The Saint Louis University Law Journal’s annual Richard J. Childress Memorial Lecture was delivered by Professor Lawrence Sager this year on the topic of “Religious Freedom, Social Justice and Public Policy.” Invited respondents—who will also be contributing to the 2016 symposium issue on this topic—included Professors Matt Bodie, Jessie Hill, Christoper Lund, Elizabeth Sepper, Nelson Tebbe, and myself. As one can imagine, Kim Davis featured prominently in the day’s discussions, and she was one of the major protagonists in my own contribution to the day’s deliberations.
To my mind, Kim Davis’ continuing relevance to academic discussions, as well as the continuing prominence she has had in popular culture and online memes, is a testament to the complicated position she holds in ongoing social controversies concerning law, religion, morality, and marriage. She’s fascinating.
While the following points aren’t central to the arguments I make in my forthcoming Childress paper, I think it’s worth emphasizing that Davis can be viewed simultaneously as an utterly illegal and entirely legal actor. Central to seeing her as actor deeply embedded in the extant legal system’s ordered deliberations is Kim Davis’ decision to not issue marriage licenses to any couple in Rowan County—same-sex or opposite-sex. Indeed, one way of seeing this decision of hers is to view it as Kim Davis simply offering a different remedy for the Equal Protection and Due Process violations identified by Justice Anthony Kennedy in his majority Obergefell opinion concerning the discriminatory nature of marriage.
Such a remedy—the complete voiding of a discriminatory marriage regime—was, in fact, discussed by both the Massachusetts Supreme Judicial Court in its 2003 Goodridge opinion (where that remedy option was summarily dismissed) and the California Supreme Court in its 2008 decision, In re Marriage Cases, about the ‘separate but equal’ domestic partnership/marriage scheme then present in California. In itself voting to extend marriage to all couples rather than eliminating discriminatory marriage for everyone, the California Supreme Court first noted that
[w]hen a statute's differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class.
The California Supreme Court went on, however, to decide that
[i]n the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation.
Moreover, even if one views Kim Davis as an unrepentant outlaw—rather than a dispassionate if untraditional implementer of Obergefell—the illegality of her actions is ambivalent: she’s potentially both a proselytizing Apostolic Christian and a marriage-hostile queer/feminist. (Hence confirming an earlier point of mine on queer/religious alliance-building.) On that note, I think it’s worth emphasizing that Kim Davis accomplished a ‘progressive impossible’—namely, shutting down the marriage industrial complex in a tiny conservative corner of Kentucky probably for the first time in over 200 years. Eye of the Tiger.
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