The Judge, the Clerk, The Governor and the General Assembly: How to Understand the Incarceration of Kim Davis on Charges of Contempt

Recent developments in Kentucky have captured the attention of the Nation. Even the ominous stare down between BarryO the Boyking and a melting glacier could not displace the story from the headlines.

There have been many opinions expressed on the topic – from speaking of the martyrdom of Kim Davis to calling for the martyrdom of her – there seems to be no end of opinions on the matter. As with most things, though, many of the opinions rest on a shaky foundation of poor, or no, understanding of important underlying principles of law.
A local jail in Kentucky picked up a new detainee yesterday. Mind you, virtually every county jail in America likely picked up a new detainee or two. But this detainee is a breed apart: not a drunk driver pulled from the mangled wreck of her auto, nor a post-partum-depressed mother that just drowned her baby in the bathtub, not even the local chemist operating a meth lab from his basement workshop. No, this new occupant, Kim Davis, is an elected official, the County Clerk for Rowan County.

Unlike the drunk driver, the homicidal mad-momma, or the meth-matician, Ms. Davis has not been sentenced to a term of years in jail or prison. Indeed, unlike those criminals, Ms. Davis has not been tried by a jury consisting of her peers and found guilty of any crime whatever. Instead, Ms. Davis has been ordered confined indefinitely in jail by a United States District Court Judge, David Bunning.

Davis, a Democrat, ran for, and was elected to, office in Kentucky. Judge Bunning, on the contrary, was appointed to the federal bench by George W. Bush, a Republican. Judge Bunning’s name may ring familiar to some of you. His father, Jim Bunning, served as a US Senator from Kentucky for a couple terms after having served six terms as a member of the House of Representatives from Kentucky. Of course, David Bunning may not have been chosen as a favor by a stalwart Republican president. (I’m sure that all Presidents from both parties only pick the best available candidate and never use their appointment powers to cement relationships or repay favors. Wink Wink Nod Nod.)

So, here we have had a federal judge handling a federal lawsuit over the refusal of a State Court Clerk to issue State marriage licenses.

Now, ordinarily, a clerk refusing to perform a duty of office could be subjected to a suit in state court. There is an old English lawsuit, something called a Petition for Writ of Mandamus. That suit can be filed by affected persons asking a state court judge with the appropriate level of authority to order the clerk to do their duty.

But here we are talking about a same sex couple that tried to get a marriage license. Having been frustrated in that effort, rather than seek an equally valid license from the clerk of another county, and rather than filing a petition for a writ of mandamus with a Kentucky court, the couple, represented by the Kentucky chapter of the American Civil Liberties Union, sued in federal court.

Now please, don’t misunderstand me. I am not suggesting that it was improper at all for such a lawsuit to be filed in federal court. Congress endowed federal trial courts with jurisdiction to hear and decide lawsuits involving claimed violations of federal civil rights. Congress also created a statute-based cause of action for the violation of federal civil rights. Abraham Lincoln addressed the duty of courts to decide cases, in his First Inaugural Address. He said, “Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.”

So, no, I’m not criticizing Judge Bunning from acting as Judge in the case.

Prior to becoming a disgraced former Senior Counsel for the American Center for Law and Justice, that organization described me (I had nothing to do with how they chose to describe me) as one of the Nation’s leading religious liberties advocates. I have filed many federal civil rights actions as an attorney, representing street preachers, anti-abortion protestors, students treated unequally based on the religious content of their speech. For injured clients, whose recognized constitutional rights had been denied, I have asked federal judges to issue orders stopping government officials from interfering with my clients’ rights. I have asked judges to award damages to my clients for the loss of those rights. So, on the level of general principles I cannot be understood in this post to be claiming that filing the lawsuit in federal court was wrong. I have also represented clients in cases where others tried to stretch federal civil rights laws beyond their design and intention, in order to accomplish a plainly political objective.

That the Judge Bunning had legal authority (what lawyers call “jurisdiction”) granted to his court by Congress is not subject to dispute. That the same sex couples – like other citizens of the United States – are entitled to assert and to prove if they can that their federal civil rights have been violated, is not subject to dispute.

For my purposes today, the questions in dispute are whether Kim Davis should have been fired for refusing to issue marriage licenses and whether she should be incarcerated for contempt of court.

Kim Davis ran for office. The People of Rowan County elected her clerk.

That was an act of popular democracy. Kim Davis, a Democrat, being elected by the People of Rowan County is a matter of some moment. Because under Kentucky law, the Governor cannot simply call her office and tell her she’s fired. Well, he certainly could. But that statement would be followed by a chortle, and perhaps a question, such as, “Been hitting the Makers’ Mark, Governor?” No, the Governor cannot fire her.

