Kim Davis and Civil Disobedience

Civil disobedience is a political tactic that has been used in some of the great liberation struggles, including the Civil Rights Movement. Civil disobedience is typically used by people on the political left. In fact, it is one of the tactics that was taught by Saul Alinsky. However, civil disobedience can also be used by someone with a right-wing agenda. One example is Kim Davis, the county clerk who was jailed for contempt of court for refusing to allow her office to issue marriage licenses. Her goal was to take a public stand against same-sex marriage. What is civil disobedience, and what does it mean when a right-winger like Kim Davis uses a tactic from Saul Alinsky’s playbook? It means that the left is winning.

In civil disobedience, a person openly breaks a law or refuses to obey a command of government and then willingly accepts the legal consequences for his or her actions. The classical illustration was from the play Antigone, by Sophocles. King Creon had forbidden Antigone to bury her traitorous brother Polyneices, who had died on the battlefield. Nevertheless, Antigone fulfills her religious obligation to bury her brother’s body. Then, she allows herself to be buried alive in punishment. In other words, Antigone obeyed divine law, then she allowed herself to be punished in accordance with man’s law. In Sophocles’s version of the story, Antigone hangs herself in the tomb and Creon is then punished by the death of his wife Eurydice and his son Haemon. The moral of the story was twofold: a heroic person does what is right and then bravely accepts the consequences, whereas an unwise ruler can destroy his own happiness by imposing unjust laws. In contrast, the playwright Euripides gave the story a Hollywood ending: Antigone is saved by the god Dionysus and marries Haemon.

The purpose of civil disobedience is to show respect for the principle of the rule of law while protesting that a particular law is unjust. An act of civil disobedience is often a crime, in that it involves breaking a law. However, civil disobedience is different from ordinary crime. Ordinary criminals generally expect to benefit in some way from breaking the law. In contrast, acts of civil disobedience serve the public, often at great cost to the person who performed the act. Criminals often carry out their offenses secretly, and they attempt to avoid punishment. In contrast, acts of civil disobedience are performed in public as political theater, and the performers willingly submit themselves for punishment.

Civil disobedience is based on the idea that a law can violate a higher moral principle, such as a religious principle. In many ancient civilizations, there was no practical difference between civil law and religious law: kings and emperors were considered to be gods or at least demigods. Acts of civil disobedience would make sense only to people who understand that they are being governed by other human beings, as opposed to being ruled by divinities or prophets.

When Kim Davis refused to issue marriage licenses for marriages that would not be recognized as valid in her church, she claimed that she was acting under God’s authority. However, because of the separation of church and state, as required by the First Amendment of the U.S. Constitution, government officials are not permitted to impose the rules of their religion on the public.

As a public official, Kim Davis presumably took an oath of office, in which she swore or affirmed that she would uphold the U.S. Constitution and the constitution of the state of Kentucky. As a member of the executive branch of government, she must carry out (execute) the laws that were passed by the legislature and signed into law by the chief executive, unless those laws have been overturned by the judicial branch of government as unconstitutional.

State legislatures can pass any law that they wish. Yet if the judiciary decides that a state law violates the state’s constitution or the U.S. Constitution, that law no longer has the force of law. For example, a state legislature can pass a law that specifies that a marriage can only be between one man and one woman. Yet on Jun 26, 2015, the Supreme Court decided, in the case of Obergefell v Hodges, that laws against same-sex marriage are unconstitutional. In that decision, the Supreme Court held that the fundamental right to marry is guaranteed to same-sex couples by the Due Process Clause and the Equal Protection Clause of the 14th Amendment. Thus, the Supreme Court overruled all state laws against same-sex marriage. Because of this decision, same-sex marriages have equal legal standing with opposite-sex marriages in federal and state courts. A priest may still refuse to perform a same-sex wedding (or the wedding of a divorced person), but county clerks can no longer refuse to issue a marriage license to a couple simply because both members of the couple are the same sex.

Under Kentucky state law, marriage licenses are issued by the county clerk’s office. However, Kim Davis decided that her office would not issue any marriage licenses to gay couples. In an attempt to get around the Equal Protection Clause, she declared that her office would stop issuing marriage licenses to any couples, gay or straight. In response, four couples brought a federal lawsuit (Miller v Davis). A federal judge then ordered Davis to issue marriage licenses. The appeals court and the Supreme Court refused to issue a stay of that order. When Davis still refused to allow anyone in her office to issue marriage licenses, the judge then ordered Davis to be jailed for contempt of court. Davis then spent five nights in jail.

Davis had clearly performed an act of civil disobedience. She disobeyed the law, and she even disobeyed a federal court order. She claimed that she was acting under God’s authority. Then, she allowed herself to be jailed. She was released after the deputy clerks issued marriage licenses to the plaintiffs. Because of this act of civil disobedience, some right-wing commentators have compared her to the Rev. Dr. Martin Luther King, Jr. Yet King was standing up for extending basic human rights to all Americans, while Davis refused a court order to treat everyone fairly.

