It is not hard to see why Kim Davis’s story is being received with a collective national eye roll. It may be getting a lot of press, but that’s only because Deflategate finally seems to be over. One suspects that a slow news cycle is to blame when CNN dispatches reporters with cameras to film a leering Mike Huckabee leading a pie-eyed Kim Davis to a podium before a cheering crowd to a bootleg recording of “Eye of the Tiger.”
But Kim Davis matters. Granted, not in the way she thinks, and certainly not in the way that Mike Huckabee thinks (if one can call his brain poop “thought”). Kim Davis matters because American constitutionalism is as much about managing dissent as it is proclaiming rights or settling law. What Davis has done is part of an intricate constitutional process over gay marriage that has been at work for the last generation and will likely last a few years more. Even if the opponents of gay marriage are fighting a losing battle, their dissent is still important, and we must take that dissent seriously.
Lest my defense of Kim Davis be misconstrued, one caveat is in order. To suggest that Kim Davis’s position has some merit in constitutional praxis is not to lend credence to her legal position. Davis has been ordered by a court with supervisory jurisdiction over her to issue marriage licenses. She has exhausted her legal appeals. If she continues to resist, she does so against the law, and no amount of legal or political riddling will get around this fact.
But a good deal of constitutionalism takes place at the margins of black letter law. Even when the law is clear and lines of legal authority indisputable, Americans have found ways historically to register disapproval and to drag out discussions about what precisely our Constitution means, what it requires us to do, and what it prohibits us from doing.
Many readers will likely point to the Supreme Court as the ultimate arbiter of constitutional questions. This is not entirely correct. The Supreme Court is the final court of appeal in the United States thanks to Article III of the Constitution and section 25 of the 1789 Judiciary Act. This is not the same thing as saying that the Supreme Court finally and supremely decides constitutional questions. We always continue to argue controversial constitutional questions even after the Supreme Court hands down its opinions. Certainly no one would pretend that Plessy v. Ferguson (1896) prevented civil rights activists from decrying the Jim Crow regime. And, sadly, no one today can say that Brown v. Board of Education (1954) ended school segregation—or at least, no one attending America’s public schools could argue that point, without practicing perverse self-deception.
The opponents of gay marriage have sniffed out this practical truth of our constitutional system. Their attack on Obergefell is calculated to cut into the sweeping nature of the ruling. Kim Davis’s lawyers are taking one particular tack, arguing that she has a First Amendment right to free exercise of her religion, and that her religious belief prevents her from issuing a marriage license to anyone but a man and a woman.
The argument is clever because it gives Kim Davis just enough arm strength to have lobbed the ball back into the opponent’s court. U.S. district court judge David Bunning returned rather forcefully, jailing Davis for contempt. But Judge Bunning relented when the practical effect of his order was that Davis’s deputy clerks began issuing marriage licenses to same-sex couples. Davis was set free, free at last, with a stern warning not to interfere with her deputy clerks’ continued issuance of marriage licenses.
This little back-and-forth is important because it indicated the limits of federal power. While legal commentators have focused largely on the legal merits of Kim Davis’s lawyers’ arguments, a few have noted that the judge could have been either harsher or more lenient, if it had suited him. Importantly, he settled on the rights of gay couples rather than federal authority. Granted, he could have avoided direct confrontation. But Bunning’s point was clear: provided that gay couples in Rowan County can obtain marriage licenses, she can go free. At least one deputy clerk at the Rowan County office says he will continue to issue licenses even if Kim Davis orders him to stop.
So much for a united front against gay marriage in Kentucky. In fact, Kim Davis is notable for being an exception to the rule of compliance. Judges and clerks who refuse to comply with Obergefell are a tiny if vocal minority. No matter how many people show up to cheer on Kim Davis, nothing will change the fact that a few isolated public officials refusing to issue marriage licenses sprinkled across a nation of 320 million does not a revolution make. Nor does the presence of the “Oath Keepers,” an oddball outfit of assault-weapon toting civilians, in Rowan County. They have offered to “protect” Kim Davis against federal marshals—an offer that Kim Davis and her lawyers wisely refused. There is precious little legitimacy to go around for the anti-gay marriage movement as it is.
The Liberty Counsel boys understand this point. They need back up and they are looking for it. They may have found it in Alabama, where one of the gay marriage cases originated. Liberty Counsel lawyers have filed a brief with the Alabama Supreme Court asking that it protect Alabama probate judges who have religious objections to issuing marriage licenses to gay couples. The Liberty Counsel boys have gone one step further, suggesting that Obergefell was not only wrongly decided, but in essence an unlawful usurpation by SCOTUS and that the Alabama Supreme Court should repudiate it.
As one could imagine, precedents for a state supreme court thumbing its nose at SCOTUS are difficult to come by. But there is one cited by the Liberty Counsel brief: the Booth case from 1855. The Booth case is actually several cases about the arrest and conviction of Sherman Booth, an abolitionist indicted for rescuing a fugitive slave from federal custody in 1855. The Wisconsin Supreme Court stepped in and released Booth on a writ of habeas corpus and then subsequently refused to acknowledge the U.S. Supreme Court’s authority to hear the appeal. Wisconsin has never acknowledged the SCOTUS order, a point pounced upon by Liberty Counsel in its brief.
Liberty Counsel is on to something here, even if—much like Kim Davis—they do not understand what it is.
