A Footnote to History: The Troubling Narrative of Kim Davis

On Tuesday, June 30, 2015, April Miller and her partner of 11 years, Karen Roberts, entered the county courthouse in Rowan County, Kentucky, seeking a license to marry. Just four days before, the U.S. Supreme Court had issued a civil rights decision for the ages. In a 5-4 split, the Supreme Court ruled in Obergefell v. Hodges that same-sex marriage must be a nationally recognized right. Justice Anthony Kennedy, writing for the majority, wrote eloquently of the plaintiffs’ constitutional right to “equal dignity in the eyes of the law.” But despite this newly granted right, Kimberly Davis, the county clerk for Rowan County, denied Miller and her partner a marriage license.

The county clerk’s refusal to grant the couple a license marked the beginning of a lengthy and frustrating legal battle for a right that the highest court in the United States had already declared constitutionally guaranteed. But the peculiar case of Kimberly Davis resonated beyond Rowan County, underscoring a deeply divided American consciousness that was still reeling with joy, confusion, and indignation at the recent Supreme Court decision. For many supporters of same-sex marriage, the Rowan County clerk’s actions were the ultimate slap in the face to long-suffering gay couples, a reminder that the ruling in Obergefell was no fairytale ending to the arduous struggle for gay rights. For some on the religious right, however, Davis emerged as the paradigm of the increasingly rare religious conservative. Perhaps most importantly, despite the relatively clear-cut legal case against Davis, her actions served as an illuminating moment for many Americans, highlighting the sometimes difficult relationship between personal liberty and the law.

 

The decision in Obergefell was widely celebrated as a crucial stepping stone in the fight for gay rights, but to many conservatives, the decision struck an unacceptable blow against traditional values. The Monday following the decision, Davis announced that her office would refuse to issue marriage licenses to any couple, gay or straight, in protest of the decision, which she opposed on religious grounds. “It is my view as a Christian, someone who loves God and tries to live for God, that same-sex marriage is morally and ethically wrong,” said Davis on June 29. “I am not a bigot, and I love everyone. I do not want to discriminate, so this office will not issue any marriage licenses.”

In the months since Davis’ initial refusal to issue marriage licenses, she has been embroiled in legal proceedings, prompted by her untouchability as an elected official; under state law, she can only be removed from office if she is impeached by state legislature or charged with misconduct by the state’s attorney general, both unlikely in conservative Kentucky. April Miller, a professor at Morehead State University, is the lead plaintiff in the case against Davis. In an interview with The Politic, Miller recalled her disbelief and frustration at hearing Davis’ June 29 statement. “I felt discriminated against, marginalized,” Miller said in the interview. The next morning, Miller and her partner, Karen Roberts, joined protesters outside the Rowan County Courthouse. When the couple arrived, they learned that no gay couple had yet requested a license, so Miller and Roberts decided to try. “Karen and I went in and asked for a marriage license and were denied,” Miller recalled. “We asked why, and we were told ‘we’re just not issuing them.’”

Later that day, Miller spoke by phone with a number of county and state officials, including staff at the Attorney General’s office, who told her that there was nothing anyone in the state government could do. The Attorney General’s office told Miller that as an elected official, Davis could not be fired. That afternoon, Miller contacted the American Civil Liberties Union (ACLU) of Kentucky to file suit against Davis.

The legal case proceeded quickly, with the hope of allowing Rowan County couples to marry as soon as possible. After hearings in July, U.S. District Judge David Bunning ruled on August 12 that Davis was required to issue licenses. Davis requested a stay, which would put her case on hold while she sought an appeal, but her request was denied, first by the 6th Circuit Court of Appeals and then by the U.S. Supreme Court. On September 3rd, after her ongoing refusal to issue marriage licenses, Davis was found in contempt of court and was taken into custody.

Now, nearly three months after Miller, Roberts, and three other couples first filed suit against Davis, couples in Rowan County are finally able to obtain marriage licenses. Upon her release from jail on Tuesday, September 8, Davis acquiesced; while she would not sign any licenses herself, she would not interfere with the license-issuing process in her office.

 

On the surface, the Davis case is about gay marriage, but the troubling narrative of the Rowan County clerk draws attention to other, more complex issues of personal liberty and responsibility. Davis’ job obligates her to uphold constitutional principles, regardless of her personal beliefs. The Supreme Court’s ruling is the law of the land, whether she likes it or not, yet the conservative right insists on making Davis a martyr in the fight against progress on the gay marriage front.  Presidential candidates, including Louisiana Governor Bobby Jindal and former Pennsylvania Senator Rick Santorum, have spoken out in support of Davis’ actions.

By far the most vocal of the presidential candidates has been Republican Mike Huckabee, former governor of Arkansas. In a pitiful attempt to pander to the religious right, Huckabee appeared at a rally for Davis on September 8. There, he echoed statements he had made previously on ABC’s The Week. “What we’ve seen here is the overreach of the judiciary. This, if allowed to stand without any congressional approval, without any kind of enabling legislation, is what Jefferson warned us about,” said Huckabee. “That’s judicial tyranny.”

