In a Swiftian proposal at The Week, Michael Brendan Dougherty suggests a punishment for Kim Davis, currently released by the Federal Judge who jailed her due to her deputies issuing licenses to gays to marriage, something Kim Davis has vowed to halt:
The Supreme Court had to know it would come to this. It had to know that in taking away the authority of states and the people to define marriage as a conjugal union, some force would be necessary to compel obedience.
A conflict about religious liberty and the authority of the state was bound to happen around marriage issues, just as it did nearly five centuries ago during the Reformation. Whatever we say about the separation of church and state, marriage is an institution that acts as a bridge between them. Religious institutions define the moral purpose and eligibility for marriage, while the state used juridical power to guarantee that stability of the institution.
So it’s not a surprise that Justice Kennedy’s opinion in Obergefell v. Hodges, which redefined marriage nationwide to include same-sex couples, reads more like a religious confession than a legal opinion. Instead of concerning itself with merely the legal consequences of marriage, it reaches outward to commend people to its “transcendent purposes” and “highest meaning.” It projected backward the true meaning of the 14th Amendment based on developments in psychology a century later, just the way religious scholars read Old Testament prophecies in light of the new. It offered miraculous contradictions of the evidence of our eyes by saying that legal developments in recent centuries represent new insights, and “[t]hese new insights have strengthened, not weakened, the institution of marriage.” It also offered an incorrect story of the entire history of the institution:
For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman.
It also, like a 13th century papal bull, constricted the rights of non-conformists, when it assured religious believers that they may “advocate” for their beliefs and believe them, just not act on them and exercise them in the public square.
Kennedy’s decision is only the latest in a long series of decisions in which the state progressively usurps the role of religion in defining the eligibility of individuals, moral purpose, eschatological meaning, and “transcendent purpose” for the institution of marriage. Notice even the subtle way the Griswold decision evokes but revises marriage indissolubility. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” (Emphasis mine.) Davis’ protest, however confused about the legal consequences it risks, is properly understood as a religious one.
So let me suggest, modestly, that instead of the National Guard or a jail cell, she should be handed a more properly religious punishment, one that honors America’s evolving understanding of the separation of church and state. Before the sentence for contempt was handed down, Brian Beutler wrote in The New Republic that “she should be put behind bars until she relents one way or another.”
Any attempt to force her hand risks making her a bigger martyr on the religious right than she already is, but that risk is small compared to the risk that allowing her to continue abusing her power without consequence will create a terrible precedent. There are surely other religious clerks in the South and elsewhere who’d love to get away with discriminating against gays and lesbians, in defiance of the country’s highest court. [The New Republic]
What Beutler advocates here is making of Davis a “fearful example,” often used to compel conformity in doctrine. He’s after people’s hearts, hoping to change those who would dissent. But he doesn’t go far enough.
True, no GoFundMe campaign can restore days of life lost in a jail cell. But Davis has already indicated that jail is nothing to her compared to serving God. She’s just sitting there with the approval of her conscience!
And besides, many think that putting Davis in jail risks exciting sympathy for her and a viral donation campaign that will ultimately reward her for her intransigence. The conclusion is obvious.
Any normal punishment rewards her with the comfort of solidarity from right-wing Christians, or her own sense of moral self-approval. Therefore the only way to avoid granting her such “martyrdom” is to actually martyr her. That’s the really perverse thing about Christians who make a spectacle like this. The only way the state can really punish them is to inform them that their suffering is meaningless and proving that God doesn’t exist by sending them to the darkness of oblivion in torment. Justice Kennedy has issued his theological bull; let Kentucky officials in defiance of it be put on a pyre.
Go here to read the rest. Whenever a Supreme Court majority decides to place its judicial thumb on the Scales of Justice, and, in defiance of the Constitution, read into that document something that manifestly is not there in order to enact a policy preference favored by the majority, it relies on something in others that the majority does not possess: respect for the rule of law. As it becomes clearer to most Americans that when it comes to the Constitution the Court now is not interpreting the Constitution but making a new one piece by piece, resistance like that of Kim Davis will become more common and so the Federal Courts will have to increasingly go into the martyr making business in order to enforce their edicts. The times just got a lot more interesting.