— Rosa Parks
is an American
hero, but her case was
not an accident. Other
had shown similar
defiance (ask Claudette
Colvin, who refused to
give up her seat nine
months before Parks).
Civil rights leaders had
spent years looking
for a favorable case to
challenge the segregation
of Montgomery buses.
Parks’ trip on bus 2857
was not premeditated,
but it was opportune. She
was already an activist
— known, respected and
impressive. Elevating
her case was one of the
best and most strategic
things that the civil rights
movement ever did.
Kim Davis — the
Kentucky clerk who was
jailed for refusing to
issue marriage licenses to
same-sex couples — has
been compared by some
conservatives to Parks.
Presidential candidate
Mike Huckabee, with
typical understatement,
has described her case
as “the criminalization
of Christianity in this
country.” He compares
Davis to Lincoln because
“he disregarded [the]
Dred Scott 1857 decision
that said black people
weren’t fully human.”
Bluntly put: Whatever
their intentions, these
people are doing great
harm to the cause of
religious liberty and to
the reputation of their
faith. Davis’ defiance
is the wrong test case
for the protection of
religious freedom.
The Supreme Court’s
far-reaching Obergefell
decision legalizing gay
marriage will have
radiating consequences
for people who hold
traditional moral
views on marriage and
family. Some challenges
will concern religious
institutions — colleges,
social service providers,
aid organizations —
that interact in various
ways with government.
Other controversies
will concern the
ability of closely held
businesses to refrain
from providing services.
But there is no serious
case to be made for the
right of public officials
to break laws they don’t
agree with, even for
religious reasons. This is,
in essence, seizing power
from our system of laws
and courts. The proper
manner to change the
law, in this instance, is
to work for the election
of a president who
will appoint Supreme
Court justices with a
different view, and for
the election of senators
who will confirm such
justices. Or to propose
and pass a constitutional
amendment. Davis
may be impatient
with this system, but
it is the one we have.
Personally assuming
the role in Rowan
County, Kentucky, of a
Supreme Court majority
is not an option. The
available alternatives
are to implement the
law (as public servants
across red America have
overwhelmingly done),
or to resign in protest (as
some have done as well).
Huckabee will need
to look elsewhere than
Lincoln for inspiration
on this issue. This is
from Lincoln’s speech
on the Dred Scott
decision in 1857: “We
believe, as much as
Judge Douglas, (perhaps
more) in obedience
to, and respect for the
judicial department
of government. We
think its decisions on
constitutional questions,
when fully settled,
should control, not only
the particular cases
decided, but the general
policy of the country,
subject to be disturbed
only by amendments
of the Constitution
as provided in that
instrument itself. More
than this would be
revolution. But we think
the Dred Scott decision
is erroneous. We know
the court that made it,
has often overruled its
own decisions, and we
shall do what we can to
have it to overrule this.”
Lincoln may be
overstating his case.
As a conservative, I
believe that facts and
circumstances matter,
and often complicate
simple rules. A sheriff
or magistrate in New
Hampshire in the late
1850s would have been
justified in choosing
to look the other way
rather than enforce
the Fugitive Slave
Act. Some Northern
juries flatly refused to
implement that law.
But those were choices
made at the foggy
extremes of political
theory. Whatever your
view of Justice Anthony
Kennedy’s ruling on
marriage, granting a
wedding license is not
in the same category as
participating in a legal
system that supported
chattel slavery. It is,
rather, participation in a
legal system supporting
liberal notions of
individual rights. Davis
believes that one of those
rights is misapplied
and misused. That is
not the moral or legal
equivalent of turning
over Dred Scott to
the slave catchers.
The Davis case is
important, but mainly
as a warning. Over the
next few years, some
religious institutions
will be subject to
legal challenges that
are encouraged by
Obergefell. This will
not amount to religious
persecution, but it will
raise serious questions
about the nature of
religious pluralism.
Some religious people
will properly contend for
their rights and interests.
But it is worth
remembering: Legal
arguments are not
won by elevating bad
cases. And public
arguments are not
won with unhinged
historical hyperbole.
Michael Gerson’s email address
is michaelgerson@washpost.
Kentucky clerk has
no right to not issue
gay marriage license
My father, a devout
Christian and Sunday
school teacher, often
used to say, “There is no
one as sanctimonious
as a reformed sinner.”
