Civil and Human Rights

U.S. Constitution: Public Officials Wanted, Willingness to Follow the Law a Must

In June, the Supreme Court issued its historic ruling affirming that the 14th Amendment protects the right of gay and lesbian couples to marry, in every state across the nation. Recognizing that there were still some Americans who, for religious or other reasons, might remain opposed to marriage equality even after the Court’s decision, Justice Anthony Kennedy’s opinion emphasized that the ruling did not in any way prevent religious people from continuing to oppose same-sex marriage, personally or as a matter of religious doctrine. But, as Kennedy’s opinion for the Court made clear, the Constitution does not allow the State to discriminate against gay and lesbian couples when it comes to civil marriage.


As evidenced by Rowan County Clerk Kim Davis of Kentucky and several presidential candidates, apparently some public officials — and those who would like to become public officials — either don’t know or don’t care that when they act on behalf of the government, they are obliged to follow federal law. In fact they are required, as part of their jobs, to apply the Constitution.


For state officials, this duty to apply the Constitution is clear. The Supremacy Clause of the U.S. Constitution provides that:


This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land… any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.


Our nation’s founders wrote these words into the Constitution precisely to bind potentially recalcitrant state officials. The Supremacy Clause corrected a deficiency in the Articles of Confederation, the system of government in place before we adopted our enduring Constitution, which failed to make clear that rules of federal law were automatically effective in the states. By including the Supremacy Clause, the drafters of the Constitution made it so state officials and judges would be bound automatically to apply federal law, which was declared the “supreme law of the land.” (Accordingly, when former Arkansas Governor Mike Huckabee and others argue that additional legislation is needed to implement the federal constitutional guarantee of marriage equality in the states, they might be right if we still had the discarded Articles of Confederation — but not under the actual U.S. Constitution.)


Does it matter that the Supreme Court, rather than Congress, has affirmed that the 14th Amendment requires states to issue marriage licenses to same-sex couples? No. In our constitutional system of government, the Supreme Court is charged with deciding disputes over the meaning of provisions of our national charter. When the Supreme Court issues a ruling on the meaning of federal law, it is binding on all public officials, state or federal.


Kim Davis’s well-publicized refusal to abide by the Supreme Court’s ruling requiring states to issue marriage licenses to gay and lesbian couples is not the first time public officials have refused to honor decisions upholding constitutional guarantees of equality. Almost immediately after the Supreme Court issued its ruling in Brown v. Board of Education declaring school segregation unconstitutional, southern officials vowed to defy it. After the Supreme Court held in Loving v. Virginia that states could not prohibit couples of different races from marrying, some officials refused to issue marriage licenses to interracial couples until the federal courts forced them to do so. Such actions by public officials are not heroic — they are unconstitutional.


Davis has said that even though she will continue to refuse to do her job — issuing marriage licenses according to governing law — she will not resign from her position because if she left she “would have no voice for God’s word.” Our Constitution provides robust protection for Davis’s religious voice under the First Amendment, and whether she resigns or not, she will be protected in her ability to voice her religious views and opposition to marriage equality in her private life. But, as none other than conservative Justice Scalia has made clear, when private individuals take public office their personal views must yield to the mandates of the law when acting in a public capacity. If a public official cannot in good conscience do her job for religious reasons or otherwise, then she should resign in protest. But what she cannot do is ignore the law she has sworn to uphold and expect to retain her public office. To say otherwise would be to turn our constitutional structure upside down.

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