In another instance, Huckabee called for “accommodations” for Davis, citing the First Amendment. “We made accommodations to the Fort Hood shooter to let him grow a beard,” Huckabee said. “We made accommodations to the detainees at Gitmo—I’ve been to Gitmo and I’ve seen the accommodations that we made to the Muslim detainees who killed Americans. You’re telling me that you cannot make an accommodation for an elected Democrat county clerk from Rowan County, Kentucky?”

But Huckabee and Davis’ other supporters are, frankly, wrong. What Huckabee calls judicial tyranny is, in fact, the Supreme Court functioning in exactly the way it is intended to function. The very task of the Court is to clarify the Constitution through interpretation, and the ruling in Obergefell v. Hodges is part of a long legacy of civil rights advances facilitated by Supreme Court decisions. The case parallels in many ways the 1967 case of Loving v. Virginia, in which the Court made interracial marriage a nationally recognized right. It built, too, on the advances of Lawrence v. Texas, the landmark case in 2003 that struck down sodomy laws, which criminalized sexual acts between consenting adults in their private homes, in Texas and 13 other states. Like Obergefell, these cases could be dismissed as “judicial tyranny,” but so might any other case that has established a legal precedent. Surely not even Huckabee would argue that the Supreme Court has no right to change or establish legal precedent. Rather, his accusations of “judicial tyranny” are nothing more than thinly-veiled attacks on social progress.

More importantly, Davis’ First Amendment rights do not grant her an exemption from her job, as confirmed by previous court rulings. In her column for The New York Times, Linda Greenhouse, Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School, compared the Davis case to the 1998 case of Rodriguez v. City of Chicago, in which a police officer argued that he should be granted an exemption for religious reasons from standing guard outside an abortion clinic. The Seventh Circuit Court of Appeals rejected this claim, writing that the officer was not “at liberty to pick and choose whom to protect.” In the same way, Davis is most certainly not at liberty to pick and choose which parts of her job she wishes to perform.

Huckabee’s faulty support for Davis is symptomatic of the Republican Party’s greater dilemma about the appropriate role of religion in politics. As the religious views of the GOP’s younger voting base shift toward a more moderate stance, it is a continuing challenge for the Party to appeal to these less radical voters without alienating its older supporters of traditional conservative values. “Religion is a ready-made wedge issue in politics,” Professor Greenhouse told The Politic in an interview. “The Republican Party is really beholden to that [traditionally conservative] center of gravity.” But there is little question that the GOP will have to reconsider its approach on social issues, including religion, if it hopes to continue to appeal to its changing voting base. A Gallup report from June 2015 illustrated this divergence from traditional values, showing that 44% of Republicans consider themselves socially moderate or liberal. “Republican candidates are dealing with a party base that is today significantly more ideologically differentiated than it has been over the past decade,” the report stated.

Many hoped that the Supreme Court’s decision on gay marriage would relieve some of the tension within the Republican Party by allowing the issue of gay marriage to fade off the radar for candidates and voters alike. Kim Davis and the sensational attention she has received has proven this theory wrong. But Huckabee’s support for her, while catering to a specific portion of the GOP’s voting base, demonstrates a serious disregard for law and urges radical conservatives toward a dangerously exaggerated perception of personal liberty. Michael Reagan, son of former president Ronald Reagan, expressed anger at Huckabee’s support for Davis in an impassioned piece for The Cagle Post, a website that publishes political cartoons and commentary. “[All Huckabee] actually managed to do,” Reagan wrote, “was hurt the Republican Party’s already beat up brand and give the mainstream media another chance to make it look like the GOP’s Big Tent is crawling with freaks.”

 

Davis’ legal troubles drag on, particularly in light of new allegations that marriage licenses issued from her office have been altered in ways that may render them invalid. The story, at least, has a happy ending for the plaintiffs bringing suit against Davis in court.  April Miller and her partner finally received a license on September 4 and were married in a private ceremony at home on September 10. Reflecting on the case, Miller expressed pride in her actions. “It’s not something that a young couple who has only been together a few years, or maybe they haven’t established their careers yet, or maybe they haven’t established their home yet, [can do],” Miller told The Politic. “They don’t have the stability to make this kind of a stand… They don’t have the ability to do that right now, and we do. So in a way, we had to be the ones who stepped up.”

As for Davis herself, her temporary fame will fade. Maria Trumpler, Senior Lecturer in Women’s, Gender, and Sexuality Studies at Yale University and Director of Yale’s Office of LGBTQ Resources, called the momentary backlash to gay marriage a natural response to social change. “I think the excitement over marriage being recognized across all of the United States was so big,” Trumpler said in an interview with The Politic, “that this is just a small adjustment.” Ultimately, Davis and the movement she represents will vanish, washed away by the natural tides of progress. As Greenhouse told The Politic, “She’s going to be a footnote to history.”

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