Leave Kim Davis in Jail

Yesterday´s jailing of county clerk Kim Davis for refusing to obey Obergefell v. Hodges raises at least three questions about the case and its long-range impact on U.S. society. Is Ms. Davis the victim of undemocratic state action? Will her jailing make some heterosexuals feel differently about their moral stature in society? Will her jailing protect public institutions from cooptation by religious fundamentalists?

The answer to the first and the second is yes. As for the third, her jailing embodies an aspirational standard for separation of church and state. That boundary, however, remains permanently vulnerable to breach by overreaching believers and their allies.

When politicians say that we're a democracy, it's not the whole truth. The United States is a constitutional republic that balances representational - not direct - democracy with several intendedly anti-democratic features. The one percent of their generation, the Framers were ultra-elites who feared (and disdained) the unmediated will of the great unwashed, i.e. the People. "Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob," as James Madison noted in the Federalist Papers.

Sometimes democracy needs protection from itself. So the Framers kept legislative powers in check with anti-majoritarian mechanisms like the Electoral College, the Senate, and a federal judiciary to annul statutes or state referenda that violate Constitutional limits. Especially wary of local majorities, the Framers made federal law superior to state law. To preserve this scheme of ordered liberty, federal judges protect minorities from majorities run amok, e.g., the Defense of Marriage initiatives.

By jailing Ms. Davis for contempt, a judge gave effect to federal law that had shielded sexual minorities from the modern equivalent of a pitchfork-waving mob. This doesn't make her a ´minority,´ though, because she´s not being singled out for unequal treatment. Everyone has to obey this law.

Obergefell and its implementation also force heterosexuals to reflect on their place in society. All anti-gay discrimination rests on a necessary premise: straight supremacy, i.e., heterosexuality is morally superior, healthier, prettier, more Godly, or just plain better than homosexuality. This is how fathers, politicians, preachers, and authorities generally have justified drawing a circle around gays and lesbians and then treating us as morally defective, undesirable, or socially inferior. This idea has been so central to heterosexual identity, that it´s one of the reasons that straight people have kids.

Being straight does not mean being a straight supremacist, but only now are straight people being forced to decide what kind of heterosexual they are or want to become. The distinction between being straight and being supremacist was latent so long as faith communities and their allies succeeded in demonizing sexual minorities. Things changed when federal judges began to ask "Why is the state singling out gays and lesbians for disparate treatment?' Every answer rested on some form of animus, i.e., unreasoned hostility for gays and lesbians. This cannot justify discrimination, at least not in a society like ours that believes in freedom for and from religion.

A growing majority of heterosexuals are not straight supremacists, though you could never tell by looking at that beacon of justice - the RNC´s official platform. This is a good development, so I wrote something (of which I´m especially proud) to help heterosexuals understand (and gays remember) what it feels like to grow up gay in a straight world.

This trend away from animus is bad news for religious fundamentalists. Which brings us to the final question of religious liberty. Neither Obergefell nor the jailing of Ms. Davis interfere with anyone´s religious liberty.

Faith communities need not marry or sanction same-sex couples. These communities can still exclude gays and lesbians, limit their spiritual participation, punish or disavow their gay and lesbian children, proclaim from the highest pulpit that these sexual inverts are intrinsically disordered, shun sexual minorities in private life, and, in more than 20 states, fire someone just for being gay.

Religious fundamentalists have lost only one thing - the power to impose their religious animus on others through public institutions. For some, the freedom to believe is not enough. It must be forced on others. That´s what Kim Davis was getting away with.

I understand why religious fundamentalists feel angry, afraid, and, indeed, increasingly stranded in liberal modernity, although I think they confuse worldly goods with spiritual ones. And as I´ve pointed out, ending animus against sexual minorities is one of the few issues that succeeds in bringing together religions that are often adverse to each other.

At least, liberal modernity lets them live their lives - but not the lives of others - according to the religious terms that they choose. The converse is not true: theocracies do not let secular liberals live freely. That's why liberal modernity is better than theocracy.

Ms. Davis can leave her cell anytime she wants and she can exercise her religious liberty inside or out of that cell. So I don´t see why she´s making a spectacle of herself. That said, this is just the beginning. Welcome to the new Crusades.