John Culhane is Professor of Law and Co-Director of the Family Health Law & Policy Institute of Delaware Law School. Follow him on Twitter.



Kim Davis, the Kentucky county clerk sitting in jail for refusing to issue same-sex couples marriage licenses, appears content to play the martyr’s role. But contrary to her own, self-aggrandizing description, she’s no Rosa Parks. In fact, she’s the opposite: While Parks was a private citizen defying what she knew to be the law, Davis is a public official, who is charged with following the law. She’s Rosa Parks’ bus driver, denying a service to the public.

This distinction has been lost on Davis, and on her husband, Joe. Emerging in the public eye after his wife’s incarceration, he had this to say: “They have illegally put my wife in jail so we’re gonna ask [Kentucky Governor Steve] Beshear to do his job or step down.”


Yet the Governor, who personally disagrees with the Supreme Court’s decision to legalize gay marriage, understands his duty to uphold the constitution. The Davises do not, and a hefty chunk of the blame for their confusion can be assigned to Justices Scalia, Thomas, Alito and—most of all—Chief Justice Roberts. That’s because all four of the justices’ separate dissenting opinions in Obergefell v. Hodges, the 5-4 gay marriage decision from this past June, brim with the kind of intemperate language that seems calculated to foster disrespect for the rule of law. It’s easy to draw a line from these opinions to what’s going on in Kentucky.

As usual, Justice Scalia’s earth-scorching dissent was the most destructive. His opinion was laced with vitriol likely unmatched in the history of the Supreme Court. (At one point, after describing the majority opinion’s style as “pretentious” and its content as “egotistic,” Scalia stated that he would “put his head in a bag” rather than join an opinion containing such “showy profundities.”) He sneered that the decision meant that the country’s “Ruler” (pointedly, in upper-case) was the Supreme Court, and that the system thereby created “does not deserve to be called a democracy.” Scalia closed by fuming that the decision was “unabashedly” not based on law.

Justices Alito and Thomas were only slightly less provocative. Alito declared the decision to be “far beyond the outer reaches of this Court’s authority,” and evidence of “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” Thomas added that the decision would “undermine the political processes that protect our liberty,” and have “potentially ruinous consequences for religious liberty.”

Most damaging of all the dissents, though, was Chief Justice Roberts’ faux-temperate opinion. While Roberts spent the bulk of his remarks discussing the legitimate issue of the relationship between the Supreme Court and the political process, he also opined that people wouldn’t be likely to accept the court’s decision—hardly the defense of the Supreme Court one might expect from the Chief Justice—and closed with the astonishing statement that the Constitution “has nothing to do with” the decision. Through such radical attacks on the Court’s own legitimacy the dissenters built the set for the insanity that’s followed.

To be sure, pushback from the Court’s decision was inevitable no matter the vote, and no matter the tone of any dissenting opinions. After all, in some parts of the country, a majority still oppose same-sex marriages. But when justices declare constitutional decisions unconstitutional, we enter Wonderland, where legality and illegality have been flipped.

Once that was accomplished, the dissenters’ screeds were fanned into life through statements by the most radical of the GOP presidential candidates. Mike Huckabee scorned the “imperial court,” twice slammed the decision as “judicial tyranny” and referred to the court’s interpretation law as “unconstitutional.” Others, including Marco Rubio, Jeb Bush and Scott Walker echoed the Thomas and Alito concerns over religious liberty. Ted Cruz, a smart lawyer who surely knows better, encouraged states to ignore the Court’s ruling.

Texas Governor Greg Abbott seems intent to do just that by apparently ruling out any exception to the primacy of religion even for public officials, stating: “No Texan is required by the Supreme Court’s decision to act contrary to his or her religious beliefs regarding marriage.”

The dissenting justices’ fingerprints are scarcely harder to identify in the Kim Davis Affair—and in other cases, too. As this recent article points out, clerks in several other states are refusing to issue marriage licenses, too. In some cases, as in Oregon and Texas, the involved officials are under investigation or court order for refusing to do their jobs. In other states, though, public officials are at least operating according to state law. In Alabama, at least ten counties are reportedly out of the licensing business for an undetermined amount of time (relying on a law that says they “may,” rather than “shall” issue such licenses), while in North Carolina, some 30 magistrates are relying on a state law that allows them to stop performing marriage ceremonies. (The law also requires counties to make other magistrates available for this purpose.)

These state-by-state distinctions can make it difficult to sort out when refusal to grant marriage licenses or perform marriage ceremonies is legal, and when it’s not. In general, public officials should not be able to simply opt out of responsibilities that are a core part of their job. The legality is more complicated with private businesses because many states still don’t include gays and lesbians in laws prohibiting discrimination in public accommodations.

But the Kim Davis case is easy.

Davis was elected as county clerk, and is therefore sworn to uphold the laws of the United States, and Kentucky. Since the U.S. Constitution is the supreme law of the United States, and since the Supreme Court has declared gay marriage bans to violate the Constitution, Davis’s defiance—however principled, or not—is clearly illegal. And refusal to follow a court’s order is exactly the kind of action that leads to a finding of contempt, often with jail time as the consequence.

Kim Davis has three options. She can remain in jail, perhaps until her term expires. She can follow the court’s order. Or she can resign.

As of this writing, it looks like she’s going to tough it out. Meanwhile, her deputies are issuing gay couples marriage licenses, the legality of which is already being challenged by Davis’ lawyers.

Often lost in the muddled story of Davis’ defiance is how her actions affect straights and gays alike. In a transparent effort to avoid the conclusion that she was discriminating, she stopped issuing marriage licenses altogether. We can expect this kind of fall-out to continue, as public officials continue to flout their oaths of office to take anti-gay stands.

For direct evidence, one need look only look across Kentucky’s southern border to Tennessee, where Hamilton County Judge Jeffrey M. Atherton recently refused to grant a straight couple’s divorce petition, a usually routine request. In his opinion, Atherton launched into a lengthy, bewildering and legally inaccurate discussion of Obergefell, pock-marked with approving references to Scalia’s language and rhetoric.

It was the U.S. Supreme Court’s dissenting Justices who dug the rabbit hole leading from Kentucky to this topsy-turvy world. Whatever views these Justices had of the outcome in Obergefell, their questioning of the very legitimacy of the Supreme Court is having predictably pernicious consequences. They should be ashamed of the anarchy they have unleashed.

