The Volokh Conspiracy
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Kim Davis has been released from jail. As Eugene noted, now that her deputies are issuing marriage licenses to eligible couples, the federal judge concluded that there was no longer any basis for holding her in contempt of court.
Could the spectacle of sending a county clerk to jail have been avoided? On the one hand, Judge Bunning had reason to believe that Davis would not have complied with the court's order to issue marriage licenses had he simply imposed fines on her. On the other hand, as University of Michigan law professor Sam Bagenstos argues in The New Republic, Judge Bunning could have taken another route, avoiding jail time for Davis and expediting the issuance of marriage licenses to eligible couples.
Davis is in the wrong. But once she refused to comply with the court's order to issue marriage licenses equally, the question became what to do about it. Like many district judges in his position, Judge Bunning chose to initiate the authority-submission cycle. He found Davis in contempt of court and ordered her to jail until she agreed to comply with his original order (or resign). Notably, the plaintiffs in the case-same-sex couples who want to get a marriage license in their home county, as is their right-specifically disavowed any desire to have Davis placed in jail as a contempt sanction. They asked the court to impose financial penalties instead, on the premise that those penalties would eventually encourage Davis to comply with the court's original order without, presumably, making her into a martyr.
Bunning concluded, quite reasonably given Davis's expressed obstinacy, that financial penalties would not ensure her compliance. But did he have to hold her in contempt in the first place? No. . . .
. . . The Supreme Court has long held that when a defendant fails to comply with an injunction, the court has the power to issue a further order imposing broader obligations, even outside of the contempt process, to ensure compliance. In Rowan County, Bunning could have simply ordered that, if Davis would not carry out her constitutional obligation to issue marriage licenses on an equal basis, she would be forbidden to issue marriage licenses at all. Under Kentucky law, the responsibility for issuing marriage licenses would then devolve onto Rowan County Judge/Executive Walter "Doc" Blevins, who had expressed willingness to issue the licenses on an equal basis. To ensure that Davis did not reap a windfall from that decision, Bunning could have ordered the county to withhold whatever portion of Davis's salary was attributable to her marriage-license duties and to use that money to reimburse the judge/executive's office. And she can still be held personally liable for compensatory and even punitive damages for refusing, after the Supreme Court's decision, to perform her duties because she did not wish to issue marriage licenses to same-sex couples.
According to Bagenstos, this approach would have ensured that eligible couples received their marriage licenses with "less drama" and perhaps also with less delay. Such an approach would also have removed whatever legal cloud hangs over the marriage licenses issued by Davis's deputies without Davis's authorization.