Conscientious Objections to Following the Law

There is one aspect of the Kim Davis situation that is not getting enough attention.  Let’s suppose that you think that officials like her should be given an exemption from following a law that they think is very wrong on religious grounds. Wouldn’t that mean that religious people would be less likely to get elected or chosen for public office?

Under the exemption scenario, the public or the appointing official would have every right to inquire about the religious beliefs of the candidate or applicant.  Now, of course, a candidate could say “My religious views would not affect my public duties” or “I will always follow the law.”  But people might not believe these statements, or just may be less inclined to take a chance on openly religious people.  Thus, I would think that creating or extending such an exemption would actually harm religious folks who want to serve.

 

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25 Responses

  1. AP says:

    Americans prefer candidates with imaginary friends. I would argue that many Americans are wiling to take a chance on openly religious candidates, so long as they are Christians. People believed Kennedy when he downplayed the influence of the Catholic church on his duties as president. People even overlooked Romney’s faith, which was labeled a cult in my undergraduate religions course. Time and time again, Pew research finds that atheists and muslims are at a significant disadvantage when it comes to getting elected, especially in red states. So, being “openly relgious” is not necessarily an impediment. It wouldn’t surprise me to see a DAVIS FOR GOVERNOR bumper sticker the next time I’m cruising the Bible belt.

  2. Joe says:

    People clearly take chances with “openly religious” candidates since so many are just that & do fairly well. The concern here is that when we provide them a pass from enforcing the law based on religious belief it can be problematic. I also see various people talking about “imaginary friends” or some other at times little digs at theism. (fantasy friend in the sky etc.) That’s nice but not believing in some god or such is not always a guarantee if even keeled rational thinking either. Many voters don’t prefer that in various ways.

  3. AP says:

    Joe, I meant no offense, only that I question the logic of this post, which seems to suggest that (1) if exemptions are permitted, religion is in the spotlight and (2) If religion is in the spotlight, then openly religious candidates will have a hard time getting elected. For one, I would argue that in the United States, a candidate’s religion is always in the spotlight. The existence of exemptions would certainly add interest, but the interest already exists. Second, empirical research suggests that certain religious affiliations actually help a candidate get elected, or at the very least, don’t hurt their chances, all else being equal.

  4. Shag from Brookline says:

    AP’s ” … so long as they are Christians.” does not seem to reflect the spirit of the religion clauses of the 1st A, or the letter.

  5. Joe says:

    AP, no offense taken. The last part of your reply only underlines my concern — it is not that there is a “religious affiliation” — there is if anything clearly a bias to having candidates have one — but the added idea that a candidate can refuse to do part of his or her job because of their religious belief. That part of things is not really generally an issue in elections and if it was, it can be a negative thing.

  6. Brett Bellmore says:

    I think there are some ‘laws’ that the public would just as soon elected officials violate, because they weren’t democratically enacted, but instead are the result of judicial fiat. Kim Davis stands a good chance of being reelected as a result of her stand, because it’s a stand against a ‘law’ the people had no say about being imposed upon them. Kentucky had both statutory and constitutional prohibitions on SSM, both democratically enacted.

  7. Shag from Brookline says:

    Brett’s: ” .. because they weren’t democratically enacted, but instead are the result of judicial fiat.” suggests his views of Brown v. Bd. of Educ. (1954) which he not so subtly continues to allude to in his trolling here and at other blogs.

  8. Brett Bellmore says:

    Shag, you’re not exactly subtle when it comes to your determination to accuse people who disagree with you on even utterly non-racial matters of racism.

    Brown was a perfectly reasonable interpretation of an amendment which was right on point. The 14th amendment was adopted specifically to prohibit governmental racial discrimination, and that’s what the Court did in Brown.

    By contrast, Obergefell is an almost perfectly unreasonable interpretation of an amendment which not only wasn’t written and ratified to make the failed ERA redundant, but which would never have been ratified in the first place if people had thought it meant what the Court now claims it means.

