Private: Victim, Hero or the Face of Hate?

by James C. Nelson, Justice, Montana Supreme Court (Retired)

The swings in public perception are amazing. Case in point: Kim Davis, the Kentucky Clerk who thumbed her official nose at the U.S. Supreme Court’s decision that marriage is a fundamental right of all persons, not just heterosexuals. Not on Davis’ watch, that is.

No marriage licenses to gay and lesbian couples would be issued over her official title, because to do so would violate her personal religious beliefs. That, apparently, is the belief that the Bible and the “loving” God who inspired it and who created all people in his own image, condemns marriages which are not between one man and one woman.

Davis can believe what she wants, but the fact is that in Kentucky, as is the case elsewhere, public officials like her swear an oath (which my recollection is a promise to God) to support and uphold the Constitution. That is the same Constitution that the U.S. Supreme Court has decreed guarantees equal protection of the marriage laws to all people.

When she first denied gay and lesbian applicants marriage licenses, thumping her Bible, wagging her finger, and glaring over her glasses, Ms. Davis was personified as what she is—the face of bigotry. She was, quite properly, jailed for contempt for her refusal to comply with a federal court ruling requiring her to comply with the law. She was held in jail for five days amid a media flurry, pro and con demonstrations and visits by the usual right-wing political opportunists. And then, when Ms. Davis’ deputies started issuing marriage licenses to gay and lesbian applicants, she was released from confinement.

End of story? Get serious. Davis came home a hero and a martyr, likened to St. Paul, by her supporters. No surprise there.

Then Davis was characterized as the victim. As opposed to the real victims – the people on the business end of her finger-jabs, glares and sanctimonious diatribe.

And then this adulation went from the sublime to the ridiculous. Davis is now being portrayed as America’s next Rosa Parks. For those born (and born again) after the 60s, that is the same Rosa Parks that sat in the front of the bus and was one of the people who fought against discrimination – not, as Davis has, for the right to discriminate.

Rosa Parks fought for Constitutional rights that are actually guaranteed in the Constitution to all persons—equal protection, due process of law and freedom from discrimination. Davis, on the other hand, is fighting for a “right to discriminate” that is not guaranteed—much less even mentioned—in the Constitution. There is no “right to discriminate.”  It’s a myth.

Davis is certainly free to believe, personally, whatever she wants. But she has no right or power to refuse to perform the duties of her office and to uphold the Constitution based on her personal religious beliefs. 

Indeed, the absurdity of Davis’ position is apparent: after she issues a gay or lesbian couple a marriage license, she can still worship, she can still read her Bible, she can still believe that her selective spin on God’s teachings is true and other peoples’ is false, she can still hate the air that gays and lesbians breathe. In short, issuing a marriage license in accordance with the law, does not affect her Constitutional right to freely exercise her religion in the least.  No one iota.

At least, as a nation of laws, let’s have the intellectual honesty to label Davis and people like her for what they actually are: not heroes, not martyrs, not defenders of the Constitution. They are the personification of ill will. They are the face of Hate.