September 4, 2015 1:38PM

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

Kim Davis purges the contempt if she either carries out her public duties or quits her public office. So she is not in jail for refusing to violate her religion, unless her religion requires her to keep her public job (cool religion!). Courts' use of contempt remedies is itself bounded by law, and they are not supposed to resort to harsher remedies if milder ones such as fines would obtain compliance. But the Davis camp has not suggested that milder measures would secure her compliance; indeed, Davis’s Liberty Counsel lawyers have been associated with other cases in which clients claiming a religious justification have, if anything, gone to more remarkable lengths than Davis in defiance of court orders. (Michelle Meyer has more on the professional obligations of lawyers counseling clients regarding contempt.) As Chris Geidner notes at BuzzFeed, Kentucky does not provide for such alternative remedies as voter recall of county clerks or removal by the governor for official misconduct. 

A curious argument making the rounds posits it as somehow relevant that marriage law changed after Davis won elected office, supposedly upsetting her reliance on expectations of what duties she would be called on to perform. That’s not really a legal question, in the sense of casting any doubt on whether she is expected to follow the laws of Kentucky and the United States in current form if she wants to hold office. It’s more like a union shop steward’s argument — “you can’t change my job duties unless you bargain with me first.”

Among Republican White House candidates, Carly Fiorina seems to be among the few willing to draw appropriate public-private distinctions: "when you are a government employee, I think you take on a different role." Also from a conservative perspective, Dan McLaughlin has a thoughtful what-goes-around-comes-around view on lawlessness and the pervasiveness of double standards. 

Davis's defenders also have a point worth bearing in mind as we go forward: the traditional civil contempt power of the Anglo-American courts does generate many harsh, disturbing results. As defense lawyer Scott Greenfield has written, "calling the jailing of a person 'civil' doesn’t mean they put curtains on the cell windows."  Targets of civil contempt orders remain in jail -- sometimes for a remarkably long time -- if they remain obdurate on principle or simply fail to satisfy a judge that compliance is impossible. Dads get jailed for trying to see their kids more often than a court order permits. To me, among these disturbing outcomes, pressure to resign a public office rates fairly low on the scale. But they all could benefit from overdue discussion.

[adapted from an earlier post at Overlawyered]