Kim Davis, anti-gay Kentucky clerk, is a gift to gay rights.

Kim Davis Is a Gift to Gay Rights

Kim Davis Is a Gift to Gay Rights

Outward
Expanding the LGBTQ Conversation
Sept. 4 2015 4:38 PM

Kim Davis Is a Gift to Gay Rights

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Kim Davis speaks to co-workers at the County Clerks Office on Sept. 2, 2015 in Morehead, Kentucky.

Photo by Ty Wright/Getty Images

On Friday morning, same-sex couples in Rowan County, Kentucky, finally got the marriage licenses that the Supreme Court ruled must be provided to them. Kim Davis, the county clerk who refused to issue licenses because of her anti-gay beliefs, is in jail, where she will remain until she agrees to issue licenses or resigns. Her defiance delayed marriages in her county by roughly two months. Those months were difficult from the couples who were humiliated and stigmatized by her discrimination. But they were an immense victory for the broader cause of gay rights—in particular, the battle between nondiscrimination and “religious liberty.”

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Ever since nationwide marriage equality began to seem inevitable, cultural conservatives have sought to use hazy claims of “religious liberty” to fight back against LGBT rights. Bakers in Colorado and Oregon who denied service to same-sex couples—and faced fines for their discrimination—may not have had any real legal argument. But they were appealing figures whose cases pointed toward a concrete goal of conservatives: granting businesses a special right to turn away gay couples.

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Kim Davis also presents no real legal argument: She claims she’s acting “under God’s authority,” while her extremist attorneys have filed rambling, impudent briefs that attack the Supreme Court’s decision instead of working around it. But unlike the cake warriors, Davis isn’t advancing any concrete conservative goal. Anti-gay activists certainly want to protect anti-gay clerks from having to issue licenses to gay couples. But the right generally favors a fix like North Carolina’s recently enacted law, which lets religious clerks exempt themselves from granting licenses—but ensures that at least one clerk will always be willing to serve. (Davis, in contrast, barred her staff from processing licenses because her name would appear on them.)

Davis wasn’t patient enough to await a legislative solution—or gracious enough to simply resign from the job that she was clearly no longer capable of doing. Instead, she brazenly broke the law and defied a court order that the Supreme Court of the United States itself declined to stay. This flagrant law-breaking alienated Davis’ would-be allies in the press, from the American Conservative’s dyspeptically brilliant Rod Dreher, to the National Review’s gloriously unhinged Charles C.W. Cooke and Kevin D. Williamson. These men have spent years cheering on the Hobby Lobby strategy of respectful, law-based change—and now Davis is blowing all that up. Religious exemption enthusiasts and marriage equality advocates don’t share many passions, but respect for Supreme Court precedent—and, underlying that, the rule of law—is usually one of them.

What I doubt Dreher et al. have considered, though, is the extent of the damage Davis has done to the “religious liberty” movement. The crusade for marriage license exemptions is already in danger, as pretty much everybody will associate it, toxically, with Davis. But I suspect the destruction goes deeper than that. Davis’ demands don’t really differ all that much from those of, say, Melissa Klein, the anti-gay Oregon baker. Both want a special right to ignore a neutral, generally applicable law. Both cite their religious beliefs to justify receiving an exemption. And both have seriously degraded gay couples through their discriminatory practices.

There are, of course, distinctions here—namely that Davis is a government official, while Klein is a private business owner. But is that really an important difference? Klein’s defenders, after all, said gay couples in Oregon should just go to another bakery. Under that logic, why shouldn’t gay couples in Rowan County just go to another courthouse? Davis wasn’t really preventing same-sex couples from getting married; she was only making them drive a few miles to obtain a license when they wanted to get one at home. Conservatives laugh off the dignitary harm gay couples experience when denied service at a bakery. Why should they suddenly care when couples are denied service at a courthouse?

These are questions the right will have to confront now that Kim Davis is the new poster girl for “religious liberty.” In that sense, Davis has done the gay rights movement a huge favor. Previously, religious exemption advocates could use weeping, wholesome bakers as mascots for their cause, deflecting questions about animus and bigotry. But Davis lays bare the prejudiced, discriminatory beliefs that fuel the “religious liberty” fire. She is the monster conservatives created. And they will not be able to disown her as easily as they would like.