Those of us who support gay rights watched with disgust this week as Kentucky county clerk Kim Davis, flanked by conservative presidential hopeful Mike Huckabee, celebrated her release from jail. She’d been locked up for five nights after refusing to issue marriage licenses to same-sex couples. The judge in her case could have simply required her to step aside and let one of her colleagues issue the licenses. But he opted for melodrama, and created a movement martyr. Kim Davis is now a household name and a conservative darling. Upon her release, with a song from the Rocky III soundtrack blaring, Davis raised her arms triumphantly before a crowd of supporters. “I just want to give God the glory,” she said through tears. “His people have rallied, and you are a strong people!”
Her theatrics led me to a sobering realization: Davis is right. The opponents of equality are strong. In the wake of the Supreme Court’s ruling in Obergefell v. Hodges, the fight for gay rights is now transitioning from a national slog to a long, local battle that will, in all likelihood, bear some resemblance to the modern fight for abortion rights. Even though abortion has been a constitutionally guaranteed right since the Roe v. Wade decision in 1973, women’s access has been severely eroded ever since by waiting periods, procedural restrictions, conscience clauses, and forced clinic closures. One Texas provider must assure its clients, “It is not illegal to seek abortion services.” Like the post-Roe right to abortion, the right of same-sex couples to marry is guaranteed by the Constitution as interpreted by the Supreme Court. Nevertheless, like those seeking abortion care, the freedom of same-sex couples to exercise their right to marry is already being undercut by people all around the country — they just haven’t garnered as much attention as Kim Davis.
This is about much more than conservative cake-decorators’ staunch refusal to serve gay clientele. This opposition is not giving up anytime soon.While we’re busy rolling our eyes and making parody Twitter accounts about Kim Davis, other officials in Kentucky and beyond are also refusing to issue licenses. In Oregon, Marion County circuit judge Vance Day has refused to perform same-sex marriages. Day stopped conducting ceremonies for all couples once marriage equality became the law of the land, opting to refer everyone to county judges. In Alabama, several probate judges are declining to issue all marriage licenses. North Carolina and Utah allow officials with “sincerely held religious objections” to opt out of facilitating same-sex marriages. In North Carolina, more than 30 magistrates have availed themselves of this option. Meanwhile, in Hood County, Texas, Clerk Katie Lang (not to be confused with the lesbian crooner) steadfastly refused to issue a marriage license to a gay couple, who have since filed a federal lawsuit and describe the experience as “humiliating and degrading.”
With both abortion access and marriage equality, many states had already enshrined those rights even before the landmark Supreme Court decisions that made them the law of the land. Roe and Obergefell affirmed those rights nationally, even in the most conservative states that were lagging behind. The same pattern was true in Loving v. Virginia, the 1967 case that overturned anti-miscegenation laws and allowed interracial couples to marry. The Supreme Court ruled, but local exercise of rights was challenging, if not impossible at times. Three years after Loving, interracial couples were getting turned away when they applied for marriage licenses in Alabama. Such opposition eventually died down, as it might in the case of gay marriage, too — although this certainly has not been true of a woman’s right to choose.
Piecemeal restrictions have made it nearly impossible for most women to access abortion locally in the decades since Roe, and this week Congress is holding grandstanding hearings about Planned Parenthood’s practices. When it was pointed out to anti-choice Idaho representative Raul Labrador that the nation’s largest abortion provider had not broken any laws, he replied, “I don’t know if it’s illegal, Miss Smith, but it’s immoral.” Such logic presumably justified his and other officials’ intervention to limit the constitutionally enshrined rights of women to seek abortion. That line of thinking — that personal morality trumps national legality — is on display in the high-profile protest of Kim Davis and in the comments of her supporters. The two issues are not parallel, because accessing a medical procedure is fundamentally different from obtaining a legal document. But a similar pattern could emerge with marriage rights across the country.
While I haven’t heard a single LGBT activist declare the fight is over just because marriage equality is the law of the land, the fallout from Roe is a reminder that rights may be theoretically protected by the Supreme Court, but they can still be quite limited in practice, depending on the prevailing moral assumptions of your neighbors. Just as women shouldn’t have to drive more than 100 miles to exercise their constitutional rights, same-sex couples shouldn’t have to wonder whether their county courthouse will enable them to act within theirs.
Which is why, although Kim Davis has thoroughly co-opted “Eye of the Tiger” (against the will of its songwriter), the lessons of Rocky III are perhaps applicable to those of us who favor widespread equality. In the movie, according to a plot summary I read on IMDb, Rocky has won the ultimate title and grown complacent. He gets depressed, but eventually trains for a comeback, which is how he finds his purpose again. In the wake of a Supreme Court ruling that confirms rights that we’ve long fought for, complacency is not an option. Although those of us who support Roe are so fatigued by the decades-long fight that it would be optimistic to say we’re in pre-comeback depression mode, the marriage-equality situation is not quite so dire yet. It’s early enough that we can work to prevent the same fate from befalling the rights guaranteed by Obergefell. We, too, are a strong people.