    Obergefell is just an exercise in judicial bad faith, the judiciary imposing it’s views of what the Constitution ought to mean on the rest of society, and never mind that the democratic elements of the government had already rejected the proposed change.

    And it’s this regardless of what you might think of the policy merits of the change. Constitutional change must be accomplished through Article V, not through judges engaging in sophistry like this.

  9. Joe says:

    Brett argues that Brown is ‘reasonable’ while Obergefell was not. But, his “a ‘law’ the people had no say about being imposed upon them” was used there too in some form by people against Brown v. Bd. Suffice to say, THAT part of Brett’s comment probably set Shag off. I personally think all three rulings were right in result myself. As to the people rejecting the proposed change, the idea people three decades ago didn’t pass the ERA — when the ruling wasn’t even decided on sex discrimination — is of limited value. This apparently means if the First Amendment wasn’t ratified, many thinking it unnecessary, Congress DID have the power to do all those things. Strange.

    Some think D.C. v. Heller was wrongly decided. It overturned a democratically passed law many thought was constitutionally sound & that if people wanted a different “law of the land” that Art. V provided a means for it. By “judicial fiat,” 5-4, the USSC held otherwise. Since the 1790s, however, the rule of law included following court interpretations of the U.S. Constitution the people felt was wrong. Likewise, state officials are particularly given the duty to swear or affirm to uphold the “law of the land,” including as interpreted by the federal courts. Civil disobedience against every ruling some clerk finds problematic seems problematic to me, but if Brett et. al. supports that sort of thing, that’s their choice.

    The people do have a say though. They voted for Reagan (Kennedy), Clinton (Ginsburg/Breyer) and Obama (Sotomayor and Kagan) who appointed the justices (and lower court and state court judges who voted this way) and the senators who confirmed them. “We the People” voted for people who wrote and ratified the Constitution. This includes the provisions where judges interpret state law that violates its terms & state officials have to carry out their findings. The people voted for Obama, who played a big part in the process here. The people vote for those who can propose new amendments to change the Constitution.

  10. Joe says:

    One more thing … the approach used in the majority opinion, and to some degree by justices in the dissent too (at least some of them), is to apply constitutional terms in part by changing understandings of the facts on the ground, including by looking at societal law and practice. We the People as a whole had a role in the result here by acceptance of same sex couples having rights. Again, nothing novel about this, common understanding and practice one way used to apply the law from the start.

  11. Brett Bellmore says:

    There weren’t any changing understandings. In fact, there were a considerable number of laws and constitutional amendments passed to underline that the understandings hadn’t changed.

    All that happened was that the political/legal elite decided they were going to legalize SSM regardless of what the people thought about it, and judges took point because they didn’t have to worry about losing elections. That’s all, just another piece of democracy dying.

  12. Shag from Brookline says:

    Brett’s: ” … and judges took point because they didn’t have to worry about losing elections.” seems to challenge the Constitution’s Article III although he ignores his concerns when the Court’s conservatives decide cases.

  13. Shag from Brookline says:

    Brett indicates he’s all in with Brown v. Bd. of Educ. (1954). I don’t know if Brett had been born by the or when Brown was being implemented, so perhaps he was not aware at the time of Gov. George Wallace’s stance in Alabama on desegregation when he made his infamous statement on segregation in his capacity as Governor. How different was Wallace from the thrice married Ms Davis, also an elected official as was Wallace. One doesn’t need a coloring book to understand the reaction in Alabama or in Kentucky. Perhaps Brett’s fear is that as he accepts Brown, as time goes on more and more might accept Obergefell. Or perhaps Brett wishes for an Article V amendment of Article III of the Constitution. While Brett applauds Ms Davis for her stand, in his heart of hearts he may be applauding Wallace a tad.

    • Brett Bellmore says:

      “How different was Wallace from the thrice married Ms Davis”

      Easy. The law, the black letter, legitimately enacted and ratified law, was against Wallace. While the law, the black letter, legitimately enacted and ratified law, is for Davis. Wallace faced honest judges, Davis dishonest ones.

