Samuel Bagenstos On The Mistaken Decision To Jail Kim Davis

Over at The New Republic Samuel Bagenstos offers some spot-on analysis of the decision to jail Kim Davis, ” the Rowan County, Kentucky, clerk who defied a U.S. Federal Court order requiring that she issue marriage licenses to same-sex couples” and concludes:

To many observers…the drama is the point. By making a prominent example of those who obstinately refuse to comply with federal-court orders, they believe, we send a strong message that no individual is above the law. But what is the lesson courts are teaching in these cases: that the constitutional principle of equal citizenship is a basic commitment, or simply that judges are powerful people who, like parents, are not to be messed with? Sometimes, basic constitutional principles cannot be enforced without drama; without the 101st Airborne, the Little Rock schools would not have been desegregated. But federal judges should always be focused on vindicating the rights of those who invoke their jurisdiction. If the judges can vindicate those rights without demanding an ostentatious show of submission to their authority, they should do so.

I agree with Bagenstos: the real issue here is not Davis’ stance, it is the denial of legal rights to same-sex couples. Theirs is the story worth covering; Davis is merely fodder for mockery. (And sadly, too much of it is about her looks, her multiple marriages, and her adulterous life. The hypocrisy of the publicly religious is an old and well-worn joke; the marriage of that brand of humor with sexism and misogyny ensures a deeply unedifying discourse around this issue that only serves to obscure its relevant details.)

Judges cannot be expected to think too deeply about their participation in political theater and how their rulings and orders can be made to perform on its stage. Some, of course, are more self-aware about this possibility for co-optation than others. The judge who jailed Kim Davis was, presumably, not a member of the Left or the Right in his capacity as a judge, and thus cannot be castigated for having handed the Religious Right its latest hobby horse, ridden by its latest hero. But there is a great deal of wisdom in Bagenstos’ claim that from a jurisprudential perspective, one committed to revealing in each ruling the sinews of the legal, political, and pragmatic principles at play, the right thing to do in this case was to affirm constitutional principles of equal citizenship and not the power of the courts to compel obedience.

The former kind of ruling immediately forces a conversation about the rights and claims of citizenship, about the basic promise of a republic–remember, ‘res publica’, a nation of laws, equality before the law, the greatest political and moral deliverance of the modern, post-empire era; the latter merely brings us to face with the oldest, crudest forms of legal positivism, that the law serves as a cloak for the supreme power of a sovereign entity, which can enforce its decrees by crude force, handcuffs, and detainment. A conversation about the former would have shone the spotlight of bigotry and hypocrisy on Davis; the latter let her claim it as her due for heroism.  A tour of the talk-show circuit, and perhaps even a book contract await her.