This was topical when I wrote the draft, and then I got distracted with schoolwork and forgot about it. So the specific examples are a bit dated, but the basic points are still worth discussing—and unfortunately examples of this continue to turn up on a regular basis.
That’s the reason Kim Davis’ attorneys gave for why an immediate stay of enforcement was required while they continue to ask anyone they can think of who might side with them, since both mom and dad have told them “no”. Later in that same article, there was this line:
Despite her refusal, her office will begin issuing licenses Friday morning. Couples, however, will be marrying “at their own risk.” It is unclear if the licenses will be legally valid.
Question: why would the legality of marriage certificates issued in compliance with applicable laws be in question just because the county clerk isn’t on the job? So if she were on vacation or hospitalized, no licenses can be issued? If she died (or even just moved away), they would have to call a special session of the state legislature or special election, and no licenses until that happens? Surely her authority implicitly flows through her deputies, (absent evidence of malfeasance)? I mean, she sure thinks so—that’s why she won’t let her deputies do it while she’s there. If we’re going to start assuming that people do not have authority to perform government actions without affirmative proof that they do, every single time, the whole system will fall apart. Which is what some conservatives want, but I don’t think that’s Kim Davis’ goal.
You want to put on an addition to your house, so you go down to the City building and get a building permit. It has the name of the Zoning Commissioner stamped on it, but that’s not who you deal with. It’s counter-signed by the employee at the desk while you watch, but then you need to track down the actual Commissioner and ask them if that employee is in fact operating with valid authority. And, of course, you can’t just trust that your building permit is valid because the Commissioner says so—they only have authority because the City Council granted it to them. So you wait until the next City Council meeting, and ask them to affirmatively assert that your building permit is valid. But wait: the City Council only has authority because they were elected. So you need to get a referendum on the next ballot to make sure that the voters have endorsed what the City Council is up to.
So, four months later, you can be confident that your building permit is legally valid. Now you need to hire a contractor to replace your sewer line, which of course involves connecting to the city sewer system. The contractor shows up with all the necessary paperwork showing that they have the necessary permits from the City, as well as a certificate showing that they are bonded and insured—just in case something goes wrong and you end up with a living room full of poopwater. But wait—how do you know that certificate is valid? What if the person who signed it didn’t have authority from their superiors at the insurance company to approve insurance? Time to contact the insurance company. And make sure you trace the authority at least as far as the person who manages the books, so that you can find out what bank they use. You need to make sure that the person who verified the insurance company has sufficient assets to cover their policies themselves have the explicit authority granted them by their superiors to in fact make that judgement.
OK, chain of authority at the City, the contractor’s company, the insurance company, and the bank all check out. You can be confident that the paperwork you have on all counts is valid. Oh, hmmm…the insulation you’re using has a label saying it’s asbestos-free. But how do you know that Inspector #21 in fact has the authority to make that certification?…
Back in the Reasonable World:
We have to presume that a certificate, ruling, statement, etc., is valid unless there is an actual reason to suspect it isn’t. The whole point of such things is precisely because if we didn’t have proxies and the ability to grant and act in authority, we’d never be able to get anything done.
Maybe some of you are thinking “if we just abolished all these government regulations, it wouldn’t be a problem”. This isn’t even about governmental authority—it’s about having society at all. Let’s say there are no building regulations, but you, personally, want to build a flame-resistant house. So you go out and buy some flame-resistant materials. If you can’t trust that the person who signed off on their flame-retardant properties actually had the authority to do so, then the only way to believe that they actually are would be to conduct the experiment yourself, or to track down someone who has actually conducted the experiment—and somehow verify that the materials you bought are meaningfully “the same as” the ones tested. I suppose you’d go to the factory and watch them make your materials according to a process you have previously researched and verified results in flame-resistance, and then cart them back yourself—because you can’t trust the chain of paperwork that claims they are the same materials being offloaded as were loaded at the factory.
