Co-authored by Nadine Strossen
Kentucky county clerk Kim Davis went to jail because she defied a court order to issue marriage licenses to gay couples, but she should instead have taken to heart the lessons taught by David Simon's current HBO mini-series, Show Me a Hero. It recounts the drama that unfolded when the City of Yonkers tried to defy a federal court order to integrate its neighborhoods and schools by building public housing projects in areas that were overwhelmingly white. At the center of the drama was Nicholas Wasicsko, who at the age of 28 both graduated from our law school and won election as the mayor of Yonkers. Although he was a newly-minted lawyer as well as the youngest mayor of any major American city, Nick excelled too many older, more experienced officials and citizens in courageously standing up for the rule of law against enormous personal and political pressures.
Federal Judge Leonard Sand's order met with massive resistance in Yonkers, spurring angry protests by the largely white voters. They elected city council members who pledged to never, ever comply with the court order. Nick himself had opposed the court order, and vigorously supported all avenues of appeal, but he rejected the path of outright contempt of court -- refusal to comply with a final order -- that the council majority, and their constituents, embraced. Judge Sand tried to get them to submit by imposing such heavy penalties upon the city that it could no longer pay for essential services.
As the municipal libraries closed and garbage piled ever higher on the streets, the defiant council members knew that the city had no realistic choice other than compliance. Because the council was deeply split, Nick could have secured a majority to support his call for compliance if just one of the recalcitrant council members would change sides. Yet, as a practical matter, Nick needed at least two council members to switch. None of them wanted to be the only one to break his pledge to never comply, especially in an atmosphere fraught with anger and threats. Nick, himself, felt the threats, having even found bullets in his mail box. He would always keep his back to the wall during his return visits to New York Law School to generously share his experiences with later students.
Nick was no fan of Judge Sand's order. He was quick to point out that the order compelled Yonkers to build public housing in a white area only because it had previously chosen to build public housing for people of limited means (albeit steering it away from white neighborhoods) while the rich suburb in which Judge Sand lived had built no public housing at all, anywhere.
Ultimately, Nick did persuade two council members to switch sides and vote for compliance, but only after years of resistance and strife that exacted incalculable -- perhaps irreparable -- personal, social and fiscal losses. Nick blamed Governor Mario Cuomo and other high officials for prolonging the city's agony by failing to use their prestige to provide political cover for the recalcitrant council members to vote for compliance. With none of these high officials helping, Nick said, "I feel all alone."
Despite Nick's view that the court's order was unfair, he maintained that Yonkers had to obey until and unless it could overturn that order through the court system. The reason, he told the students, was that he learned in law school that people must obey final court orders.
That is a lesson learned the hard way during the Civil Rights Movement when Southern officials defied federal courts' desegregation orders. We need once again to teach that lesson that Nick applied as a lawyer and leader to Ms. Davis and officials who defy court orders to register gay marriages. These officials are entitled to disagree with courts, but not defy their final orders.
Mr. Schoenbrod and Ms. Strossen are professors at New York Law School. He is a visiting scholar at the American Enterprise Institute. She is the immediate past president of the American Civil Liberties Union.