Saturday, September 05, 2015

Unlawful orders

One popular reaction to Kim Davis is that "She should just do her job or resign." 

That's a reaction which contains several dubious, unexamined assumptions, some of which I've already addressed.

In addition, I think some people feel that every gov't employee can't be a Supreme Court in miniature. They can't substitute their own interpretation of the Constitution for the Supreme Court. If that were the case, then chaos would ensue. 

Let's consider a comparison: I'm not a JAG, but to my knowledge, the military draws a necessary distinction between lawful and unlawful orders. 

I believe that barring extenuating circumstances, a soldier is duty-bound to obey lawful orders. He can get into a lot of trouble if he disobeys a lawful order. 

However, a soldier is duty-bound to disobey an unlawful order. He can get into a lot of trouble if he obeys an unlawful order. (This is true in law enforcement as well.) 

Take the Mỹ Lai Massacre. To say the soldier should either "do his job or quit" is hardly the right response in that situation. 

In addition, it is initially up to the soldier to make a personal determination about the legality of the order. Now, his decision may well be reviewed. But he is required to exercise his individual judgment regarding the legality of the order. In that respect, every soldier must judge for himself. Every soldier must be a military tribunal in miniature.

That's not what it may come down to in the final analysis, but he must be able to justify his actions. It's not enough to say "I was just following orders." Rather, it's incumbent on him to interpret the legality of the order. 

For instance:

Seems like pretty good motivation to obey any order you're given, right? Nope. These articles require the obedience of LAWFUL orders. An order which is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it. Military courts have long held that military members are accountable for their actions even while following orders -- if the order was illegal.
In principle, you might object that it's chaotic to say every solider has an obligation to second-guess the legality of orders, yet that hasn't destroyed military discipline. And the alternative is the Nuremberg Defense. 


  1. Lawful or moral? I think a distinction must be drawn there. I understand what you're getting at but, lawful could be construed or twisted to me following laws, like 'it is unlawful to house a fugitive slave' is an immoral law yet, would following it be 'lawful' or moral? What about vice versa?

    1. Distinguishing between legality and morality is certainly an valid and important distinction in its own right, and that justifies civil disobedience in some cases.

      However, that doesn't obviate the importance of distinguishing between lawful and unlawful orders, where the individual giving the order has overstepped his authority. That's not a moral issue, per se, but an issue regarding issues like legal jurisdiction and duly constituted authority–or the absence thereof.

  2. For those interested, Christopher Yuan and his mother Angela are interviewed for 6 days by Nancy Leigh DeMoss on Revive Our Hearts radio. Christopher addresses his struggle leaving the gay lifestyle to become a follower of Christ. Angela addresses the difficulty of having a gay son.

    The following is a link to the first day. One can listen to all 6 days of interviews by clicking "Next."

    1. download the free mp3s while they're available and free.

  3. Individuals, and indeed states, have routinely flouted federal laws on Marijuana sale, possession, and consumption on the basis of conflicting state law. Why get so high and mighty all of a sudden about this?

  4. I was just at TurrentinFan's blog. He put up a link to yours over here. He cites an option for resignation or fleeing the persecution of the unjust Federal Judiciary that weighed in and issued an order arresting this woman. He cites:

    Matthew 10:23 But when they persecute you in this city, flee ye into another: for verily I say unto you, Ye shall not have gone over the cities of Israel, till the Son of man be come.

    That is in my view as well as TF's, a resignation option. I believe that is one option this clerk had Biblically. Here's the only other option I believe she had:::>

    Psa 1:1 Blessed is the man who walks not in the counsel of the wicked, nor stands in the way of sinners, nor sits in the seat of scoffers;

    This verse seems to me to be her strongest Biblical option, "TO NOT STAND IN THE WAY OF SINNERS" and issue the marriage license even though it is morally wrong for two people of the same sex to marry Biblically. It is not morally wrong in this fallen wicked world ruled by the Devil.


    She is an elected official sworn to keep the laws of Rowan County and the State of Kentucky primarily. Isn't it her public and official sworn duty therefore then to comply with the recent SCOTUS ruling which is what the Federal Judge is relying upon, I suppose, to find her in contempt for refusing to issue those marriage licenses to the homosexual males and females wanting to marry their same sex partner? He did have her arrested and put in jail. That was one of his legal options and the most extreme one at that.

    It seems to me both Psalm 1 verse 1 is apropos to this situation for this publicly elected official who is a Christian AND the following Psalm too:::>

    Psa 15:1 A Psalm of David. O LORD, who shall sojourn in your tent? Who shall dwell on your holy hill?
    Psa 15:2 He who walks blamelessly and does what is right and speaks truth in his heart;
    Psa 15:3 who does not slander with his tongue and does no evil to his neighbor, nor takes up a reproach against his friend;
    Psa 15:4 in whose eyes a vile person is despised, but who honors those who fear the LORD; who swears to his own hurt and does not change;
    Psa 15:5 who does not put out his money at interest and does not take a bribe against the innocent. He who does these things shall never be moved.

    She took the oath to abide by the laws of the land. She swore to her own hurt in this circumstance did she not?

    It may be to her own hurt morally to refuse to issue to the general public a marriage license just because they are homosexual but I don't think is judiciously correct to do so and the Federal Judge seems to believe that is so, too.