The Kentucky Supreme Court cannot fire the Clerk. The Courts of Kentucky are quite jealous of their distinct constitutional stature. They do not brook even the making of rules of court by the legislature – that rule-making is quite common in other States and at the federal level. But, as the Kentucky Courts are quite sensitive to questions of their separate sphere of power and authority, it is well-known to them that they possess no power to discharge from office an elected clerk.

In fact, what the Commonwealth of Kentucky faces with a clerk that is refusing to perform duties of her office is the exact conundrum the American people face with a president that refuses to perform the duties of his office. Because, you see, whether she sits in jail for the balance of her elected term of office or not, the only way that Davis can be removed from office is by impeachment by the Kentucky General Assembly. That is it. She cannot be fired. Stop assuming that she can be. Stop insisting that she be.

Now, as to the question of whether Ms. Davis should be incarcerated for contempt of court, I think Judge Bunning went way overboard in jailing Davis.

I can prove that he did.

I have represented persons charged with contempt. I have read the federal law on contempt and researched the cases and made written interpretations and analysis of it. But I do not need to engage in a fine legal analysis to show why Judge Bunning’s contempt confinement order is a Bridge Too Far. You see, the same sex couples and their ACLU attorneys prove that the Judge went too far. Here is what the couples stated in their petition to hold Davis in contempt:

Plaintiffs do not seek to compel Davis’ compliance through incarceration. Since Defendant Davis continues to collect compensation from the Commonwealth for duties she fails to perform, Plaintiffs urge the the Court to impose financial penalties sufficiently serious and increasingly onerous to compel Davis’ immediate compliance without further delay.

You see it, right? “Plaintiffs do not seek to compel Davis’ compliance through incarceration.”

Rather than confinement, the Plaintiffs “urge[d] the ... Court to impose financial penalties[.]”

Question resolved.

The judge, Judge David Bunning, a Republican appointed by George W. Bush has ordered a Democrat, Kim Davis, the elected clerk of Rowan County to be incarcerated. Why? Not because it was asked of him by the Plaintiffs.

We have not heard the end of this matter. The Kentucky General Assembly is highly unlikely to impeach Davis. In fact, if the Assembly does anything, what it is likely to do is change the marriage licensing statute to protect the rights of conscience of county clerks. In the meantime, if Kim Davis does not change her mind, then it will be up to the unjust judge to relent and to release her from confinement.

In fact, as a matter of federal law, Judge Bunning should release Davis because his decision to confine Davis may have violated her rights under the federal Religious Freedom Restoration Act. That’s right. Judge Bunning may well have violated federal law by imposing incarceration as the method of coercing Kim Davis to submit to his will in this matter.

Many readers will recall the teapot tempest earlier this year – it seems ages ago given how the legal landscape shifted in June – when an Indiana pizzeria stirred up a kerfluffle by announcing that it would not agree, if asked, to cater a wedding reception for a same sex couple. Memories Pizza actually closed its doors because of the hostile reaction of some members of the public. Remember that? Back then, one of the hotly disputed issues was the scope of Indiana’s Religious Freedom Restoration Act. Many voices cried out about the injustice of protecting religious freedom if it meant denying two gay men the right to have pizza served at their wedding reception.

For my part, I suspected that ordering pizza for a wedding reception would constitute proof positive that a couple was only faking gay.

In any event, the disputed statute is one modeled on the federal Religious Freedom Restoration Act. That law applies to every federal official and every federal action. So when Judge Bunning put Kim Davis in jail, he should first have determined whether she had a sincerely held religious belief regarding same sex marriage, then decided whether jailing her to compel her compliance with an order that violated her religious scruple constituted a substantial burden on those religious beliefs, and then, finally, if they did, he should have made sure that his acts constituted the least restrictive means to accomplish those purposes.

Where the other side argues that a person should be fined, not jailed, and the judge jails the person, I think the case is easily made that the judge did not employ the least restrictive means to serve the interest in compelling compliance with the court’s order.

So now, like Alice’s tumble into a strange hole, things get curiouser and curiouser, as the clerk defies the judge that defies the law. Judge Bunning was advised that the federal RFRA statute impacted what he did. I read the papers filed by Davis’ attorneys. They cited a federal appeals court decision that threw out 19 contempt citations because the decisions to impose them violated RFRA.

This matter will continue to develop. Perhaps, at some point, Judge Bunning will be brought to task for disobeying federal law. Meanwhile, stop talking about how Davis should be fired. She can’t be fired. Instead, enjoy the show, and the many folks discomfitted by the possibility that every step they take is fraught with opportunities to err.

The Newest Logical Fallacy: Conscientious Objection as Jim Crow

As we continue our long slouch into societal moronism, the quality of conversation to be had on matters of keen public importance continues to decline. Perhaps part of the problem is that heart yearning has been substituted for rhetorical skill, sound information, and logic. Too often anymore, I see logical fallacies offered in argument as substitutes for reasoned discussion. If you are a bit older than me, you may have seen "Love is a Fallacy," a popular episode of the television comedy, The Many Loves of Dobey Gillis. If you haven't seen the episode, then you can read the script here.

