“The court cannot condone the willful disobedience of its lawfully issued order,” Judge Bunning said. “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”
When I was younger, I was more strident in my atheism. If I lacked the misogyny and gross prejudice—against Islam in particular—that qualify a person for the “New Atheist” label, then I nevertheless held to their practice of swashbuckling into almost any conversation, dull sword drawn, ready to declare that Holy Books hopelessly self-contradict; all those eternal truths are changeable and historically contingent; the notion of any kind of supreme and omnipotent being refutes itself under the simplest tests of logic; and oh, by the way, the Inquisition etc. were very, very bad. All of these arguments are simultaneously true and facile; faith exempts itself from these little eructations of materialism, which doesn’t make it correct but does make it in a sense immune to correctness as a category. In the last decade, my atheism has both deepened and softened. I suspect that had I encountered the right rabbi at the right time in my early twenties, when my passionate anti-religion burned hottest, then I might have been salvaged by grace. Now I tend to view religion, and at least some of the religious, with sympathy, which puts my soul beyond their reach, although it does sometimes force me to remind people that I know there are no gods and just appreciate the poetry.
This long caveat is to say that I have some sympathy for Kim Davis, though not because she’s in the right in her imagined protest. The idea that an agent of the government can nullify the law and obviate the constitutional rights of citizens due to her own private beliefs is manifestly silly. In the immortal formulation of your Catholic hero and mine, Antonin Scalia, you are entitled to your beliefs but not to your government job. Yes, even government employees, even elected officials, can engage in civil disobedience, but you don’t get to ride the First Amendment freely into your pension, especially not by violating its first clause in the delusional belief that in so doing you’re defending its second. As plenty of folks have pointed out, it was well within her small power to deputize some other row officer to sign off on these Satanic permits; that she refused to do so out of a let-us-say theologically suspect belief in the transitive property of the rendered-unto-Caesar suggests a desire to force the issue to a head. The Supreme Court is ironically responsible for this mess: its sloppy Hobby Lobby decision has convinced every minor divine in America that mere belief in whatever puts diplomatic plates on his prejudices.
But the Supreme Court is responsible, and it seems to me that any reasonably dull person, which is to say most Americans, who occasionally tunes into cable news, could easily draw this same conclusion: that “deeply held faith” abrogates temporal law. Egged on in this incorrect belief by unscrupulous legal counsel, you can just imagine how a person like Kim Davis could come to see herself as a hero and a martyr. Unlike her counsel, I don’t actually imagine that Davis holds any particular animus toward gays in particular, but rather has just a vague, foreboding sense of the inevitable decline of the familiar order of things. I grew up in a dying Appalachian coal town in Fayette County, Pennsylvania, and I knew plenty of women like Kim Davis. They went to the Church of Abundant Life and believed that Jews were going to hell, although one suggested to my mother that our family might be among the 144,000 to be bodily assumed into Heaven on the Rapture’s eve. They thought homosexuality was an abomination, but they were on perfectly good terms with the chubby homo who feathered and teased out their hair at Bangz. Democrats hadn’t done shit when the mines closed, so they drifted toward George Bush and learned to blame the unions and weren’t entirely wrong in either case. The Kim Davises of the world can’t do shit about the decline of Eastern Kentucky, but by God, this one of them can take a stand against things bein’ different. Correctness as a category does not apply.
Now, your regional sob story and hopelessly convoluted sexual ethics don’t entitle you to discriminate from your elected office, but I have the inescapable feeling that by holding her in contempt and tossing her in the clink, Judge Bunning did precisely the wrong thing. He was correct to observe that a pecuniary penalty would have had no impact; political allies of her lawyers would have made fines immaterial to her. And yes, courts do need a mechanism for enforcing compliance with their orders. But it strikes me that if Bunning could just wave his federal wand and allow others to issue the permits, then I see no reason why he couldn’t do the same without the cell. Despite her protestations to the contrary—that these certificates are somehow invalid without her signature—no one believes that the boys down at the Social Security Office are going to take her word over the order of a federal judge. I’ve seen some commentary on the convoluted authority to issue these permits in Kentucky, but state permitting statutes don’t trump the constitution, and their misapplication doesn’t invalidate gays’ right to marry.
If anything, to have simply swatted away her feckless protest and instructed someone else to marry the couples in question would have been a more fitting, biting, and deserved punishment. Let her whine impotently from behind the permits & licenses desk down at the county office while the janitor signs off under the authority of the US District Court. She will be neither hero nor martyr, and in a few months, she’ll wonder why she ever made such a fuss. Instead, I fear we’ve created another dumb saint in a country that seems to me to be drowning in dumb sanctimony. We must learn to love our enemies enough that the only punishment we desire in their defeat is their irrelevance. That would suffice.
Jacob Bacharach 