Now that there is such broad acceptance of same-sex marriage, many Americans feel that it was cruel and unfair for Davis to refuse to issue marriage licenses to gay couples. An opinion poll showed that 56% of Americans approved of the judge’s decision to send her to jail. Even most of the Republicans respondents felt that Davis should resign her post as county clerk.

An act of civil disobedience is a way to assert moral superiority. Thus, for an act of civil disobedience to be effective as political theater, it must be performed by someone whom the public respects as a teacher of righteousness. Otherwise, it is farce, not tragedy. Davis claims that gay marriage is against her Christian religion. However, many commentators have argued that Davis is a hypocrite. In the Bible, Christ never mentions homosexuality but specifically condemns hypocrisy and divorce. Davis is currently in her fourth marriage, her first three having ended in divorce. She also bore two children out of wedlock.

It is unusual to see someone with right-wing politics use civil disobedience. The reason is simple. The people on the right are usually taking the side of the people who have the power to make or change the law. The concept of left-wing and right-wing arose during the French Revolution. In the National Assembly of 1789, the king’s supporters sat to the President’s right and the supporters of the revolution sat to his left. Thus, leftists support common people and stand up for the underdog. In contrast, rightists are either powerful people or those who serve the powerful. Powerful people can use their power to shape the law to serve their interests. Thus, they have no need to use civil disobedience. In fact, it would serve their interests to discourage anyone from performing civil disobedience. For that reason, civil disobedience has traditionally been used by people on the political left, to encourage the public to demand change.

Civil disobedience is political theater. For an act of civil disobedience to be effective, it must also have an audience. For that reason, it is unusual for someone who performs acts of civil disobedience to get broad coverage in the media. The people who own the major media can give favorable coverage to the political candidates who support their agenda. In return, those elected officials support the agenda of the people who brought them to power. If they want to keep dancing, they dance with the people who brought them to the dance. Thus, civil disobedience is usually performed by people who don’t have the power to make law: people whose political agenda runs counter to the interests of the major media. Kim Davis is now a household name, but Sister Megan Rice is not. Sister Megan Rice is a Roman Catholic nun, a Religious Sister of the Society of the Holy Child Jesus. She is also a member of the Plowshares movement, which is a Christian movement against nuclear weapons. It was founded by Daniel and Phillip Berrigan and six others (the Plowshares Eight). Their name was inspired by a verse from the book of Isaiah in the Bible:

They shall beat their swords into plowshares, and their spears into pruning hooks: nation shall not lift up sword against nation, neither shall they learn war any more.

Sister Megan has been arrested more than three dozen times and jailed three times for acts of civil disobedience to protest nuclear weaponry.

In July 2012, Sister Megan and two other members of the Plowshares organization broke into the Y-12 National Security Complex, in Oak Ridge, Tennessee. They cut through the barbed wire fences and made their way to a bunker that stored nuclear weapons and support material. They hung banners and crime-scene tape. They painted messages such as “The fruit of justice is peace.” They splashed human blood on the outside of the bunker. Although they set off alarms, it took two hours before guards found them. When the guards arrived, the activists offered to break bread with them.

Sister Megan went on trial for the absurdly inflated charge of sabotage. In her closing statement, she said,

Please have no leniency with me. To remain in prison for the rest of my life would be the greatest gift you could give me.

Civil disobedience is an act of political theater. For it to be effective, the actors must be well cast. Kim Davis is a serial divorcée who bore two children out of wedlock and now presents herself as an arbiter of who can and cannot get legally married. Sister Megan is a Roman Catholic nun who is willing to spend the rest of her life in federal prison as a way to protest the immorality of preparations for nuclear war.

Kim Davis became a household name because her act of civil disobedience was an insult and a nuisance to a handful of gay and straight couples who wanted to get married. In contrast, Sister Megan represents a movement that would bring about major changes in how the federal government spends our money. After the death of Stalin, President Eisenhower said the following words in a speech intended to bring an end to the Cold War:

Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. The cost of one modern heavy bomber is this: a modern brick school in more than 30 cities. It is two electric power plants, each serving a town of 60,000 population. It is two fine, fully equipped hospitals. It is some 50 miles of concrete highway. We pay for a single fighter plane with a half million bushels of wheat. We pay for a single destroyer with new homes that could have housed more than 8,000 people. This, I repeat, is the best way of life to be found on the road. the world has been taking. This is not a way of life at all, in any true sense. Under the cloud of threatening war, it is humanity hanging from a cross of iron.

Of course, the people who owned the major media outlets at the time also owned the companies that were making weapons, including nuclear weapons. As a result, the United States continued on that deadly road.

When people on the left use civil disobedience, it means that they are serious–serious enough to win. All they need is for their message to be widely heard. But when people on the right have to resort to civil disobedience, it means that they are losing. Kim Davis may choose to stand athwart history, yelling “Stop!” But there is nothing so powerful as an idea whose time has come. Kim Davis will lose this battle, and she may end up losing her job. Meanwhile, the major media will continue to ignore the Plowshares movement.

Photo by wackyvorlon

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