Interesting observations from a law prof who's unsympathetic to Davis on the merits, but can still see a principled argument for civil resistance:
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If disobedience or some form of revolution were acceptable here, why should it be off-limits to keep my job while undermining it? Why isn’t undermining one’s job from the inside, in the service of a larger moral goal, an acceptable form of revolution? The “quit or do your job” folks, to the extent they hold out the extreme option of revolution, seem to be all implying that revolution must, at a minimum, require quitting. But if gay marriage justifies revolution, it’s hard for me to see why a form of revolution can’t be fifth-column undermining on the job.
Scalia and others have an answer: public officials have a duty not to engage in this form of revolution because of their oath. But that assumes that the oath is really valid in immoral conditions. Surely there can be oaths that, while not immoral on their face, cease to be binding once it’s clear that they require one to engage in immoral acts. Imagine you’re a public official in Nazi Germany — I don’t know what kind of oaths they took, but suppose you took an oath when it wasn’t clear that you were serving an immoral regime, and the regime gives you orders that are more and more immoral. And suppose there’s nothing to prevent you from resigning — and, if you like, joining the Allied armies or the armed resistance. Are you required to do that rather than keep your job and seek to undermine the regime? I don’t think so.
Admittedly, I don’t think that all resistance that’s justifiable in Nazi Germany is also justifiable in the contemporary United States. As Dale Carpenter says in his recent post, “ not every moral problem is like slavery.” I agree: in fact, Dale and I think Davis is wrong on the merits, so of course we don’t think this is comparable to slavery (or Nazi Germany). But it’s tough to put ourselves in the position of people who believe differently: I’ve observed some hard-liners who really do think that gay marriage is a comparable evil. Not that we have to agree with that view, but the question is whether the (possibly oath-based) proceduralist argument (“do your job or engage in revolution, but if you do that you have to quit, because OMG the oath”) should carry any logical weight with adherents of that view. While I think acceptable resistance against Nazis differs from acceptable resistance against liberal democratic governments, the reason I think that has nothing to do with oaths, and it’s not clear to me how an oath-based theory would successfully distinguish between the two situations.
Bottom line: I’m fine continuing to criticize Davis on substantive moral grounds. And I’m fine showing why Davis’s actions are illegal under the positive law; but once you get to the point where you’re making the illegality serve a normative goal, you have to confront issues of legitimate disobedience, and I’m not sure that a purely procedural (“quit or do your job”) argument will work to exclude Davis’s “keep your job but follow your ideals” strategy of disobedience.
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