary method in which diverse viewpoints constantly compete for public support and legal codification.
However, if our system has become an “either-or” system, perhaps it is Justice Kennedy rather than Kim Davis who should resign. Fortunately, reasonable accommodation makes room for divergent views to co-exist. The tension between such competing positions enriches our nation and protects the liberties of all of its people.
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University. He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.