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Kim Davis’s Lost Cause

Defending religious liberty requires better strategy—and more honesty.
Kentucky county clerk says she won't interfere with gay-marriage licenses

When state authorities released Kentucky county clerk Kim Davis from jail in September, Republican presidential candidate Mike Huckabee received her and her overalls-wearing husband on a platform erected right outside the detention center. Davis, looking every bit the Appalachian Pentecostal that she is, took the stage to the propulsive rock beat of the 1982 chart-topper “Eye of the Tiger.”

After a half-minute of sobbing, Davis, who had spent the previous five days in jail for defying a federal judge’s order to issue marriage licenses to same-sex couples, composed herself and addressed the crowd. “I just want to give God the glory,” she said. “His people have rallied, and you are a strong people!”

Ted Cruz, the other Republican presidential hopeful who rushed to embrace Davis, was shown on some broadcasts being blocked from the stage by Huckabee staffers.

Watching the spectacle play out live on cable news, a political strategist involved in the religious liberty fight felt his heart sink. “You can’t always choose your allies. It was pretty low-rent,” he told me.

Elsewhere, a leading lawyer who has been active in the highest circles in religious liberty battles echoed the Strategist’s view. “I worry that Mrs. Davis’s cause is being manipulated, and I’m sure it’s not serving the cause of religious freedom,” said the Lawyer, who like the Strategist requested anonymity. Setting the agenda for efforts on behalf of religious liberty is a doubly contentious project—with allies as easily enraged as enemies—and sources deeply involved are reluctant to give comments for attribution.

Conversations with conservative Christians engaged on various fronts of this struggle reveal profound anxiety over the direction of the movement after Obergefell, the Supreme Court ruling that legalized same-sex marriage. Those I talked to in the wake of the Kim Davis controversy, which dominated headlines in late summer, fear that their fellow religious conservatives don’t understand how politically and legally weak the traditional Christian position is in this rapidly liberalizing culture. They also worry that Christian conservatives will spend down rapidly diminishing political capital on lost causes like Kim Davis’s struggle, leaving themselves few reserves with which to fight battles that still might be won.

What do these leaders wish their allies to understand about where their side stands after Obergefell? From numerous conversations, I discerned these basic points:

1. Broadly speaking, the public does not support them.

This summer the Southern Baptist leader Russell Moore published Onward, a punchy polemic calling on conservative Christians to accept that the public today looks at the concept of Christian America as “more of a threat than an ideal.”

“Our message will be seen as increasingly freakish to American culture,” Moore wrote. A pastor and head of the Southern Baptist Commission’s Ethics and Religious Liberty Commission, Moore argued that Christians today “have to do what that first-century church did: ground sexuality in the Gospel in order to show why our view is so completely different, and why it matters.”

His point was that most Americans nowadays have little understanding of or sympathy for the traditional Christian view of sexuality, including homosexuality. Many regard traditional Christian teachings as no different from racial bigotry, and this in turn drives their views about religious liberty.

A Washington Post/ABCNews poll taken after Davis left jail in early September found that only one in three Americans believed the clerk ought to have had the right to refuse to issue marriage licenses to gay couples. Overwhelming numbers in all partisan categories—Democrats, Republicans, and independents—believed that as a general rule, equal treatment should trump religious liberty. Even 45 percent of Republicans polled said that Davis ought to do her job or quit.

That number includes conservative Christians like Alan Jacobs, a literature professor at Baylor University. “By following the Kim Davis model—defy the law but hang on to the job for dear life—all we do is convince the rest of the country that we’re dishonest and unreliable,” Jacobs says. “And even if you’re thinking only in terms of pragmatic politics, that’s a losing proposition.”

2. Perception matters.

Jacobs highlighted a point that I heard emphatically from every person interviewed: that whatever the principles at stake in the Davis drama, appearances were politically damaging. “She’s the cultural embodiment of a lot of religious right stereotypes, and that makes her not the person you want as your symbol in the political fight,” mused the Strategist.

That kind of talk gets populist conservatives’ backs up, as if the person saying it were a sniffy elitist ashamed of the grassroots unwashed. That emotional reaction, however, blinds them to the practical realities of politics.

As several sources explained, within Religious Right circles many see Kim Davis as their own Rosa Parks. That is exactly wrong. The civil-rights movement’s leadership carefully chose Parks to spark the Montgomery bus boycott because she was a sympathetic figure, well respected in the city as a woman of integrity.

