Kim Davis, the Rowan County, Kentucky, clerk incarcerated for contempt of court, has brought post-Obergefell social conservative frustrations to a head. She and the right-wing legal organizations prodding her have engineered this masterfully. Regardless of how one feels about same-sex marriage or Davis personally, it’s uncomfortable to see a human locked up for a political protest, even one this unsustainably stubborn.
Davis successfully navigated her path to martyrdom. At each juncture she has bypassed off-ramps to reasonable resolution and pressed forth to her ultimate destination: a prison cell. Ignoring one court ruling after another, Davis even rejected federal Judge David Bunning’s offer to keep her out of jail by allowing her subordinates to issue same-sex marriage licenses. Her deputies would implement the rise of Sodom by themselves, while she would fiddle around in the back office doing whatever other vital paperwork awaits the clerk of Rowan County. But she refused that compromise, and now the licenses are being issued anyway, without her permission. She refused to resign, and she’s cooling her heels in the slammer.
But even prisoners can have visitors. Mike Huckabee, a losing presidential candidate, wasted precious few moments Thursday before slotting a penitentiary visit into his schedule. The former Arkansas governor will visit Davis next Tuesday to express displeasure at what he terms “the criminalization of Christianity in our country.” Huckabee applied more loosey-goosey legal analysis, too: “What a world, where Hillary Clinton isn’t in jail but Kim Davis is.”
Other candidates haven’t gone so far as to commit to a visit but have been perfectly willing to “stand with” Davis in the more metaphorical sense. Sen. Ted Cruz declared, “Today, judicial lawlessness crossed into judicial tyranny.” (Hadn’t judicial lawlessness crossed that Rubicon earlier this summer? Never mind.) “Those who are persecuting Kim Davis believe that Christians should not serve in public office,” Cruz’s statement went on. “I call upon every Believer, every Constitutionalist, every lover of liberty to stand with Kim Davis.” Louisiana Gov. Bobby Jindal, who’s losing badly enough to merit a Huckabeean jaunt to Kentucky but probably can’t afford the airfare, stated, “I think you should be able to keep your job and follow your conscience. … I absolutely do believe people have a First Amendment right, a constitutional right. I don’t think the court can take that away.” Rick Santorum has called Davis “heroic.” Sen. Rand Paul has described being in contempt of court “the American way,” and so on.
None of these candidates can express concretely what it means to “stand with” Davis. Santorum mentioned something about passing a federal shield law to protect workers from having to violate their religious beliefs. That’s not applicable in this situation. Davis is an elected public official whose approval is needed to issue marriage licenses, and she’s not doing that, so her religious beliefs are quite obviously doing injury to others since she’s forbidding her deputies from processing the licenses, too. There is no simple policy tweak available to make what Davis is doing legal.
Most of the viable Republican candidates recognize that there’s no real way to defend Davis without backing themselves into an illogical corner. Donald Trump, who’s been pretending not to be a New York City social liberal, must think this woman is a loon who needs to get on with it. “The decision came down from the Supreme Court,” he said, advising her to let her deputies do the dirty licensing. Jeb Bush effectively said the same, emphasizing the importance of her oath, as did Sen. Marco Rubio. Gov. Scott Walker, who can’t give a clear explanation of anything beyond what he eats for lunch, spit out something about how “as president, he would enforce the law”—intended, strangely enough, as a defense of Davis.
However delicately worded, these acknowledgements that Davis’ office has no real defense for what she’s doing still don’t sound right to many socially conservative ears—and leave the candidates vulnerable to opportunistic attacks. Jindal, for example, went after Trump on Twitter for not declaring strongly enough that Davis is perfect and everything she’s doing is perfect. “Hey @realDonaldTrump you can’t make America great again by throwing the Christians in jail,” he tweeted, adding that “even really rich New Yorkers should oppose jailing Christians for their religious beliefs.”
There’s an ample amount of polling evidence out there to confirm that no one cares what Jindal says about anything. He won’t be on the main stage at the Sept. 16 debate in California. But Huckabee will. Cruz will. And Paul, who’s railed on about the violation of Davis’ liberty, will. What if Davis is still in jail by then—or at least the story is still fresh enough in the news for it to be a topic? You will see these candidates throwing it in the faces of Trump, Bush, Rubio, and Walker. And their “on the one hand” responses won’t play well during a television melee as grand as a Grand Old Party Presidential Debate.
Davis’ well-plotted martyrdom has thrust into the Republican presidential race its first difficult, post-Obergefell test of how to negotiate the new law of the land with protection of religious liberties. Questions about the rights of wedding vendors to refuse servicing same-sex ceremonies were softballs in the context of a Republican presidential primary: These are private businesses that can do whatever they want. Here we have a government official, though, with no legal justification for what she’s doing, but all the right feelings that the candidates hope to tap into. Who wants to be the one to tell her to get over it?