Justice Scalia: Public Officials Have To Do Their Job Or Resign

Supreme Court Justice Antonin Scalia

Many feel the only path forward for Kentucky County Clerk Kim Davis is to resign her post so she, not the state, can accommodate her religious beliefs.

Jonathan Adler, of the Washington Post, has found a surprisingly high profile judge who agrees that public officials cannot decline to perform their duties based on the official's personal view of morality.

That judge? No less than Supreme Court Justice Antonin Scalia.

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:

[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty” and if that fails, lead a revolution. But rewrite the laws he cannot do.

The upshot being that public officials don't get to rewrite the rules of their duties.

While Scalia has not addressed the specific issue of Kim Davis' refusals to do her job, he noticeably did not dissent from the recent denial for an emergency stay when requested by Davis' lawyers.