Thursday, the story of the Kentucky county clerk who refused to issue marriage licenses (now that same-sex couples can marry) reached its inevitable conclusion. Having been turned away by the Supreme Court, Davis was out of legal options for delaying the moment of truth: She had to either obey a court order to issue marriage licenses, including licenses to same-sex couples, or be in contempt of court.

She chose contempt and has been jailed, while her office has begun issuing licenses in her absence. Federal Judge David Bunning had the lesser option of fining her, but concluded (correctly, I think) that fines would simply delay the resolution of the case: Davis would not pay them and would continue showing contempt for the court’s order, forcing Bunning to jail her at some later date.

Response. Presidential candidates courting the religious-right vote immediately began characterizing Davis as a martyr for her beliefs. Ted Cruz issued a statement beginning with this line:

Today, judicial lawlessness crossed into judicial tyranny. Today, for the first time ever, the government arrested a Christian woman for living according to her faith.

Mike Huckabee compared Davis to Abraham Lincoln, who “disregarded the Dred Scott 1857 decision that said black people aren’t fully human.” [1] He also tweeted that “Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country”, and is planning a rally tomorrow outside the jail where she’s being held. (Some other Republican candidates have been less supportive. Lindsey Graham has been the most blunt: “As a public official, comply with the law or resign.”)

Other voices on the right portray Davis in larger-than-life terms. RedState.com founder Erick Erickson sees her case as a harbinger of civil war. Conservative Review‘s Daniel Horowitz casts Davis as this era’s Rosa Parks, and Steve Deace wants her to run for president. (Critics compare her to a different character in the civil rights movement: George Wallace standing in the doorway of the University of Alabama, unsuccessfully trying to block integration.)

Martyrdom. The Christian tradition is rich with martyr stories, going all the way back to the stoning of Stephen and the imprisonment of Paul in the New Testament. In the Lutheran school I attended through eighth grade, we were sometimes asked to imagine facing a choice between denying our faith and punishment or death. (I have heard similar stories from Catholics.) Like Muslim suicide bombers, we were promised glories in Heaven that would more than compensate for any earthly suffering.

But is that what’s happening here? Does Kim Davis deserve the enthusiastic admiration of conservative Christians, and even the grudging respect of those who disagree with the stand she’s taking? Or is she undermining the rule of law and usurping the powers of her office to implement her personal religious agenda? [2]

What the judge said. Before deciding that question, it’s worthwhile to examine the court order she’s defying. In that order, Judge Bunning considers Davis’ arguments and explains why he is rejecting them.

Davis argues that by signing a license for a same-sex marriage, she would be expressing approval of such marriages, which her religion denies. Bunning counters:

The form does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds. It simply asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law. Davis’ religious convictions have no bearing on this purely legal inquiry.

(Let me amplify that a little: Marriage-under-the-law and marriage-in-the-eyes-of-God have always been two different concepts. No one is asking Davis to affirm that same-sex marriages are valid in the eyes of God.)

A footnote spells out what the legal qualifications are:

A couple is “legally qualified” to marry if both individuals are over the age of eighteen, mentally competent, unrelated to each other and currently unmarried.

Davis also protests on free-speech grounds, claiming that an order that she sign the license form is compelled speech banned by the First Amendment. Bunning disagrees:

Because her speech (in the form of her refusal to issue marriage licenses) is a product of her official duties, it likely is not entitled to First Amendment protection.

In support of this view, he quotes a precedent from 1971:

When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.

And Bunning does not see a violation of the First Amendment’s free-exercise-of-religion guarantee:

Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.

Bunning does not mention this quote, but the principle goes back to an 1892 decision in which Oliver Wendell Holmes ruled against a policeman fired for something he said:

The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.

Davis is perfectly free to practice her religion in her personal life, but when she assumes the role of a public official, she has to act according to law. [3]

Cashing in? Hypocrisy? It’s a safe bet that St. Paul’s imprisonment wasn’t part of his grand plan to become a celebrity and get rich. But Dan Savage has been making this prediction since Davis first hit the headlines:

No one is stating the obvious: this isn’t about Kim Davis standing up for her supposed principles—proof in a moment—it’s about Kim Davis cashing in. There’s a big pile of sweet, sweet bigot money out there waiting for her. If the owners of a pizza parlor could raise a million dollars just by threatening not to cater the gay wedding no one asked them to cater… just imagine how much of that sweet, sweet bigot money Kim Davis is going to rake in. I’m sure Kim Davis is already imagining it.

