A Pyrrhic victory: Kentucky, we have a problem

Kim Davis, the Rowan County, Kentucky, clerk who refused to issue marriage licenses. Carter County Detention Center, via the Associated Press, via the New York Times, fair use.
Fig. 1. Kim Davis, the Rowan County, Kentucky, clerk who refused to issue marriage licenses. Carter County Detention Center, via the Associated Press, via the New York Times, fair use.

So Kim Davis (figure 1), the county clerk of Rowan County, Kentucky, has fought and lost a court battle—all the way to the Supreme Court—to refuse marriage licenses to same-sex couples, continued to refuse to issue said licenses, and is now in jail for civil contempt of court. And while, according to Adam Winkler, a law professor at the University of California, Los Angeles, such jailings are meant to coerce compliance rather than to be punitive “she could be in there for a year; it’s conceivable. Judges really don’t like it when people disobey their order.”[1] It’s hard to imagine how she thought she could prevail in the wake of the Supreme Court’s decision in Obergefell v. Hodges,[2] but there are a few other clerks around the country who are also resisting.[3]

The trouble is that the ramifications of this case stretch much further than the “tempest in a teapot” Marc Solomon, national campaign director of Freedom to Marry, likened the Davis matter to in remarking that “[i]f the big backlash and the mass resistance that our opponents promised is one clerk from a county of under 25,000 people, I think we’re in very good shape.”[4] The result may well be a Pyrrhic victory: yes, it appears the couples who had previously failed to obtain their licenses will now be able to marry, even if Davis’ attorney thinks their licenses are invalid.[5] But the backlash from religious conservatives may be fierce and unrelenting.

The issue is largely being framed as a contest between the ‘rule of law’ and individual ‘conscience,’[6] but in fact, this framing is weak. First, as I have previously noted, law is largely passed by a group consisting overwhelmingly of wealthy white men against everyone else. As such, law has limited moral standing with anyone who feels under-represented. Furthermore, it is possible to broadly interpret an outcome of the Nuremberg trials as being that obedience to authority is not an excuse for immoral acts. Higher law—higher even than the U.S. Supreme Court—does in fact exist, even if it isn’t the ‘God’s law’ that Davis relies upon.

Second, it is elementary to an understanding of freedom of religion that in order to be free to practice one’s own religion, one must be free from the imposition of other people’s religions. But this cuts two ways, both as same-sex couples being free from religious conservative proscriptions against their relationships and as individuals being free from being compelled by other people’s religious beliefs to act in ways contrary to their own beliefs (some might remember pacifist Quakers as conscientious objectors to military service during the Vietnam War).

More fundamentally, the question of same-sex marriage comes down to whether marriage should be seen as a religious or as a secular matter. If marriage is a religious rite, then government should get the hell out of licensing or in any way regulating marriage. If, on the other hand, marriage is a secular contract, then nobody has the right to impose their own beliefs regarding marriage on anyone else. In the United States as a society, we have not actually settled the question of which it is and have rather been trying to have it both ways: Many traditional marriages continue to be conducted in churches. Yet, in United States v. Windsor, the Supreme Court “struck down a federal law denying benefits to married same-sex couples.”[7] Marriage is, in fact, embedded in all sorts of things, even sometimes to the matter of who may visit hospital patients. So while I might prefer that government get the hell out of the marriage business, as a practical matter, what it would take to extricate marriage from all sorts of secular affairs means that at least in this lifetime, marriage needs to be considered a secular matter.

Which would seem to mean that the religious conservatives who want to impose their own religious views on a secular institution need to let go. But they generally aren’t going to do that.

