On January 20, a federal appeals court heard arguments in the highly publicized case of Kimberly Jean “Kim” Davis, county clerk of Rowan County (population 23,000) in mountainous northeastern Kentucky. There were many legal issues at stake—discrimination, sexual equality, religious liberty—but the whole affair had another component, rarely noted in popular accounts: Society’s winners, those who believe themselves on the right side of progress and have the success to prove it, think little of humiliating and attempting to ruin those who are less fortunate and cling to old beliefs.
Davis, age fifty, served five days in jail in September 2015 over her refusal on grounds of her Christian conscience to issue marriage licenses to same-sex couples in the wake of the U.S. Supreme Court’s decision in Obergefell v. Hodges. That decision, released on June 26, 2015, found a fundamental right to marry that the high court’s five-justice majority said extended to same-sex as well as opposite-sex couples under the Constitution’s due process and equal protection clauses.
On the very morning of the Obergefell ruling, Steve Beshear, a Democrat who was then the governor of Kentucky, ordered county clerks in all 120 Kentucky counties to begin issuing marriage licenses to same-sex couples immediately. His office generated a mandatory gender-neutral form for them to use that included the personal signatures of clerks on any licenses they issued. Because the Kentucky Constitution had been amended in 2004 to define marriage as solely between a man and a woman, there seemed to be some pent-up marriage demand among Kentucky gays and lesbians, several of whom rushed to county offices in Kentucky within hours of the Obergefell decision, on the theory that the Supreme Court had nullified the state constitutional amendment.
Davis, who had converted in 2011 to a small Evangelical Christian denomination that holds that same-sex marriage transgresses biblical teaching, sent a letter to Beshear expressing her concern over his order and requesting an executive order exempting her and other Kentucky clerks whose consciences would be violated if they were forced to put their names onto documents recognizing unions that went against their religious beliefs. Meanwhile, she instructed her six deputies, working out of her offices in Morehead, Kentucky, the Rowan County seat, to deny marriage licenses, at first to gay and lesbian couples, and later, to any couples at all. Davis’s office was an elective one (she had run for the clerkship in 2014, succeeding her mother), and she could not be fired from her clerkship, only impeached.
On July 1 the American Civil Liberties Union of Kentucky, representing four couples—a pair of lesbians (fifty-four-year-old named plaintiff April Miller and her longtime partner, Karen Ann Roberts), a pair of gay men, and two opposite-sex pairs—who had been turned down for licenses in Morehead, filed a class-action lawsuit against Davis and Rowan County in the U.S. District Court for Eastern Kentucky. The suit sought an injunction that would require Davis to issue marriage licenses to all otherwise qualified couples. On August 12, after hearings on July 13 and July 20 in Miller v. Davis, U.S. District Judge David L. Bunning duly issued the preliminary injunction, rejecting Davis’s claim of infringement of her religious liberty under the U.S. and Kentucky constitutions. Her lawyers, affiliated with Liberty Counsel, a nonprofit Evangelical Christian legal office based in Orlando, Florida, sought stays that would have put the injunction on hold pending an appeal, first from Bunning himself, then from the Sixth U.S. Circuit Court of Appeals (which has jurisdiction over federal courts in Kentucky), and finally from the U.S. Supreme Court. All those attempts were unsuccessful.
Bunning did, however, grant Davis a temporary stay that permitted her to continue to turn away couples through August 31, the day the Supreme Court denied her request for a longer stay. That was a Monday. Promptly the next morning, several couples showed up at Davis’s office seeking marriage licenses. Announcing that she was acting under “God’s authority,” Davis had her deputies turn them down. Two days later, on September 3, Bunning held Davis in contempt of court at the request of the ACLU and ordered her jailed. During five days behind bars, several of her deputy clerks resumed issuing licenses, including licenses to same-sex couples, although without Davis’s signature. On September 8, Bunning ordered her to be released, on condition that she not interfere with those marriage-license activities of her deputies. Davis emerged triumphantly from the detention center where she had been incarcerated flanked by Mat Staver, founder of Liberty Counsel, and Mike Huckabee, former governor of Arkansas and then a Republican presidential candidate. To a crowd of cheering Evangelical Christian supporters, Davis expressed her belief that the marriage licenses issued without her signature would be “unauthorized.” (Beshear’s office and the office of the Kentucky attorney general promptly issued statements affirming the validity of the signature-less licenses.)
