Rowan County Clerk Kim Davis’s decision to not issue marriage licenses to gay couple has to go down as one of the most politically tone deaf moves in history. A solid majority of the public supports marriage equality, it is her duty to do so as a County Clerk, and she is under siege from multiple sides.
On the other hand, her decision to fight the Supreme Court’s landmark ruling in June only adds to the debate over gay marriage–specifically, religious exemptions. Republicans and culturally conservative Democrats have largely ceded the fight over gay marriage to its proponents. The new front in the battle is religious freedom.
Before Davis there have been at least a dozen other skirmishes over the issue. Rulings in Colorado, Washington, New Mexico, and Oregon all have sided with the states anti-discrimination clauses over religious exemptions. A baker in Colorado was forced to pay fines and restitution for refusing to bake a cake for a gay couple. A florist in Oregon was fined and ultimately forced to close his doors due to denial of service to gay couples. In New Mexico, the state Supreme Court ruled 5-2 against the religious objector. However, one astute judge noted the anti-discrimination laws forced individuals to choose between their faith and the law (and in some cases their livelihood).
There is a key distinction between these cases and Kentucky’s. Davis is an elected official, sworn to obey the law, while all the individuals involved involved businesses. Until Davis, we had never seen an elected official openly use religious objections as a reason for refusing to do their job.
The response to Davis’s actions have come at the state and federal level. Davis’s actions have roiled the Kentucky Governor’s race. Republican nominee Matt Bevin has defended religious exemptions and, due to the nature of the Kentucky electorate (more socially conservative than not), so has Democratic nominee Jack Conway.
Outside Kentucky the response has been much different. The Republican establishment has barely touched the issue. Some Republican Presidential contenders have weighed in on the issue while others have avoided it altogether. Democrats have been slow to respond, which is surprising considering the party is in lockstep on stepping on the First Amendment to promote marriage equality.
According to Davis (and Mike Huckabee), she is merely following the law. Unlike other states, Kentucky had not had its Constitutional ban on gay marriage overturned until the Supreme Court’s decision. Further, Davis argues she is merely following the will of the voters who put her into office; arguably they are far more culturally conservative than the average American.
But this shows a fundamental misunderstanding of our governmental system works. The Supremacy Clause, often abused, makes federal law paramount unless otherwise stated. Thus, if Congress passed a law legalizing gay marriage all states would have to recognize such a law. Similarly, unless Congress acts to repudiate a Supreme Court ruling, the ruling can have national implications (depends on the case).
Davis either refuses to accept this reality or is a martyr for her cause (more likely the latter). Unlike in prior events involving public or state officials, she is unlikely to back down.
Earlier this year, national politics was roiled when Indiana attempted to pass a RFRA (Religious Freedom and Restoration Act). Passed at the federal level in the 1990s as a response to attacks against traditional values, numerous states followed suit. With the Supreme Court’s ruling, Indiana attempted to protect religious freedoms with the new law. The result was a national uproar. Democrats piled on, several businesses refused to move to the state if the law passed, and protests occurred inside and outside the state. Eventually, the Governor and legislature backed down and did a fake watering down of the bill. Similar situations occurred in Arizona (at the beginning of 2015) and Arkansas.
None of this is to suggest Davis is right or wrong. She obviously believes she is furthering her cause–whatever it is–but that dismisses the larger point. The American public has largely passed the debate over whether gay marriage should be legalized or not.
The debate is now over just how far marriage equality can tread on one’s religious views. The oft-made comparison of marriage equality proponents is that the government did not allow business owners or individuals in the Civil Rights era to deny service to bi-racial couples or blacks. So why should the LBGT community be any different?
This is an inapt comparison. First, nobody had a religious reason to deny services to bi-racial or black couples. It was premised on cultural norms and values. Secondly, it has been well established for decades there are religious objections to LBGT couples and families whether it be for the lifestyle choice, sexual orientation, etc.
However, Davis’s actions appear more the views of a rogue determined to prove their point before one steps off the stage. Her actions don’t further the conversation between marriage equality and the First Amendment.