Social conservatives, whom George Nash claims to be mostly evangelical Protestants,[8] generally find it inconceivable that the United States is not a “Christian” nation that ought to be, in practice if not in name, theocratic. Even if they are right, we would have to ask whose Christianity should rule. There are, after all, “bleeding heart” liberal Christians whose “theocracy” probably wouldn’t be anything like what religious conservatives imagine. Even among evangelical Protestants, there are dozens of sects, some fundamentalist, some charismatic, and probably some something else. Then there are the traditionalist conservatives, whom Nash claims to be mostly Roman Catholic,[9] who argue that government exists to uphold religion[10] and thus support the theocratic premise. Their alliance[11] is going to be in serious trouble if traditionalists start arguing for anything like papal authority or the church hierarchy. It is awfully hard to imagine how monotheistic theocracy can manage even a fraction of the plurality of religious views in the U.S., which some might recall, was historically a reason for religious freedom in the first place. Let’s take, for example, the roughly 21,000 colonists[12] who

had established the colonies of Massachusetts Bay, Connecticut, New Haven (absorbed by Connecticut in 1662), and Rhode Island. A clear, but not overwhelming, majority were committed Puritans and most of the rest were prepared to live under Puritan rule. But serious internal divisions quickly emerged among the Puritans themselves. Over time, the ideals of New England’s founders would give way to a more worldly outlook among nearly all colonists.[13]

Hence freedom of religion as a major pillar of freedom of conscience and a lesson now lost among religious conservatives who are all now appalled by the state of secular society.[14] In the great ‘culture war’ generally, and specifically in the matter of same-sex marriage, they perceive themselves—not those whose rights they would deny—as being under attack[15]:

When U.S. District Court Judge David Bunning ordered Rowan County Clerk Kim Davis jailed in contempt of court Thursday, her martyrdom appeared complete. Liberty Counsel, the organization “dedicated to advancing religious freedom” that has been representing her, swiftly tweeted that “#KimDavis jailed for the crime of #BeingChristian #persecution in #America #Jesus,” while Mike Huckabee similarly noted that “Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country. We must defend #ReligiousLiberty!”

Reliably absurd homophobe Bryan Fischer, meanwhile, took to the airwaves to fret that “Every advance of the homosexual agenda comes at the expense of religious liberty,” and Fox’s Todd Starnes lamented that “So our government allows illegals aliens to roam our streets but incarcerates a good-hearted Christian lady? #ImWithKim.”

And Davis attorney Roger Gannam issued a statement that “Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman. And she’s been ordered to stay there until she’s willing to change her mind, until she’s willing to change her conscience about what belief is.”[16]

Huckabee also apparently missed the memo about stealing Twitter jokes with his ripped Erick Erickson tweet asking, “What a world, where Hillary Clinton isn’t in jail but #KimDavis is,” a reference to the Democratic frontrunner’s private email server controversy:

Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country. We must defend #ReligiousLiberty
— Gov. Mike Huckabee (@GovMikeHuckabee)
September 3, 2015

I’m headed to Kentucky on Tuesday to stand with #KimDavis. We must end the criminalization of Christianity! #ImWithKim
— Gov. Mike Huckabee (@GovMikeHuckabee) September 3, 2015

#KimDavis in jail for not issuing same-sex wedding licenses. Why aren’t San Fran officials in jail for ignoring immigration law? #ImWithKim
— Gov. Mike Huckabee (@GovMikeHuckabee) September 3, 2015 (link is external)

What a world, where Hillary Clinton isn’t in jail but #KimDavis is. #ImWithKim
— Gov. Mike Huckabee (@GovMikeHuckabee) September 3, 2015

This morning, on MSNBC’s “Morning Joe,” Huckabee argued that the Supreme Court decision overturning state bans on same-sex marriage was “bordering on judicial tyranny,” and insisted that Davis was only obligated to follow Kentucky law:

The only law she is following is the Kentucky law which by constitutional amendment defines marriage as a man and a woman.
[…]

Now if the Kentucky legislature decides that they agree with the Supreme Court and they change the laws of Kentucky, that’s a whole different thing.[17]

The plaintiffs in the case against Davis had even asked that she not be jailed, possibly because they feared making a martyr of her.[18]