Davis’s lawyers at Liberty Counsel proceeded with their appeal of Bunning’s injunction, arguing that while Obergefell v. Hodges might have established a fundamental right for same-sex couples to marry that states were bound to recognize, it did not establish a fundamental right to have a marriage license issued by a particular person in a particular county. Furthermore, the lawyers argued, Kentucky’s Religious Freedom Restoration Act (enacted in 2013 and modeled after a similar 1993 federal law) required the state of Kentucky to accommodate Davis’s sincerely held religious beliefs—which, her lawyers argued, could have been easily accomplished if Beshear had simply allowed Davis to leave her signature off the same-sex licenses to begin with. Indeed, Beshear left office while the appeal was pending (Kentucky law forbids a governor from serving more than two terms), and his newly elected successor, Matt Bevin, a Republican, signed an executive order on December 22, 2015, that removed county clerks’ names from marriage licenses.
You might think that Bevin’s stroke of the pen—honoring the Christian faith of Davis and two other Kentucky county clerks who had taken similar stances (neither was subjected to litigation), while allowing same-sex couples to proceed to their wedding ceremonies—would have ended the matter in an amicable compromise. It did not. The ACLU continued to press forward against Davis, contending that a Kentucky statute required that Davis’s signature and title appear on the licenses, and it was a statute that could not be nullified by a governor’s executive order. This was certainly a valid legal point, except that the ACLU’s way of making it was to request Bunning to issue a second contempt order that would send Davis back to jail for failing to comply with his original September 3 injunction. The ACLU made much of the altered license form that Davis had authorized (it had the word “clerk” systematically crossed out) and was still seeking to have her re-incarcerated even as the Kentucky Senate was moving along a bill in early 2016 that would amend Kentucky law along the lines of Bevin’s executive order (and thus render the ACLU’s argument moot), and as the Sixth Circuit was reading briefs and hearing arguments in Davis’s appeal.
In the end, Bunning did not give the ACLU what it wanted on this second contempt go-around. After a hearing on February 9, 2016, he ruled that Davis had not in fact interfered with her office’s issuance of marriage licenses and that there was “every reason to believe” that the altered licenses her office had issued would “be recognized as valid under Kentucky law.” An ACLU spokesman said the organization has no immediate plans to contest Bunning’s ruling, although ACLU staff attorney Ria Tabacco Mar issued a statement complaining that it was “inappropriate for any government official to force changes to her job duties—and those of every other person with that job throughout the state—based on personal religious beliefs.”
There are legal and moral reasons why even religiously conservative observers inclined to sympathize with Davis personally might argue that she, as an official who had sworn an oath to uphold the law, ought to have either capitulated to the new constitutional realities the Supreme Court had outlined or resigned from office. But the Kim Davis case is not simply about competing visions of freedom of conscience versus rights deemed fundamental by the highest court in the land. The fact that the ACLU further litigated even after its clients won the right to obtain marriage licenses indicates something more is at work.
The added factor is the social and personal identity of Davis herself. It is class that turned the Kim Davis litigation into a long-running spectacle of ridicule . . . of Kim Davis. Her personal appearance—significantly overweight, clad in the drab ankle-length skirts and visible undershirts that reminded everybody of the Duggars, and sporting the flyaway waist-length hair that seemed to be dictated by an overly literal reading of Paul’s First Epistle to the Corinthians—was a fixture of nightly television during the fall of 2015. It was also an object of parody, on Bill Maher and Saturday Night Live and in gay bars across America, where “Kim Davis” seemed to be the prizewinning Halloween costume.