      Look, the left has lost whatever faith it ever had that it could persuade the public to agree with it. So you’re transforming a democracy into an oligarchy. So, of course you’re going to side with the 5 oligarchs who ruled the way you want, and not with the democratically elected official who’s upholding a popular law.

      • Shag from Brookline says:

        It’s hilarious that Brett, a self-proclaimed anarcho libertarian and 2nd A absolutist, refers to “black letter law” so glibly. But he’s an engineer. The “black letter law” Brett refers to in the case of Wallace presumably is the 14th A. Yet up until Brown v. bd. of Educ. (1954) thie “black letter law” was unable to overcome Jim Crow and Plessy v. Ferguson. Even after Brown, the former slave states fought bitterly against Brown and the 14th A “black letter law,” remants of which continue to today. Imagine all those decades that ignored or denied such “black letter law.” It is even more obvious that Brett has a problem with Article III when the Court decides contrary to his views. The public was not persuaded with Brett’s “black letter law” version of the 14th A until Brown, followed by the civil rights movement and the Civil Rights Acts of the 1960s. They are oligarchs when Brett disagrees with them. What’s a self proclaimed anarcho libertarian and 2nd A absolutist to do? Play the religious card?

        • Brett Bellmore says:

          Realistically, there’s not anything I can say, short of, “Shag, I whole-heartedly agree with you!” that you wouldn’t interpret as proof of racism. So, screw it. Enjoy your oligarchy until it turns on you.

  14. Shag from Brookline says:

    Has Brett Googled “black letter law”?

    • Brett Bellmore says:

      You couldn’t get much more “black letter” than that “marriage” meant between a man and a woman. So, yes, I think I used the term correctly.

      Why, you think it’s a racial reference?

      • Shag from Brookline says:

        It’s hilarious that Brett, a self-proclaimed anarcho libertarian and 2nd A absolutist, refers to “black letter law” so glibly. But he’s an engineer. The “black letter law” Brett refers to in the case of Wallace presumably is the 14th A. Yet up until Brown v. bd. of Educ. (1954) thie “black letter law” was unable to overcome Jim Crow and Plessy v. Ferguson. Even after Brown, the former slave states fought bitterly against Brown and the 14th A “black letter law,” remants of which continue to today. Imagine all those decades that ignored or denied such “black letter law.” It is even more obvious that Brett has a problem with Article III when the Court decides contrary to his views. The public was not persuaded with Brett’s “black letter law” version of the 14th A until Brown, followed by the civil rights movement and the Civil Rights Acts of the 1960s. They are oligarchs when Brett disagrees with them. What’s a self proclaimed anarcho libertarian and 2nd A absolutist to do? Play the religious card?

        • Shag from Brookline says:

          My reply to Brett was, through inadvertence, a repeat of a prior comment/reply attributable to my error in attemptimtinp to address the time limitations imposed by this Blog. My apologies. I could not correct this sooner as I was preparing for today’s mostly liberal, some progressive, lunch today. I’ll have my response later.

      • Shag from Brookline says:

        Sorry to be so late in replying. The delay was not due solely to lunch but also the birth of another grandchild.

        My law school days were 1951-54. My classmates and I were exposed to “black letter law” which somehow changed into many shades of grey, especially after getting admitted to the bar and practicing law with actual clients. There was little “black letter law” in actual practice as clever attorneys were prepared to challenge such “law” for the benefit of a client. In certain law school courses national texts were utilized, in addition to case books, that would prominently feature “black letter law” and then go on for many pages to distinguish such “law” as determined by state/federal courts. But I do not recall in my Con/Law course (1952) recitations of “black letter law” on constitutional issues. Perhaps the “hard-wired” provisions of the Constitution might be considered “black letter law,” but not much else of the Constitution as it has undergone from the beginning interpretations/constructions, including changes by amendments and the Court overturning prior of its decisions. So perhaps it is time (unless it has already been done) for “Constitutional ‘Black Letter Law’ for Dummies.”