This would be one thing if it were only religious conservatives. But as I expect to explain in my forthcoming dissertation, authoritarian populists and paleoconservatives also perceive themselves as being under attack (and there’s a great deal of overlap between them and social conservatives, as can be seen with comments from several Republican presidential candidates[19]). So the Davis case adds fuel to the fire for a very substantial segment of conservatism that feels persecuted. This may well bolster Donald Trump, who has been silent on this case,[20] but has been drawing support from conservatives, including authoritarian populists, paleoconservatives, and social conservatives who feel under-represented and under siege.[21] (Update, September 4, 2015: Donald Trump has now, apparently this morning, come down on the side of ‘law,’ suggesting that Davis should have delegated the licensing to someone else. While Louisiana Governor and fellow Republican presidential candidate Bobby Jindal criticized Trump for the stance,[22] I’m honestly uncertain it will matter, since nothing else Trump says seems to hurt him.[23])

What’s more, it diverts attention from the class issues that might enable Bernie Sanders to peel away some of the authoritarian populist vote when and if the Republicans finally manage to dispose of Trump, a task which itself will now likely be more difficult.

If in January, 2017, it’s Trump being inaugurated, I wonder how many who now celebrate their victories on same-sex marriage will be so happy.

  1. [1]Alan Blinder and Tamar Lewin, “Clerk in Kentucky Chooses Jail Over Deal on Same-Sex Marriage,” New York Times, September 3, 2015, http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html
  2. [2]Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al., N.p. (2015).
  3. [3]Alan Blinder and Richard Fausset, “Kentucky Clerk Who Said ‘No’ to Gay Couples Won’t Be Alone in Court,” New York Times, September 2, 2015, http://www.nytimes.com/2015/09/03/us/kentucky-rowan-county-clerk-kim-davis-denies-marriage-license.html; Eliott C. McLaughlin and Catherine E. Shoichet, “Kentucky clerk gets jail time for failing to issue same-sex marriage licenses,” CNN, September 3, 2015, http://www.cnn.com/2015/09/03/politics/kentucky-clerk-same-sex-marriage-kim-davis/index.html
  4. [4]Alan Blinder and Tamar Lewin, “Clerk in Kentucky Chooses Jail Over Deal on Same-Sex Marriage,” New York Times, September 3, 2015, http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html
  5. [5]James Higdon et al., “Ky. clerk’s attorney: New marriage licenses ‘not worth the paper they’re written on’,” Washington Post, September 4, 2015, http://www.washingtonpost.com/news/post-nation/wp/2015/09/04/with-defiant-clerk-in-jail-gay-marriage-licenses-finally-issued-in-kentucky-county/
  6. [6]Alan Blinder and Richard Fausset, “Kentucky Clerk Who Said ‘No’ to Gay Couples Won’t Be Alone in Court,” New York Times, September 2, 2015, http://www.nytimes.com/2015/09/03/us/kentucky-rowan-county-clerk-kim-davis-denies-marriage-license.html; Alan Blinder and Tamar Lewin, “Clerk in Kentucky Chooses Jail Over Deal on Same-Sex Marriage,” New York Times, September 3, 2015, http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html; Patrik Jonsson, “Clerk cites ‘God’s authority’ over Supreme Court on gay marriage. What now?” Christian Science Monitor, September 1, 2015, http://www.csmonitor.com/USA/Society/2015/0901/Clerk-cites-God-s-authority-over-Supreme-Court-on-gay-marriage.-What-now; Eliott C. McLaughlin and Catherine E. Shoichet, “Kentucky clerk gets jail time for failing to issue same-sex marriage licenses,” CNN, September 3, 2015, http://www.cnn.com/2015/09/03/politics/kentucky-clerk-same-sex-marriage-kim-davis/index.html
