Kim Davis, a county clerk in Morehead, Kentucky, will face a contempt hearing Thursday for refusing to issue marriage licenses to gay couples—an act of unlawful defiance that has made her a hero to the religious right and a villain to progressives. To their credit, many conservatives—particularly those without deep ties to the religious right—have called upon the Rowan County clerk, who claimed to be acting "under God's authority," to issue the licenses or resign. But others have rallied to her side, or silently assented as she's abused her state power by denying same-sex couples a constitutional right.
Davis isn't the first opponent of gay equality to become a martyr for engaging in discrimination, but more than the conservative entrepreneurs and artisans who came before her, she exemplifies the governmental implications of the idea that religious liberty protections should trump civil rights law. In most of these cases, the government's imprimatur is obscured behind a gloss of neutral-seeming claims to property rights, but here it's crystal clear. And precisely because she's an elected government official who cannot be fired, and is engaged in an egregious abuse of power, she should be put behind bars until she relents one way or another.
Back before the Supreme Court found a constitutional right to same-sex marriage, when it became clear that same-sex marriage would one day be the law of the land in most, if not all states, conservative culture warriors abruptly changed tacks. After organizing for years around the notion that states and the federal government should refuse to recognize same-sex marriages, they decided the time had come for everyone to be accommodating to one another—as if liberals were suddenly making unfair demands.
But liberals were doing no such thing. For generations, when disputes rooted in discrimination against gays and lesbians arose between parties, governments would generally side with discriminators. Liberals were simply demanding that moving forward, the presumption should be turned on its head—beginning with the states themselves, a great many of which refused to recognize same-sex marriages.
Conservatives responded by issuing pleas for mercy, and embraced the concept of pluralism, to wield as a cudgel against gay rights activists. Same-sex marriage might prevail legally and politically, but opponents should not thenceforth be treated like bigots or pariahs or scofflaws.
What was rendered as a call for pluralism, though, was really a counterbid to keep the old formula: when disputes arise between same-sex couples and religious people like ourselves, the state should side with us.
In general, the negotiation has played out in the context of "religious freedom" disputes between same-sex couples and business owners, which has provided conservatives with sympathetic victims, like independent bakers and photographers and pizza makers. But Davis draws the governmental implications of this fight out into the open.
The restraint of government officials is supposed to be of particular importance to conservatives. In 2010, when conservative propagandists at Breitbart briefly convinced the right and the media that Shirley Sherrod, a black employee of the Department of Agriculture, had used her government power to discriminate against a white farmer, they sought, and were rewarded with, her resignation. In reality, of course, Sherrod had completely complied with the law of the land. Davis by contrast explains her obeisance to a different, conflicting law on camera.
Lawyers for the couples to whom Davis has denied licenses have asked only that Davis be fined—as opposed to jailed—for contempt of court, on the grounds that Davis has failed to fulfill the obligations of her office, and thus hasn't earned her salary. But they’re being too magnanimous.
As a hero to the religious right, Davis will likely never feel the pinch of court fines. She’s much more likely to reap a windfall from GoFundMe than to respond to the incentive court fines are meant to create.
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 only way to assure this doesn’t happen is to jail Kim Davis until she agrees to issue the licenses, resigns, or is removed from office.