We must begin by admitting that the Booth case is bad law. A plain reading of Article III and Article VII in conjunction with federal law make the Supreme Court’s rulings binding on state courts. Moreover, SCOTUS repudiated Wisconsin’s position in Ableman v. Booth (1859). Despite being a proslavery decision, Ableman is still good law. SCOTUS cited it specifically in the Arkansas school desegregation landmark case Cooper v. Aaron (1959). Not to put too fine a point on it, but any lawyer attempting to cite the Booth case as controlling law should have his license duct-taped to the bottom of a martini glass and told to go fishing.
But, to give the Liberty Counsel boys some credit, they are not citing the Booth case as good law—they are using it to dare the Alabama Supreme Court to do something extraordinary and extra-constitutional. “To this day,” reads the brief, “the Wisconsin Supreme Court celebrates its adherence to the U.S. Constitution in openly defying an unlawful federal statute and an unlawful U.S. Supreme Court mandate.”
That’s right: “celebrates.” After all, in 1855 the Wisconsin Supreme Court had protected two abolitionists from persecution under one of the most heinous statutes of all time—the Fugitive Slave Act of 1850. And when the proslavery Supreme Court ordered that the case be sent up for appeal—and everyone knew how that would turn out—the Wisconsin court said no. The judges realized that someone had to put the foot down against the incurably proslavery federal government, and they did so. And thank goodness! They were on the right side of history, and so, 160 years later, we can still celebrate such defiance.
Well, fine. But the constitutional stand taken in Wisconsin occurred primarily outside the courtroom, and it is this context—far more than the legal text of the Booth case—that matters. The Wisconsin court in fact moved cautiously, refusing to take a stand until national and local elections put a number of antislavery Wisconsin Republicans in office. And when the court did take its stand, it relied upon judicial elections, legislative resolutions, and the appointment of an antislavery Senator to bolster its case. Sustained resistance to the federal government required a prodigious amount of state energy.
So much so, in fact, that no other state in the 1850s—regardless of the extent of antislavery sentiment within its borders—followed Wisconsin’s path. Despite prevailing antislavery sentiment in the northern states, Wisconsin stood alone in its pure defiance of “an unlawful federal statute.”
Actually, even the idea that the Fugitive Slave Act of 1850 was “unlawful” wilts a little under serious investigation. To be sure, it was an onerous and oppressive statute, and it was based on the dubious premise that people of color were not owed the same legal protections as white people.
But—and I write this with great sadness—that did not mean that it was unlawful. There was a fugitive slave clause in the Constitution. And the Founders Constitution was frequently read as a “white man’s document” for a “white man’s republic.” Most jurists—including antislavery judges like Benjamin Robbins Curtis and John McLean and Lemuel Shaw—believed that the Fugitive Slave Act was constitutional and lawful. They believed so because they respected the ideal of the rule of law, even when they disagreed or had profound moral problems with the law that they followed.
So, if we are to take the Booth case as a historical lesson, what we learn is that resistance to established law requires more than one judge or even one court. Sustained resistance to any law requires an active commitment by the popularly elected branches of government as well as the legal resistance of the judiciary. Without it, it is near impossible to claim legitimacy in the face of oppressive or unjust law.
The same holds true for unpopular Supreme Court rulings. Take Dred Scott v. Sandford (1857), which held (among other things) that people of color could never be citizens of the United States. The decision was decried from the beginning. After Lincoln’s election, both Congress and the president ignored it. In 1866, Congress passed a Civil Rights Act that declared people of color held citizenship by right of birth, and in 1868 the American people ratified that principle in the Fourteenth Amendment. There was, in short, popular and sustained resistance for a full decade to Dred Scott, and it was thoroughly repudiated. (Mike Huckabee may think that Dred Scott is still the “law of the land” but, well, that’s Mike.)
This history gives the lie to the notion that the Supreme Court has somehow undermined popular sovereignty in the gay marriage question. The foes of gay marriage are painfully aware that Americans support gay marriage. Overwhelmingly. The “people for normal marriage,” or whatever they call themselves these days, have been losing the political and legal battle ever since 2004. Just go to Mike Huckabee’s website, where he whines that he “may stand alone.” Yes you do, Mike.
In the mean time, we get to actually have a public discourse about these matters. And that means that both sides will have to articulate not just their legal theories, but also their moral ones. This, by the way, is what makes the antislavery judge analogy so plainly false. Antislavery judges faced the real dilemma of having to take away a person’s practical liberty and return them to slavery. Kim Davis faces no such choice—she is granting a marriage license, which takes no liberty away from anybody. Except maybe her free exercise rights—an argument which has yet to get any traction. But no matter. In the spirit of our democratic political culture, let Kim Davis explain herself. Let Mike Huckabee argue that Obergefell confuses rather than clarifies the status of same-sex marriage. Let same-sex marriage proponents continue to argue for equality and dignity. May the best argument win.
And this brings us full circle to Kim Davis. Her resistance may well end up being about accommodations for religious objection to established law, so that gay couples in her county can receive marriage certificates and she can keep her conscience. Or maybe she will have to forfeit her government salary to keep her conscience. Either way, that will be an important part of the larger constitutional settlement over gay marriage, and we should expect that it allows for people to register their dissent and fight for what they believe. We had better hope that it works, because the oath keepers are right around the corner, armed to the teeth and equating rule of law with the barrel of a gun.
And this is why Kim Davis matters. Not because of her confused conscience, but because the American system of constitutional governance demands that we argue about our beliefs and that we do so within a system that allows for peaceful disagreement.
And that is worth celebrating.
H. Robert Baker teaches history at Georgia State University. He is the author of The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (2007) and Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution (2012). He is currently working on a book about Napa Valley in the 1970s and 80s.