Raising her arms in a sign of victory, Kim Davis ó the now-famous Kentucky clerk who was jailed for contempt when she refused to obey a court order that she (and every clerk in the state) issue licenses to same-sex couples ó was released from jail last week. Her freedom came not because the district judge concluded she was right, but because Davisí office deputies were in fact granting licenses consistent with the court order in her absence.
So whatís the lesson?
It is not that Davis, or anyone else, is above the law. Quite the contrary. It was only because gay couples were being issued licenses to marry that Davis was freed.
While the context might be a new one, the question of what to do when a government officialís personal or religious beliefs conflict with governing law is a familiar one. The Constitutionís protection of the free exercise of religion has been understood to require efforts to accommodate religious beliefs, where it is possible to do so. So if a police department has a rule prohibiting men from having beards and moustaches, an Orthodox Jew with a beard (based on religious beliefs) should not be fired if he can effectively do his job. On the other hand, religion does not provide a basis for the use of drugs that are prohibited by law.
That is why the judge in the Davis case offered her the opportunity to avoid jail by allowing her deputies and assistants to issue the licenses that offended her. Davis refused.
Going to jail as a protest move is a traditional form of civil disobedience. Viewed in that light, Davis did succeed in her mission. She became a national celebrity, garnering enormous attention for her cause. Fair enough.
What is not fair at all are the conservative attacks on Judge David Bunning. What does it mean to be a conservative if you donít support the rule of law? The very idea that one should be able to flout the law without consequences isnít a conservative principle; it is a radical one.
But this is the political season, and in this political season, anything in any way related to gay marriage becomes a competition between at least half the candidates to out-conservative their rivals. So Davis is not just front-page news; she is the latest heroine in the Republican race, and the judge becomes the villain. In celebrating her, and damning the courts for jailing her, those same Republicans reveal a willingness to sacrifice principle to politics.
And the politics, if you look beyond the coming primaries and caucuses to the general election, might not play so well in the fall. The kind of Republican Party I fear as a Democrat is the party that welcomes those who are conservative in terms of fiscal policy and liberal (or libertarian) when it comes to social issues. That would be a party that might appeal to young people, to traditional Latinos, to women voters who think the government has no business in their bedrooms, not to mention gay and lesbian voters in search of nothing more than equality.
Davis is a hero in September, but she wonít be appearing in Republican ads come autumn. The more famous she is now, the more infamous she might be in the fall 2016. Davis is free, but her freedom comes with a price tag. The game of who is the most willing to sacrifice the rule of law at the altar of political expediency is not a game with a winner.
Susan Estrich is a columnist, commentator and law and political science
professor at USC.