By contrast, as a rural white religious conservative from the Deep South who symbolically stood in the courthouse door to prevent gay couples from exercising their constitutional rights, Davis is a disaster from the perspective of political messaging.

What’s more, polling shows that public employees are viewed as the least sympathetic figures when it comes to religious liberty claims—and, incidentally, they also have the weakest legal claims to religious freedom in the workplace.

3. Religious-liberty activists have to pick their battles carefully.

This spring, before the Obergefell ruling, a senior religious-liberty litigator confessed to me that “our side is out of bullets. We have no arguments left that the federal courts will accept.” After Obergefell, the church leaders, political experts, and legal analysts I spoke with said that their side now had to fall back and concentrate its efforts on the most defensible and important religious-liberty claims.

That means abandoning efforts to defend government employees and private businesses subject to public accommodation laws. (Sorry, wedding-cake bakers.) Instead, activists should concentrate on shielding religious schools, nonprofits, and related institutions.

“A lot of the recent religious freedom debate has taken place in terms of conscience. It evokes the image of Thomas More in ‘A Man For All Seasons’,” said the Lawyer. “The Davis case is an example of that paradigm: the heroic individual holding on to his conscience in the face of government persecution. thisarticleappears

“That’s important, but it’s also important to maintain the social and institutional space within which Christians can be formed,” he continued. “Conscientious believers aren’t hatched; they’re formed. They’re formed in communities, and we’ve got to get religious freedom protections so those communities won’t be homogenized by the state.”

How do nondiscrimination laws threaten institutions? The best known example is the possibility raised by some liberal commenters that the government could take away the federal tax exemption from churches. Experts said, however, that is not likely to be politically possible. The greater risk is a cutoff of federal funding, both direct and indirect—student loans, vouchers, etc.—to schools that violate federal antidiscrimination law. And if an educational institution loses its accreditation, the value of its diplomas plummets. Graduates of these religious colleges could be barred from law schools and medical schools. 

“Most people don’t understand that the government has at its disposal the incredible power of licensing and accreditation rules and public-funding conditions,” the Lawyer said. “The government is able to compel compliance with its norms not only by making you comply with them but by making you an offer that you can’t refuse.”

4. The business community is key.

In the past, corporate America has often stayed away from hot-button culture-war controversies, regarding them as bad for business. But this spring, when Indiana passed a Religious Freedom Restoration Act that gay-rights activists regarded as shielding bigotry, major national corporations threatened the state with economic repercussions if it didn’t amend the law. The state folded.

“That was a game-changer,” said the Strategist. “Business groups are a Republican constituency and have influence with Republicans. Now, in order to pass religious-liberty legislation, we’ve got to find a way to keep business neutral.”

The best means to that end, he suggested, is to push legislation that protects religious institutions and nonprofits but leaves business alone. Another possibility is to embrace bills that link religious-liberty protections with gay-rights protections, as the Utah legislature has done.

The gay-rights lobby has long owned the Democratic Party, and by co-opting big business, it exercises a proxy control over much of the GOP. Christian conservatives are increasingly isolated within the Republican Party and will have to compromise if they want to win anything on religious liberty.

5. Time is not on their side.

Though a substantial minority of Americans still opposes same-sex marriage, the bulk of these holdouts are old and fast passing into history. The window of opportunity for establishing baseline religious-liberty protections for institutions is closing rapidly. Christians need to stop listening to Beltway organizations that have a financial interest in stoking conflict and focus on what’s achievable.

As New York Times columnist Ross Douthat wrote in September, that means ending blue-sky dalliances with fantasy candidates—what Douthat’s headline called “The Carson Illusion”—and settling on a presidential hopeful who can deliver a realistic religious-liberty deal. It also means uniting behind legislation like Sen. Mike Lee’s (R-Utah) First Amendment Defense Act (FADA), which protects religious nonprofit institutions against having their accreditation and tax exemptions stripped and most individuals from losing licenses and employment.

Even the protections proposed by FADA have incensed liberals, and it will not be easy to get this bill through Congress, much less past the president’s desk. This is what it means to lose the culture war—and the country. The more excitable Religious Right activists associate the cause of religious liberty in the public’s mind with unsympathetic figures like Kim Davis, the harder it will be to shore up even minimal protections for Christian institutions and professionals.

“It’s tempting to insist on pure and uncompromising protections,” said the Lawyer, but “a realistic assessment of the situation strongly suggests that we’re in danger of making the perfect the enemy of the possible.”

Rod Dreher is a senior editor at The American Conservative.




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