Tuesday, September 08, 2015

Another Angle on the Kim Davis Case

One of the less sympathetic features of the case, at least to me, is that her action is entirely symbolic. It does not prevent gay couples from getting married and it only prevented them from getting married in her town for a few days. That makes me suspect, perhaps unfairly, that she is acting not out of religious conviction but either because she likes attention or because she hopes to use the controversy to jump start a political career.

Which gets me wondering how people would feel about her action if it was more than symbolic, if by disobeying a legal rule she disapproves of she could actually keep it from taking effect. It is hard to imagine a version of her story that achieves that, but consider the same issue in a more plausible context:
You are a law enforcement official charged with enforcing the law against marijuana in a state with severe penalties for its violation. You believe marijuana should be legal. You can quietly subvert the application of the law by failing to follow up evidence of marijuana usage, recommending on spurious grounds against prosecution of arrested users, perhaps sending anonymous warnings to targets of investigations by other officers. You expect that you can get away with such actions for many years, since those supervising you are either sympathetic or incompetent. The result will be to save hundreds of people from arrest, conviction, and imprisonment.
Should you do it or should you resign?

For those who think it obvious that you should resign, that obedience to the law takes priority over moral beliefs, consider two real world situations along somewhat similar lines.

1. Jury nullification. If you are on the jury trying someone for a crime of which you believe him guilty but that you do not believe ought to be illegal, should you vote for conviction or acquittal?

2. President Obama's decision not to prosecute a specified subset of illegal immigrants.

15 Comments:

At 4:42 PM, September 08, 2015, Anonymous Anonymous said...

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/kim-davis-and-the-limits-of-disobedience/
Sasha Volokh asked a similar question to yours. If the government is engaged in grossly immoral action, there exists a right to sabotage it internally insofar as that does not entail taking immoral actions oneself or creating a significant risk of worse actions by the government in the long run.

In the Kim Davis case, however, we should note that this is not her intention. Nor is her refusal to comply purely symbolic. Davis wants an accommodation for her religious belief that she is plausibly entitled to under the Kentucky RFRA. Specifically, she wants someone else to issue marriage licenses in her county. Davis opposes (as a citizen) government recognition of same-sex marriages, but she more directly objects (in her official capacity) to being the person who carries out this recognition. We can also consider circumstances where a person would object to the latter but not the former. Suppose a Muslim USDA regulator. He may think inspecting pork packaging plants is a good use of government and still prefer an exemption from carrying out such inspections himself.

 
At 5:05 PM, September 08, 2015, Blogger JamesFromPittsburgh said...

I see a difference between your examples and the Kim Davis case. In your examples, an official is declining to impose a cost on citizens because they believe the state's imposition of costs is inconsistent with their moral beliefs. Kim Davis refused to confer a benefit to which people are legally entitled.

A different example might be a public school principal who refuses to admit children who are undocumented immigrants to his school. I'd be as opposed to this principal as I am to Kim Davis.

 
At 5:40 PM, September 08, 2015, Anonymous Power Child said...

One problem with the police officer example is that cops typically use drug laws as a relatively easy way to lock up people who are engaged in more serious criminal activity that is harder to convict them of. So, a cop who opposes drug laws is very unlikely to simply not carry them out unless he also didn't mind seeing gang members and other people he knew were violent criminals (but against whom non-drug evidence is difficult to amass) going free.

 
At 9:48 PM, September 08, 2015, Blogger Andrew Hallman said...

The result will be to save hundreds of people from arrest, conviction, and imprisonment. Should you do it or should you resign?

The police officer should sabotage as many drug prosecutions as possible, which means remaining in his position but refusing to follow the law. But is it permissible for him to continue to draw a paycheck if he's not doing his job? If it means fewer drug convictions, then yes, he is allowed to defraud the government in this way.

Oskar Schindler did something along those lines during the Holocaust. He committed illegal acts, giving bribes to Nazi officers, in order to shield Jews from a trip to Auschwitz, and everyone who's heard of Schindler thinks that was morally exemplary. Nobody thinks, "He should have let someone else run his factory rather than breaking the law to keep it afloat," because his replacement would have very likely acceded to Nazi demands to hand over all the Jews.