Before accepting Jesus as her savior in 2011, Davis had been married no fewer than four times since age eighteen (her fourth and current husband, Joe Davis, is also her second husband), and while she was still married to her first husband, by whom she had had two slightly older children, she had borne twin children to the man who became her third husband. This Jenny Jones Show–level familial history (including a restraining order for alleged violence obtained against Husband No. 3) generated sanctimonious outrage in the liberal media. Some commentators contrasted Davis’s chaotic romantic life with the stable relationships enjoyed by the named gay and lesbian plaintiffs in the lawsuit, who had lived together as couples for years. Other commentators faulted Davis for hypocrisy, pointing to Jesus’s injunctions against divorce in the Gospels, even though it would seem a tad unfair to blame Davis for transgressing against Christian precepts before she actually embraced Christianity. For them, Davis typified an American identity very much derided by upper-crust people, and for this messy Kentucky woman to assume the moral high ground on sex and marriage was beyond hypocrisy. It was ludicrous.
This class component to the national denunciation of Davis was reinforced by the local situation. The Miller v. Davis lawsuit took place in Morehead, Kentucky, population 6,800, the home of Morehead State University, a public institution of nearly 11,000 students. Rowan County, like much of Appalachia, is in a chronic state of rural economic depression, with 21 percent of its population living below the poverty line and a per-capita income of only $18,168 (compared to the national per-capita income of $28,555). Some 60 percent of Rowan County residents have only a high-school diploma or less. And since eastern Kentucky’s once thriving timber and, to a lesser extent, coal-mining industries have nearly disappeared in recent decades, Morehead State is now the largest employer in Morehead itself.
This town-gown situation played directly into the case. And as it turns out, of the four couples named as plaintiffs in Miller v. Davis, three have employment connections to Morehead State. April Miller, for example, is a professor of special education there, and plaintiff Jody Fernandez, who sought to marry her heterosexual partner, Kevin Holloway, is a colleague of Miller’s, an assistant professor of middle-school and secondary education at Morehead State. Plaintiff Barry Spartman is a Morehead State librarian, and his longtime partner, L. Aaron Skaggs, is a Morehead State graduate working as an MRI specialist for Siemens Healthcare. Another gay male couple, David Moore and David Ermold, who were also refused a marriage license and who filed a separate lawsuit against Davis that is currently on hold pending final resolution of the Miller case, display a similar demographic profile. Moore works as a graphic designer for Morehead State, while Ermold is an assistant professor of English at the nearby University of Pikeville. In other words, the Davis litigation is a classic confrontation of the thriving educated class and the struggling working class—in a town where the townies are generally at significant socioeconomic disadvantage compared to the gown-wearers.
At the heart of the autumn 2015 brouhaha over Miller v. Davis was that yawning class gap between the plaintiffs with their advanced degrees, university connections, and comfortable salaries, and the non-college-educated Davis, with her pioneer-woman skirts, trailer-trash backstory, and practice of throwing her arms up in public prayer in an enthusiastic fashion that would be deemed mortifying by most of today’s suburbanized and hypo-expressive mainline Protestants and Catholics. The media alternated between scoffing at Davis as a “bigot” and “homophobe” and explaining in condescending detail the tenets of her Apostolic Pentecostal denomination, with its immersion baptism and its requirement that members exhibit external signs of “holiness”—hence the long dresses and uncut hair for women. Clair Jones, a writer for the Huffington Post who had grown up in Morehead and attended Morehead State, hastened to reassure her readers that she and her friends were nothing like that “small-town court clerk” Kim Davis: “Morehead is also home to a thriving theatre community, amazing bluegrass musicians, talented local artists, and tons of absolutely brilliant, kind people who live there not for religious reasons, but for their profound connection to the land and Appalachian culture.” Although not, apparently, their connection to the aspect of “Appalachian culture” that has made Evangelical Christianity Rowan County’s predominant faith.
