Well, now they’re making a martyr. Before we get to that, let’s note that Nicholas Frankovich is recalling when the pro-gay side had it’s law-defying local officials. Among them:
- In 2004, Mayor Gavin Newsom directed city officials to issue marriage licenses to same-sex couples, in defiance of California state law.
- In 2004, Mayor Jason West of New Paltz directed city officials to issue marriage licenses to same-sex couples, in defiance of New York state law.
Note too that The New York Times, which for over a decade has been one of the greatest and most influential cheerleaders for same-sex marriage, in a 2004 editorial praised the two mayors, yet concluded:
But for them to defy court orders requires a far greater crisis than is present here. If courts direct officials not to perform gay marriages, they should not.
That is the correct opinion, in my view, regarding the Davis case. But I also agree with Frankovich that if you were one of the people who thought Gavin Newsom a hero for breaking state law in obedience to what he considered to be the moral law, on what ground do you criticize Kim Davis’s act of conscience?
I recall that back in ’04, I wrote against Newsom’s lawlessness from a rule-of-law position. That’s exactly why even though my heart is with Kim Davis, my head says principle matters. NR’s Charles C.W. Cooke is correct to criticize Davis’s stance. Excerpt:
Conservatives are right to be appalled when they see the will-to-power elements within the progressive movement moralizing about the “rule of law,” and they are understandably galled by the expectation that they should sit and listen quietly as the people who cheer on widespread judicial abdication and routine law-breaking deliver lecture after lecture on the responsibilities of the state. But while a more generalized outrage is indeed warranted, they should be careful when arguing specifics that they are comparing like with like. Kim Davis’s case is straightforward not because it is in practice unique, but because Davis’s explanation is so blunt and so wrong. Most of America’s recalcitrant government officials have the good sense to pretend in public that their objections are rooted in the law — or at least that they are derived from some crucial constitutional principle that is wholly external to them. Davis, by contrast, has given the game away.
Meaning that she doesn’t have a single legal argument left; she’s just defying the law, including the highest court in the land. Again and again, I think Obergefell was wrongly decided, and was little more than a majority of the US Supreme Court putting flimsy dressing on its policy preferences. But there is nothing in our public order that gives people the right to defy the law without consequence. If the Supreme Court makes a ruling we don’t like, we are obliged to obey the law, or be willing to suffer the consequences of disobedience. What we cannot do, and what the government cannot permit, is open defiance of settled law. Those who think Kim Davis should be allowed to get away with it need to figure out what they would say to someone defying the SCOTUS decision in the Hosanna-Tabor case, a major win for religious liberty, because they disagreed with the court.
What, exactly, does Kim Davis hope to accomplish with her defiance? Does she think that the Supreme Court is going to overturn its own ruling? That she will inspire a movement that will eventually have that result? Does she think that same-sex marriage is such a grave crisis that it’s worth defying the Supreme Court (which is to say, the Constitutionally legitimate authority here)?
This afternoon, a federal judge ordered her to jail for her defiance. From the NYT’s report:
The White House press secretary, Josh Earnest, said he had not discussed the developments with President Obama. But he said Ms. Davis should not defy the Supreme Court.
“Every public official is subject to the rule of law,” Mr. Earnest said. “No one is above the law. That applies to the president of the United States and it applies to the clerk of Rowan County, Kentucky, as well.”
Oh really? That’s why President Obama, in 2011, ordered the Justice Department to stop
enforcing defending in court the Defense of Marriage Act, which was the law of the land at the time. I agree with Earnest’s statement, but it’s pretty rich coming from this administration. More from the NYT:
Rand Paul, the Republican presidential candidate and a senator from Kentucky, said it was “absurd to put someone in jail for exercising their religious liberties.”
Former Gov. Mike Huckabee of Arkansas, another Republican candidate, said the jailing of Ms. David “removes all doubt of the criminalization of Christianity in our country.”
“We must defend religious liberty and never surrender to judicial tyranny,” Mr. Huckabee said, adding that “the Supreme Court is not the Supreme branch and it’s certainly not the Supreme Being.”
Judge Bunning’s ruling also drew sharp condemnation from one of Ms. Davis’s lawyers, Roger Gannam.
“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 that belief is,” he said. “This is unprecedented in American law.”
