During her short imprisonment for contempt of court, Kim Davis, the Rowan County, Kentucky, clerk who refused on religious grounds to issue marriage licenses to homosexual couples, was compared with (among others) Martin Luther King, Jr., Thomas Jefferson, James Madison, John C. Calhoun, Saint Paul, and even Jesus Christ Himself. Setting aside the propriety of the final comparison, and the details of her life and her “Christian” beliefs (the Apostolic Pentecostal sect she belongs to, described in news reports as “Protestant,” officially denies the Trinity, instead professing that Jesus was the incarnation of the Father, the sole Person of God), the comparisons are proof that Mrs. Davis touched a nerve among Americans who believe that the U.S. Supreme Court’s decision in Obergefell v. Hodges was a bridge too far.
Obergefell, however, wasn’t the start of something but much closer to the end, the ribbon-cutting on a bridge that the entire federal government—not just the Supreme Court—has been building for more than a century, in recent decades with the willing cooperation of the states and most of the American people, Republican as well as Democrat, conservative as well as liberal. Justice Kennedy’s decision has ushered our nation across the river between the Constitution-That-Was and the Constitution-That-Is-Always-Becoming, and back on the other bank, the bridge is already burning.
The proof can be found in the fact that few of those who applauded Kim Davis for her stand made any attempt to place her actions in the context of the federalism of the Constitution-That-Was. The comparisons with Jefferson and Madison and Calhoun recalled the debates over state nullification of federal laws, but such authority would rest in the state legislature, not in a county clerk. And the legislators of the state of Kentucky, bless their hearts, have been too busy ducking uncomfortable questions from reporters and ignoring phone calls and emails from outraged constituents to cut short their recess, scheduled to run until January.
The comparison with Martin Luther King, Jr., presumed that Mrs. Davis’s actions amounted to civil disobedience, a problematic concept in itself but in any case inapt, since civil disobedience refers to a private citizen refusing to comply with a law, not to a government functionary refusing to carry out her assigned duties. Mrs. Davis’s actions might better be described as conscientious objection, but the process of accommodating those who have a conscientious objection to a particular law begins with the assumption that the law in question is legitimate and just. In this case, that is simply not true; Justice Kennedy’s declaration that a man can marry a man and a woman a woman no more makes their union a marriage than it makes the sky green and the grass blue (even in Kentucky).
Accommodations for conscientious objection do not stand or fall on one’s beliefs being objectively right, but only on them being “sincerely held.” Imagine an alternate universe, pre-Obergefell, in which a Mr. Kim Davis decided that he would no longer issue marriage licenses to heterosexual couples until he could grant homosexual couples a license as well, on the grounds of a “sincerely held” belief that justice demanded it. Those who support the Kim Davis of Earth-One would denounce the Kim Davis of Earth-Two, and vice versa, though the logic of both would be the same.
This is the mess in which the Constitution-That-Is-Always-Becoming lands us. But again, this is nothing new: Conservatives who have supported federal action against states whenever those states have exercised their sovereignty in ways such conservatives did not like—e.g., marijuana legalization, sanctuary laws, environmental regulations, and, yes, gay “marriage”—helped give birth to the Constitution-That-Is-Always-Becoming. That they did so in the sincerely held belief that the state actions in question were counterproductive or immoral makes no difference; the result was the erosion of local control and state sovereignty, the only sure bulwarks against the ever-increasing power of the federal government.
(One prominent conservative commentator, rightly upset over a rash of murders of local law-enforcement officers, recently castigated President Obama for remaining silent on the matter, on the ground that he is the “chief law enforcement officer of the United States.” His silence is shameful, though not for that reason, since the Constitution-That-Was granted the president no power whatsoever over state and local police.)
The Constitution-That-Is-Always-Becoming has one constant characteristic: While claiming to rest on a firm belief in multiculturalism, it cannot tolerate a true diversity of cultures, expressed in the laws of the several states. It can make no accommodation for a Kim Davis, or the millions of Americans who agree with her, because to do so would be to take a step back toward the federalism of the Constitution-That-Was, and no one—right or left, Republican or Democrat, Kim Davis supporter or Kim Davis reviler—really wants that today. The rhetoric on all sides is of a future of unity, a “one” with no “many,” a new nationalism in which the only question that remains is where the cultural boundaries of the nation will be drawn—who will be included, and who excluded.
Mrs. Davis may have been an unlikely hero, but an unlikely hero was all that defenders of marriage were ever going to get, since the state legislators and governors who should have stood up and said “No!” have no desire to find themselves on the wrong side of history. Under the Constitution-That-Was, they had real authority, but to keep it they had to exercise it. Under the Constitution-That-Is-Always-Becoming, they have something less demanding, and thus more enticing: job security as mere functionaries of the federal government, marching in lockstep across Justice Kennedy’s bridge toward the glorious future promised by the new nationalism.