These days my thoughts are focused on a particular fallacy, "poisoning the well," and a particular instance of it, the accusation that the exercise of conscientious objection to participating in same sex marriages constitutes the latter day revival of "Jim Crow." An argument "poisons the well" if it serves to prevent its refutation by instilling an unavoidable distrust in the one who would provide the refutation. In the Dobey Gillis episode, the example offered is of a debater who rises and begins by charging that his opponent is, and always has been, a liar. Such a charge risks the ability of the reasoning mind to even entertain what the opponent might place before it.

"Jim Crow!"

It has the identical effect. Who, after all, wants to be seen to be a racist? For that matter, who wants to be seen with a racist?

In my lifetime, laws that treated others differently based on race were invalidated as the Supreme Court came, more and more, to understand the color-blindness of the Constitution. Had the Court, in Plessy v. Ferguson, followed Justice Harlan, and then recognized that colorblindness, it would have rejected "separate but equal" schools, and other statutory racial classifications. Unfortunately, it took nearly three quarters of a century for the majority of the Court to catch up with Harlan.

Plessy held that a Louisiana statute requiring that public transportation (trains) be racially segregated did not violate the Fourteenth Amendment. The States had ratified the Fourteenth Amendment as a means of spanking the Supreme Court for its unwise, incorrect, and constitutionally unnecessary decision in Dred Scott v. Sandford. In Dred Scott, the Supreme Court stated that blacks were not, and could never be, citizens of the United States. The Fourteenth Amendment rebuked the Court with these words:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Thus, every black man, every black woman, every black child, every black baby BORN in the USA, born in the States of the Confederacy, born in the Border States, born in the Free States, every single one of them were immediately conferred with two legal statuses: national citizen and state citizen. As you can see from its text, the Fourteenth Amendment did more than that too. The Amendment debarred States from violating the "privileges and immunities" of US citizens, from depriving persons of life, liberty or property without due process of law, and from denying equal protection of the laws to any person.

Yet, Democrats in southern, "reconstructed" States began inflicting an additional 100 years war against racial equality despite the Fourteenth Amendment.

How did they carry out this war?

By enacting laws that legally required segregation of white and blacks in all, or virtually all, aspects of public life. Separate accommodations, separate schools, separate neighborhoods. These effects were directly imposed by statutes. This was GOVERNMENT imposed, GOVERNMENT enforced discrimination.

And, so as not to lose track of that important distinction, that is what JIM CROW LAWS were. They were the laws that IGNORED the FOURTEENTH AMENDMENT'S EQUALITY COMMAND and gave GOVERNMENT imprimatur to the concept, summarized in Plessy v. Ferguson, of "separate but equal."

What JIM CROW wasn't, however, is just as important as what it was.

Jim Crow was not the private choices of millions to prefer the company of others like themselves. Such choices might reflect an ugly heart, a prejudice based irrationally on skin tones. But such private discrimination never was within the reach of the prohibitions and mandates of the Fourteenth Amendment. So, although Jim Crow laws -- as the Supreme Court finally came to understand -- violated the guarantees of the Fourteenth Amendment, private discrimination never has and never did.

Why does this matter today?

Because today, if you search "Jim Crow" on news services of Bing, Google, or Yahoo, you will discover that many of the results are related to the question whether small businesses that refuse to participate in same sex wedding services are the "new Jim Crow."

That's right, despite the complete dissimilarity between private conscientious choice about providing support to the celebration of a same sex marriage and government mandates to segregate races, the statists and social fascists are afoot.


This isn't my first rodeo, cowboys.

From 1989 through 1993, I fought against a similar rhetorical attack that sought to
align persons of conscience today with racists of the past. Then, radical pro-abortionists responded to the peaceful, nonviolent actions of Operation Rescue by filing lawsuits under the "Ku Klux Klan Act of 1871." Imagine the kultur kampf had pro-abortionists succeeded in pinning the KKK moniker on pro-life demonstrators! Thankfully, the hard work and diligent research and writing that I, and others, lent to the battle resulted in the Supreme Court rejecting the application of the Ku Klux Klan Act to anti-abortion protests.

Still, there's nothing quite like skipping the engagement, nothing like not being put to the intellectual challenge of having your arguments sifted and measured by a reasoning mind, and nothing like going straight for the throat with a karate chop that stuns and blocks the windpipe. And that is precisely what is behind the effort to portray opposition to participation in same sex wedding ceremonies as the new "Jim Crow." Those who stridently charge that conscientious objection to participating in same sex wedding is the one and the same as the kind of brutal, dehumanizing discrimination and segregation of Jim Crow do so in what they hope will be a successful form of verbal martial arts.