Jury nullification. If you are on the jury trying someone for a crime of which you believe him guilty but that you do not believe ought to be illegal, should you vote for conviction or acquittal?

You should vote for acquittal if voting to convict would result in someone receiving an unjust punishment. It is similar to a situation in which you are walking with a gay friend and you encounter a group of hoodlums who inquire as to the sexual orientation of your friend. If you have reason to think they will beat him up if you tell the truth, then if you have any decency at all you will lie.

See this great Michael Huemer paper defending jury nullification: http://philpapers.org/archive/HUETDT.pdf

 
At 7:13 AM, September 09, 2015, Blogger August said...

I don't think we should dwell much on her motivations. I don't think she is very smart- while she is certainly driven by her faith, it should not be at the forefront in her defense. The reality is that the Supreme Court acted unconstitutionally and without scope. Kim Davis fulfills her office, following the laws of Kentucky. She should be protect from this type of legal nonsense. We all should, just like the poor in American cities ought to be protected from an onerous local government, which has moved into using ticketing and other procedures for revenue generation. It is misuse of government, and people suffer.

 
At 9:55 AM, September 09, 2015, Anonymous Anonymous said...

@JamesFromPittsburgh

You're only looking at half of each case. In both instances, the law imposes costs on certain people, with the justification that doing so confers benefits onto other people that are greater than the costs. That justification may or may not be true, but I think that is the logic underlying pretty much any law.

So in the marijuana case, the person refusing to penalize is indeed helping those who are hurt by this law, but is also hurting those who are helped by the law - people no longer get to enjoy a community free of stoners, and maybe the stoners themselves no longer gain beneficial pressure to stop them partaking in a self-destructive hobby. In the gay marriage case, the person refusing to grant gay marriage licenses is indeed hurting those who are helped by this law, but is also helping those who are hurt by it - people no longer have to endure a community that contains married gay couples. And maybe there's a paternalistic element here too.

I happen to agree with you that both gay marriage and marijuana ought to be legal, but I don't think your analysis in this case is fair.

@David Friedman

Your example presumes that her intention is to provide a public good. I don't know anything about the case so this might be wrong, but isn't it entirely possible that she is instead trying to create a private good for herself - not having to do something, i.e. granting gay marriage licenses, which she doesn't approve of?

Certainly I can see this being the case in e.g. the examples of the bakers who don't want to bake wedding cakes for gay couples. There's no reason to presume that they want to stop the gay couples from getting a cake altogether, and since they must know full well that their refusal would not have this effect, I think there's a good reason to presume the opposite - that they simply don't want to facilitate behavior they disapprove of.

 
At 1:56 PM, September 09, 2015, Anonymous GregS said...

I don't think you have to come up with some kind of extreme example or hypothetical. Just ask people who are critical of Kim Davis what they think about the mayor of San Francisco handing out same-sex marriage licenses in 2004. I think most people who support gay marriage applaud this kind of civil disobedience, which suggest that they don't object to civil disobedience or lawbreaking *per se*. I think they (and this "they" includes myself) should say so plainly. I was thinking this through a few days ago, and your posts on this topic hit on the same issues. Much of the discussion of Kim Davis suggests that her critics are against any form of lawbreaking whatsoever, and I think this is a serious mistake. All enlightened adults realize that the law itself can be wrong, and most agree that it is *sometimes* appropriate to break those laws.

 
At 9:41 PM, September 09, 2015, Blogger Martin Epstein said...

I don't think it's fair to characterize Davis' actions as "purely symbolic". Sure, in the short run gay couples in her area will just get marriage licenses elsewhere. But by rallying people to her cause she's surely made it slightly more likely that, god forbid, gay marriage is outlawed again in the future. So in terms of long run expected marriage licenses issued to gay couples I think she's made a sizable impact (for an individual).

 
At 10:00 PM, September 09, 2015, Blogger Roger said...

Police and prosecutors do decline to pursue prosecutions all the time. Where I live, they certainly do ignore marijuana crimes.

Davis may genuinely believe that she is properly carrying out her role as an elected official. If so, then resigning could be a disservice to the voters who elected her.

 
At 3:43 AM, September 10, 2015, OpenID hudebnik said...

Anonymous writes:
she wants someone else to issue marriage licenses in her county. Davis opposes (as a citizen) government recognition of same-sex marriages, but she more directly objects (in her official capacity) to being the person who carries out this recognition.