  7. [7]Adam Liptak, “Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide,” New York Times, June 26, 2015, http://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html
  8. [8]George H. Nash, The Conservative Intellectual Movement in America Since 1945, 30th anniversary ed. (Wilmington, DE: Intercollegiate Studies Institute, 2006).
  9. [9]George H. Nash, The Conservative Intellectual Movement in America Since 1945, 30th anniversary ed. (Wilmington, DE: Intercollegiate Studies Institute, 2006).
  10. [10]Russell Kirk, The Conservative Mind: From Burke to Eliot, 7th ed. (Washington, D.C.: Regnery, 2001).
  11. [11]George H. Nash, The Conservative Intellectual Movement in America Since 1945, 30th anniversary ed. (Wilmington, DE: Intercollegiate Studies Institute, 2006).
  12. [12]Paul S. Boyer et al., The Enduring Vision: A History of the American People (Boston: Wadsworth, 2014).
  13. [13]Paul S. Boyer et al., The Enduring Vision: A History of the American People (Boston: Wadsworth, 2014).
  14. [14]Russell Kirk, The Conservative Mind: From Burke to Eliot, 7th ed. (Washington, D.C.: Regnery, 2001); Richard M. Weaver, Visions of Order: The Cultural Crisis of our Time (Louisiana State University, 1964; Wilmington, DE: Intercollegiate Studies Institute, 1995).
  15. [15]Eric Eckholm, “Conservative Lawmakers and Faith Groups Seek Exemptions After Same-Sex Ruling,” New York Times, June 26, 2015, http://www.nytimes.com/2015/06/27/us/conservative-lawmakers-and-faith-groups-seek-exemptions-after-same-sex-ruling.html
  16. [16]Mary Elizabeth Williams, “No, Christians, you’re not being “persecuted” — and Kim Davis is not a martyr,” Salon, September 4, 2015, http://www.salon.com/2015/09/04/no_christians_youre_not_being_persecuted_and_kim_davis_is_not_a_martyr/
  17. [17]Sophia Tesfaye, “Mike Huckabee’s mind-bogglingly stupid Kim Davis tweet: ‘What a world, where Hillary Clinton isn’t in jail but #KimDavis is’,” Salon, September 4, 2015, http://www.salon.com/2015/09/04/mike_huckabees_mind_bogglingly_stupid_kim_davis_tweet_what_a_world_where_hillary_clinton_isnt_in_jail_but_kimdavis_is/
  18. [18]Alan Blinder and Richard Fausset, “Kentucky Clerk Who Said ‘No’ to Gay Couples Won’t Be Alone in Court,” New York Times, September 2, 2015, http://www.nytimes.com/2015/09/03/us/kentucky-rowan-county-clerk-kim-davis-denies-marriage-license.html; Patrik Jonsson, “Clerk cites ‘God’s authority’ over Supreme Court on gay marriage. What now?” Christian Science Monitor, September 1, 2015, http://www.csmonitor.com/USA/Society/2015/0901/Clerk-cites-God-s-authority-over-Supreme-Court-on-gay-marriage.-What-now; Eliott C. McLaughlin and Catherine E. Shoichet, “Kentucky clerk gets jail time for failing to issue same-sex marriage licenses,” CNN, September 3, 2015, http://www.cnn.com/2015/09/03/politics/kentucky-clerk-same-sex-marriage-kim-davis/index.html
  19. [19]Jesse Byrnes, “GOP candidates blast ‘absurd’ jailing of Kentucky marriage clerk,” Hill, September 3, 2015, http://thehill.com/blogs/blog-briefing-room/news/252732-gop-candidates-blast-absurd-jailing-of-kentucky-marriage-clerk
  20. [20]Jesse Byrnes, “GOP candidates blast ‘absurd’ jailing of Kentucky marriage clerk,” Hill, September 3, 2015, http://thehill.com/blogs/blog-briefing-room/news/252732-gop-candidates-blast-absurd-jailing-of-kentucky-marriage-clerk
