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Davis ruling a mixed one for LGBT community, UB Law prof says

By RACHEL STERN

Published September 8, 2015

“The punishment plays into the hands of Davis and her backers, and adds fuel to an already dangerous fire.”
Michael Boucai, associate professor
UB Law School

Rowan County Clerk Kim Davis was sent to jail for refusing to issue marriage licenses to same-sex couples. And according to UB Law School faculty member Michael Boucai, Davis’ sentence was both good and bad for supporters of gay rights.

“On one hand, the case sends a clear message that such behavior on the part of civil servants is illegal and will not be tolerated,” says Boucai, an associate professor who specializes in law and sexuality. “At the same time, the sight of a woman going to jail to vindicate her religious belief is a very powerful one that could resonate well beyond hardcore religious conservatives.”

In fact, he says, jail time will only enhance Davis’ image as a martyr, worsening tensions between religious conservatives and supporters of gay rights.

“The punishment plays into the hands of Davis and her backers, and adds fuel to an already dangerous fire,” he says. “She’s not the only clerk doing this and I doubt she’ll be the last.”

Davis certainly should have been punished, Boucai says. The court told her to issue marriage licenses in compliance with the law and she did not.

“But the choice between a jail sentence and fines left room for the court to minimize the inevitably inflammatory nature of the ruling,” he says.

Boucai adds that any fines imposed on Davis probably would have been paid by anti-gay organizations, but would not have persuaded Davis to change her ways. At that point, though, jail would have looked like a necessary last resort, he says.

“Davis has been trying to use the Constitution as a shield for her behavior, but the law clearly is not on her side,” he says. “She would be more honest — and maybe more sympathetic — to admit she’s engaged in civil disobedience.”