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Writing for Slate.com this week, Mark Joseph Stern addressed the most recent challenge to Obergefell v. Hodges, the recent decision granting gay couples nationwide the right to marry. The challenge comes from Kim Davis, a clerk in Kentucky who continues to refuse marriage licenses to gay applicants. More specifically, the challenge comes in the form of an emergency application to the Supreme Court by Davis’ lawyers at the Liberty Counsel, a group specializing in anti-gay litigation. Stern describes the application thusly:
Davis’ application to the Supreme Court is less an application for a preliminary injunction than a sententious protest against Obergefell. It accuses the Obergefell majority of ‘redefining’ marriage—a staple of right-wing argot—three times. It sneers that the ruling was decided by a bare ‘5-4 majority.’ It quotes, extensively and approvingly, the Obergefell dissenters’ ominous warnings about the apocalyptic clash between marriage equality and religious freedom. And, in case you didn’t get the point, it actually refers to ‘same-sex “marriage” ‘—complete with contemptuous scare quotes around ‘marriage.’
Stern is concerned, he writes, not about Davis’ challenge being taken seriously, but rather about Davis herself, and whether she’s being used unfairly as a pawn in the Liberty Counsel’s political battle:
Law firms regularly use sexy cases to increase their own profiles, and it’s perfectly fine to bandy about your client to further a constitutional cause. (Gay rights litigators do it all the time.) But [Liberty Counsel chairman Mathew D.] Staver is taking things too far. The first sign of trouble arose early in the case: When a federal judge ordered Davis to issue licenses or be held in contempt of court, the Liberty Counsel advised her to disobey the ruling. Good lawyers don’t usually tell their clients to defy lawful court orders, especially when jail time is a real possibility. Yet the Liberty Counsel didn’t mind putting their client at risk—perhaps because the idea of a middle-aged woman being hauled off to jail for purportedly following her conscience would send thousands of anti-gay Americans reaching for their pitchforks (and checkbooks).
Stern doesn’t appear to be losing sleep over Davis or her chances of success. But he takes a moment to consider her real part in the larger fight:
Davis has certainly humiliated and degraded the gay couples whom she turned away. But I wonder if, on some level, she isn’t a victim, too.
[Update: On Monday, the Supreme Court denied Davis’ request for a stay of an order that she issue marriage licenses to same-sex couples.
“The application for stay presented to Justice (Elena) Kagan and by her referred to the Court is denied,” the order said.]