Politics & Policy

Free Kim Davis

(Photo: Carter County Detention Center)

By the time you read this, Kim Davis will be sitting in a federal jail cell. Buzzfeed is already gloating over Davis’s perp photo.

Kim Davis’s crime? Refusing to affix her name to a same-sex marriage license, despite a direct court order to do so.

I have said before that religious-liberty protections cannot act as a bar to gay couples: If the law permits a U.S. citizen to get a license, there must be a way for the gay couple to access it, with their dignity intact.

But here’s the thing: “The law must be obeyed” is not the final word — morally, practically, or even legally. Sometimes the law is an ass and it must be changed. As Robin Fretwell Wilson said: “Mrs. Davis should not be permitted to lock Mr. Vincent and his fiancé out of marriage when the Supreme Court has spoken. But neither should she lose her job if the state can find creative solutions to avoid that unnecessary result.”

RELATED: In Rowan County, Kentucky, a Clerk Answers Revolution with Revolution

Kim Davis is showing us what conscience looks like. After all, getting in front of a slavishly approving media à la Ferguson does not confer moral significance on one’s willingness to break the civil law for a higher law. What makes civil disobedience noble is a willingness to sacrifice, if necessary, rather than submit to the civil law.

But is civil disobedience really necessary? The conscientious objector’s willingness to pay a price throws the ball back into our court: Are we satisfied with this result? Can we do better? Do we want to?

RELATED: Breaking the Law Won’t Get Kim Davis What She Wants

How we respond to the jailing of Kim Davis tells us a lot about where we are as a country and how the gay-marriage issue will unfold.

Right now, to their profound shame, Carly Fiorina, Chris Christie, and Lindsey Graham are siding with the judge who threw Kim Davis in jail for violating his order to issue same-sex marriage licenses. Donald Trump is even more shamefully, dramatically silent.

#share#Meanwhile, over at the Boston Globe, the Voice of Massachusetts, Renee Graham sounded the key note for the inquisitors:

Davis is just the latest in a long, infernal line of fanatics to contort their so-called faith into an excuse for hatred and division. Religion has been misused to justify the Crusades, slavery, apartheid, the Holocaust and — more recently — terrorism and extremism around the world. If faith is a comfort to some, for people like Davis it’s a cudgel to scold and threaten anyone with whom they disagree.

I am sorry, Renee, but Kim Davis is not threatening anyone. The only person threatened with any punishment is Kim Davis.

Instead, Renee, it is your hatred and your desire to threaten, name-call, and scold gay-marriage dissenters into submitting that is on display at this hour. It is you and your friends and allies who refuse to support the obvious alternative that would protect the rights of same-sex couples while also protecting Kim Davis’s personal freedom.

RELATED: Kim Davis, Rightful Prisoner of Conscience

According to CNN, when the news broke that Judge David Bunning had ordered Davis jailed, the crowd outside the courthouse incongruously burst out into a chant of “Love won! Love won!” I understand why the visceral response of gay-marriage supporters would be to cheer the jailing of Kim Davis. But in what Orwellian world does the desire to punish her represent a victory for love?

Kim Davis is not threatening anyone. The only person threatened with any punishment is Kim Davis.

The jailing of Kim Davis is unnecessary. The governor of Kentucky, Steve Beshear, could have easily used the state Religious Freedom Restoration Act to authorize conscience exemptions for marriage clerks, essentially putting the burden of issuing the license on the office, not the individual. Five of six deputy marriage clerks have told the court they are willing to offer same-sex marriage licenses. Davis is unwilling to delegate authority to the clerks to sign the licenses with her name and seal, but that is a technical detail the governor or the legislature could easily overcome.

Free Kim Davis now. Our reaction to her jailing will tell us something important about the future of this country.

If she remains locked up at taxpayer expense, the only reason will be that Democrats want to use gay marriage as a club with which to beat traditional believers — and that Republicans are too gutless to act to stop them.

Maggie Gallagher is a senior fellow at the American Principles Project. She blogs at MaggieGallagher.com.

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