OPINION

Former U.S. Attorney General Alberto Gonzales: Kentucky clerk needs to follow the law

Supporters of Rowan County Clerk Kim Davis hold up signs in support of her, outside the Carter County Detention Center, Saturday, Sept. 5, 2015, in Grayson, Ky. Since the U.S. Supreme Court legalized gay marriage in June, the vast majority of officials have abided by that ruling. However, Davis stopped issuing marriage licenses to any couple, gay or straight, in defiance of a federal court order, and was sent to jail on Thursday. (Joe Gerth/The Courier-Journal via AP)

Supporters of Rowan County Clerk Kim Davis hold up signs in support of her, outside the Carter County Detention Center, Saturday, Sept. 5, 2015, in Grayson, Ky. Since the U.S. Supreme Court legalized gay marriage in June, the vast majority of officials have abided by that ruling. However, Davis stopped issuing marriage licenses to any couple, gay or straight, in defiance of a federal court order, and was sent to jail on Thursday. (Joe Gerth/The Courier-Journal via AP)

The U.S. Supreme Court decision in Obergefell v. Hodges, holding that States may not ban same-sex marriages, has been characterized as lawless and without constitutional foundation by certain state and local officials and presidential candidates. Kentucky county clerk Kim Davis has now gone to jail for defying a federal court order and refusing to issue marriage licenses to same sex couples.

Rather than encouraging public officials to defy the Court, those leaders who disagree with the Court’s decision should continue to encourage discussion, promote greater outreach to establish helpful coalitions and work to build stronger public support for religious liberty.  They will need it.

- Hon. Alberto Gonzales

While a state may choose to excuse a public official from issuing a marriage license to same-sex couples, and even provide protection for those public officials who for religious reasons are uncomfortable issuing a marriage license, it may not choose to refuse to issue such licenses to same-sex couples if it is otherwise issuing marriage licenses.  Following the Obergefell decision state and local governments have to treat same-sex couples the same as they would any other couple.

The frustration over the Court’s decision was predictable. However, it is one thing for a private citizen, or religious institution, such as a church or school, to refuse to do something because of religious reasons. It is a different matter for a government official, sworn to uphold the law, to refuse to discharge their public duty based on their personal beliefs and deny another individual their fundamental rights.  

Additionally, it is one thing for a government official to refuse to enforce or abide by a regulation, ordinance or statute because of that official’s good faith belief it violates the Constitution. It is a different matter for a government official to refuse to abide by a constitutional ruling of the U.S. Supreme Court or to encourage others to defy it.

It is true that nowhere in the Constitution does it say that the Supreme Court is to have the final say as to its meaning. It was Chief Justice John Marshall who famously declared in Marbury v. Madison (1803), “It is emphatically the province and duty of the judicial department to say what the law is.” This has been almost universally accepted for over 200 years. Nevertheless the Court’s standing as an institution is dependent on the public respect for its decisions. Without respect there is no obedience, and without obedience there can be no rule of law. 

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When the U.S. Supreme Court struck down school segregation in Brown v. Board of Education (1952) there was local resistance that necessitated additional court action, as well as enforcement by the federal government to tear down the wall of “separate but equal.”  Likewise when the Court in Loving v. Virginia (1967) held that Virginia could not ban interracial marriage, there was resistance in several southern states to issuing marriage licenses to inter-racial couples. This too was met with federal court intervention and federal executive enforcement action. In time of course, the resistance waned in both cases and ultimately failed.  Whether resistance to the Obergefell decision is more than just talk remains to be seen.  What is not in doubt is that lower courts are bound by the decision and federal judges must follow it. Furthermore, the Obama Administration will most certainly mobilize the vast resources of the federal government to see that the Court’s decision is respected.

Rather than encouraging public officials to defy the Court, those leaders who disagree with the Court’s decision should continue to encourage discussion, promote greater outreach to establish helpful coalitions and work to build stronger public support for religious liberty.  They will need it.

The Obergefell decision has set the stage for a number of legal challenges related to religious liberty, including the obligation of private churches and individuals to recognize and perform same-sex marriages, and the tax-exempt status of religious organizations that choose to discriminate for religious reasons on the basis of sexual orientation.  The right to marry and the right of religious freedom are fundamental but neither is absolute. How our federal courts will balance and respect these competing fundamental rights going forward remains to be seen. Critics of the Obergefell decision would be better served focusing on these upcoming battles.

Many Americans were disappointed that a majority of the Supreme Court chose to redefine marriage and to take this issue out of the hands of the people. However, now that this question has been decided, at least for the foreseeable future, federal, state and local public officials who take an oath to support and defend the Constitution of the United States have a responsibility to see that this decision is followed. Public officials may certainly voice their disagreement and even be openly critical of the decision. After all, the Court has made mistakes before and has had to reverse itself.  

It would seriously undermine the rule of law if an American citizen can be denied a fundamental right by the deliberate acts of public officials and have no recourse. To the extent there is ever resistance to a decision by the Supreme Court it should come in a manner consistent with the rule of law.

Alberto R. Gonzales is the former U.S. Attorney General and White House Counsel in the George W. Bush Administration. Presently he is the Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.  

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