Except that she doesn't want someone else to issue marriage licenses in her county: in fact, she explicitly withheld permission for her staff to do what she wasn't willing to do, and her lawyer is arguing that licenses issued by her staff without her permission are invalid. The most charitable interpretation one can put on it is that she wants, personally, to be completely morally insulated from the action of issuing same-sex marriage licenses, whether by issuing them herself, authorizing other people to issue them, or failing to prevent other people from issuing them.

Of course, as I've posted elseblog, her religious views and religious freedom are irrelevant to her issuance of marriage licenses, because nobody asked her to certify that this couple could be "married in the eyes of God" (a religious question), but only that they could be "married in the eyes of the State" (a legal question). Her real objection is not that the State is forcing her to violate her religious principles, but that the State's legal definition of marriage, which used to match her religious one, no longer does. If she were a member of a minority religion, she never would have developed the expectation that those definitions matched in the first place, and wouldn't be so upset now.

 
At 7:36 AM, September 10, 2015, Blogger Olivier Braun said...

Dear Dr Friedman,

I just saw by chance in a book on Law and Morality published in French (Droit et morale) by a professor of Moral Theology, Jozef Salsmans, S.J. in 1924. He asks the question of what should a judge do if he had to pronounce a divorce, according to the law. Divorce is not possible under Catholic rules, and a divorced person who remarries commit an adultery.

In short, he cannot refuse to grant the divorce if the law says he should under the circumstances. He has to try to persuade the would-be divorced to give up that project, especially if the law provide for such a try. Provided that he does his best, has good intentions and oppose the divorce in his conscience, if he has good reason, and keeping his job is one (it is an interest not only for him, but the society at large for it would be harmed if all the Catholics had to resign), he should grant the divorce.

The same reasoning applies, wrote Salsmans, for the more difficult case of a civil officer who has to perform a marriage when one of the pair already had a divorce. But in that case, says the author, theologians had been more severe.

For a lawyer, the reasoning doesn't apply, for he is free to refuse a client.

 
At 8:36 PM, September 10, 2015, Anonymous Mark Bahner said...

"The reality is that the Supreme Court acted unconstitutionally and without scope."

Do you consider the Supreme Court ruling in Loving v. Virginia to be proper?

If so, how is this case different?

 
At 10:43 PM, September 12, 2015, Blogger Roger said...

Mark, if you really wondering how same-sex marriage is different from interracial marriage, just read the Thomas dissent. For 40+ years, nearly everyone agreed that these cases were completely different.

 
At 9:48 AM, September 17, 2015, Anonymous Mark Bahner said...

"Mark, if you really wondering how same-sex marriage is different from interracial marriage, just read the Thomas dissent."

OK, I've read the Thomas dissent. He says that same-sex marriage is different from interracial marriage because the Lovings were actually imprisoned for their marriage (see page . He's right that gays aren't being imprisoned for marrying. But Thomas seems to be ignoring the fact that the Loving vs Virginia ruling did not just say imprisoning people involved in interracial marriages was unconstitutional. The ruling said that laws against interracial marriage were unconstitutional. So I would ask Thomas (and you, and August) how that is different from ruling that laws against same-sex marriage are unconstitutional?

Thomas also says that laws defining marriage as between a man and a woman do not "share th(e) sordid history" of laws forbidding interracial marriage. This seems curious considering that homosexuality itself was a death penalty offense in the colonial U.S.

So I'm definitely not persuaded by the two Thomas attempts to draw a distinction between Loving vs Virginia and Obergefell vs Hodges. In particular, Thomas seems to ignore the fact that the Loving vs Virginia ruling did not merely stop criminal penalties against interracial marriage, but also required states to issue marriage licenses to interracial couples.

So the Thomas dissent doesn't persuade me that there's a fundamental difference between Loving vs Virginia and Obergefell vs Hodges.

 
At 8:14 AM, September 18, 2015, Blogger August said...

I don't buy into the idea that the two are remotely the same. One is a marriage, the other is not. Now, from a constitutional standpoint, the Supreme Court may not have had scope to decide even the first one, but folks are happy to power grab under the aegis of righting wrongs and doing good.

 

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