His words came to mind
as the drama unfolded
between Rowen County,
Kentucky, Clerk Kim
Davis and her refusal
to issue same sex
marriage licenses.
Davis, a recently
“saved” sinner, refused
to issue these marriage
licenses out of her
misplaced fear that doing
so would subject her to
eternal damnation. One
can only imagine the
Hell she envisions for
the actual participants in
these “unholy unions.”
My father was amazed
at Christians who cherry
picked Bible verses to
support their prejudices
and often racist views.
His church was closely
associated with the civil
rights movement so he
was well versed in these
racist contortions of
the Bible in the 1950s.
Jesus never advised
followers to disobey the
law of Caesar. On one
occasion, Jesus, advising
a follower to look at a
Roman coin, told him
to “render unto Caesar
what is Caesar’s and unto
God that which is God’s.”
Davis has every
right to her views on
the requirements on
salvation for her. But she
doesn’t have the right to
force these on others.
One of Jesus’ disciples
had the same issue.
The Apostle Matthew
was a tax collector
who worked for the
Romans. When he was
faced with the choice
of following Jesus or
keeping his high-paying
job, he resigned. Now
that’s a stand-up guy.
Of course, if Davis
resigned she’d have to
give up her $80,000 a
year job. She obviously
wants it both ways. She
says she is born again but
$80,000 is not chump
change in Kentucky. A
Matthew she is not.
Joseph Appleton
Patent law shouldn’t block the sale of used tech products
Kim Davis is no Rosa Parks
merican patent law
should not be used to
prevent consumers
from reselling, altering or
fixing technology products.
A federal appeals court will
soon hear a case that could
clearly establish this principle.
Lexmark International v.
Impression Products, which
is before the U.S. Court of
Appeals for the Federal Circuit,
involves toner cartridges
produced by Lexmark for use in
its laser printers. The company
is suing Impression Products,
which buys used cartridges,
refills them with toner and
sells them to consumers. The
refilled cartridges cost less than
new ones sold by Lexmark.
Lexmark argues that
Impression is infringing its
patents, because Lexmark’s
cartridges were sold to
consumers under the condition
that empty devices be returned
to the company. Lexmark also
asserts that the cartridges sold
in foreign countries cannot
be resold in the United States
without its permission. The
company bases this argument
on a previous Federal Circuit
ruling in a another patent case.
This case raises important
questions about the reach of
American patent law and how
much control a manufacturer
can exert after its products
have been lawfully sold. Taken
to their logical conclusion,
Lexmark’s arguments would
mean that producers could
use patent law to dictate
how things like computers,
printers and other patented
goods are used, changed or
resold and place restrictions on
international trade. That makes
no sense, especially in a world
where technology products
and components are brought
and sold numerous times,
which is why the court should
rule in favor of Impression.
If technology companies
want to restrict how their
products are used, they
can lease their goods
or sign contracts with
business customers. Some
manufacturers already use
contracts to restrict reselling
when they want to offer similar
products at different prices
in different countries. But
using patent law to enforce
restrictions is fraught with
problems. There is no reason
patent owners should be
allowed to demand royalties
from second or third owners
of products who may be
unaware of any restrictions.
Public-interest groups like
Public Knowledge and the
Electronic Frontier Foundation
and technology companies
like Google, Intel and Dell
have filed briefs in support
of Impression, arguing that
patent law should not be used
to limit the resale of goods and
restrict international trade.
Pharmaceutical and medical
device companies have filed
briefs supporting Lexmark,
arguing that a ruling in favor
of Impression would make it
easier to import drugs into the
United States from countries
where their prices are lower.
That concern is misplaced,
because the Food and Drug
Administration has the power
to restrict drug imports,
and federal law already
prohibits the re-importation
of medicines made in the
United States by anybody
other than the producer.
A 2013 Supreme Court
decision also appears to
support Impression’s position.
In Kirtsaeng v. John Wiley
& Sons, a 6-3 majority said
people should be able to
import and resell textbooks
that were first sold abroad.
To encourage innovation,
the government gives
inventors patents on their
creations for a limited time.
But patents should not give
the manufacturer indefinite
control over the product
after it has been sold.
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