How should Kim Davis, the clerk of Rowan County, Kentucky, and an Apostolic Christian convert, be punished?
She ceased issuing all marriage licenses after the Supreme Court legalized gay marriage nationwide in June. She has been found in contempt of court, and though the same-sex couple that sued for relief only wanted her fined, a judge has put her in jail.
How did it come to this? There were — and still are — so many alternatives.
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Kentucky could amend its laws so that marriage licenses are not signed in the name of the clerk but of the clerk's office. That alone may be enough for Davis, since she wouldn't have to affix her name. Or the state could enable her clerks to issue the licenses in the name of the office, as they are doing in her absence. Kentucky also could pass provisions like North Carolina's that try to make a practical compromise where objectors would leave it to other clerks in the office to sign the documentation. Or Davis could resign. That seems like an honorable out.
Of course, she could also make a clearer stand. She could say that the Supreme Court exceeded its authority against Kentucky and the will of Rowan County. She could further say that she will not sin by signing same-sex marriage licenses, nor permit her county to offend by issuing them. In that case, accepting the consequence of going to jail is the only way to dramatize the conflict of conscience and authority.
Of course, neither she nor the state of Kentucky took any of these routes. Instead, she refused licenses to everyone (forcing them to go to other counties), stayed on the job, and argued that she had a right to follow the dictates of her conscience and stay out of prison. That doesn't quite add up. So she sits in jail, while opportunistic presidential candidates declare it a violation of her rights, and some progressives worry about how it all looks.
The Supreme Court had to know it would come to this. It had to know that in taking away the authority of states and the people to define marriage as a conjugal union, some force would be necessary to compel obedience.
A conflict about religious liberty and the authority of the state was bound to happen around marriage issues, just as it did nearly five centuries ago during the Reformation. Whatever we say about the separation of church and state, marriage is an institution that acts as a bridge between them. Religious institutions define the moral purpose and eligibility for marriage, while the state used juridical power to guarantee that stability of the institution.
So it's not a surprise that Justice Kennedy's opinion in Obergefell v. Hodges, which redefined marriage nationwide to include same-sex couples, reads more like a religious confession than a legal opinion. Instead of concerning itself with merely the legal consequences of marriage, it reaches outward to commend people to its "transcendent purposes" and "highest meaning." It projected backward the true meaning of the 14th Amendment based on developments in psychology a century later, just the way religious scholars read Old Testament prophecies in light of the new. It offered miraculous contradictions of the evidence of our eyes by saying that legal developments in recent centuries represent new insights, and "[t]hese new insights have strengthened, not weakened, the institution of marriage." It also offered an incorrect story of the entire history of the institution:
For example, marriage was once viewed as an arrangement by the couple's parents based on political, religious, and financial concerns; but by the time of the Nation's founding it was understood to be a voluntary contract between a man and a woman.
It also, like a 13th century papal bull, constricted the rights of non-conformists, when it assured religious believers that they may "advocate" for their beliefs and believe them, just not act on them and exercise them in the public square.
Kennedy's decision is only the latest in a long series of decisions in which the state progressively usurps the role of religion in defining the eligibility of individuals, moral purpose, eschatological meaning, and "transcendent purpose" for the institution of marriage. Notice even the subtle way the Griswold decision evokes but revises marriage indissolubility. "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." (Emphasis mine.) Davis' protest, however confused about the legal consequences it risks, is properly understood as a religious one.
So let me suggest, modestly, that instead of the National Guard or a jail cell, she should be handed a more properly religious punishment, one that honors America's evolving understanding of the separation of church and state. Before the sentence for contempt was handed down, Brian Beutler wrote in The New Republic that "she should be put behind bars until she relents one way or another."
Any attempt to force her hand risks making her a bigger martyr on the religious right than she already is, but that risk is small compared to the risk that allowing her to continue abusing her power without consequence will create a terrible precedent. There are surely other religious clerks in the South and elsewhere who'd love to get away with discriminating against gays and lesbians, in defiance of the country's highest court. [The New Republic]
What Beutler advocates here is making of Davis a "fearful example," often used to compel conformity in doctrine. He's after people's hearts, hoping to change those who would dissent. But he doesn't go far enough.
True, no GoFundMe campaign can restore days of life lost in a jail cell. But Davis has already indicated that jail is nothing to her compared to serving God. She's just sitting there with the approval of her conscience!
And besides, many think that putting Davis in jail risks exciting sympathy for her and a viral donation campaign that will ultimately reward her for her intransigence. The conclusion is obvious.
Any normal punishment rewards her with the comfort of solidarity from right-wing Christians, or her own sense of moral self-approval. Therefore the only way to avoid granting her such "martyrdom" is to actually martyr her. That's the really perverse thing about Christians who make a spectacle like this. The only way the state can really punish them is to inform them that their suffering is meaningless and proving that God doesn't exist by sending them to the darkness of oblivion in torment. Justice Kennedy has issued his theological bull; let Kentucky officials in defiance of it be put on a pyre.
When the smoke settles there will be no GoFundMe campaign, save perhaps for a small carbon offset.
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Michael Brendan Dougherty is senior correspondent at TheWeek.com. He is the founder and editor of The Slurve, a newsletter about baseball. His work has appeared in The New York Times Magazine, ESPN Magazine, Slate and The American Conservative.
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