Dear America,
Kim Davis, the recalcitrant Kentucky town clerk who refused to issue marriage licenses to same-sex couples and spent some time in jail for contemning the court that ordered her to do so, has managed to bootstrap her fifteen minutes of fame into weeks, and who knows, maybe months. That is, in and of itself, of little moment in the world, but the peripheral consequences of her position may become significant. It is Davis's right to display the kind of moral positivism and religious zeal that she has exhibited when she does it in her own name only. She has that right under our constitution just as people who disagree with her do. The problem with it isn't legal. The problem is the tyranny that she is willing to inflict on others, though that willingness in her personal life, like her right to harbor the beliefs she does, is her prerogative. But when she uses her elected office to inflict it, that is a different matter. Under the law, her refusal to perform her legal duty on her personal moral grounds was what is called an ultra vires act. That means that her denial of the right to apply for a marriage license to people--in this case same-sex couples--was outside the scope of her powers to act as town clerk. Of course, that issue has already been resolved by the federal judge who ordered her to issue such licenses in the first place, despite her continuing fulminations. There is no danger that a rogue county clerk will reverse the mandate created by the U.S. Supreme Court's recognition that when it comes to rights, homosexuals are in the same protected class as everyone else. But while the applicability of that principle to Kim Davis is trivial in the larger sense, subscription to her position is not because two presidential candidates have now risen...or fallen if you prefer...to her defense. Mike Huckabee has defended Davis's claim that she has the right to deny those licenses under the first amendment's freedom of religion clause. When Huckabee appeared on MSNBC's Morning Joe, he was enfiladed by Joe Scarborough and his co-host, Mika Brzezinski, for conflating his religious beliefs with the law in his defense of Davis, but he was unremitting in his advocacy on her behalf, with or without rational basis. And now, Ted Cruz--a U.S. Senator and Republican aspirant to the presidential nomination of his party as well as a constitutional lawyer--has said he will join Huckabee and Davis in their quest to impose their religious beliefs on everyone else.
Of course, the Davis affair is like a neon sign flashing "hypocrite" over and over again as Davis has been married four times and divorced three times, which Scarborough and Huckabee agreed is a violation of biblical tenets (not being too familiar with The Bible, I am skeptical about that, but I admit that I am unqualified to render an opinion on what The Bible says). But whether Davis is a hypocrite for appealing to law for relief of her marital woes despite the religious prohibition of such, the willingness of Huckabee and Cruz to come to her defense is far worse than simple political opportunism. These two men, both of whom want to be our president, would put their Christian faith above the law. For Huckabee that is no surprise as he is a Baptist minister, though it should cause any American who values his own religious freedom a significant amount of dubiousness about Huckabee as a politician. Cruz is another matter. He is a lawyer, and from all accounts a formidable one. He has been to the U.S. Supreme Court on several occasions to argue constitutional issues with great success, and he counts himself among those who call themselves "strict constructionists." Strict constructionists believe that our constitution is not open to interpretation, but rather is to applied literally as it is written without insertions or deletions. Nothing in the constitution, they think, allows for extrapolations like zones of privacy and gun control...or limitations on campaign financing like that proscribed under the Citizens United case. Yet, even with all his expertise and fanaticism on the subject of states' rights, he seems to think that a municipal clerk, less than a state official, has the right to flout the law of the Supreme Court just because her religion disapproves of a duty that is incumbent upon her under state law.
It will be interesting to see if Cruz reconsiders. Unlike Huckabee, who is just a sanctimonious self-seeker, Cruz should know better. And if he bothers to think about it, the voters who would be swayed toward him by his efforts to pander to them in this way won't even be enough to win him a primary, much less a national election. So for political reasons if for no others, standing by Kim Davis's side holding her hand as Huckabee did yesterday is a bad move. But beyond political opportunism, Cruz's adherence to the kind of fundamentalism over law and rights that Davis stands for is worrisome...or it would be if Cruz actually had a chance to win the Republican nomination. And the tandem of Cruz and Huckabee, in that they are the probable favorites of the evangelical right, may be even more worrisome, because advocates of the political extremes tend to shift the debate in the direction of those extremes. Thus, we could hear Jeb Bush, who could become president theoretically, waxing Christian dogmatic over the course of the next year, and to the extent that he has prospects for success, that is a threat to all of us who don't want to have our moral beliefs dictated to us.
The Davis affair is a distillation of the two competing ethics in the 2016 election. There are those who would constrain others, even in their personal, private choices, by imposing their beliefs on everyone else and those who believe that our nation is a common weal to which we are all entitled in equal measure. While Kim Davis is almost a caricature and thus more a target for comic derision than a political figure, people like Cruz and Huckabee are a threat to our liberties.
Your friend,
Mike
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