        Brett, you claimed George Wallace was wrong to challenge Brown on your claim that Brown was “black letter law” when it came down in 1954. This ignores the history of the 14th A as I previously noted. Even today, the state of Arkansas is battling aspects of Brown and its progeny. The 14th A, a foundation for the decision in Brown, is hardly “black letter law” as battles continue over the meaning of the 14th A, including in Obergefell.

        Now you claim “black letter law” on marriage that Obergefell “oligarchs” changed. The history of “marriage” worldwide and in America is not that simple, including mixed race and polygamous marriages. The 14th A has addressed discrimination, which can be racial, religious, gender, etc, over time. The current brouhaha with SSM had been working its way via states, reaching the point of the courts, especially federal, addressing potential discrimination. No, Brown was not “black letter law” back in 1954 and some, perhaps many, in America do not accept it today. [Keep in mind that at the time the 14th A was ratified, schools in the federal District of Columbia were segregated. And the 14th A proscribed state actions, not federal.]

        Constitutional law is complex today and has had much controversy going back to the beginning. And it may continue to be so, especially as new lawyers steeped in “black letter law” come along with clever interpretation/construction of the Constitution as witnessed in the past several decades.

        • Brett Bellmore says:

          Congrats.

          I suppose I was wrong to call Brown “black letter law”, as at that point this layman thought that refered to law that was actually inked onto the paper. I should remember that different professions have their own terminologies. Brown was consistent with the 14th amendment as ratified, with a long period between that ratification and Brown where the courts were deliberately sabotoging the 14th. But that long period did rule out it being “black letter law”, as the term is properly used.

          By contrast, Davis has a real claim to having black letter law, properly defined, on her side. The meaning of marriage was not seriously contested until perhaps a decade ago, and as soon as the courts appeared open to changing it, the public responded by underlining with laws and amendments that it was NOT to change.

          Unless you’re going to take the tautological stance that as soon as the judiciary decide to change something it ceases to be black letter law, I think Davis can claim it’s on her side. I’m not one of those legal realists who pretend judges can’t be wrong.

          Brown was the honest interpretation of the 14th, Obergefell is a dishonest interpretation.

  15. Joe says:

    “There weren’t any changing understandings. In fact, there were a considerable number of laws and constitutional amendments passed to underline that the understandings hadn’t changed.”

    Yes, there was. There was a great deal of changing understandings regarding same sex couple eventually setting up same sex marriages being recognized in various states, religious institutions, personal lives, nations and so forth. There is a “have your cake and eat it too” approach here — talk of letting the democratic processes deal with this as they develop while then (1) when it suits, ignore what is happening (2) allow it to be BLOCKED by special laws that burden same sex couples in particular.

    “All that happened was that the political/legal elite decided they were going to legalize SSM regardless of what the people thought about it, and judges took point because they didn’t have to worry about losing elections. That’s all, just another piece of democracy dying.”

    Hundreds of thousands of same sex couples are being recognized as married …. it is not some “elite” alone that is doing this. Again, “what the people thought about it” is not something you care a whit about apparently when you think the Constitution demands something. At least, you aren’t in some high dudgeon about it. So, stop with this. The debate is over the merits, not “democracy dying” or some “elite” doing things. You don’t oppose the idea of judicial review. You come off as a big phony.

  16. Joe says:

    “the meaning of marriage was not seriously contested until perhaps a decade ago”

    The “meaning” of marriage for centuries included women and men having different roles with coverture in particular giving men special rights and duties. When women and some men in the mid-19th Century wanted to temper the rules some to give more rights to women, it was seen as a great threat to tradition. Even more when greater equality was demanded, at times by court action, later on. Why doesn’t this count toward the meaning of marriage? (crickets)

  17. Joe says:

    “Davis can claim it’s on her side”

    so every petty clerk out there can like Brett determine what is “reasonable” reading of black letter law & if it clashes with the USSC, when it is “dishonest” (surely an objective test!), civil disobedience is a good idea? that might be good for an anarchist, but “democracy” in this country includes a bit more respect of the USSC and here states that, unlike her, here was willing to support it.