  21. [21]Michael Barbaro, Nate Cohn, and Jeremy W. Peters, “Why Donald Trump Won’t Fold: Polls and People Speak,” New York Times, August 22, 2015, http://www.nytimes.com/2015/08/23/us/politics/why-donald-trump-wont-fold-polls-and-people-speak.html; Jeet Heer, “Donald Trump Is Not a Populist. He’s the Voice of Aggrieved Privilege,” New Republic, August 24, 2015, http://www.newrepublic.com/article/122590/if-you-think-donald-trump-populist-you-dont-know-your-history; Kathleen Hennessey, “GOP strategist talks to Trump supporters and comes away believing he could win the nomination,” Los Angeles Times, August 25, 2015, http://www.latimes.com/nation/politics/la-na-trump-supporters-20150825-story.html; Mark Hensch, “Trump: I’m winning because Americans are ‘tired of being the patsies’,” Hill, August 29, 2015, http://thehill.com/blogs/ballot-box/gop-primaries/252250-trump-im-winning-because-americans-are-tired-of-being-the; Evan Osnos, “The Fearful and the Frustrated,” New Yorker, August 31, 2015, http://www.newyorker.com/magazine/2015/08/31/the-fearful-and-the-frustrated; Evan Osnos, “The Fearful and the Frustrated,” New Yorker, August 31, 2015, http://www.newyorker.com/magazine/2015/08/31/the-fearful-and-the-frustrated; Alex Pappas, “‘Nothing Disqualifies Trump’ — What A Focus Group Tells Us About His Supporters,” Daily Caller, August 24, 2015, http://dailycaller.com/2015/08/24/nothing-disqualifies-trump-what-a-focus-group-tells-us-about-his-supporters/; Joan Walsh, “Donald Trump’s Southern strategy: What his Alabama pep rally revealed about the right’s new racial politics,” Salon, August 24, 2015, http://www.salon.com/2015/08/24/donald_trumps_southern_strategy_what_his_alabama_pep_rally_revealed_about_the_rights_new_racial_politics/
  22. [22]Nick Gass, “Jindal slams Trump over Kentucky clerk case,” Politico, September 4, 2015, http://www.politico.com/story/2015/09/bobby-jundal-criticize-donald-trump-kentucky-gay-marriage-213344
  23. [23]Caitlin Cruz, “Yet Another Poll Shows Trump Leading After Megyn Kelly ‘Blood’ Comments,” Talking Points Memo, August 10, 2015, http://talkingpointsmemo.com/polltracker/reuters-ipsos-trump-kelly-blood; Jeremy Diamond, “Donald Trump: ‘I keep whining and whining until I win’,” CNN, August 11, 2015, http://www.cnn.com/2015/08/11/politics/donald-trump-refutes-third-party-run-report/index.html; Stephen Dinan and David Sherfinski, “Donald Trump maintains front-runner status despite furor over Megyn Kelly comments,” Washington Times, August 11, 2015, http://www.washingtontimes.com/news/2015/aug/10/donald-trump-megyn-kelly-should-really-be-apologiz/; Peter Grier, “Donald Trump soars to big poll lead. What’s going on?” Christian Science Monitor, July 21, 2015, http://www.csmonitor.com/USA/Politics/Decoder/2015/0721/Donald-Trump-soars-to-big-poll-lead.-What-s-going-on; Kathleen Hennessey, “GOP strategist talks to Trump supporters and comes away believing he could win the nomination,” Los Angeles Times, August 25, 2015, http://www.latimes.com/nation/politics/la-na-trump-supporters-20150825-story.html; Josh Marshall, “Poll: Trump Remains in Commanding Lead After Debate Drama,” Talking Points Memo, August 9, 2015, http://talkingpointsmemo.com/livewire/poll-trump-remains-in-commanding-lead-after-debate-drama; Alex Pappas, “‘Nothing Disqualifies Trump’ — What A Focus Group Tells Us About His Supporters,” Daily Caller, August 24, 2015, http://dailycaller.com/2015/08/24/nothing-disqualifies-trump-what-a-focus-group-tells-us-about-his-supporters/; Eugene Robinson, “Attacking Donald Trump seems to only make him stronger” Washington Post, July 20, 2015, http://www.washingtonpost.com/opinions/a-questionable-strategy-against-godzilla/2015/07/20/66b58220-2f17-11e5-8353-1215475949f4_story.html; Eugene Robinson, “The one reason Donald Trump was the clear winner of the first GOP debate,” Washington Post, August 7, 2015, https://www.washingtonpost.com/opinions/the-one-reason-donald-trump-was-the-clear-winner-of-the-first-gop-debate/2015/08/07/c8fa4988-3d1e-11e5-b3ac-8a79bc44e5e2_story.html; Niall Stanage, “Can anything bring down Teflon Trump?” Hill, August 8, 2015, http://thehill.com/homenews/campaign/250639-can-anything-bring-down-teflon-trump

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