There was not much mystery as to how this one was going to turn out. Kim Davis’ legal arguments for why she should not be required to follow the Supreme Court’s same-sex marriage ruling were paper thin. They got her nowhere. The only real question was whether the Kentucky county clerk was going to back down when her legal appeals were exhausted. She did not. On Monday the Supreme Court refused Davis’ request for an extension of a stay on a court order that commanded her to start issuing marriage licenses (her refusal to follow the Court’s requirement to recognize same-sex marriage led her to refuse to issue any marriage licenses). And Davis, with the eyes of the nation upon her, stood her ground, denying a request for a marriage license by a local same-sex couple. Now she has been held in contempt of court. The federal district judge who issued the contempt order said she would be placed in jail until she agreed to comply with the court order and start issuing marriage licenses.
Although the outcome of this particular episode of defiance against a Supreme Court ruling was predictable, it is worth noting that historically resistance to the Supreme Court’s mandates can often be quite successful. There have been highly publicized acts of defiance that have successfully evaded Court rulings for extended periods of time. In the Court’s modern era, the most famous example was white Southern resistance to Brown v. Board of Education, a campaign that resulted in the Court’s school desegregation ruling having a practically null effect in the Deep South for a decade following the Court’s ruling. There have also been lower profile patterns of defiance against Court rulings, such as the massive noncompliance with the Court’s prohibition on school prayer in its 1962 Engel v. Vitale decision.
The reason why Obergefell v. Hodges will not face anything approaching the same kinds of implementation problems as, say, school prayer or school desegregation, even in the face of considerable resistance to the Court’s holding, has to do with the mechanism of implementation. While Kim Davis is hardly the only local clerk who has been moved to refuse to abide by the Court’s ruling, resisters can be readily identified. Officials responsible for issuing marriage licenses are not so many in number and not so spread out across the country that individual acts of defiance will fall under the radar, as in the school prayer situation. And compliance and noncompliance are easily identified (are same-sex couples receiving marriage licenses or not?), which differentiates the situation from the problem with token compliance that ground the process of school desegregation to a near halt in much of the South following Brown.