In an event at Harvard Law School last week, Supreme Court Justice Anthony Kennedy — the justice who wrote the majority opinion in Obergefell v Hodges — suggested that public officials who feel that they cannot fully execute their jobs under the ruling should resign.
Kennedy’s remarks came in response to a question from a student who described himself as someone who thinks “that rational norms guide the exercise of sexual autonomy.” The student asked whether public officials who disagree with the Court’s decisions on marriage equality or abortion have “authority to act according to her own judgment” of whether the Court’s legal reasoning was sound.
After alluding to the fact that very few judges resigned from the Nazi German government, Kennedy offered his endorsement to officials who do quit when asked to do something they find morally repugnant. “Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong, in order to make a point,” Kennedy told the Harvard audience.
He qualified this remark, however, by adding that “the rule of law is that, as a public official in performing your legal duties, you are bound to enforce the law.”
So while Kennedy’s comments seem somewhat sympathetic to the concerns held by Kim Davis, et al, who feel fundamentally unable to execute the current law of the land as it pertains to marriage, those concerns do not absolve them from their duties. They can either suck it up and do their job, or they can resign in protest of what they feel is an unjust law.
In other words, they can do exactly what the rest of the country has been telling them to do this whole time.
And here’s the thing: As Justice Kennedy said, there is a great deal of respect to be afforded to those who resign their jobs in protest over decisions they disagree with. Had Kim Davis simply stepped down, we may have disagreed with her baseline belief that same-sex marriage is immoral, but we would have respected her decision to get out of the way and let those marriages take place.
Here is the relevant exchange at the event: