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The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.
By Richard Jacobs
December 4, 2015
It’s one thing for politicians, the media and the public to call for greater ethical competence in the way public administrators make decisions and conduct themselves. But, it’s an entirely different thing for public administrators to respond to those calls by confusing moral/religious beliefs and ethics/ethical principles.
Consider the case of the elected county clerk of Rowan County, Ky.: Kimberly Jean Bailey Davis.
Following the Obergefell v. Hodges decision, in which the Court’s majority held the 14th Amendment guaranteed homosexuals the right to marriage, Davis defied a federal court order to issue marriage licenses to homosexuals seeking them in Rowan County. Claiming to be acting “under God’s authority,” Davis appeared before U.S. District Judge David L. Bunning and testified:
“God’s moral law conflicts with my job duties. You can’t be separated from something that’s in your heart and in your soul.”
In his judgment, Bunning noted,
“The court cannot condone the willful disobedience of its lawfully issued order. If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”
Bunning held Davis in contempt and jailed her on Sept. 3, 2015.
After serving five days, Bunning released Davis. Outside the jail and to the cheers of her many supporters, Davis appeared onstage locked arm-in-arm with her lawyer and a Republican presidential candidate. Davis projected the image of a heroic martyr, persecuted by the state for upholding the moral/religious belief that marriage is the union of one man and one woman.
Even if a “strict” wall of separation between Church and State exists – as many commentators have maintained since Everson v. Board of Education – that wall is not germane to the Davis case. What is relevant is the strict wall demarcating moral/religious beliefs from ethics/ethical principles. For public administrators, this is a distinction with a substantive difference.
Ethics and ethical principles—like those enunciated in the American Society for Public Administration (ASPA) Code of Ethics—are derived from the power of reason. They are the product of careful deliberation across generations concerning what the good requires and, as ethics and ethical principles impact public administration, what the common good requires of public administrators.
Despite what Davis and others have asserted, this case was not about moral/religious beliefs but the law and politics. Having lost at the district and circuit courts and with numerous state legislatures enacting pro-homosexual marriage laws, the law and politics are not on Davis’ side.
Reflecting on this case, Associate Supreme Court Justice Anthony Kennedy recently argued that government employees with religious convictions about marriage should resign. Why? They do not possess the constitutional right to act according to their sincerely held moral/religious beliefs and refuse to comply with the law.
“Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong, in order to make a point.” He added that Christians who must “enforce a law that they believe is morally corrupt” face “difficult moral questions. However, the rule of law is that, as a public official, in performing your legal duties, you are bound to enforce the law.”
Before her release, Judge Bunning ordered Davis not to interfere “directly or indirectly” with the efforts of her deputies to issue marriage licenses to homosexual couples. If Davis did not comply, Bunning said, “Appropriate sanctions will be considered.”
However, Bunning did not compel Davis to abandon her moral/religious beliefs. Neither was she forced to resign from her $80,000-per-year job, as Kentucky law mandates that a county clerk can be ousted only if defeated for re-election or impeached by the State’s General Assembly. Given Kentucky’s generally conservative politics, both outcomes appear highly unlikely for Davis.
For her moral/religious beliefs, Davis may have suffered mental anguish. If Davis was forced to resign office for those beliefs and lost her income that might quality as suffering, depending upon circumstances. However, Judge Bunning offered Davis a reasonable accommodation for her beliefs.
A martyr? Hardly.
Ethical Principles and Ethical Competence
What about public administration ethics? Was Davis’ decision-making process and conduct ethical?
As ASPA’s Code of Ethics relates to the Davis case, three principles are germane: advancing the public interest; upholding the Constitution and the law; and strengthening social equity. Incorporating those principles into one’s decision-making process and conduct demonstrates ethical competence.
As a public administrator, Davis failed on all three counts. Placing her moral/religious beliefs above the public interest, she did not respect jurisprudence, the law or public opinion. Moreover, Davis failed to exercise “fairness, justice, or equality with respect to individual differences, rights and freedoms.” Davis also failed to promote “other initiatives to reduce unfairness, injustice and inequality in society.”
This failure is an important legal and political matter. Davis’ failure to comply with the ethical principles associated with public administration is a professional matter, one bespeaking the decision-making process and conduct of a public administrator who refused to serve the public. Instead, Davis used the office to judge members of the public and deal with them as she believed appropriate.
While that decision-making process and conduct portray a zealous moral/religious individual, they do not represent an ethically competent public administrator.
Author: Richard M. Jacobs is a professor of public administration at Villanova University. His research interests include organization theory, leadership ethics, ethical competence and teaching and learning in public administration. Jacobs may be contacted at: [email protected].