Opinion

No, Kim Davis wasn't standing on principle

And 4 other lessons from the anti-gay marriage spectacle in Kentucky

Kim Davis, the county clerk in Kentucky who was jailed for refusing to issue marriage licenses to same-sex couples, was released this week, greeted by cheering right-wingers and an overly eager Mike Huckabee. Davis' deputies have declared that they will obey the law and continue to issue licenses to same-sex couples even when she returns to work on Monday, so it appears we may we have reached the end of this particular drama, as well as Davis' ability to continue obstructing the rights of her country's citizens. Now that the crowds have subsided and "Eye of the Tiger" is no longer ringing in our ears, let's examine some of the important takeaways from this controversy:

She wasn't really standing on principle
Some local officials strongly opposed to same-sex marriage have reacted to the Supreme Court's decision in Obergefell v. Hodges in a genuinely principled manner. That is, they resigned. Even if you strongly disagree with them on the merits, you have to respect people who hold true to their principles and refuse to compromise them. Davis, though, is a different case. I suppose "I want to get paid for not doing my job" is a kind of principle, but it's not a very attractive one. If Davis wants to stand on principle, she should resign.

Public officials have to treat people impartially
There is good reason why Davis was held in contempt. The key principle here is that civil servants need to treat citizens equally and according to the law. The red tape that can be involved when the public interacts with the bureaucracy can be frustrating, but it exists for that reason. We expect, for example, the DMV to issue drivers' licenses based on neutral criteria, not to grant them based on whether it likes the cut of an applicant's jib. Should someone whose religious beliefs mandate pacifism be permitted to refuse to issue gun licenses? Should someone whose religion forbids the consumption of alcohol be allowed to refuse to issue liquor licenses to businesses? Of course not.

The Republican primaries are a race to the bottom
It was inevitable that Davis would become a political symbol in the Republican primaries. And, indeed, the two candidates most aggressively courting cultural reactionaries — Mike Huckabee and Ted Cruz — have fought over who can support her most vociferously. Most of the other candidates have also supported Davis, even if they haven't gone to the extent of appearing beside her at public rallies. Only the vanity candidates Carly Fiorina and Lindsey Graham have said that Davis cannot take the law into her own hands. Interestingly, however, Donald Trump has refused to support Davis (while also declining to criticize her). Trump, whose positioning on issues is shrewder than his clownish approach might indicate, can apparently read the polls showing that Davis has little support from the public.

Contempt isn't always the right tool
It's too early to know for sure whether jailing Davis for contempt will be effective in securing access to same-sex marriage licenses for residents of Rowan County. If Davis' deputies continue to issue licenses next week, then imprisoning Davis worked. As Sam Bagenstos of Michigan Law School observes, however, contempt citations aren't always the most effective way to deal with intransigence. In similar cases in the future, judges may want to consider tools other than imprisonment, such as orders that take the authority out of the hands of officials who refuse to obey the law.

Resistance to same-sex marriage is likely to be futile
Just because the Supreme Court announces a right doesn't mean that public officials will enforce the right. The Supreme Court's decisions on school desegregation and reproductive freedom, for example, have faced substantial successful resistance. As the legal scholar Mark Graber observes, however, resistance to same-sex marriage is less likely to be effective. Marriage rights affect more than just the economically disadvantaged. Opposition to same-sex marriage isn't very strong and is declining. And the courts have the effective capacity to compel the issuance of a marriage license, while they aren't always capable of desegregating schools.

This doesn't mean that the struggle over gay and lesbian rights is over — far from it. Anti-discrimination statutes that impose significant costs on anti-gay businesses will be a much harder lift, a non-starter both in most red states and in a Republican Congress. On the narrow issue of same-sex marriage, however, it is unlikely that Davis and her ilk will be able to stem the tide.

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