On Friday, anti-gay Kentucky clerk Kim Davis filed an emergency application to the Supreme Court, begging the justices to stay a lower court decision instructing her to grant marriage licenses. (Davis filed the application to Justice Elena Kagan, who will likely refer it to the full court.) As you may recall, Davis refused to grant marriage licenses to gay couples following the Supreme Court’s decision in Obergefell v. Hodges. Several couples sued, and Davis—a taxpayer-funded county clerk—chose to stop issuing marriage licenses altogether. A federal judge ordered her to continue doing her job, but Davis refused, citing her First Amendment rights. The Sixth Circuit declined to stay the judge’s order, explaining that “it cannot be defensibly argued” that Davis’ rights were violated.
Davis’ application to the Supreme Court is less an application for a preliminary injunction than a sententious protest against Obergefell. It accuses the Obergefell majority of “redefining” marriage—a staple of right-wing argot—three times. It sneers that the ruling was decided by a bare “5-4 majority.” It quotes, extensively and approvingly, the Obergefell dissenters’ ominous warnings about the apocalyptic clash between marriage equality and religious freedom. And, in case you didn’t get the point, it actually refers to “same-sex ‘marriage’ ”—complete with contemptuous scare quotes around “marriage.”
It would be easy to write a story mocking the application’s histrionics and thinly veiled animus. But quite frankly, I’m growing a bit concerned about Davis’ lawyers. Davis is being represented by the Liberty Counsel, a far-right fringe group that specializes in anti-gay litigation. (Naturally, it is also a Christian ministry and a tax-exempt nonprofit.) Founder and Chairman Mathew D. Staver has used Davis’ case to raise money and boost publicity for his group, going so far as to hold a rally for Davis. In his spare time, Staver has continued to participate in the Faith and Freedom radio show; in recent weeks, he has described the newly gay-tolerant Boy Scouts as “a playground for pedophiles” and compared acceptance of Obergefell to turning over a Jew to the Nazis.
Law firms regularly use sexy cases to increase their own profiles, and it’s perfectly fine to bandy about your client to further a constitutional cause. (Gay rights litigators do it all the time.) But Staver is taking things too far. The first sign of trouble arose early in the case: When a federal judge ordered Davis to issue licenses or be held in contempt of court, the Liberty Counsel advised her to disobey the ruling. Good lawyers don’t usually tell their clients to defy lawful court orders, especially when jail time is a real possibility. Yet the Liberty Counsel didn’t mind putting their client at risk—perhaps because the idea of a middle-aged woman being hauled off to jail for purportedly following her conscience would send thousands of anti-gay Americans reaching for their pitchforks (and checkbooks).
Now the Liberty Counsel has filed an angry, rambling application to the Supreme Court that is little more than an anti-Obergefell rant dressed up as a legal document. The fact that Davis’ lawyers couldn’t tone down the animus for long enough to pen the application is distressing but not surprising. More and more, it’s beginning to look like the Liberty Counsel is taking Davis for a ride, using her doomed case to promote itself and its extremist principles. Davis has certainly humiliated and degraded the gay couples whom she turned away. But I wonder if, on some level, she isn’t a victim, too.