Might Even Antonin Scalia Say Kim Davis Should Resign?

As Rowan County, Ky., Clerk Kim Davis continues to defy the U.S. Supreme Court and refuse to issue any marriage licenses to avoid licensing same-sex couples, one might think she'd find support on the conservative end of the Supreme Court's bench.

But when the nation's high court on Monday summarily dismissed Davis's "emergency appeal" seeking a stay of a federal judge's order requiring Davis to do her job, not a single justice entered a dissent, indicating the nine jurists were in agreement that Davis has no legal leg to stand on in her effort to defy federal law.

However, in the landmark case that prompted the Kentucky showdown, four male justices disagreed with the court's June decision in Obergefell v. Hodges, which brought marriage equality to all 50 states. In that case, each penned scathing dissents bemoaning the destruction of American society wrought by marriage equality.

Stalwart conservative Justice Antonin Scalia slammed the court's 5-4 majority decision in favor of marriage equality as an affront to American democracy -- but his comments on other contentious issues indicate that even Scalia might encourage Davis to "sign or resign."

That's the case Washington Postcontributor Jonathan H. Adler makes in an editorial today, looking into Scalia's past comments to suss out how he might respond to Davis's continued defiance.

"Davis cites her religious conscience as the excuse for her intransigence, but she is wrong to do so," writes Adler. "That's not only my view, but the view of no less than Justice Antonin Scalia."

Adler continues:

"Now Scalia has not, to my knowledge, said anything directly about Davis's 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.

"'[W]hile 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.'"

Adler then offers a comparison to highlight the ways in which Davis is not equivalent to a conscientious objector:

"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."

Read Adler's full opinion at The Washington Post.