LONDON – OK, she’s out of jail — for now.
Kim Davis, the clerk of Rowan County, Kentucky, who spent five nights in the slammer under a civil contempt order for refusing to issue same-sex marriage licenses, was released because her deputies had begun issuing the licenses. Judge David L. Bunning has warned Davis not to interfere in the process from now on, but her lawyer says that she will not violate her conscience. Davis, as of now, has limited herself to praising God and her supporters. She went back at work on Monday last week.
So, here’s the question: Is Davis’ resistance just spitting in the wind of history, like Arkansas Gov. Orval Faubus’ defiance of the federal courts in 1957, when he called out the Arkansas National Guard to keep blacks out of Little Rock High School? Or does it signal a significant effort to shift the pendulum rightward in the culture wars?
History suggests that the fight is far from over. The United States is, as they say, a big country. Our factions don’t just lie down and roll over on the strength of a single U.S. Supreme Court decision. That is especially true for an issue like same-sex marriage, which cuts right down the middle between the nation’s fundamentally traditional values and its fundamentally ingrained resistance to the idea that individuals should be told what to do.
This split is the source of the culture wars that have occupied our public space for the past 50 years. We are in the middle of the latest round of the struggle, and we shouldn’t delude ourselves by thinking that anything about it has been laid to rest.
Because the swings of the pendulum have being going on for so long, the starting point of the story is arbitrary. But beginning in the late 1950s, we could see the direction in which things were moving. The power of the civil rights movement seemed — and was — irresistible. The power of the women’s movement was irresistible. The changes wrought by these architectonic shifts were so large that even the ordinary back and forth of politics could not undo them.
Still, there were reactions. For a while, it looked as if the counterculture of the late 1960s and early 1970s had given way to the counter-majorities, both silent and moral. We got President Ronald Reagan, House Speaker Newt Gingrich and President George H.W. Bush.
But that swing of the pendulum was checked before it went very far. The right overreached. Some of its clergy were disgraced — remember Tammy Faye Bakker and her eyelashes? — by financial and sexual scandals. The failure of the 1998 impeachment of President Bill Clinton elicited a general sigh of relief. The leftward movement resumed.
In a dramatic piece of shorthand, Theodore B. Olson, the lawyer who represented George W. Bush before the Supreme Court in the Bush v. Gore recount case of 2000, joined David Boies, counsel for Vice President Al Gore in that same case, to challenge, in 2009, a California constitutional amendment barring same-sex marriage
So here we are again. Some say that with the Supreme Court’s June ruling that denial of the right to same-sex marriage violates the 14th Amendment, the anti-right victory is complete. Those who welcomed that decision are now pressing for the legal corollaries, such as denying federal tax exemptions to noncompliant private organizations.
If this is what is going on, the questions about Davis’ quixotic protest are psychological, Machiavellian and just plain incredulous: What motivated her to become a martyr to a lost cause? Is she getting bad legal advice from manipulative right-wing groups pushing their own fundraising and political agendas? Is her obduracy a reaction to her three failed marriages? How can you be serious about a woman whose husband proclaims, “Judge Bunning is a butt?”
But then there’s the opposing evidence, which gives rise to another question. A senior counsel for the Lambda Legal Defense Fund, viewing a photo of Davis in handcuffs, said, “This is what the other side wants. This is a biblical story — to go to jail for your faith. We don’t want to make her a martyr to the people who are like her, who want to paint themselves as victims.”
The American Civil Liberties Union, which brought the case against Davis, felt the same way: It wanted Bunning to fine Davis instead of jailing her. But he said a fine would not work because it would likely be paid by outside groups.
You can understand Bunning’s logic: Davis is represented by Liberty Counsel, a 501(c)(3) organization that, according to its most recent Form 990, received more than $4 million in contributions and grants last year.
Davis emerged from her ordeal with her hands held aloft by her lawyer and Republican presidential candidate Mike Huckabee, who elbowed aside another Republican presidential candidate, Texas Republican Sen. Ted Cruz to claim the honor. Other public officials, including several represented by Liberty Counsel, are also refusing to facilitate same-sex marriages. The media are making the country aware of these officials — and making them aware of each other. At least one state is seeking to accommodate their religious objections by getting out of the marriage-license business altogether.
If this is the situation, we have to ask a different question: Are we set for another cycle of victory, overreach and reaction, with the same cast of martyrs, zealots, opportunists and lawyers belonging to all those categories?
Maybe we are, and maybe this is healthy. Maybe it just means that every time a prevailing orthodoxy is perceived as pushing people around — even pushing public officials around, and even for the most attractive of reasons — Americans get uneasy and try to redistribute the power.
But it would be so nice to think that after watching this play what seems like a million times, we’d be able to write a different ending — to let it go, to make sure that the same-sex marriage licenses get issued while the dissenters can squirm away semi-gracefully, to avoid protest, counter-fundraising, impassioned oppositional organizing and martyr-making.
Our chances aren’t encouraging, but we should give it a try.
Suzanne Garment, a lawyer, is the author of “Scandal: The Culture of Mistrust in American Politics.”