UPDATE: This post has been updated to include comments made by GOP candidates late Tuesday.
There’s a long and not exactly auspicious history in this country of people resisting court orders aimed at defending the civil rights of minority groups.
On Tuesday, a Kentucky county clerk named Kim Davis created the basis for the latest chapter. Davis is refusing to issue marriage licenses to anyone so that she might avoid the task of having to issue or refuse to issue one to a gay or lesbian couple. Davis said in a statement released by Liberty Counsel, a Christian legal organization representing her, that her religious beliefs bar her from doing so.
I love my job and the people of Rowan County. … I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.
She made similar comments during a last-ditch legal bid Monday that went before the U.S. Supreme Court and failed. Davis’s reasons might be principled and deeply rooted in her faith. There’s no real public reason to question that or even the accuracy of her read on the Bible.
But as an elected public official, Davis’s duties include issuing documents such as marriage licenses that bring with them a whole host of tax and other financial benefits and clarify procedures and rights in the event of an accident, a death or even a breakup.
Davis is free to believe whatever she would like; this is America. However, multiple courts have said she is not at liberty to impose her beliefs at work in such a way that the legal rights, options and access of others are curtailed. Of course, from Davis’s point of view — and that of many Americans who agree with her, especially white evangelicals, according to a June 2014 Public Religion Research Institute poll — forcing her to issue licenses to same-sex couples impinges on her religious liberty.
And here’s the thing: The real issue — if you know something about the history of American moments like the one that Davis has brought to pass, and even if you don’t — is that legally, Davis has put herself in league with men like former Alabama governor George Wallace.
Let’s review a little mid-20th-century history here, shall we?
Wallace said publicly that his refusal to integrate Alabama schools, in defiance of multiple federal court orders, was a matter of personal principle, too. In fact, in 1963, Wallace expressed that in what might be the only widely known passage from a gubernatorial inauguration speech.
“In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny. And I say segregation now, segregation tomorrow, segregation forever,” he exclaimed.
That June, Wallace famously stood at the door of a University of Alabama building determined to physically block — or at least be seen on camera blocking — two black students and National Guard troops dispatched by the Kennedy White House.
Thus far, it seems that of the 22 Republicans and Democrats vying for the White House, only a few have dared to voice an opinion on the Davis matter. Speaking to a Boston Herald Radio on Monday, before the Supreme Court decision, Sen. Rand Paul (R-Ky.) said:
You know, I think one way to get around the whole idea of what the Supreme Court is forcing on the states is for states just to get out of the business of giving out licenses. Alabama has already voted to do this — they’re just no longer going to give out licenses. And anybody can make a contract. And then if you want a marriage contract you go to a church. … But I think people who do stand up and are making a stand to say that they believe in something is an important part of the American way.
Really, that’s pretty consistent with what Paul said in 2010 (but has since denied) about the 1964 Civil Rights Act. It forced privately owned facilities open to the public to integrate. Paul said he didn’t like the idea of federal policy overriding owner preferences. He said the public should punish those who refuse to integrate by not patronizing them.
Late Tuesday, two more GOP candidates weighed in on the matter in Kentucky. Both Carly Fiorina and Sen. Lindsey Graham (S.C.) told reporters that Davis must comply with the court orders.
During an interview with the Hugh Hewitt Show, a conservative radio program, Fiorina said this:
First, I think that we must protect religious liberties with great passion and be willing to expend a lot of political capital to do so now because it’s clear religious liberty is under assault in many, many ways. Having said that, when you are a government employee, I think you take on a different role. When you are a government employee as opposed to say, an employee of another kind of organization, then in essence, you are agreeing to act as an arm of the government. And, while I disagree with this court’s decision, their actions are clear.
Graham was also a guest on Hewitt’s show and expressed similar ideas.
When contacted by The Washington Post, the campaign of Sen. Ted Cruz (R- Tex.) issued a brief statement consistent with previous remarks about the Supreme Court’s June decision.
“The federal government, and by extension, the court, has no business to compel people of faith to violate their religious beliefs,” Cruz spokeswoman Catherine Frazier said. “Religious liberty is a protection guaranteed under the 1st Amendment.”
That kind of logic is also precisely why some people understand “religious liberty” to be the new “states’ rights” — a catchphrase that sounds principled and connected with American ideals but can also be used to resist established legal change. States’ rights (and its local equivalent) have in the past formed the basis of legal and public arguments for reserving the nation’s best-resourced schools, neighborhoods, parks, pools and hospitals for white people. Those arguments helped keep Catholics and Jews out of public offices and certain communities, led state officials in some places to shut down all public schools rather than integrate, made it possible to impose black codes and sundown laws that made it illegal for black people to even be present in certain places in this country. And, of course, those arguments undergirded legal slavery.
The parallels between Davis and Wallace, of course, have their limits. Wallace’s stand at that University of Alabama door came after years of organized and sometimes loosely coordinated efforts to ignore, evade or resist the contents of court orders and laws directing the integration of public and most private facilities open to the public. It was referred to as massive resistance. When the federal government dispatched troops to compel compliance, it said both symbolically and literally that this sort of activity would no longer be abided.
But the showdown shaping up in Kentucky should not be understood as random or isolated. Kentucky and Alabama — states notably with large white evangelical populations — have their respective histories and must also contend with the present. Right now, Alabama is busy charting new territory in the effort to resist legal same-sex marriage. This month, a state legislative committee voted for a measure that, should it reach and pass the full state Senate, could eliminate state-issued marriage licenses.
Americans can and do disagree about same-sex marriage. But in public life, equal treatment under the law ranks among the hallmarks of the American experiment. The struggle to make equality real — meaning consistent, unabridged and unconditional — remains an ongoing project.