    1. Would you apply the same logic to duly elected/appointed clerks/magistrates who refused to dutifully process the paperwork that sent train loads of Jews to Auschwitz? Do their job, or get out of the way so someone else could? Why or why not?

      I need to read TF for myself on this topic. He's usually a careful thinker. Will head over that way soon.

    2. I would agree that she had the *option* to resign, but I do not think she had an *obligation* to resign. Especially not the way that America was founded. And what I mean by that is that when we look at the Biblical principals of obeying civil governments, we have to realize our country itself was founded on the Declaration of Independence, which includes in it the clause "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government." We also at least pay lip service to the fact that the Constitution is the law of the land, not the whims of any elected official. Therefore, obedience to our government ultimately requires obedience to the principles upon which our government was founded, and that includes the right to undermine our government--to the point of removing it completely and instituting a new one--when it ceases to do what it is duly obligated to do, or when it requires us to do that which we are not duly obligated to do.

      Whether or not this is an issue that strikes at that level, it's far too simplistic just to say, "She should resign." No other nation has ever been set up the way that America has been set up, and therefore the question of "Is obedience to government obeying *officials* or is it obeying *that which even officials agree is the REAL law*?"

      And here's the bottom line. The law in Kentucky says gay marriage is illegal. The supreme court struck down that law in the process of all other laws--but there is no *actual law* in place granting permission for gays to get married. The only laws in place are still just male and female marriages, so until KY passes legislation, it's not *technically* the law. Courts can't pass laws, they can only strike them down. Ergo, everyone is treating this decision from the court as if it was a legislative body, because if enough people assert a lie and live as if it's the truth then people become convinced of its truth. Jefferson would be rolling in his grave. Actually, I think he would have already instigated another revolution by the early 1900s, but that's a separate topic...

    3. She swore an oath to uphold the state constitution and the US constitution. She is doing both. The state constitution forbids civil homosexual marriages and the US constitution is silent on civil homosexual marriages.

      To say it's her "official sworn duty" to comply with the SCOTUS ruling presumes judicial supremacy and judicial review. But as I've documented, those are controversial issues in Constitutional jurisprudence.

      In addition, both Title 7 and the Kentucky RFRA requires employers to make reasonable accommodations for the conscientious religious objections of private and public employees.

    4. The Federal judge should recuse himself:

  5. I want to make a correction thanks to "unknown" over at TF's blog who addressed my foolish interpretation of Psalm 1:1 and corrected me. I thought on it's face, foolishly, that to stand in the way of sinners meant what I expressed above in my comment. I stand corrected. That verse meant that she was doing what that verse intended for the "Blessed to do" which was in fact not standing with the homosexuals demanding her to issue them a marriage license.

    I do believe we might be at a good tipping point for another great move of the Holy Spirit to convict more and more people in the United States like was experienced in the 1960's and 70's.

    I would be very interested in your views both Steve and Peter Pike or anyone about how I interpreted those Words from Psalm 15?

    I do not believe the County of Rowan or the State of Kentucky or the United States has or will enact "godly laws" that give guidance to the citizens of any unincorporated area, town, city or State in the United States like the Scriptures do. This woman, Kim Davis, ran for the public official she was elected to and is still that county's legal official who is suppose to conduct legal business on behalf of the citizens of Rowan County. Doesn't that verse, Psalm 15:4 and these words apply to her situation? "... who swears to his own hurt and does not change;"?

    1. So by parity of logic the clerks and guards in Nazi Germany just needed to conduct their duly sworn duties and "process" the Jews?

  6. CR,

    No, I would think and believe history showed that the American General in charge who made the Germans around at least one concentration camp that I know of go to it to see what their doing nothing about the atrocities done to those Jews there agrees doing nothing was and would be immoral. My question centers on what Kim did; was it the correct thing Biblically for her to do?

    I am just at an impasse now with regard to Psalm 15 and verse 4 and these words in it:::> "...who swears to his own hurt and does not change; ..." when it comes to Kim Davis. Though I improperly applied Psalm 1:1 to the situation Kim Davis finds herself in I still am not certain refusing to issue a marriage license was the correct thing to do to that select public group of people? Was it or is it a moral imperative and then not refusing any other public group because their belief is different, too, than her own that warrants her refusal to just that one select group? Didn't she at one time also just stop issuing marriage licenses all together to all groups?

    Would it not be wrong to do so seeing she is an elected official in a public office and asking that I am mindful of Steve's comments above: "... To say it's her "official sworn duty" to comply with the SCOTUS ruling presumes judicial supremacy and judicial review. But as I've documented, those are controversial issues in Constitutional jurisprudence.

    To the merit of the judge that had her arrested for refusing to issue the marriage license to the homosexual group I think it was egregious and unwarranted of him to do that. How his actions and the SCOTUS opinion fit seems outstanding to me and it is beginning to look to me like judicial supremacy? What will the States and Federal Legislative bodies do? I don't think Kim's appeal is going to garner any support from the Judiciary, do you? Or the current Executive bodies at the Governor or Presidential level either??

    For me there seems to be some storm clouds forming out over the national horizon of the United States that are not God formed. But the good news is, God's storms will swallow up any storms of fallen man somewhat like Moses' serpent swallowed up Pharaoh's magicians serpents.