It was 1975 when the first same-sex Americans were “permitted” to marry one another. It was Clela Rorex who processed these licenses illegally. This act of sabotage against the state’s marriage monopoly was eventually discovered, and Rorex quit — many calling for her to face legal punishment. She’s said of her activism, “I didn’t want to legislate any kind of morality, personal or otherwise. If the law did not prohibit me issuing same-sex marriage licenses, then I truly felt that I should do so.”
Fast forward to today, months after these illegal relationships were recognized as constitutionally protected by a Supreme Court decision, county clerk Kim Davis is also refusing to do her job. However, Davis’s refusal does not stem from a desire to live and let live, but to deny the legally recognized right of association for many of Kentucky’s same-sex couples. She has halted processing all marriage licenses she has authority over, whether gay or straight, but it is her stated intention to oppose homosexual relationships. Davis has been adamant and now sits in a Carter County Jail cell. Her crime, according to District Court Judge Bunning, is a refusal to follow through on her official duties. She will be relinquished as soon as she decides to resign or comply with the court order.
Many who side with the legalization of same-sex marriage see the treatment of Davis as perfectly just. Here is someone clearly “on the wrong side of history,” refusing people’s union as a wedded couple and thus denying them the same privileges others enjoy. While opposition to Davis’s refusal is important, it tacitly endorses the system of arbitrary violence and bureaucratic power that led to this situation. The only difference is Ms. Davis is now a kink in the bureaucratic chain, rather than serving as a functional link. However, Ms. Davis cannot be fired, only “let go” after a lengthy impeachment process. And although five other employees at the clerk’s office are ready to process these marriages, Davis has the final say.
Why oppose the treatment of this contemptible county clerk? Because jail is not a proportionate response to her crimes. It is an issue of systemic failure that Davis now enjoys her position of power over same-sex couples — over all couples who wish to be married. Why should the political system that elected her not have an obligation, themselves, to see to it that she is impeached? This story is a tactic of distraction from the unaccountable, behemoth power structure that has failed these couples. To move to impeach is to show the sluggishness of these bumbling social managers. Instead a judge lets the system off the hook by restricting a woman to a cell who, in any kind of sane system, could be ousted from her job.
The power Davis enjoyed, mere months ago, included denying same-sex couples their marriage licenses as a matter of policy. Even now, county clerks across the country are legally obligated and duty bound by their position to not process marriage licenses to other couples. It is only monogamous, two-party relationships which clerks can and, by law, must file. The same exact reason this elected middlewoman now sits within the walls of a county jail could have been used only months prior to lock up a more virtuous outlaw like Clela Rorex.
This issue gets at the heart of why same-sex marriage was never a panacea for sexual minorities in this country, but only a diversion. It has not liberated our sexual culture or led to social equality. Rather it has integrated same-sex couples into a monopolistic legal system, a system of power which does not recognize the dignity of voluntary relationships, but the ordering of them, the processing, and the deliberate exclusion of others. State-sanctioned marriage comes with many benefits and the refusal of those benefits to certain couples can have dramatic costs, but there are still others who cannot get married at all or who face significant financial repercussions as a result. See here the commentary from two disabled trans women who have won the ability to marry legally, but who face the deprivation of the benefits they require to live. Shall we praise those presently faceless bureaucrats who carry out their job of denying these women their financial necessities?
The LGBTQ community needs to get beyond this diversion. It has led to the endorsement of a judge’s power to lock anyone up who does not comply with his orders. Those who diverge from sexual and gender norms are made prisoners by these same judges. By celebrating Davis’s imprisonment, many are implicitly cheering on a gargantuan mechanism of arbitrary disempowerment concentrated in the hands of individual judges. Queer individuals, especially trans women, are disproportionately abused by the same legal system [PDF] that many are lending support to in the Davis case.
We should stand opposed to this judicial fiefdom while at the same time focusing on more radical remedies to the ongoing mistreatment of queers. Concentrating on the issuance of marriage licenses and punishment of unruly town clerks who refuse to comply with the law places too much emphasis on working within a system that’s beyond repair. We ought to stand in solidarity with anyone willing to break the law where that disobedience leads to more individual liberty. We need more co-conspirators like Clela Rorex to hasten the destruction of our oppression by the state. Kim Davis is not the face of this oppression. It is the state which tramples on our ability to live how we see fit.
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