No, that’s just not true, or not true in the way Gannam means. Davis is in jail not because she holds that belief, but because acting on that belief in her capacity as a government official is, under these circumstances, breaking the law. If she resigned her post, or permitted others in her office to do what is legally required, she would not be in jail. Again, she’s not incarcerated for having the belief, but for acting on it in this way. She would be perfectly entitled to hold that belief as long as her government agency obeyed the law, which says otherwise.
As longtime readers know, I’m very much for an expansive definition of religious liberty, but if we grant individuals the right to defy any law they like without consequence, as long as they claim religious liberty, the rule of law ceases to exist. As much as we might admire Kim Davis’s grit — she said earlier that if she has to go to jail over this, she will — I don’t see where the judge had any other choice. He offered to set her free if she would allow her deputies to issue same-sex marriage licenses, but she won’t do that either.
Politically, though, the government is making a martyr of Kim Davis. Look at the comments of Rand Paul and Mike Huckabee above. My TAC colleague Alan Jacobs, who believes that Davis has no right to swear to uphold the law but also get away with defying the ones she doesn’t like, senses that something is up. He says that lots of Christians in America don’t share his view (which, obviously, is my view too), and in fact side with Kim Davis. Jacobs:
If a large number of Americans, even in just a few states, feel the same way, then that will have consequences for elections, for laws, for the social fabric. And such consequences would be significant. Enough people have spoken out in support of Kim Davis to make me think that it’s not a trivial story.
“I think [Davis’s arrest] moves the needle on the religious liberty debate,” says John Eastman, a Chapman University constitutional scholar, comparing Davis’s stance to civil rights leader Martin Luther King Jr.’s decision to spend time in a Birmingham, Ala., jail rather than abide by what he deemed an unlawful judicial order to stop picketing. “Remember, lot of other ministers chastised King for taking a stand in Birmingham, but he said that when you refuse to comply with an illegitimate law, you should be willing to take the consequences in hope that by doing so you will call attention to the injustice of the act.”
I imagine that to most liberals and gay marriage supporters, comparing Davis to King is outrageous and insulting. They should realize, though, how iconic King’s gesture in Birmingham was. The thing is, King had a chance at achieving his goals in the long run. Kim Davis, alas, does not. She’s going to be in jail until she capitulates, or the State of Kentucky finds a way to remove her from her elected office, a move that may not be politically possible in the conservative state. Meanwhile, she will be seen by many Christian conservatives as a political prisoner. This could have a powerful effect on Election Day, though I’m not sure at all what that effect will be. Passionate public sympathy for Davis could invite an equally passionate backlash from those who hate her.
Here’s what I think is going to happen after the dust settles:
1. Gay marriage will still be the law of the land.
2. A huge number of secular and/or liberal people in this country will be far less disposed to listen to anybody talk about religious liberty, and will be more willing to regard all religious liberty claims as Kim Davis-like special pleading.
3. A non-trivial number of conservatives will lose patience with and sympathy for religious conservatives, because whatever they think about same-sex marriage, they will see this as fundamentally a law-and-order issue.
4. A huge number of conservative Christians will become ever more alienated from America and angry at the government. This will hasten their exodus from the public square, and the fraying of the social fabric.
I have expected No. 4 for some time, because the direction of the nation is clear. But I would have expected it over a considerably more ambiguous case than this one. Kim Davis is a bad martyr for the cause of religious liberty, and we conservative Christians will come to regret her stance. But here we are, and there are some very loud, very sincere voices cheering her on, just to stick it to the Man. They don’t have an end game, and don’t care.
You know what this thing reminds me of? The way Michael Brown, the “gentle giant” shot to death in Ferguson became a martyr for the cultural left and the #BlackLivesMatter movement. When a Justice Department investigation found that the officer who killed him had acted prudently, and that Brown was actually a thug, none of that mattered. Brown may have been, in the end, an unsympathetic figure, hardly a martyr to police brutality and racism, but his existence was too convenient to a huge number of angry people who had broader grievances — some legitimate, some not — and needed a totem to rally around.
Kim Davis is the Michael Brown of the Religious Right. Don’t underestimate the political potency of that. You watch, this is not going to end well for religious liberty in America.