A Philosopher's Blog

Kim Davis & Rule of Law

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on September 14, 2015

Those critical of Kim Davis, the county clerk who refused to issue marriage licenses to same-sex couples and was jailed for being in contempt of court, often appeal to a rule of law principle. The main principle used seems to be that individual belief cannot be used to trump the law.

Some of those who support Davis have made the point that some state and local governments are ignoring federal laws in regards to drugs and immigration. To be more specific, it is pointed out that some states have legalized (or decriminalized) marijuana despite the fact that federal law still defines it as a controlled substance. It is also pointed out that some local governments are ignoring federal immigration law and acting on their own—such as issuing identification to illegal immigrants and providing services.

Some of Davis’ supporters even note that some of the same people who insist that Davis follow the law tolerate or even support state and local governments ignoring the federal drug an immigration laws.

One way to respond to the assertions is to claim that Davis’ defenders are committing the red herring fallacy. This is a fallacy in which an irrelevant topic is presented in order to divert attention from the original issue. The basic idea is to “win” an argument by leading attention away from the argument and to another topic. If the issue is whether or not Davis should follow the law, the failure of some states and local governments to enforce federal law is irrelevant. This is like a speeder who has been pulled over and argues that she should not get a ticket because another officer did not ticket someone else for speeding. What some other officer did or did not do to some other speeder is clearly not relevant in this case. As such, this approach would fail to defend Davis.

In regards to the people who say Davis should follow the law, yet are seemingly fine with the federal drug and immigration laws being ignored, to assert that they are wrong about Davis because of what they think about the other laws would be to commit the tu quoque ad hominem. This fallacy is committed when it is concluded that a person’s claim is false because it is inconsistent with something else a person has said. Since fallacies are arguments whose premises fail to logically support the conclusion, this tactic would not logically defend Davis.

Those who wish to defend Davis can, however, make an appeal to consistency and fairness: if it is acceptable for the states and local governments to ignore federal laws without punishment, then it would thus seem acceptable for Kim Davis to also ignore these laws without being punished. Those not interested in defending Davis could also make the point that consistency does require that if Davis is compelled to obey the law regarding same-sex marriage, then the same principle must be applied in regards to the drug and immigration laws. As such, the states and local governments that are not enforcing these laws should be compelled to enforce them and failure to do so should result in legal action against the state officials who fail to do their jobs.

This line of reasoning is certainly plausible, but it can be countered by attempting to show a relevant difference (or differences) between the laws in question. In practice most people do not use this approach—rather, they have the “principle” that the laws they like should be enforced and the laws they oppose should not be enforced. This is, obviously enough, not a legitimate legal or moral principle.  This applies to those who like same-sex marriage (and think the law should be obeyed) and those who dislike it (and think the law should be ignored). It also applies to those who like marijuana (and think the laws should be ignored) and those who dislike it (and think the laws should be obeyed).

In terms of making the relevant difference argument, there are many possible approaches depending on which difference is regarded as relevant. Those who wish to defend Davis might argue that her resistance to the law is based on her religious views and hence her disobedience can be justified on the grounds of religious liberty. Of course, there are those who oppose the immigration laws on religious grounds and even some who oppose the laws against drugs on theological grounds. As such, if the religious liberty argument is used in one case, it can also be applied to the others.

Those who want Davis to follow the law but who oppose the enforcement of certain drug and immigration laws could contend that Davis’ is violating the constitutional rights of citizens and that this is a sufficient difference to justify a difference in enforcement. The challenge is, obviously enough, working out why this difference justifies not enforcing the drug and immigration laws in question.

Another option is to argue that the violation of moral rights suffices to warrant not enforcing a law and protecting rights warrants enforcing a law. The challenge is showing that the rights of the same-sex couples override Davis’ claim to a right to religious liberty and also showing the moral right to use certain drugs and to immigrate even when it is illegal to do so. These things can be done, but go beyond the scope of this essay.

My own view is that consistency requires the enforcement of laws. If the laws are such that they should not be enforced, then they need to be removed from the books. I do, however, recognize the legitimacy of civil disobedience in the face of laws that a person of informed conscience regards as unjust. But, as those who developed the theory of civil disobedience were well aware, there are consequences to such disobedience.

 

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7 Responses

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  1. ajmacdonaldjr said, on September 14, 2015 at 8:29 am

  2. TJB said, on September 14, 2015 at 11:56 am

    “If the issue is whether or not Davis should follow the law, the failure of some states and local governments to enforce federal law is irrelevant.”

    Disagree. If this is perchance a federal law that states are free to ignore, it is extremely relevant.

  3. TJB said, on September 14, 2015 at 2:35 pm

    The rule of law according to Dems.

    Democrats at work.

    Is Congress waging a war on college men? It’s starting to look like it.

    Last week, Rep. Jared Polis, a Colorado Democrat, suggested that even innocent students should be booted from campus if they were accused of sexual assault. According to Polis: “If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people.”

    So one of the longstanding traditions of American law — that it is better to let 10 guilty men go free than to imprison one innocent — has now been turned on its head. Under the Polis standard, it’s basically the other way around.

    http://www.usatoday.com/story/opinion/2015/09/14/campus-sexual-assault-crisis-war-men-column/72209292/

    • Michael LaBossiere said, on September 15, 2015 at 5:16 pm

      Polis’ argument sounds more like a reductio ad absurdum of the reasonable likelihood standard. After all, a principle that would result in an 80-90% chance of punishing the innocent is a paradigm of absurdity.

    • nailheadtom said, on September 15, 2015 at 10:05 pm

      That’s what “democracy” and elections gets you, an ignoramus with a certain amount of power.

      • Michael LaBossiere said, on September 16, 2015 at 5:54 pm

        Still beats all other types of government.

        • ronster12012 said, on September 23, 2015 at 10:00 am

          Michael

          Perhaps more important than the type of government is the type of governed. Just playing around with this idea ATM as all western democracies seem to be corrupt. Perhaps that is the inevitable result of democracies. Jefferson said that ‘every generation needs its own revolution'( a great idea BTW) but what happens when an electorate gets too comfortable, lazy and complacent to do the necessary? Meanwhile, political professionals have spent the intervening time sewing the game right up, passing all the laws needed to enshrine a political class forever.

          What to do?


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