Topic: Law and Civil Liberties

Kim Davis Is No Martyr, But Barronelle Stutzman Is

When the clerk of Rowan County, Kentucky, went to jail rather than have to license same-sex marriages, she wasn’t committing civil disobedience – whether you think her action was courageous or bigoted. No, civil disobedience involves an intentional violation of an unjust law. Another name for it is nonviolent resistance: think Martin Luther King or Gandhi.

Kim Davis isn’t doing that; she’s instead declining to fulfill her duty as a government official, even after a judicial order confirming that duty. That’s official disobedience.

That Davis’s action (or inaction) is based on her religious belief is of no moment. She isn’t being ordered to give up her faith under penalty of law. Instead, as a public official, she has to enforce the law or, if she can’t in good faith (literally) do that, resign – at which point she would no longer be in contempt of court or face any other public sanction.

But why is a clerk in a county and state where gay marriage is unpopular bound by a ruling of U.S. Supreme Court? It’s not the Constitution’s Supremacy Clause, whereby state law must yield to (properly enacted) federal law to the contrary. Instead it’s because Justice Kennedy’s majority opinion in Obergefell v. Hodges, while not exactly the apotheosis of legal reasoning, stands for the proposition that state laws denying marriage licenses to same-sex couples violate the Fourteenth Amendment. So it’s not federal law that trumps state law, but individual rights that trump state law.

The Fourteenth Amendment worked a fundamental transformation in our constitutional order: As of its ratification in 1868, Americans can turn to federal courts to enforce infringements of their liberty against the states. And that principle stands whether a state infringes the right to keep and bear arms or the right to equality under the law.

On the Kim Davis Case

Across the political landscape this morning, people on one side are discovering that lawlessness is bad, while people on the other are discovering that the machinery of our justice system is harsh.  If experience is any guide, these lessons will last a lunchtime.

Yesterday federal judge David Bunning ordered elected Rowan County clerk Kim Davis jailed for defying his court’s order that she resume issuing Kentucky marriage licenses; she had stopped doing so on the grounds to have her name go on a marriage license for a same-sex couple, as state law now prescribes following Obergefell, would run counter to her religious feelings. As those close to our legal system know, the age-old civil contempt power of the Anglo-American courts is something not to be trifled with. Some Davis defenders, like former Arkansas Governor and presidential candidate Mike Huckabee, dodge the contempt issue entirely, while many others invoke episodes of doubtfully lawful official conduct that fell short of defying court orders, or in some cases was not even unlawful

Lessig Strains to Compare His Campaign to Eugene McCarthy’s

Harvard Law professor Lawrence Lessig is running for President on the single issue of adding restrictions to certain electoral speech. In his announcement video, he points to Eugene McCarthy’s 1968 run for the White House. He says in that video:

In 1967 Democratic Senator Eugene McCarthy entered the primary here in New Hampshire to challenge his own party’s sitting president because he feared the most important moral issue of the time, the Vietnam War, was going to be invisible in that election. In four months McCarthy went from almost nothing in the polls to almost beating Lyndon Johnson in the primary and the one issue that no one wanted to talk about became the one issue that no one could ignore.

It seems clear that Lessig intends to set up a parallel between Vietnam and America’s insufficiently regimented electoral system. There’s just one problem with pointing to McCarthy in this case: Eugene McCarthy was able to make that historic primary campaign about Vietnam because a few rich anti-war guys gave his campaign massive direct contributions, something Lessig strongly opposes.

In today’s Cato Daily Podcast (Subscribe: iTunes/RSS/CatoAudio for iOS), I talk to John Samples about the facts of McCarthy’s candidacy and why Lessig’s example doesn’t hold up. We also discuss Stewart Mott, one of McCarthy’s financial backers, and his appreciation for less-than-fully-fettered political speech.

The Right to Anonymous Speech and Association

Since the Enlightenment, anonymous speech has been an integral component of social change, exemplified by Cato’s Letters, the Federalist Papers, and indeed the Anti-Federalist Papers. Accordingly, the Constitution provides a wide berth for the proper “breathing space” that “First Amendment freedoms need … to survive,” NAACP v. Button (1963), by protecting anonymous-speech rights and requiring judges to be skeptical regarding laws that compel disclosure of identifying information.

California’s attorney general, Kamala Harris, has broken with this tradition in demanding that the Center for Competitive Politics (CCP), an educational foundation and public-interest law firm specializing in the First Amendment and political law, disclose its principal donors to the state. The federal district court determined that the demand for this information in the name of “investigative efficiency” was a valid use of state power, and the U.S. Court of Appeals for the Ninth Circuit affirmed that ruling. Importantly, this rule applies to all nonprofit organizations soliciting donations or otherwise operating in California, so the associational chill reaches into the ability of every nonprofit to exist in California while preserving privacy through anonymity.