So, it's important to understand the differences between conscientious objection by private citizens to engaging in conduct that violates their religious scruples and government coerced and directed segregation and discrimination. Having a full grasp of these points is an essential part of answering the questions that are popping faster than Orville's corn kernels in my microwave on the newest high contention issue of the 21st century.

Jim Crow Laws were precisely that:  laws.  Whether state laws, such as anti-miscegenation laws prohibiting racial intermarriage, or whether state laws like in Plessy requiring that transportation systems provide racially separated travel accommodations, or whether local ordinances requiring that parks and recreational facilities be racially separated. The dispute today is not over laws compelling segregation or discriminatory treatment. No one is being compelled by statute to separate Gays and Straights into separate accommodations. That is just not happening.

Here is what is happening.

As individuals begin to take advantage of this new-found right to "marriage equality," those individuals are, in fact, getting married. Some, of course, have quite publicly gotten married at courthouses and justices of the peace as soon as the right sprung. Others, however, more traditional of mind, are planning weddings. For them, unsurprisingly, the assistance of wedding services providers may be desired.

Wedding services providers include wedding planners, dress designers, printers, bakers, caterers, venue providers, and wedding performers including officiants, musicians, and DJs for receptions. As gay men and lesbian women seek out wedding services providers, they find some that gladly partner with them in creating a memorable wedding day and others that decline doing so. It appears that those declining to do so fall into a couple categories.

Of course, some service providers are overbooked and unavailable. No ground of complaint or controversy there. After all, if you arrive at Olive Garden or whatever you favorite eatery might be, and find you are facing a sixty minute wait, you might opt for a different provider. But controversy is arising in other cases, where wedding service providers decline to participate in the planning and execution of celebrations of same sex marriages based on religious scruples regarding marriage.

Among that smaller group, some of the refusals probably do not result in any further kerfuffle. That may be because the same sex celebrants take the refusal with a decent toleration for the sensibilities of others. Or, it may be that the service refusal occurs in a jurisdiction that does not treat religiously-based service refusals as a form of prohibited discrimination.

But, there is that smaller portion of total instances that comes to the public's attention. Disputes over refusals to make wedding cakes, provide floral arrangements, cater pizza receptions are being reported. (The Queer Eye for the Straight Guy really twitches every time it contemplates a pizza-based wedding reception -- unless the wedding toast is being done with a light pilsner.) Already there a small handful of administrative and judicial decisions has been generated arising from complaints that such service denials violate human rights codes or civil rights statutes.

Now the public conversation about these cases tells an ugly story.

More and more frequently, it appears that a kind of brutal and intolerant scheme is afoot. By that scheme, it is pretended that a view of marriage -- whether you share that view or not -- that has held sway for thousands of years, across hundreds of cultures, in dozens of religions, taught by well-regarded voices is, suddenly, a pernicious form of hatred, apparently the verbal equivalent to public lynching of blacks. As I have found myself saying, with algebraically increasing frequency, we are living in strange times.

Mind you, the marriage equality movement may prevail. If it does, that victory could be as soon as the end of June when the Supreme Court traditionally concludes its business by releasing decisions in any cases not yet decided from the current Term of Court. The same sex marriage cases being argued this week at the Supreme Court have the potential, if the Court reverses the decisions at issue,

If they do, then we can test whether those who prophesy the destruction of society are true prophets or false, simply by observing the progress of our society over time.

Whether they prevail or fail, we are threatened with greater losses.

First and foremost, as the bullies within the marriage equality movement (and that is, by no means, everyone in the movement) seek to arrest discourse by such attacks as the Jim Crow charge, there is a loss to liberty of discourse on matters of great public importance. This nation has always valued liberty of expression. We have sheltered even the expression of false facts from prior restraint, so great our commitment to that liberty has been.

Second, the demand that those that enjoy the natural right to liberty namely to engage in businesses, trades, and professions related to weddings, whether bakers, photographers, musicians, tailors and dressmakers, or the like, surrender their religious liberties as the price of doing so reflects a profound loss and harm. Our Nation was born because the previous governance here oppressed the enjoyment of the natural rights to life, liberty and the pursuit of happiness. The loss of the natural right to liberty embodied in conducting the affairs of one's profession or vocation is then compounded by the unreasoning attack on religious conscience.

I fear that some aspect of these losses will not even be missed. When Americans lose sight of Nature's God as the source of those rights, and concludes that these rights are granted by government, or by the Constitution, then they obtain an artificial spirit of objection to the stern stuff that are those natural rights. Ultimately, I don't have a sense that Americans will rise up in arms if this continues to spiral out of control, but if the statists continue to press for legal suppression of dissent and to punish conscience with economically fatal fines, the time for anger may slide into the time for the exercise of the right and duty to stated in the Declaration of Independence:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.