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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsScalia explained why Kim Davis should issue marriage licenses to same-sex couples or find a new job
Justice Scalia explained why Kim Davis should issue marriage licenses to same-sex couples or find a new jobBy Jonathan H. Adler September 2
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Now Scalia has not, to my knowledge, said anything directly about Daviss actions, but he has addressed the question of what public officials should do when their official obligations conflict with their religious conscience. Writing in First Things in 2002, Scalia explained that if he were to conclude that the death penalty is fundamentally immoral, he should no longer serve on the bench.
While my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of the machinery of death. My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral. . . .
In my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty and if that fails, lead a revolution. But rewrite the laws he cannot do.
In my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty and if that fails, lead a revolution. But rewrite the laws he cannot do.
Davis is in a similar position. Her official position obligates her to take part in the states licensing and recognition of marriages. Insofar as the states definition of an acceptable marriage differs from her own, Davis is obligated to follow the states rule so long as she maintains her current office.
Think of it this way. Someone who objects to war due to his religious conscience has a right to be a conscientious objector and not serve in the military, even were there to be a draft. But he does not have the right to serve as a military officer, draw a paycheck from the military and then substitute his own personal views of when war is justified for that of the government. The same applies here.
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https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/02/justice-scalia-explains-why-kim-davis-should-issue-marriage-licenses-to-same-sex-couples-or-find-a-new-job/?tid=pm_opinions_pop_b
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Scalia explained why Kim Davis should issue marriage licenses to same-sex couples or find a new job (Original Post)
DonViejo
Sep 2015
OP
retrowire
(10,345 posts)1. I wonder if he feels that way about same sex marriage... hmmm n/t
Downwinder
(12,869 posts)2. Is she at step 2 or Step 3?