Public officials with moral qualms about laws should resign or enforce the law, Justice Kennedy says
Justice Anthony Kennedy.
The rule of law requires public officials performing their legal duties to enforce the law or resign, Justice Anthony M. Kennedy told Harvard law students last Thursday.
Kennedy spoke in response to a student’s question about the authority of federal officials, outside the judiciary, to act according to their own judgment in cases of same-sex marriage and abortion. The San Francisco Chronicle, the National Law Journal and the Advocate have stories on Kennedy’s comments.
Kennedy began his response by rephrasing the question, asking, “What is the duty of a public official if he or she cannot in good conscience and consistent with their own personal and religious beliefs enforce a law that they think is morally corrupt?”
Kennedy said only three judges resigned in Nazi Germany under Adolf Hitler. Great respect, he said, is due to people who resign rather than do something they think is morally wrong. “However,” he continued, “the rule of law is that, as a public official in performing your legal duties, you are bound to enforce the law.”
Considerable introspection is required when public officials consider whether their actions contradict their moral views, Kennedy continued. “But certainly, in an offhand comment, it would be difficult for me to say that people are free to ignore a decision by the Supreme Court,” he said.
Kennedy also expressed dislike for the term “swing vote” during the appearance, according to the National Law Journal account. “I hate that term,” he said. “I get this visual image of spatial gyrations. The cases swing; I don’t.”
Kennedy’s comments on the rule of law begin about 51 minutes into the video.