One telling aspect of the Miller v. Davis litigation is that after the Rowan County clerk’s office resumed issuing marriage licenses in September 2015, only the lesbian couple (Miller and Roberts) and the gay male couple (Spartman and Skaggs) actually went through a marriage ceremony. Fernandez, who had told reporters that she and Holloway had wanted to have their wedding on July 1, 2015, which was Fernandez’s father’s birthday, wrote in an email that the two had “selected another date which is special to us in April.” The fourth couple, Shantel Burke and Stephen Napier, the only pair among the ACLU plaintiffs that wasn’t connected to Morehead State (she is a caregiver for the elderly, and he is a disabled Iraq and Afghanistan veteran), never did get married, even though they told the press they were living together during the summer of 2015, and they have a small child together. Perhaps Cupid’s arrow flew elsewhere for Burke and Napier, and Fernandez and Holloway are certainly entitled to pick the wedding date of their choice. Yet the delays indicate a certain lack of the claimed urgency that underlay the lawsuit—and they raise the possibility that the two heterosexual couples became part of the ACLU litigation mostly to score points against Davis rather than because they faced a genuine burden on their right to marry.
This is not the only instance of academic aggression against working-class religious people. The leitmotif is also part of the long-running litigation involving Barronelle Stutzman, a seventy-year-old florist in Richland, Washington, who was sued over her refusal, on grounds of the “relationship with Jesus” that her Southern Baptist faith afforded her, to provide custom floral arrangements for the wedding of a gay couple, Robert Ingersoll and Curt Freed, in 2013. Washington had legalized same-sex marriage in 2012.
There is a certain similarity to the divergent Kim Davis demographics: Plaintiff Freed is vice president for instruction at Whatcom Community College in Bellingham, Washington, and plaintiff Ingersoll, according to his LinkedIn profile, manages a Goodwill Industries store in Seattle. According to the Washington State Employee Salary Database, Freed earned $118,830 at Columbia Basin College in 2012, and his salary for 2013 was $200,856 (he moved to Whatcom CC in summer 2013). Defendant Stutzman is the sole owner of the small flower shop that her mother turned over to her when she retired. Ingersoll and Freed had been customers for years at Stutzman’s Arlene’s Flowers, and she knew all about their relationship.
But when she balked at active participation in a marriage ceremony that her religious beliefs deemed invalid (she gave the couple the names of several other florists) and Ingersoll posted his dissatisfaction with her stance on his Facebook page, both the ACLU, representing Ingersoll and Freed, and the Washington state attorney general’s office filed lawsuits against her under state civil-rights laws. In 2015 a judge ordered Stutzman to pay a $1,000 fine and issued a permanent injunction ordering her to service same-sex weddings in the future or risk similar fines. The judge also ruled that Stutzman would be personally liable to Ingersoll and Freed for damages and attorney’s fees—an amount that hasn’t been set yet but that could potentially cost Stutzman her business, her home, and her retirement savings. Those rulings are currently on appeal with the Washington Supreme Court. Meanwhile, according to the ACLU, Ingersoll and Freed went through with their wedding ceremony, perhaps indicating that they could live without Stutzman’s custom floral arrangements after all.
There has been a distinct theme of class warfare in a significant number of the lawsuits that have been brought seeking to compel operators of small businesses peripheral to the wedding industry—florists, bakers, photographers, and proprietors of picturesque wedding venues—to offer their services in same-sex ceremonies that their sincerely held Christian beliefs deem invalid. The same-sex couples who pursue the litigation are often highly educated professionals, the ACLU is ubiquitously at hand to offer them free legal representation, and the relief sought in court is typically far broader than simply making plaintiffs claiming injury whole by providing them a one-off service. It typically involves a blanket court order requiring the Christian florist or baker or photographer or innkeeper to provide those services in perpetuity to every same-sex couple that darkens his doors or face financially ruinous consequences. In a few cases, such as Stutzman’s, the defendant faces a court order plus financial ruin, because many progressive judges lend sympathetic ears to same-sex plaintiffs’ claims of humiliation and severe emotional harm. Typically as well, militant gay-rights sympathizers—and there are apparently plenty of them—flood social media and review sites such as Yelp with one-star comments about wilted flowers and cupcakes that gave them food poisoning, all in obvious efforts to put those holdout Christians out of business.
