Civil disobedience works when it makes the authorities look like sore losers

xkcd 1431, from October 2014

A week or two ago, one of the biggest news stories in the USA was about a woman named Kim Davis, the elected Clerk of Courts in Rowan County, Kentucky.  Ms Davis became nationally famous by refusing to issue marriage licenses, claiming that her religion forbids her to issue such licenses to same-sex couples and acknowledging that the laws of the United States forbid her to treat same-sex couples differently than opposite-sex couples.  When the courts ordered her to do that part of her job, Ms Davis at first went to jail rather than comply, then returned to work, delegating the issuing and registering of marriage licenses to an assistant.

Ms Davis described her actions as a principled case of civil disobedience, comparing her arrest to the arrests of Martin Luther King and Rosa Parks for defying regulations that enforced racial segregation.  Her opponents compared her to the officials who ordered those arrests and to other last-ditch defenders of de jure racial segregation.  As a supporter of gender-neutral marriage, I am inclined to be unsympathetic to Ms Davis, and being aware of my bias against her I hesitate to endorse an unflattering characterization of her.  But there is in fact a strong resemblance between what she did and what the defenders of Jim Crow did in the 1950s and 1960s.  After the US Supreme Court handed down its ruling in the case of Brown et al. vs the Board of Education of Topeka, Kansas in 1954, the slogan among Southern white politicians was “Massive Resistance,” and that “Massive Resistance” did indeed include just such acts by elected officials as Ms Davis has committed.  Most spectacular of these acts of defiance was Governor Orval Faubus’ 1958 decision to shut down Arkansas’ entire public school system rather than allow black and white students to attend the same classes.

Orval Faubus started defying the laws of the United States after the federal courts, national public opinion, and the consensus of the country’s corporate and financial elite had turned against his side.  While his office gave him considerable power, for example enabling him to keep the schools in Arkansas’ capital city of Little Rock closed for a whole year, his actions therefore struck most Americans as petulant and childish, ultimately dooming his own political prospects and bringing his side of the civil rights issue into disrepute.  In other words, he came out of the controversy looking like a loser, and segregationism came out of it looking like an ideology for losers.  The first rule of politics is that people don’t want to follow a loser, so Faubus’ actions were costly to his side.

Ms Davis is in the same position.  Most Americans support gender-neutral marriage.  That majority has been growing rapidly, and in a very few years, if present trends continue, it will be as difficult for a person who openly opposes gender neutral marriage to be elected to public office anywhere in the United States of America, even Rowan County, Kentucky, as it now is for a person who openly opposes race-neutral marriage to be elected to public office.  Therefore, if elected county clerks were to be granted the power to decide what sorts of couples would be allowed to marry, that would be of little benefit to opponents of gender-neutral marriage.  Indeed, as opposition to gender-neutral marriage takes on the same stigma that has long attached to opposition to race-neutral marriage, county clerks might find themselves tempted to play for popularity by refusing to register marriages that began with weddings performed by clergy who will not marry same-sex couples.  That may be illegal, but it would be popular now for a county clerk to refuse to register marriages that began with weddings performed by clergy who will not marry interracial couples, and doing the same thing to anti-gay clergy will very probably be popular in the near future.  The only worldly hope social conservatives will have once they become a small and unpopular minority is the hope that other small and unpopular minorities have, which is that public officials will scrupulously follow the law.  By refusing to follow the law herself, Ms Davis and the politicians who have embraced her have ensured that social conservatives will look ridiculous when they demand that officials respect their legal rights.  Looking ridiculous is another form of looking like a loser, and as such a step towards political extinction.

Blogger Rod Dreher is a social conservative, opposed to gender-neutral marriage on religious grounds, and he sees all this very clearly.  I’ll close by quoting some remarks of his from a recent post on the same theme as the paragraph above:

Russell Moore and Andrew T. Walker of the Southern Baptist Convention’s Ethics and Religious Liberty Commission have a column out ripping the Supreme Court, the Kentucky governor, and the federal judge in the Kim Davis case, but the piece also makes a very important point about religious liberty and prudential judgment:

[W]e must recognize the crucial difference between the religious liberty claims of private citizens and government officials. Let us be clear: Government employees are entitled to religious liberty, but religious liberty is never an absolute claim, especially when it comes to discharging duties that the office in question requires. While government employees don’t lose their constitutional protection simply because they work for the government, an individual whose office requires them to uphold or execute the law is a separate matter than the private citizen whose conscience is infringed upon as a result of the law. It means the balancingtest is different when it comes to government officials because of their roles as agents of the state. Government officials have a responsibility to carry out the law. When an official can no longer execute the laws in question due to an assault on conscience, and after all accommodating measures have been exhausted, he or she could work for change as a private citizen, engaging the democratic process in hopes of changing the questionable law.

We must be very clear about the distinctions here between persons acting as an agent of the state and persons being coerced by the state in their private lives. If the definition becomes so murky that we cannot differentiate between the freedom to exercise one’s religion and the responsibility of agents of the state to carry out the law, religious liberty itself will be imperiled.

I can’t make the point more strongly or clearly than these Southern Baptists — both conservatives — have done here. If the public comes to think of religious liberty as the constitutionally guaranteed right to ignore the Constitution whenever it suits us, the cause of religious liberty — which is guaranteed by the First Amendment — is going to suffer tremendously.

Conservatives are supposed to understand the difference between the vice of cowardice and the virtue of prudence. If religious liberty means that even officers of the state can defy the law without consequence, then it makes every individual a potential tyrant. The Kentucky Pentecostal county clerk who refuses the gay couple a marriage permit in principle legitimizes the California Episcopalian county clerk who refuses to record marriages performed by ministers of churches that don’t marry same-sex couples.

Is this really what orthodox Christians want? You had better think hard about it, because we are on the losing side of the same-sex marriage question, and on gay rights in general. Louisiana is one of the most socially conservative states in the country, but a generation from now, gay marriage will be the majority opinion even here.

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