Former governor Jeb Bush said that Kim Davis, a Kentucky county clerk jailed for contempt of court after refusing to issue marriage licenses to same-sex couples, doesn’t have the authority to defy the courts.
“She is sworn to uphold the law, and it seems to me that there ought to be common ground, there ought to be big enough space for her to act on her conscience and — now that the law is the law of the land — for a gay couple to be married in whatever jurisdiction that is,” Bush told reporters in New Hampshire.
Davis’s case and Bush’s response are emblematic of a tactical question that has divided Christian conservatives since the Supreme Court invalidated traditional-marriage laws, with some activists adopting a posture of limited acquiescence and others calling for outright defiance of the judiciary. With the presidential-primary season under way, it’s a debate that could affect the allegiances of the social conservatives who tend to dominate the Iowa Republican caucuses.
Davis, in an attempt to resist the Supreme Court’s ruling while avoiding accusations of discrimination, is refusing to issue marriage licenses to anyone in Rowan County, Ky., and she is refusing to allow her assistants to do so as well. “The court cannot condone the willful disobedience of its lawfully issued order,” U.S. District Court Judge David L. Bunning said. “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”
Senator Ted Cruz, whose presidential prospects depend largely on attracting the evangelical voters who propelled George W. Bush to victory in 2000 and 2004, issued a stentorian endorsement of Davis. “We are a country founded on Judeo-Christian values, founded by those fleeing religious oppression, and seeking a land where we could worship God and live according to our faith, without being imprisoned for doing so,” he said Thursday. “I call upon every believer, every Constitutionalist, every lover of liberty to stand with Kim Davis. Stop the persecution now.”
#share#Former Governor Mike Huckabee, who won the 2008 Iowa caucuses, was similarly strident. “Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country,” he tweeted.
Bush refused to endorse such characterizations of the case:
As I said, I think a big, tolerant country ought to be able to forge a consensus. This doesn’t have to be all resolved in Washington. This ought to be resolved at the local level where you find common ground, where a person, clearly based on her religious convictions, should be able to act on her conscience and have people not be discriminated against.
That’s a mainstream, though hardly unanimous, attitude among social conservatives. “A religious accommodation, like religious liberty in general, is not absolute,” the Heritage Foundation’s Ryan Anderson, one of the most prominent traditional-marriage advocates, wrote this week. “There are ways in which public policy can create a win-win situation: where all eligible couples can receive a license and where as many employees as possible can be accommodated.”
And yet, Bush has the political misfortune of using the same rhetoric that Hillary Clinton and Democratic proponents of gay marriage are using to denounce Davis. “Marriage equality is the law of the land,” Clinton tweeted. “Officials should be held to their duty to uphold the law — end of story.”
— Joel Gehrke is a political reporter for National Review.