By JAMES K. FITZPATRICK
I have been waiting for weeks now for the keepers of the flame in the liberal establishment to express some begrudging admiration for Kim Davis’ decision to go to jail, rather than violate her conscience by issuing marriage licenses to same-sex couples in Kentucky. Or at least some ambiguity over what happened to her.
Did I really think that the liberals in the media and government would do that? Upon further consideration, I guess not. Selective indignation is the left’s stock in trade. But I was intrigued by the blatant double-standard. For my whole life, it has been the left that has championed civil disobedience, whether in the case of Socrates, Thoreau, Mohandas Gandhi, Martin Luther King, Rosa Parks, anti-war protesters burning their draft cards and moving to Canada, or smoke-ins in favor of legalizing pot.
But not this time. Instead of respect for Davis’ “stand on a matter of conscience,” we have been hit by waves of righteous insistence from the liberals, protestations that “no one is above the law,” that Davis has no right “to pick and choose what laws she will enforce,” that the “rule of law is central to the operation of our legal system.”
We got no explanation from the leading liberals about why Davis should not be added to the pantheon of history’s champions of dissent and civil disobedience. Why not? I am not being disingenuous. I don’t think everyone on the left is a dishonest partisan. I think that there are individual liberals who are so convinced in the merits of their position that they are eager to enter honestly in the debate over specific issues. Why didn’t they weigh in on Davis?
There are some thin cracks in the dike. But very thin. On September 7, The New York Times published an op-ed column by Ryan T. Anderson, a senior research fellow at the Heritage Foundation, entitled, “We Don’t Need Kim Davis To Be in Jail.” To be sure, an op-ed column is not the same as an editorial. But the fact that the Times’ editors published Anderson indicates that they see his position as worthy of consideration. That’s not chump change.
Writes Anderson, “Kim Davis, the clerk in Rowan County, Ky., went to jail last week, and there was no good reason for her to be there. Americans can expect more conflicts over religious conscience and same-sex marriage if we don’t find a way to coexist peacefully. Ms. Davis has become a symbol of what happens when we don’t.”
Anderson does not buy the argument being made on the left “that you must do every aspect of your job, despite your beliefs, or resign.” He correctly observes that “this has never been the practice in the United States. We have a rich history of accommodating conscientious objectors in a variety of settings, including government employees. Do we really want to say that an otherwise competent employee must quit or go to jail if there is another alternative? We shouldn’t want that.”
Precisely. When there was a draft in this country, the category of conscientious objector was established for those whose conscience would not permit them to take up arms. The “CO” category continues to this day, even without the draft, for current members of the military who have determined that their conscience does not permit them to participate in warfare. Those who are granted this status can be given either an honorable discharge or assigned to a non-combat role, such as a medic.
The left has always favored this exemption from military service. Current presidential candidate Bernie Sanders applied for conscientious objector status during the Vietnam War on the basis of his pacifist beliefs. His application was denied, but by the time the paperwork was completed he was too old for the draft. I can’t think of anyone raking Kim Davis over the coals who is criticizing Sanders for his application to be given a special status exempting himself from the law at the time.
One would think that those on the left who have made a career of defending civil disobedience and the right to dissent against our laws, would have sympathy for a woman such as Kim Davis, who finds herself facing a dramatic change in United States law and public policy during her time in office. Instead, they seem determined to roll over all opposition to same-sex marriage; they demand conformity to the new law.
If we had asked proponents of the homosexual revolution ten years ago whether they would ever insist that county clerks and justices of the peace be forced to grant licenses for same-sex marriages, or go to jail, they would have protested that raising such a scenario was a right-wing “scare tactic.”
That scare tactic is now the law. The change in societal standards is dramatic. Only an uncompromising militant would not want to find some way for their fellow citizens uncomfortable with the change to adjust to the new legal requirements, rather than send them to prison.
Emma Green, writing in the September 9 edition of The Atlantic in an article entitled “Kim Davis is Winning,” implores her allies on the left to seek a middle ground — for the good of the movement for same-sex marriage. Green recognizes that sooner or later most Americans will spot the hypocrisy on the left, as they witness the old defenders of civil disobedience cracking the whip on those who dissent from current law.
“As soon as” Davis was ordered “into the custody of federal marshals,” Green writes, “the optics were lost. Just as the gay-rights movement won the marriage fight with images of loving couples and happy, gay-parented children, so the religious liberty movement is bolstered by images of middle-aged women jailed for defending their beliefs.”
Green is convinced that it was these optics that led Judge David Bunning, the judge who sent Davis to jail, to reverse course and release Davis. Bunning was satisfied when he heard that six of Davis’ deputy clerks would comply with the court’s order “to issue marriage licenses to all legally eligible couples,” without Davis’ name actually appearing on the license. This seemed a reasonable compromise to him: The same-sex couples got their marriage licenses, and Davis stayed out of jail and kept her job.
By the time you read this column, you will know all that happened after Davis returned to work. But whatever happens, writes Green, the “Davis case should serve as a reminder to the left that religious-freedom claims are potent” and that those who “scoff” should be ready for Davis’ “next victory speech” if she is ordered to return to jail.
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