Saturday, September 5, 2015

No, Rowan County Kentucky does not get to Ignore the Supreme Court, Why Do You Ask?

Rowan County Clerk: God Trumps the Supreme Court

In Obergefell v. Hodges (June 26, 2015) the Supreme Court held that the right to marry is a fundamental right and that the U.S. constitution requires states to issue marriage licenses to people of the same sex. It was the end of a long and hard-fought legal battle, and it settled a hotly disputed social issue for the country. That includes Rowan County Kentucky.

It does not mean everyone agrees or likes it. When the Supreme Court decided in Brown v. Board of Education (1954) that racially segregated schools were unconstitutional there was push back from local school districts and governors, and compliance was slow. President Eisenhower sent the national guard to restore order. Active resistance to the Supreme Court's order to desegragate "with all deliberate speed" was not the correct response. Governors and school boards did not have the option (in response to Brown) to say "we will ignore the Supreme Court; we'll continue to segregate our schools because we believe God wants it that way," although they found many practical ways to resist. But living under the rule of law means the Supreme Court get's the last word.

In the wake of Obergefell, Kim Davis, the county clerk in Rowan County, Kentucky whose job includes the issuance of marriage licenses, took it upon herself to defy the Supreme Court "because God would want me to."

Legally, the matter of Kim Davis is pretty straightforward. Marty Lederman explains:
Davis alleges that her religion forbids her—even in her official capacity as County Clerk—from “authorizing” or “approving” a proposed sex-same union as a “marriage.” She also believes that a marriage license issued from her office would constitute such authorization or approval by her. .... Therefore she has refused to issue any marriage licenses, for the marriage of any couples, same-sex or otherwise. And ... she has also instructed the six Deputy Clerks in Rowan County not to issue any such licenses because, in her view, such a license would have to include her name, which would, in turn, constitute her own “authorization” of the marriage, which her religion allegedly forbids. ....

On August 12, 2015, Judge Bunning issued a preliminary injunction prohibiting Davis “from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by Plaintiffs.” .... Davis has refused to comply with the court’s preliminary injunction to cease applying her “no marriage licenses” policy, and therefore, this past Thursday, Judge Bunning found Davis to be in civil contempt and ordered that she be “remanded to the custody of the United States Marshal pending compliance of the Court’s Order of August 12, 2015, or until such time as the Court vacates the contempt Order.”
As of Friday, September 4, 2015, a deputy clerk in Rowan County has started to issue marriage licenses. Kim Davis remains in jail under the contempt order. Presumably her case will be reviewed next week and they will find a solution that allows her to distance herself from the process (with grumbling dissatisfaction) and that permits deputy clerks to continue to issue marriage licenses.

Of course she should not be in jail; of course she should not lose her job; of course there should be an accommodation to allow her to dissociate her name and signature from the licenses; and of course the county clerk's office should continue to issue licenses. This is only hard to the extent she and her lawyers want to make it so. She wants to make a fuss, of course, because she does want to defy the Supreme Court. It's not accommodation but defiance she wants. That makes resolution harder.

Ted Cruz has called her contempt sentence "judicial lawlessness crossed into judicial tyranny."  No, Senator Cruz, you are confused about how the rule of law works. So is Mike Huckabee. And so is Bobby Jindal. See L.A. Times (9/4/15).

Donald Trump has it right: "You have to go with it. The decision has been made. And that is the law of the land," he told the hosts on MSNBC's "Morning Joe," though he also said: "I hate to see her being put in jail." That is right on both counts.  According to the LA Times article, linked in the previous paragraph, Jeb Bush, John Kasich, and Carly Florina have also come out in favor of the rule of law.  So have Chris Christie and Lindsay Graham.

The problem for Kim Davis, as Mark Graber notes in an interesting post, is that unlike the Supreme Court's abortion ruling, the Supreme Court's Miranda ruling, or the Supreme Court's desegragation of schools ruling (Brown), there is no passive aggressive way to resist issuing a marriage license. You can't say "sorry we just ran out of forms," or "sorry we can't find the forms." This has left her with a choice of compliance--have Rowan county issue licenses--or point blank defiance: "God trumps the Supreme Court." No matter what Mike Huckabee or Ted Cruz may think, here is the deal: in America Trump may trump God, but God does not trump the Supreme Court.

As Marty Lederman describes in the link above, there are all types of esoteric legal arguments, like whether the deputy clerk can issue the licenses over the objection of Kim Davis (the elected county clerk) and whether such licenses are valid. And over at Volokh conspiracy, Eugene Volokh points out other arguments about the type of accommodation that might be required in light of Kim Davis's religious beliefs--he suggests that the Kentucky religious freedom restoration act, for example, might require that Davis be allowed to alter the Rowan county marriage license forms to disassociate her name, and remove any hint of endorsement of the concept of gay marriage on her part.

But those are all niceties. The bottom line is Rowan County must issue marriage licenses, and yes Kim Davis should be allowed to disassociate from the process.  What she cannot do is continue to prohibit her deputy clerks from issuing the licenses.

The Supreme Court trumps, and as the trial court judge noted in his contempt order: that's how things work in America.

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