Kim Davis, the Kentucky clerk who was jailed for refusing to give out marriage licenses to gay couples, is out of the clink at last. But in political and cultural regards, her nation and ours is not in the clear. Moral consensus has broken down, resulting in the empowerment of the strongest, the best connected, the best lawyered. And the loudest.
Changing standards (if you can call them that, because nothing seems standard these days) play out in the public policy arena to a degree once unimaginable.
Kim Davis’ lack of legal grounds for her claim of immunity from decisions of the U.S. Supreme Court is the secondary point here. Can we all agree that conscious civil disobedience to civil authorities has consequences on which the stability of the state depends? We can? Thank you.
Kim Davis had to know that no judge was going to acknowledge any claim to override the slenderest of Supreme Court majorities — 5 to 4 in the Obergefell case, by which same-sex marriage attained constitutional legitimacy last June. She had to know when she refused a constitutionally valid request to treat same-sex clients the same as opposite-sex clients that she was exposing herself to legal sanctions in, yes, the spirit of Martin Luther, and of Martin Luther King Jr.
None of which is the primary point in Davis’ case. The primary point is the wreckage that piles up when would-be reshapers of culture, and their cheering section in the media, say to the unconvinced and the out-and-out opposed: Get lost, you losers.
The Davis case takes on flesh and color only when considered against two outsized factors:
—The consensus, unbroken until 15 years ago, in all societies that proper marriages involve, exclusively, partners of opposite sexes.
—The hair’s-breadth nature of the Supreme Court ruling in Obergefell. In Brown vs. Board of Education, which invalidated the concept of “separate but equal” schools for blacks and whites, Chief Justice Earl Warren put together a united front: 9-0. Not that the court’s unanimity impressed opponents of Brown; it nevertheless impressed the previously disinterested.
The Obergefell opinion coaxed forth pages of scorn from the four dissenters. Justice Antonin Scalia called the outcome “a naked judicial claim to legislative — indeed, super-legislative — power, a claim fundamentally at odds with our system of government.” Rather than leave the question of same-sex marriage in the people’s hands, the court, Scalia said, undertook the heavy lifting — five men and women deciding what was what, pretending to act in the name of more than 300 million Americans. One of those Americans is Kim Davis, clerk of Rowan County, Kentucky. I think I may venture to say that she has company — lots of it. Americans like herself are outraged that five lawyers, without looking around for wisdom or public assent, would take it upon themselves to determine the meaning and contours of marriage.
The culture reshapers — those cheering on the federal judge who threw Kim Davis in the hoosegow — know what they are about. The changes in thought that precede changes in action take time. Hey — we’re in a hurry! Get those drooling yokels outta here!
Which yokels? The ones who think religion deserves some decisive part in national affairs. The ones who don’t see Equality in all human relationships as a goal that government is particularly well-qualified to further. The same yokels who attend support-the-police rallies and stay faithful to their spouses. These yokels may even home-school their children.
What are you going to do with people like that? Embarrass them, certainly, through snide attacks on talk shows and Twitter; ridicule their looks and educational backgrounds; but more to the point, lean on them in tangible ways. Procure court decisions. Throw resisters in the jug. Use an already sympathetic media to move up on the public agenda the important issues: not family and certainly not freedom, because too much freedom denies reformers the power to clamp down hard. No, the “real” issues: diversity, reproductive rights, climate change, and religious interference with secular ideals. In due course, the reformers, the hecklers and deriders of Kim Davis will supply these issues with their “real” solutions. Keep your lawyer’s phone number handy.
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