Gay rights advocates: Jailed Kentucky clerk is no martyr

In this photo taken Thursday, Sept. 3, 2015, Rowan County, Ky., clerk Kim Davis is escorted from the Carl Perkins Federal Courthouse in Ashland, Ky. District Judge David Bunning said he had no choice but to jail Davis for contempt after she insisted that her “conscience will not allow” her to follow federal court rulings on gay marriage. AP

MOREHEAD, Kentucky — As a defiant Kentucky clerk sat in jail Friday, choosing indefinite imprisonment over licensing gay marriages, her lawyers approached the microphones outside and compared her to Dr. Martin Luther King.

Around the country, other supporters reached for Biblical heroes, comparing her to Silas and Daniel, imprisoned for their faith and rescued by God.

It’s precisely the narrative gay rights advocates had hoped to avoid. But as Davis’ mug shot rocketed around the Internet, it became clear that the gay rights movement must battle this idea that Christianity is under siege, said Kenneth Upton, senior counsel for Lambda Legal, a law firm specializing in LGBT issues.

“This is what the other side wants,” Upton said, pointing to the image of Davis in handcuffs. “This is a Biblical story, to go to jail for your faith. We don’t want to make her a martyr to the people who are like her, who want to paint themselves as victims.”

Since the US Supreme Court legalized gay marriage in June, the vast majority of officials have abided by that ruling. Davis and a handful of other clerks and judges, advised by the Christian law firm Liberty Counsel, have refused to comply. They stopped issuing marriage licenses to any couple, gay or straight. Davis was merely the first to be challenged in court.

READ: US Clerk prayed to stop issuing same-sex marriage licenses

The American Civil Liberties Union, representing couples she turned away, asked that she be fined rather than imprisoned, in part to avoid “a false persecution story,” said Dan Canon, one of the attorneys. But US District Court Judge David Bunning ordered her to jail anyway, reasoning that she would be unmoved by monetary penalties.

“I think he was trying to make an example of Kim Davis, and he may well do so,” said Tony Perkins, president of the Family Research Council, which lobbies against gay marriage. “Courage breeds courage, especially when it comes from unlikely places. She may be the example that sparks a firestorm of resistance across this country.”

Chris Hartman, director of Louisville’s Fairness Campaign, dismissed the small number of holdout clerks as a “blip on the radar of civil rights.”

Yet Davis is suddenly famous around the globe as the face of Christian resistance to gay marriage. The crowded field of Republican presidential candidates mostly took her side. Candidate Mike Huckabee, a former Baptist minister, announced he would visit Davis in Kentucky next week, and said “we must end the criminalization of Christianity.”

But Carly Fiorina and Lindsey Graham said she should follow the law or resign. And even some conservative veterans of religious freedom fights worry that Davis makes a bad case for martyrdom.

Her insistence on keeping her elected position while ignoring federal court orders has been sharply criticized in the this week in the National Review and The American Conservative, and Russell Moore and Andrew T. Walker, who serve on the Ethics & Religious Liberty Commission of the Southern Baptist Convention, wrote Friday that “religious liberty itself will be imperiled” if people “cannot differentiate between the freedom to exercise one’s religion and the responsibility of agents of the state to carry out the law.”

Still, Perkins and others on the religious right promise there are dozens of Kim Davises ready to go to jail in defense of their religious freedoms.

READ: Clerks defy same-sex ruling, refuse licenses for gay couples
 
Alabama Probate Judge Nick Williams said he called Davis the night before she was jailed, telling her he admires her resolve, and that he too would rather go to prison than resign or relent. His resolve has yet to be tested: no same-sex couples have sought a license from his office in rural Washington County, home to about 17,000 people.

Still, Williams compared Davis to Daniel, the Old Testament hero who was thrown into a lion’s den for refusing to abandon his faith, but with God’s blessing, emerged unscathed.

“I hate the fact that she went to jail, but maybe, just maybe, this will wake America up,” Williams said.

In Irion County, Texas, population 1,500, clerk Molly Criner also declared through the Liberty Counsel that she would issue no licenses. She said on Friday that no same-sex couples have asked for one. She refused to say whether she would issue them, or opt to go to jail instead.

Liberty Counsel attorney Mat Staver said after meeting with Davis in jail Friday that “she is a prisoner of her conscience.” He quoted the letter King wrote from his Birmingham jail cell in 1963, rallying civil rights activists to challenge unjust laws and pay the consequences if necessary to force peaceful change.

He described Davis as the first American imprisoned for a religious objection to gay marriage.

The lawyers suing her dismissed that notion. “This is the billionth time a person has been jailed for violating a court order,” Canon said.

How long Davis might remain behind bars is unclear. Civil contempt carries no standard sentence. It is often described as handing prisoners the keys to their own jail cells — they can get out as soon as they choose to comply.

But Davis has pledged that she never will.

“She elected to make herself a martyr,” said Columbia Law School Professor Katherine Franke, who has studied the intersection of public service and personal faith. Davis has three choices now, Franke said: She can resign; she can relent and agree to issue licenses; or she can wait in jail until the Legislature meets in January to see if she’s impeached, an unlikely scenario in a deeply conservative state.