Balkinization: A Different Take on Kim Davis

A Different Take on Kim Davis

Mark Graber

A government official in Kentucky is refusing to implement the Supreme Court’s decision in Obergefell v. Hodges. Judging by the reactions on the media and on the blogs, this has never happened before. Brown v. Board of Education was implemented in a day, Engle v. Vitale kicked God out of every public school in the United States, no woman had difficulty obtained an abortion after Roe v. Wade, and police officers are publicly shamed whenever they lie about giving Miranda warnings or unconstitutionally obtaining evidence.

Maybe not. Maybe the present obsession over Kim Davis buries the lead story, the degree to which Obergefell has become the law of the land in theory as well as in practice. Tom Keck, whose Judicial Politics in Polarized Times is a must read, has been saying for years that judicial decisions in same-sex marriage cases are, contrary to judicial skeptics, producing real social change. He is right and we ought to think about why.

The successful implementation of Obergefell suggests a class bias in rights. The rights the Supreme Court grants less fortunate Americans are often easy for hostile government officials to evade. Police lie all the time about their compliance with the Constitution and they are routinely “believed” by their superiors. State legislatures shut down abortion clinics by articulating sham concerns about health issues. Much racial bias is unconscious and easy to explain away (person of color X just looked more threatening than white person Y). The rights the Supreme Court grants more fortunate Americans are often not easy for hostile officials to evade. Unlike police officers who do not like Miranda or state legislators who do not like Roe, Kim Davis had no good lie she could tell to avoid marrying same-sex couples. "We have just run out of forms” and “I have a hand cramp and cannot sign my name” do not seem effective. Moreover, Kim Davis has already received more publicity than all the police officers in the history of the United States who have lied when telling a judge that the evidence they seized was in plain sight. When the rights of people like me are violated, everyone who is anyone knows and everyone who is anyone cares. Race functions in a similar way. The affirmative action program that benefits persons of color publicly announces that race is being used in the admissions process. The juries that disproportionately sentence murders of white persons to death do not declare and may not even be aware of their race bias.

Put more broadly and more polemically, the fuss over Kim Davis demonstrates that the Constitution of the United States remains an effective means of combatting governmental policies that inflict stigmatic harm on members of the upper-classes, but a far less effective means of combatting government policies that inflict material deprivation on the lower classes. Consider simply the following. Who is likely to be inconvenienced more in a red state, A same-sex couple wanting to exercise their constitutional right to be married or a poor women more than twelve weeks pregnant who has decided to exercise her constitutional right to have an abortion.

Posted 11:44 AM by Mark Graber [link]