Even Scalia Thinks Biased Kentucky Marriage License Clerk Kim Davis Should Do Her Job or Quit

Justice Antonin Scalia has not directly commented on Kim Davis, the Kentucky county clerk who refuses to follow court orders on same-sex marriage, but his previous writings suggests he might order the public official to do her job or quit.


Davis had asked the U.S. Supreme Court to exempt her from issuing marriage licenses to same-sex couples because, she has argued, doing so would violate her religious beliefs.

However, Justice Elena Kagan, who oversees the 6th District, rejected her appeal for relief from the top court earlier this week in a one-sentence ruling, and no justices have publicly dissented from her ruling.

It’s hard to know exactly how the notoriously partisan Scalia would have ruled if the court had heard Davis’ case, but Washington Post legal blogger Jonathan Adler pointed out the justice had previously written that he should step down from the bench if he developed a religious objection to the death penalty.

“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,” Scalia wrote in 2002, in the legal journal First Things.

“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,'” Scalia continued. “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.”

Davis and three other Kentucky county clerks, along with several county clerks in other states, argue that their religious beliefs should trump their official duties.

Scalia, at least when it comes to the death penalty, argued that public servants are obligated to follow the law, even when it conflicts with their morals — and if they are unwilling to do so, they should quit.

“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,” Scalia argued. “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.”

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