Kim Davis, Clerk of the Rowan County Circuit Court, held in contempt and ordered into custody

September 3, 2015

Kim Davis is the Clerk of the Rowan County Circuit Court, an elected position. Despite taking an oath to enforce the Constitution and the laws of the United States and the State of Kentucky, which requires her to issue marriage licenses, she has refused to issue marriage licenses to same-sex couples. She claims that she would violate her religious beliefs, if she were to issue a marriage license to a same-sex couple. To avoid the appearance of discriminating against same-sex couples, she decided to refuse to issue any marriage licenses. No one has been fooled by this strategy.

In June the Supreme Court of the United States (SCOTUS) held that laws which prohibit same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment, Obergefell v. Hodges, (June 16, 2015). Writing for the majority, Justice Kennedy said,

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Ms. Davis’s argument is ridiculous because she is claiming that, even though she is an elected public official, her First Amendment right to freedom of religion means she can discriminate against same-sex couples on religious grounds by refusing to issue them a marriage license despite her legal duty to so under Kentucky law and their Fourteenth Amendment right to get married under Obergefell. If public officials are free to discriminate against people on religious grounds, the Fourteenth Amendment would cease to have any meaning.

Moreover, she is out of options. She already lost this argument back in June after the SCOTUS decided Obergefell and a same-sex couple sued her in the United States District Court for the Eastern District of Kentucky seeking an order directing her to issue them a marriage license. Judge David Bunning rejected her religious-freedom argument and ordered her to issue the license. She appealed to the Sixth Circuit and lost. Her application for review by the SCOTUS was rejected.

Now, she’s back in front of  Judge Bunning, who has ordered her to show cause why he shouldn’t hold her in contempt of court for continuing to refuse to obey his order to issue a marriage license to same-sex couples.

I do not believe there is any question that he is going to hold her in contempt. She is in contempt. The question is what is he going to do about it.

He can fine her a certain sum of money per day until she complies with his order or he could send her to jail where she would remain until she agrees to issue the licenses. Alternatively, she could resign.

I would send her to jail until she agrees to issue marriage licenses to same-sex couples, or she agrees to resign. I would not fine her because the fine probably would be paid by a right-wing GoFundMe internet site.

Meanwhile, at the hearing today, according to Matt Iglesias at Think Progress, her deputy clerks are willing to issue the licenses, but they are afraid to do so. As the County Attorney Cecil Watkins told Kentucky Court Trial Review, “Davis, does not represent” the county or its values, and he added that he told Davis that he “will not and cannot support” her in her refusal to obey the Constitution.

In an editorial note accompanying its reporting, the Trial Court Review paints a grim picture of life in the Rowan County courthouse after Davis began a symbol of anti-gay defiance. “The takeaways from the Watkins interview are clear. Davis is acting alone in her zealous mission. Her conduct has terrorized not just her staff but everyone that works in the courthouse. And all for a foolish mission aided by out of state charlatan lawyers trying to raise money for their ‘religious liberty’ mission.”

Former Governor of Arkansas, Mike Huckabee, a candidate for the Republican nomination for President in 2016, announced yesterday that he supports Davis. He said the Bible is supreme to the SCOTUS,

Judge Bunning just held her in contempt and ordered her into federal custody where she will remain until she agrees to issue the marriage licenses. He rejected the idea of a fine in part because others would pay it for her.

In effect, she has the keys to the jailhouse door.




Chaos in Alabama

February 9, 2015

Acting in defiance of United States District Court Judge Callie “Ginny” Granade, who ruled last month that the Alabama prohibition against same-sex marriages violates the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution, the Chief Justice of the Alabama Supreme Court, Roy Moore, yesterday ordered all of the probate judges in the state to refuse to issue same sex marriage licenses.

In a letter, Moore wrote, “Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975,” the state laws banning same-sex marriage.

Until today no same-sex marriage licenses had been issued in Alabama since Judge Granade’s decision because she had issued a stay delaying enforcement of her order until this morning in order to give the Attorney General of the State of Alabama an opportunity to appeal her decision. After granting certiorari to review Alabama’s appeal from Judge Granade’s decision, the Supreme Court of the United States (SCOTUS) by a vote of 7-2 today rejected Alabama’s request to continue the stay of enforcement pending the outcome of Alabama’s appeal. The SCOTUS’s rejection of Alabama’s request for the stay conflicts with Chief Justice Moore’s order yesterday prohibiting probate judges from issuing same-sex marriage licenses. Chaos has ensued as probate judges in some counties have issued same-sex marriage licenses while probate judges in other counties have refused.

The solution is simple. It’s called the Supremacy Clause. Article 6, Clause 2 of the United States Constitution provides,

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

And that is the end of that.

Chief Justice Roy Moore is the same guy who a few years ago defied a federal judge’s order to remove a Ten Commandments monument from a public building. He conjures up memories of former Governor George Wallace who defied the federal courts. Here’s Wikipedia to toggle your memory,

In 1963, President John F. Kennedy’s administration ordered the U.S. Army’s 2nd Infantry Division from Ft. Benning, Georgia to be prepared to enforce the racial integration of the University of Alabama in Tuscaloosa. In a vain attempt to halt the enrollment of black students Vivian Malone and James Hood, Governor Wallace stood in front of Foster Auditorium at the University of Alabama on June 11, 1963. This became known as the “Stand in the Schoolhouse Door.”

SCOTUS Justice Clarence Thomas, joined by Justice Antonin Scalia, wrote the dissenting opinion from today’s order denying Alabama’s request for a stay. He said in pertinent part,

Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. This acquiescence may well be seen as a signal of the Court’s intended resolution of [the gay-marriage] question. This is not the proper way to discharge our [constitutional] responsibilities. And, it is indecorous for this Court to pretend that it is.

It doesn’t take a weather man to tell which way the wind blows.

Congratulations and best wishes to every same-sex couple in Alabama who waited so patiently for this day to finally arrive.

For more information and photos, go here.

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