Cato, joined by the Competitive Enterprise Institute, has filed a brief supporting CCP’s request that the Supreme Court review the case. The Ninth Circuit failed to give proper solicitude to CCP’s constitutional rights here by not applying what lawyers call “heightened scrutiny” at each turn of its analysis. Instead, the lower court applied a party-specific, “as-applied” exception to the general rule that’s only relevant if the compelled disclosure has already survived a broader, “facial” challenge—and it collapsed the clear distinction between the importance of the government interest in disclosure and the extent of the nexus between the disclosure and the asserted interest.

Turbulence Ahead: Domestic Drone Debate Intensifies

National Journal has a new piece out today that highlights the continuing controversy over the Federal Aviation Administration’s failure thus far to publish a final rule governing the operation of drones in domestic airspace (FAA’s current unmanned aerial system (UAS) guidance can be found here). One thing the FAA will not be doing is wading into the commercial sector privacy debate over drones; it has punted that issue to the National Telecommunications and Information Administration (NTIA). But what about federal agencies and their use of UASs?

Federal domestic UAS use has a checkered history.

In December 2014, the Department of Homeland Security’s Inspector General issued a report blasting the Customs and Border Protection (CBP) drone program as waste:

  • The unmanned aircraft did not meeting the CBP Office of Air and Marine (OAM) goal of being airborne 16 hours a day, every day of the year; in FY 2013, the aircraft were airborne 22 percent of the anticipated number of hours.
  • Compared to CBP’s total number of apprehensions, OAM attributed relatively few to unmanned aircraft operations.
  • OAM could not demonstrate that the unmanned aircraft have reduced the cost of border surveillance.
  • OAM expected the unmanned aircraft would be able to respond to motion sensor alerts and thus reduce the need for USBP response, but the IG found few instances of this having occurred.

Hotel California: Teachers Union Edition

If a teacher opts out of her union, but the union refuses to hear it, did she really opt out?

Even where state lawmakers have passed “right-to-work” laws legally enabling teachers to opt out of paying union dues, the practical ability to opt out is far from guaranteed. In Michigan, for example–where dues can cost up to $640 a year–the teachers union surreptitiously created new bureaucratic hoops for teachers attempting to opt out.

In an apparent effort to make it even more difficult or even stop school employees from exercising their right under right-to-work to not pay union dues or fees, the state’s largest teachers union has quietly set up an obscure post office box address to which members must send the required opt-out paperwork. It’s P.O. Box 51 East Lansing, MI 48826.

Based on a letter the Michigan Education Association sent to members who had tried to get out, and discussions with some of them, resignation requests sent to the regular union headquarters address will not be honored.

An extensive search of the union’s websites found references to the post office box address on just one page of MEA’s main website, and on one affiliate union’s website. There is no record of this post office box address existing before this month. In the past, union members who wanted to opt out just had to send notification to the address of the MEA’s headquarters in East Lansing.

The MEA had previously restricted the union dues opt-out period to the month of August until a judge ruled that the restriction was illegal. As reported in Michigan Capitol Confidential, about 5,000 teachers left the MEA last year despite the obstacles.

Merely Saying “I Do” Multiple Times Shouldn’t Be a Crime

Saying “I do” and calling someone your spouse who legally isn’t shouldn’t be a crime, but it can be in Utah. While polygamy—being lawfully married to multiple people—isn’t legal in any state, due to its unique history, Utah has some of the strictest anti-bigamy laws in the country. Which probably makes starring in a reality TV show based on your plural marriage not the best idea for Utahns.

Nevertheless, TLC’s Sister Wives revolves around Kodi Brown, his four partners (Meri, Janelle, Christine, and Robyn), and their 17 children. While Kodi is only legally married to one of women, he claims he is in a “spiritual union” with each of the others, and describes all four as his wives—and that puts the Browns on the wrong side of Utah’s bigamy law. The day after the show premiered in 2010, local authorities announced they were investigating the family.

Because the potential sentences are quite severe (five years for each of the women, and up to 20 years for Kodi), the Browns took preemptive action, filing a federal lawsuit challenging the constitutionality of Utah’s law. The district court agreed. In granting the Brown’s motion for summary judgment, the court held that because the law criminalizes “spiritual cohabitation” (arrangements where the participants claim to be part of multiple religious marriages, but make no attempt to obtain state recognition), it violated the First and Fourteenth Amendments, and was “facially unconstitutional.” The state has appealed that ruling.

Together with First Amendment scholar Eugene Volokh, Cato has filed an amicus brief urging the U.S. Court of Appeals for the Tenth Circuit to affirm the district court. Whether or not the Utah law violates the Browns’ religious liberty, it’s a clear affront to the First Amendment’s protection of free speech.