When the clerk of Rowan County, Kentucky, went to jail rather than have to license same-sex marriages, she wasn’t committing civil disobedience – whether you think her action was courageous or bigoted. No, civil disobedience involves an intentional violation of an unjust law. Another name for it is nonviolent resistance: think Martin Luther King or Gandhi.
Kim Davis isn’t doing that; she’s instead declining to fulfill her duty as a government official, even after a judicial order confirming that duty. That’s official disobedience.
That Davis’s action (or inaction) is based on her religious belief is of no moment. She isn’t being ordered to give up her faith under penalty of law. Instead, as a public official, she has to enforce the law or, if she can’t in good faith (literally) do that, resign – at which point she would no longer be in contempt of court or face any other public sanction.
But why is a clerk in a county and state where gay marriage is unpopular bound by a ruling of U.S. Supreme Court? It’s not the Constitution’s Supremacy Clause, whereby state law must yield to (properly enacted) federal law to the contrary. Instead it’s because Justice Kennedy’s majority opinion in Obergefell v. Hodges, while not exactly the apotheosis of legal reasoning, stands for the proposition that state laws denying marriage licenses to same-sex couples violate the Fourteenth Amendment. So it’s not federal law that trumps state law, but individual rights that trump state law.
The Fourteenth Amendment worked a fundamental transformation in our constitutional order: As of its ratification in 1868, Americans can turn to federal courts to enforce infringements of their liberty against the states. And that principle stands whether a state infringes the right to keep and bear arms or the right to equality under the law.