This week, an elected county clerk in Kentucky named Kim Davis is owning the news cycle with a ridiculous George Wallace act, where she refuses to issue marriage licenses to same-sex couples. Even though the Supreme Court has ordered Davis to grow up and do her job, she’s continuing to refuse, putting herself in real danger of being held in contempt and possibly jailed.
If Davis thinks her martyr-for-bigotry act will make her a right-wing hero, however, she might want to think again. Instead of being a sign that conservatives will never give up on this issue, it’s starting to seem instead that Davis’s last stand is evidence that mainstream conservatives have decided to let this one go (for now, anyway), leaving hysterical opposition to same-sex marriage to a right-wing fringe.
The support for Davis amongst more mainstream conservatives has been, at best, muted, even from those who built their career on hating gay people. Maggie Gallagher, whose life’s work has been opposing same-sex marriage, limply wrote in the National Review, “There is no way to maintain the rule of law if public officials can ignore direct court orders.”
The most belligerently anti-gay writer at the Heritage Foundation, Ryan Anderson, wrote, “The citizens of Rowan County have a right to receive in a timely and efficient manner the various government provisions—including licenses—to which they are entitled.” If you peruse conservative media, it becomes clear that they’re more bent out of shape about Obama letting Alaska name its own mountain than they are about this woman’s supposed martyrdom.
It is true that Gallagher and Anderson are both holding the line on the claim that individual county clerks should be allowed to refuse licenses, but only if the clerk is able to get someone else to issue the license. (Davis is trying to stop gay couples from getting licenses from her office altogether.) It’s a childish bit of ground to hang onto, this hope that gay couples have to endure a little humiliation by having one clerk refuse them before they are finally helped by another, but these are people who used to predict the end of civilization if gay couples got married. So they’ve given up all but this very narrow symbolic ground.
What’s increasingly clear is that Davis’s legal team, which is being provided by the fringe right group Liberty Counsel, thinks that they are going to her case into a cause célèbre for the right to rally around, restoring the anti-gay momentum the right had just a few years ago. In their eagerness to make this happen, as Mark Joseph Stern of Slate points out, they are violating their basic duties as lawyers to look out for the best interest of their client. “When a federal judge ordered Davis to issue licenses or be held in contempt of court, the Liberty Counsel advised her to disobey the ruling,” he points out, even though doing so puts their client at real risk of going to jail for no good reason.
“Yet the Liberty Counsel didn’t mind putting their client at risk—perhaps because the idea of a middle-aged woman being hauled off to jail for purportedly following her conscience would send thousands of anti-gay Americans reaching for their pitchforks (and checkbooks),” Stern concludes.
Their behavior isn’t just unethical, but stupid. The mood on the right when it comes to this issue has clearly shifted. Conservatives still don’t support gay marriage, but they aren’t trying to ban it, either. At the recent Fox News Republican debate, Gov. John Kasich brought down the house by articulating this point of view, by saying he has attended a same-sex wedding and would even accept a child who was gay. So the issue is turning into one of those things, like cohabitation or listening to rap music, where conservatives will assert their right to pass judgment and be a pain in the ass about it, but they probably aren’t going to try to stop you anymore.
To be clear, that doesn’t mean that pro-gay forces can pack up and go home. First of all, there’s a lot more work to be done to help LGBT folks finally achieve equality. Issues like health care access, poverty, youth acceptance, and even letting transgender people use the bathroom in peace still need people fighting for them.
Plus, a lot of right-wing beliefs that appear dead are frequently just dormant instead. For a long time, feminists believed that contraception was a non-controversial issue, but recent years have shown a reawakening of conservative opposition to affordable, accessible contraception. Under the right circumstances, all conservatives can suddenly adopt an opinion—that contraception isn’t real health care, that Mt. McKinley’s name is sacred and should never change—that they couldn’t give two hoots about even minutes before.
It’s always possible that Fox News, in the year 2035, will decide that same-sex marriage is “controversial” again and that we’ve always been at war with Eurasia. But for now, it seems that the right has moved on, spending all their time hollering about mythical conspiracies to sell fetal body parts and how Donald Trump will single-handedly stop immigration through the power of assholery. Can you be a martyr if no one mourns your noble sacrifice? Kim Davis might be about to find out.
Amanda Marcotte is a freelance journalist who writes frequently about liberal politics, the religious right and reproductive health care. She’s a prolific Twitter villain who can be followed @amandamarcotte.
If Maggie Gallagher isn’t backing her play, then she definitely has crossed the line. Perhaps Gallagher and others are sensing that, regardless of one’s view of marriage equality, people are uncomfortable about government officials not complying with the law.
As to the lawyers, I don’t think they’ve yet crossed the line ethically. Until now, they’ve pursued legal remedies, remote though their chances of success may have been. Now that the Clerk has to appear in Court on Thursday, presumably to be told to comply with the law or be fined, it will be interesting to see what her lawyers advise.
Of course, their last round of appeals were, arguably, frivolous, and I would like to see the ACLU attorneys representing the couples seeking marriage licenses move to impose sanctions on the attorneys.
Mat Staver tried to give the legal team an out when he said Monday Ms Davis was home, praying and deciding on her own what to do on Tuesday.
I don’t know why right wingers are so against gay marriage. It gives them another group of people to rally their troops against.
What good is spending hours and hours in the pews if you can’t shun someone?
Attorneys are officers of the court. Advising a client to disobey a court order is not permitted.