The Mero Moment: Kim Davis — September 17, 2015

By now you’ve probably heard of Kim Davis, the county clerk from Kentucky who was sent to jail for not issuing marriage licenses to same-sex couples. And, by now, you, like most Americans, are a little confused about the case. On the one hand, it feels an awful lot like a religious bigot defying justice and acting the martyr. And, on the other hand, it feels an awful lot like political correctness run amok in the life of an otherwise innocent person. I can tell you that it’s probably more the latter than the former but this case is a good example of the legal conflicts to come as America scrambles for cultural equilibrium.

by Paul Mero
by Paul Mero

I listened to George Stephanopoulos reveal his worldview as he tested the worldview of presidential candidate Mike Huckabee. Huckabee explained his outrage over Kim Davis’s imprisonment. Stephanopoulos countered with the old standby for all gay activists – the Loving decision that allowed interracial couples to marry. Should a county clerk been able to deny marriage licenses to interracial couples, he asked Huckabee. Huckabee said the circumstances aren’t the same and began to move on. Stephanopoulos, who is sure that circumstances are exactly the same, wouldn’t let it go. Huckabee repeated himself – the circumstances aren’t the same. He said, one case had to do with racism, this case has to do with federalism and the separation of powers.

I could tell his answer threw Stephanopoulos. Huckabee was saying that even the United States Supreme Court is prohibited from making laws. Under the U.S. Constitution, legislatures make laws. The Supreme Court simply rules on the constitutionality of the law made and the ruling alone is not the law. Kim Davis, he argued, is simply following both state law and the U.S. Constitution – Kentucky law reads that marriage is between a man and a woman and Kentucky, not the Supreme Court, has the right to regulate marriage for the state.

What Huckabee is really arguing is that the Court decision finding gay marriage a fundamental constitutional right was fundamentally wrong – like the Dred Scott decision was wrong holding that black people were not fully human beings under the law. Hence, the wisdom of the separation of powers. President Lincoln threw the Dred Scott decision in the trashcan and, ultimately, led a war in defiance of the Court’s opinion, the “law of the land.”

And that’s a good point so often overlooked in the politics of equality – if you have to change the definition of something to achieve equality, the result is not equal. All men are created equal – we know what a human being is; we don’t have to change the definition of a human being to achieve this equality. Likewise, all marriages are created equal, which is why a white man and black woman in 1960s Virginia should be allowed to marry. But to grant gays the right to marry required a redefinition of marriage. The Loving case did not redefine marriage – after the Loving case was decided, marriage was still and only between a man and woman.

Nevertheless, the progressive narrative of equality persists. A senior editor at the libertarian Reason magazine criticizes Senator Rand Paul for siding with Kim Davis. The editor writes, “Paul is dangerously blurring [the difference between state action and private action] by suggesting that Davis has a First Amendment right to violate the 14th Amendment.” But the editor is wrong. Davis does not have her First Amendment rights at the expense of the Fourteenth Amendment.

The legal reality is that Kim Davis does have a religious freedom right to not issue same-sex marriage licenses. States that understand federalism and the separation of powers, such as Utah, were forward thinking and provided legal alternatives to accommodate the deeply held religious opinions of county clerks who choose not to issue those licenses – they simply step aside and let another clerk do that. Both the First and Fourteenth Amendments remain unscathed. Kentucky would have resolved it similarly, if it weren’t for an errant and overzealous federal judge.

The delicious irony in all of this debate over Kim Davis is that it puts her egalitarian opponents on the side of the awful Dred Scott decision. Many people, like the libertarian editor, dismiss Davis by arguing that she should resign her elected government position if she doesn’t like the law – which is a lot like saying back in the Dred Scott era, you know, elected officials for the entire northern half of the United States should just resign their positions and turn government over to their opponents who agreed with the Court’s Dred Scott decision.

If you can imagine what that America would have been like, you’ll catch a glimpse of the America to come.

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