Transitive Moral Responsibility
Setting aside the logistical impossibility of not having authority carry through people in any society bigger than a few hundred members, the basic flaw in both Ms. Davis’ reasoning and the Hobby Lobby case is making moral decisions a selectively transitive property. They’re claiming that if they do something that enables (not causes—merely enables) someone else to do something which enables someone else to do something, then the first person is morally responsible for that final act. This is a difficult-to-police, but not completely ridiculous notion. After all, the boycott is founded on a narrower version of this same notion, that if company X does something bad, by supporting company X we are supporting the bad thing.
The problem in both of these instances (Hobby Lobby and Kim Davis) is two-fold. First, it’s selectively applied. Second, it’s stretched too far.
If this sort of transitive rule applies to morality, why does it not apply to all moral decisions? Why does Ms. Davis get to dictate what her employees do according to Ms. Davis’ morality, but the voters that elected Ms. Davis don’t get to dictate what Ms. Davis does according to the voters’ morality? Or, why can’t she perform her actions while absolving herself of moral responsibility because she is merely an agent of the State, and so if there is a moral failing it is the State’s failing? Why is it that this particular key spot on the lengthy chain from citizenry (collectively) to the couple that wants to get married carries all the moral weight?
(Yes, there are good arguments against having the buck stop at the level of government institutions (as distinct from the people embodying them): that “just doing my job” is a flawed defense; that we don’t want to give the responsibility for morality to institutions (public or private) because they simply don’t have the same inherent investment in such rights and responsibilities, nor accountability. But none of that addresses why the boss gets to be free from others imposing morality on her, while everyone else is saddled with an externally imposed morality.)
But perhaps as large of a flaw is trying to stretch this transitive morality too far. Should Kim Davis be allowed to decide what she does? Absolutely. But she doesn’t get to decide what the State does in contravention of our laws and/or public will. And she doesn’t get to decide what her coworkers do. If she wants to say “I won’t issue any marriage licenses”—well, there are still problems with that, but they’re about job performance more than about morality. Setting aside that she simply shouldn’t be in a job where performing basic duties of the job offend her, she simply has no moral leg to stand on claiming that someone else issuing a marriage certificate with her name on it as the office-holder in whom the authority is formally vested is a violation of her moral autonomy. At most, she has an individual complaint against the coworkers who, from her perspective, are smearing her good name.
So launch a defamation lawsuit against your coworkers for implying that you support same-sex marriage. I’d love to see that court case play out.
I Paid You, So I Own You
The Hobby Lobby argument is equally egregious in a very similar way.
Hobby Lobby argues that because it contributes towards the health insurance policies of its employees, if those employees use that health insurance for something that the owners of Hobby Lobby disapprove of, that is a violation of the owners’ moral beliefs.
Did you count that? There are at least three relationships between the people taking the action and the people whose beliefs are supposedly being compromised in this situation.
And the supposed explanation for why the owners of Hobby Lobby have a say is because it’s “their” money. Why is money that an employer pays to an employee “the employer’s money” even after it has been given to the employee? Or, if that is the case, why isn’t that money actually the customers’ money? After all, we’ve just established that the source of the money has the moral responsibility, not the current possessor of the money. So, surely the owners of Hobby Lobby should be beholden to its customers’ moral preferences?
Also, notice how these arguments are transparently arbitrary, and therefore contradictory. In the case of Kim Davis, the argument is that the employee’s morality must trump the employer’s, or it is a violation of her conscience. In the case of Hobby Lobby, the argument is that the employer’s morality must trump the employee’s, or it is a violation of his conscience.*
Or, perhaps, we should decide that we are each only morally responsible for the actions we take or don’t take. While choosing to give someone money might be a moral decision, once you give them that money what they do with it should weigh on their conscience, not yours. Because if we’re not going to follow the transitive morality chain all the way back to it’s source—which would be “society, collectively”—then there’s no ethical or logical reason to support transitive morality in some cases but not others. The decisions that Hobby Lobby and Kim Davis (and numerous other cases and laws since) are arguing for all boil down to arbitrary applications of transitive moral responsibility: that some people are “responsible for” others’ actions, and therefore get to restrict or control those actions. But only some people. Coincidentally, I’m sure, conservative Christian people.
* The real argument in these particular cases is clearly “a conservative Christian’s moral preferences trump anyone else’s”, but if we pretend that isn’t the case and try to find a less bigoted explanation, this is what we come up with.