In an interview on MSNBC, Savage spelled it out:

She will have written for her a ghost-written book, she will go on the lecture circuit, and she’ll never have to do an honest day’s work again.

Savage’s “proof in a moment” is a reference to Davis’ own checkered marital history: She’s been married four times and divorced three times, a practice which (unlike homosexuality) is explicitly condemned by Jesus in the Gospels.

Ad hoc purity. I have a more general complaint than hypocrisy, one that applies not just to government officials like Davis, but also to the baker [4] and florist who have been claiming persecution when they are not allowed to discriminate against same-sex couples: Their position relies on two principles, and one of them they just made up for this purpose.

The first principle is the one right-wing Christians always want to focus on: Homosexuality is sinful. Whether or not the rest of us agree, it’s incontestable that they believe it and have for a long, long time.

But since no one is asking them to commit homosexual acts, that principle by itself doesn’t create an issue. Their position requires a second principle: Christians should live according to a standard of purity that doesn’t allow them to involve themselves in other people’s sins.

Kim Davis has to imagine a pretty broad purity zone around herself, if verifying that two men are “over the age of eighteen, mentally competent, unrelated to each other and currently unmarried” involves her in the sin of their homosexuality. And the bakers who won’t sell a cake to a same-sex wedding reception — giving them no connection whatsoever to the actual marriage ceremony — must have an even broader purity zone.

Now, there are religious people who try to live their lives according to extremely high standards of purity (like the Jain monks who wear masks so as not to kill any tiny insects they might otherwise breath in). But that does not include any of the right-wing Christians who are claiming persecution. Their Christian practice did not require an expanded purity zone until now, and even now it only applies to situations that involve gays.

For example, apparently the clerks who gave Kim Davis her marriage licenses didn’t balk at the fact that (according to Jesus) some of those marriages were adulterous. I’ll bet she didn’t have any trouble renting a hall or buying flowers or cakes. Even the most conservative Christians simply didn’t care about this kind of purity before same-sex marriage became legal, and still don’t care about it in any other context.

Here’s what that says to me: This isn’t about religion, not when it depends on a “sincerely held belief” that was invented solely for this purpose. So either it’s about personal animus against gays, or it’s about protesting the politics of same-sex marriage. Neither is the kind of moral or constitutional issue that Kim Davis’ defenders want to make it.

[1] I’m not sure which act of Lincoln’s Huckabee is referring to, and I suspect he doesn’t know either. Dred Scott laid out some general principles about slavery before Lincoln was elected, but what specifically did the Supreme Court order Lincoln to do? How did he defy that order?



[2] As satirized in this image and this story from The Onion. I suspect conservative Christians are picturing a world in which only conservative Christian public officials have the right to bend their duties around their religion. But a friend suggested this example, which corresponds pretty well to the Davis case: What if a Jewish meat inspector decides that his religious convictions require him to reject all pork? I’ve also seen this example: What if an official refuses to issue hunting and fishing licenses, because he takes “Thou shalt not kill” literally?

Some of the Kim Davis satire doesn’t have a political point, it’s just funny. For more humor, check out the hijacked #FreeKimDavis tag on Twitter.

[3] A common complaint by conservative pundits is that liberals are fine with liberal officials ignoring laws. President Obama’s recent executive orders on immigration are a frequently cited example. But there are some significant differences between the two cases, as becomes clear when you compare the justifications.

Obama’s action is justified in a memo from the Justice Department’s Office of Legal Counsel (which I summarized at the time). Unlike Davis, the OLC memo never appeals to an authority higher than the law.

Instead, the memo outlines the executive branch’s strategy for handling the impossible situation Congress has created: The law would deport 11.3 million undocumented immigrants, but Congress has provided funding for dealing with only a tiny fraction of that number. Consequently, the administration must prioritize whom to deport.

When a court disagreed with the administration’s reasoning and issued an injunction against parts of the order, the administration stopped implementing it — except for one mix-up, which is being rectified without the judge needing to fine or jail anyone for contempt.

[4] As Dan Savage might have predicted, the bakers have made out like bandits. In the United States, being persecuted as a Christian is extremely profitable.