The Night Kim Davis Spent in Jail

Unless you have been completely removed from American political discourse and the news media, for the last few weeks, you have surely heard the name Kim Davis, the Kentucky county clerk whose unlawful and indignant refusal to issue marriage licenses to same-sex couples has polarized the nation. Her meteoric rise to political and cultural stardom has elicited as many critics as it has supporters, with scores of people praising her resolute tenacity for defending her faith — despite her being jailed for a short time after higher courts found her in contempt. Her supporters have extolled her as a courageous[American] hero,” and the lionization of Davis has even led to a special meeting between her and Pope Francis, who stated that “conscientious objection is a right that is a part of every human right,” though the Vatican denies that this is a sign of support. The dialogue surrounding her is akin to that language which is often used — though frequently in retrospect — to describe political and social dissidents who triumphantly and successfully challenged the state and social norms in order to change things for the better; she is hailed by those who agree with her as a member of the patchwork of protesting patriots who identify with the philosophy of civil disobedience.

Davis, however, is far from being the pioneer, or even an adherent, of civil dissidence. This position belongs to Henry David Thoreau. Thoreau ascended to fame as an author and a preeminent member of the transcendentalist movement in the United States. In addition, he was an ardently political person, and his convictions led him to protest the Mexican-American War and slavery by refusing to pay certain taxes for six years. Ineluctably, he ran into the local tax collector, who asked that he pay the taxes that he owed. When Thoreau declined on principle, citing that paying taxes would support the heinous ethical crimes committed by the government, he was taken to jail; the one night he spent behind bars for his beliefs catapulted him to the spiritual and political leadership of civil disobedience. Thoreau was the chief architect of a growing political philosophy: the idea that “in a democracy, citizens can effect political changes by peaceful means” (Zashin, Civil Disobedience and Democracy, 60). The trajectory of history has shown that rules are meant to be broken, but only if they are unjust. The rule that Davis broke was not so, and therefore her actions do not belong to the revered sections of history that laud dissidents for remaining indignant and righting wrongs, though many legacies that reside in this space belong to people vilified for their beliefs during their lives and only canonized after public acceptance in later years. Rather, they belong to the nefarious narrative of those that overstepped their bounds and committed crimes ostensibly in the name of conscience.

The most obvious and consequential difference between the two individuals is their relationship to the government against which they protested. Thoreau was a subject, a private citizen. He had no particular obligation to the Constitution except that he lived under its rule. Davis, on the contrary, is a county clerk, an employee of the government paid with taxpayer dollars. It is in her specified duties to issue marriage licenses; following the Supreme Court decision, this meant issuing the licenses to same-sex couples. Thus, while his disobedience was civil, relating to his status as a private citizen, hers is civic, relating to her duties as a member of the government.

"Davis, however, is far from being the pioneer, or even an adherent, of civil disobedience."

Thoreau, in Civil Disobedience, the essay he wrote in response to his one-night stay in jail, asks: “Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience then?” Davis herself exploits this same sentiment, voicing frequently that granting licenses to same-sex couples “would violate [her] conscience.” This raises critical questions about the ramifications of our bureaucratic structures, including whether it’s necessary to shed all morals and beliefs when becoming a public servant, or whether a job in the government bars one from expressing beliefs. Despite the fact that Davis deeply refutes these tenants, she is required to answer to the authorities of government. When she isn’t on the job, she can espouse whatever beliefs she wants, as the First Amendment guarantees this right. Had she protested on street corners on days she wasn’t working, it would have been acceptable. Had she skipped work and protested outside the office while a colleague signed the forms, it would have been acceptable. Instead, she used the power granted to her by her elected position in order to legislate and declare law, and by doing this, she abused her power. Thoreau spoke as a citizen, and Davis did so as a civil servant. This clear divide exemplifies the nature of civil disobedience in relation to the citizenry and the government, as well as when laws are meant to be broken and when they are meant to be followed.

Another salient divergence in Thoreau and Davis’s distinct dissidences is their intentions. At the time of his imprisonment Thoreau was an abolitionist, opposing the Mexican-American War because he thought it to be motivated by imperialist ideas of Manifest Destiny and a desire to bring slavery to new, unconquered lands. The action that led to his incarceration, his deliberate evasion of taxes, was a protest against the blatant disregard of liberties and tyrannical measures carried out by the government and that implicated private citizens through proxy means of taxation. Thoreau’s intentions were clear: He did not want to be complicit in the systemic abuses of power that denigrated citizens of the frontier and the people beyond the contemporary border.

When Davis refused to issue marriage licenses to same-sex couples, not only after the Obergefell decision, which holds that the “fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteen Amendment to the United States Constitution,” but also after a direct order from federal courts and an unsuccessful appeal to the Supreme Court, she effectively denied same-sex couples rights granted to them only a few months earlier. With her own judicial decision, she eroded away rights that have taken decades to gain. In the Court’s majority opinion in granting universal marriage rights, Justice Kennedy writes that “[the petitioners] ask for equal dignity in the eyes of the law. The Constitutions grants them that right.” Davis is not the supreme arbitrator of judicial authority in this country. As such, she has no right to declare who can and who cannot have rights; moreover, she is not at liberty to nullify these civil liberties, especially when the issue has already been resolved and the rights already given. In arguing that to have her name associated with these licenses would violate her First Amendment guarantee of freedom of religion, declaring, “I want to continue to perform my duties, but I also am requesting what our Founders envisioned – that conscience and religious freedom would be protected,” she misreads the Constitution. The First Amendment protects the people from governmental imposition of religion, not the other way around. When she rebuffed the marriage licenses that same-sex couples filed for, she imposed her religion upon them. This dissonance between the two figures is based on liberty: one sought to increase it, while the other effectively diminished it.

The history of the United States is permeated with examples of solitary citizens refusing the conventional flow of society. They are citizens who create friction in the machine of government in order to effect change—from the Boston Tea Party to the Stonewall Riots to the protests in Ferguson. One such citizen, Henry David Thoreau, wrote the book on the philosophy. Of late, Kim Davis has been similarly hailed as a pillar of pious perseverance. Yet her story is different from Thoreau’s, and on a grander scheme, from most other civilly disobedient citizens. She wrongfully stole liberties from innocent people, ensnared others in her nexus of prejudice, and misemployed the faculties of her office. Her denial to grant marriage licenses to same-sex couples in spite of a Supreme Court ruling should not be lauded as an act of defiance in the name of reestablishing freedom and order; rather, it should be cast into the shadows of history, its perpetrator shamed for her ignorance and blatant disregard for the constitutional values she swore to uphold.

Photo: Matt Popovich

About the Author

Britt Edelen '19 is a Staff Writer for the Brown Political Review.

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