Rosa Parks is an American hero, but her case was not an accident. Other African Americans had shown similar defiance (ask Claudette Colvin, who refused to give up her seat nine months before Parks). Civil rights leaders had spent years looking for a favorable case to challenge the segregation of Montgomery buses. Parks’s trip on Bus 2857 was not premeditated, but it was opportune. She was already an activist — known, respected and impressive. Elevating her case was one of the best and most strategic things that the civil rights movement ever did.
Kim Davis — the Kentucky clerk who was jailed for refusing to issue marriage licenses to same-sex couples — has been compared by some conservatives to Parks. Presidential candidate Mike Huckabee, with typical understatement, has described her case as “the criminalization of Christianity in this country.” He compares Davis to Lincoln because “he disregarded [the] Dred Scott 1857 decision that said black people weren’t fully human.”
Bluntly put: Whatever their intentions, these people are doing great harm to the cause of religious liberty and to the reputation of their faith. Davis’s defiance is the wrong test case for the protection of religious freedom.
The Supreme Court’s far-reaching Obergefell decision legalizing gay marriage will have radiating consequences for people who hold traditional moral views on marriage and family. Some challenges will concern religious institutions — colleges, social service providers, aid organizations — that interact in various ways with government. Other controversies will concern the ability of closely held businesses to refrain from providing services.
But there is no serious case to be made for the right of public officials to break laws they don’t agree with, even for religious reasons. This is, in essence, seizing power from our system of laws and courts. The proper manner to change the law, in this instance, is to work for the election of a president who will appoint Supreme Court justices with a different view and for the election of senators who will confirm such justices. Or to propose and pass a constitutional amendment. Davis may be impatient with this system, but it is the one we have. Personally assuming the role in Rowan County, Ky., of a Supreme Court majority is not an option. The available alternatives are to implement the law (as public servants across red America have overwhelmingly done) or to resign in protest (as some have done as well).
Huckabee will need to look elsewhere than Lincoln for inspiration on this issue. This is from Lincoln’s speech on the Dred Scott decision: “We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often overruled its own decisions, and we shall do what we can to have it to overrule this.”
Lincoln may be overstating his case. As a conservative, I believe that facts and circumstances matter, and often complicate simple rules. A sheriff or magistrate in New Hampshire in the late 1850s would have been justified in choosing to look the other way rather than enforce the Fugitive Slave Act. Some Northern juries flatly refused to implement that law.
But those were choices made at the foggy extremes of political theory. Whatever your view of Justice Anthony M. Kennedy’s ruling on marriage, granting a wedding license is not in the same category as participating in a legal system that supported chattel slavery. It is, rather, participation in a legal system supporting liberal notions of individual rights. Davis believes that one of those rights is misapplied and misused. That is not the moral or legal equivalent of turning over Dred Scott to the slave catchers.
The Davis case is important, but mainly as a warning. Over the next few years, some religious institutions will be subject to legal challenges that are encouraged by Obergefell. This will not amount to religious persecution, but it will raise serious questions about the nature of religious pluralism. Some religious people will properly contend for their rights and interests.
But it is worth remembering: Legal arguments are not won by elevating bad cases. And public arguments are not won with unhinged historical hyperbole.