One of the most publicized of the lawsuits involves Jack Phillips, proprietor of the Masterpiece Cakeshop in Lakewood, Colorado, a sprawling and, until recently, rural suburb of Denver. Somewhat like Kim Davis, Phillips had led an out-of-control life during his twenties that included heavy drinking and two out-of-wedlock children before he “found Christ,” as he told a reporter. He cited his Christian belief that marriage is between a man and a woman as the basis for his refusal in July 2012 to make a rainbow cake for the reception of a gay couple, Charles W. Craig and David J. Mullins, who had traveled to Provincetown, Massachusetts, for a wedding ceremony because same-sex marriage was then illegal in Colorado. The Colorado Civil Rights Commission and, later, a state appellate court found that Phillips had violated a state anti-discrimination law, and the case is now pending before the Colorado Supreme Court. A law firm representing Craig and Mullins in tandem with the ACLU did not respond to email and phone requests for occupational information about its clients, but an online search revealed that two men in their thirties with the exact same names share a house in a Denver neighborhood where sales prices of single-family homes are in the half-million-dollar range. And Craig and Mullins got their rainbow cake fairly quickly from one of the dozens of gay-friendly bakers who swamped them with offers after the story broke. As for Phillips, his shop stopped making wedding cakes altogether, a move that he says has cost him 40 percent of his business revenues.
Another highly publicized wedding cake case involves Aaron and Melissa Klein, owners of the Sweet Cakes by Melissa bakery in Gresham, Oregon. They were the subject of complaints to two separate Oregon state agencies after they declined to provide a cake for the 2013 commitment ceremony of lesbians Rachel Cryer and Laurel Bowman (the two now share the hyphenated surname Bowman-Cryer). An administrative law judge found that the Kleins had violated a 2008 Oregon law forbidding discrimination in public accommodations on the basis of sexual orientation. The Kleins were also ordered to pay a $135,000 fine for causing “emotional distress” to the Bowman-Cryers, a ruling that is now on appeal to the Oregon Supreme Court. Rachel Bowman-Cryer leads a Portlandia-like lifestyle as a “musician and poet” (so reports Willamette Week), and you can listen to some of her songs on her MySpace page. By contrast, the Kleins, who have five children, were obliged to close their storefront operation and move the bakery to their home.
The phrase “punching down” comes to mind. We have an array of court cases in which the arty, the academically inclined, and the nicely fixed avail themselves of free legal services from the ACLU and arrange themselves in a thick phalanx—their ranks bolstered by an army of liberal wits, journalists, professors, media nabobs, and amateur social-justice warriors on Facebook, Twitter, and Yelp—to crush small-time entrepreneurs and local officials in flyover states who profess brands of Christianity that the elites find not just laughable but dangerously retrograde. And those retrograde Christians who can’t keep up with rapidly changing elite social dicta almost always lose.
The Kim Davis case has happened to be the most widely covered of those cases, partly because it came in the immediate wake of Obergefell and has functioned as a test of the full scope of that sweeping Supreme Court ruling, and partly because the class gap between Davis and her opponents in court has been so glaringly dramatic. Liberal intellectuals and pundits pride themselves on their identification with a beleaguered underclass—but when it comes to a clash between a genuine beleaguered underclass and fashionable ideology, it seems that liberals will choose the ideology every time.
Charlotte Allen is a writer living in Washington, D.C.
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