A Counter-Narrative

In the unfolding controversy over Kentucky county clerk Kim Davis’ refusal to issue marriage licenses to gay couples, an old Calvinist doctrine appears to have entered the public debate. This “doctrine of the lesser magistrates” suggests that public servants ought not comply with laws that violate their consciences, stemming from the general adage that “an unjust law is no law at all.”

Other thinkers have critiqued the inherent epistemic fragmentation in this doctrine (in the absence of a magisterial ecclesiastical authority, who decides what is “unjust”?); what I seek to do here, however, is assume that the doctrine is true while still countering the prevailing pro-Davis narrative. At base, I contend that support for Davis arises not from an impulse of conscience, but from a deeply rooted anti-authoritarianism.

Before beginning, I wish to make clear that I in no way endorse Davis’ stance. I strongly believe that the rule of law requires her to resign or comply with the Supreme Court’s ruling; in short, I do not adhere to the doctrine of the lesser magistrates. Many, however, do. Thus, let us assume for the purposes of this discussion, that the doctrine of the lesser magistrates is true: a lower-level government functionary ought not to execute a law he or she finds morally reprehensible.

That being stipulated, a key analytical step is often left unaddressed in discussions of this doctrine: it does not follow that the actions taken by higher authorities in maintenance of a system of law, where some aspects of such a system are unjust, are themselves independent injustices. An example serves to illustrate this. In Herman Melville’s classic short story, Billy Budd, Sailor, the eponymous protagonist is tried and sentenced to death for unintentionally killing a member of the crew. The ship’s captain, Vere, who is tasked with carrying out the sentence, is cognizant of Budd’s moral innocence, yet must execute his duty. Budd’s final words, before being hanged, are “God bless Captain Vere.” Melville recognizes here is that a human system of law may produce unjust results due to injustices built into its essential fabric. The governing authorities, though, are not illegitimate in se because they execute enforcement authority under its auspices: law matters, and its consistent enforcement – even if imperfect – matters. In short, the state may be acting rightly, within its scope of appropriate authority, in punishing Davis for undermining the rule of law; at the same time, assuming the lesser-magistrate doctrines is true, Davis may also be acting rightly in refusing to comply.

Alternatively, I submit that much of the Davis controversy is not actually rooted in a sense of moral propriety, but in a deep and generalized distrust for the institution of the political state writ large. (The writings of abolitionist writer Lysander Spooner, who made clear his contempt for institutional authority while simultaneously arguing that the Constitution foreclosed slavery, are germane here). This distrust may be wholly legitimate, but let us make no mistake: the doctrine of the lesser magistrates need not itself automatically sanction a “law versus conscience” dichotomy. Indeed, the Apostles Paul (Romans 13:1) and Peter (1 Peter 2:13) call for submission to government authorities: this suggests that the authorities themselves are not intrinsically unjust by virtue of the fact that they execute unjust laws, but leaves open the possibility that an individual may also be acting justly in refusing to comply with said laws.

Conscience rights undoubtedly deserve protection, and some laws may indeed be unjust in view of a higher moral authority (though I do not make that argument in this particular circumstance). The “lesser magistrates” doctrine, however, ought not be used as a cover for less-religiously-motivated anti-statist sentiment. Such sentiment, in my assessment, rests at the core of the pro-Davis narrative, and should be resisted.

Image courtesy of Alex Pletzsch.