Those who were critical of Kim Davis, the county clerk who refused to issue marriage licenses to same-sex couples and was jailed for being in contempt of court, often appealed to a rule of law principle. The main principle seems to be that individual belief should not be used to trump the law.

Some of those who supported Davis made the point that some state and local governments have ignored federal laws covering drugs and immigration. To be more specific, it was pointed out that some states legalized (or decriminalized) marijuana even though federal law still defined it as a controlled substance. It was also pointed out that some local governments were ignoring federal immigration law and acting on their own—such as issuing identification to illegal immigrants and providing services.

Some of Davis’ supporters even noted that some who insist that Davis follow the law tolerate or even support state and local governments that ignored the federal drug an immigration laws.

One way to respond to such assertions is to claim that Davis’ defenders were using the red herring tactic. This is when an irrelevant topic is introduced to divert attention from the original issue. The tactic is to try to “win” a dispute by drawing attention away from the original argument onto another issue. If the issue is whether Davis should have followed the law, the failure of some states and local governments to enforce federal law is irrelevant. This is like a speeder who has been pulled over and argues that she should not get a ticket because another officer did not ticket someone else for speeding. What some other officer did or did not do to some other speeder is not relevant. As such, this approach would have failed to defend Davis.

In regard to the people who said Davis should follow the law yet were seemingly fine with the federal drug and immigration laws being ignored, to assert that they were wrong about Davis because of what they think about the other laws would commit the tu quoque ad hominem. This fallacy is committed when it is concluded that a person’s claim is false because it is inconsistent with something else a person said. Since fallacies are arguments whose premises fail to logically support the conclusion, this tactic would not have logically defended Davis.

Those who wanted to defend Davis could, however, have made an appeal to consistency and fairness: if it is acceptable for the states and local governments to ignore federal laws without punishment, then it would seem acceptable for Kim Davis to have ignored these laws without being punished. Those not interested in defending Davis could also have made the point that consistency does require that if Davis should have been compelled to obey the law about same-sex marriage, then the same principle should have been applied in regards to the drug and immigration laws. As such, the states and local governments that did not enforce these laws should have been compelled to enforce them and any failure to do so should have resulted in legal action against the state officials who failed to do their jobs.

This line of reasoning is plausible but can be countered by attempting to show a relevant difference (or differences) between the laws. In practice most people do not use this approach—rather, they have the “principle” that the laws they like should be enforced and the laws they oppose should not be enforced. This is, obviously enough, not a legitimate legal or moral principle.  This applies to those who like same-sex marriage (and think the law should be obeyed) and those who dislike it (and think the law should be ignored). It also applies to those who like marijuana (and think the laws should be ignored) and those who dislike it (and think the laws should be obeyed).

In terms of making the relevant difference argument, there are many possible approaches depending on which difference is as relevant. Those who wished to defend Davis might have argued that her resistance to the law was based on her religious views and hence her disobedience could have been justified on the grounds of religious liberty. Of course, there are those who opposed (and still oppose) immigration laws on religious grounds and even some who opposed the laws against drugs on theological grounds. As such, if the religious liberty argument applies in one case, it can also be applied to the others that involve religious belief. But the general approach seems to be that religious liberty is for discrimination.

Those who wanted Davis to follow the law but who opposed the enforcement of certain drug and immigration laws could have argued that Davis’ violated the constitutional rights of citizens and that this was a sufficient difference to justify a difference in enforcement. The challenge is, obviously enough, working out why this difference justified not enforcing the drug and immigration laws in question.

Another option is to argue that the violation of moral rights suffices to warrant not enforcing a law and protecting rights warrants enforcing a law. The challenge is showing that the rights of the same-sex couples overrode Davis’ claim to a right to religious liberty and showing  moral rights to use certain drugs and to immigrate even when it is illegal to do so. These things can be done but go beyond the scope of this essay.

My own view is that consistency requires the enforcement of laws. If the laws are such that they should not be enforced, then they need to be repealed. I do, however, recognize the legitimacy of civil disobedience in the face of laws that a person of informed conscience regards as unjust. But, as those who developed the theory of civil disobedience were aware, there are consequences to such disobedience.