Kim Davis didn’t deserve to go to jail

Whether or not you agree with what she stands for, a jail cell is not the answer.

Internet Culture

Published Sep 9, 2015   Updated May 28, 2021, 12:24 am CDT

Kim Davis was made an example of last month. An example of what, exactly, remains to be seen. But her brief stint in jail remains deeply concerning.

Davis—the Kentucky Rowan County Clerk who refused to issue same-sex marriage licenses—was jailed on Aug. 27 and then released Sept. 8. Her exit was heralded by presidential candidate Mike Huckabee, who turned it into a public spectacle, complete with Davis emerging from stage left to the rousing “Eye of the Tiger” (a move which has since earned an angry response from Survivor’s founding member, Jim Peterik). A condition of her release is that she can no longer continue to refuse to sign marriage licenses, and she has not yet commented on whether she plans to risk jail again.

There’s no doubt that Kim Davis was following the dictates of her Apostolic Christian religion. There’s also no doubt that she is deeply homophobic. Whether or not her beliefs allowed her the right to deny marriage licenses is still a matter of debate. On NPR, Columbia Law professor Katherine Franke said that Davis’s refusal was about “refusing to do her job” and that while she has “all sorts of religious liberty rights secured under the First Amendment and under other laws… they are not at stake in this case. All she’s asked to do with couples that come before her is certify that they’ve met the state requirements for marriage. So her religious opposition to same-sex marriage is absolutely irrelevant in this context.”

But in the New York Times, Ryan T. Anderson, of the conservative Heritage Foundation, points to what he claims is a “rich history of accommodating conscientious objectors in a variety of settings, including government employees” and asks: “Do we really want to say that an otherwise competent employee must quit or go to jail if there is another alternative?”

I don’t pretend that Anderson, part of a think tank that says, quite plainly, that prisons are necessary and that “longer sentences really do work,” is any kind of anti-prison activist.

But it’s that question, of whether Davis really needed to go to jail for her infraction and whether she should be returned there if she continues to refuse to do her job, that should concern us—regardless of where we stand on the issue. And how we respond, in our rightful indignation, determines the extent to which we can claim to be any better than bigots who would like us all to burn in hell.

Gays and lesbians who want to marry and their various allies were and are right to be indignant about Davis’s decision to not issue marriage licenses, but their collective response has been shockingly hateful, petty, vindictive, and ultimately counter-productive. Most of all, in crowing about how much she supposedly deserved to be in prison—and even joking about what she might face there—queer people have not only demonstrated a willful ignorance about the heinous nature of prisons but their own fraught history with what is today referred to as the prison-industrial complex.

 “Love Won” was the phrase that rang out once Rowan County began issuing licenses after Davis’s jailing, and the words ring hollow in the wake of the vicious and heartless wishes that Davis suffer in jail. 

Let’s look at the numerous prison memes which began to circulate soon after her refusal became news. Several of them involved Orange Is the New Black, and plainly joked about the possibility of Davis being subjected to everything from overcrowding to molestation and rape. In one such meme, Lea DeLaria, who plays the very obviously butch and very lascivious inmate “Big Boo,” cozies up to Davis, placing her left hand on the latter’s breast. The words “Husband No. 5???” appear above the image. In another, “Hi Felicia,” Davis’s face is shown, mugshot-style, next to a mugshot of George Vera, a prisoner who gained Internet notoriety for having concealed a 9mm handgun in his rolls of fat. The message is clear: Davis could look forward to the sexual advances or worse of someone who is judged to be as unattractive as she is.  

That so many prison memes and rape jokes have appeared on queer sites like Queerty and on the social media walls of many LGBTQ people is a sign that we have forgotten that prison is no laughing matter, especially for queer people. How is it that a community so quick to lament the forcible imprisonment and/or police harassment of queer people—from Oscar Wilde to Alan Turing to the Stonewall Riots and Boise—is so quick to forget the horrors of the system and laugh at what might happen when someone is jailed?

Because, make no mistake, prison rape is no laughing matter. In a letter to the National Prison Rape Elimination Commission, Dean Spade, founder of the Sylvia Rivera Law Project, writes about the horrific conditions faced by many trans and intersex people, who are “obvious targets for
sexual harassment and assault.” Spade writes, “Even accessing the most basic necessities, such as
showers, can mean risking rape.” One trans woman reported actually being placed in a special cell for her to be raped.

It’s not just LGBTQ-identified prisoners that are subject to forms of sexual assault, but it comes along with a gendering and sexualizing of prisoners as queer or feminine. In an excerpt from their book, Queer (In)justice: The Criminalization of LGBT People in the U.S, Andrea Ritchie, Kay Whitlock, and Joey Mogul point out that “as many as one in four female prisoners and one in five male prisoners are subjected to some form of sexual violence at the hands of prison staff and other prisoners.”

But that is simply not the point. Davis need not have gone to jail at all.  

And, of course, prisons are simply not the answer. Increasingly, you no longer even have to be a prison abolitionist like Angela Davis, Ruth Wilson Gilmore, or Mariame Kaba to believe that prisons are horrific institutions which break people and usually make for harming them to the point of no return.

You could argue, and many undoubtedly will, that prison was not likely to be too horrible for Davis, whose supporters have forcefully stood behind her and whose conservative dollars will undoubtedly fund her legal fees and her living expenses for a long time.

But that is simply not the point. Davis need not have gone to jail at all. Yes, impeaching her for her failure to perform her duties is expensive, and firing a civil servant is notoriously difficult, as it should be, but why have the procedures for such strategies in place if we are not willing to act upon them? Or, more simply, as is being done now, marriage licenses could simply be issued without her name on them, and the responsibility given to Rowan County Judge/Executive Walter “Doc” Blevins.

What is clear is that Davis’s jailing and the response to it from the gay and lesbian community revealed its ugly underside: a willingness to forget the long, dark, and continuing history of LGBT people in the prison system, and a willingness to delight in the possible degradation of its opponents. “Love Won” was the phrase that rang out once Rowan County began issuing licenses after Davis’s jailing, and the words ring hollow in the wake of the vicious and heartless wishes that Davis suffer in jail. She has so far not indicated if she will continue to deny marriage licenses, and if she does so, she will no doubt be jailed once again, leading to yet another round of jokes and ill wishes.

Gays and lesbians are, in general, proud of their progressive politics—which increasingly include some form of criticism of the massive, burgeoning prison-industrial complex. We cannot be selective in our politics: If we know and decide that prison is in general a terrible idea, we have to be opposed to it for anyone, including those we recognize as bigots. Most of all, our treatment of Kim Davis indicates that we are all too willing to exercise our powers of stigmatizing, shaming, and outright contempt: the very forces we have long insisted stand in our way and brutalize us. 

Yasmin Nair is a freelance writer, activist, academic, and commentator, the co-founder of the radical queer editorial collective Against Equality, and a member of the Chicago-based group Gender JUST.  Her work has appeared in publications like In These Times, the Awl, the Chicago Reader, and several anthologies. Nair is currently at work on a book project entitled: Strange Love: Neoliberalism, Affect, and the Invention of Social Justice. Follow her on Twitter.

Illustration by Max Fleishman

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*First Published: Sep 9, 2015, 9:43 pm CDT