Kim Davis Freed, as Long as She Doesn't Interfere with Clerks Giving Out Marriage Licenses

It's not actually clear if she will cooperate with judge's order.

ABC News

U.S. District Court Judge David Bunning, having been shown that marriage licenses are being handed out again in Rowan County, Kentucky, has ordered the release of Clerk Kim Davis. Davis, an elected official, had been held in contempt for refusing to allow any marriage licenses to be distributed because of her objection to the Supreme Court's decision ordering all states and the federal government to recognize same-sex marriages.

In her absence, her deputy clerks have agreed to hand out marriage licenses. The order from Bunning releasing Davis states, "Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples" (bold in original). If she attempts to stop her clerks from handing out licenses, he will consider new "sanctions." Furthermore, he ordered the deputy clerks under Davis to file a report every two weeks to let him know they're complying with the order to hand out marriage licenses.

Davis supporters had put together a rally outside the jail where she had been imprisoned, and GOP candidate and former governor Mike Huckabee was on hand to insert himself into her post-release press conference, saying with a straight face, "People are tired of the judicial activism that takes people's freedoms away." (Relevant: Check out Ron Bailey's blog post earlier today about the influences marking the rise of the "culture of victimhood.")

What is not clear is actually happens next. According to Davis' lawyer, Mat Staver of Liberty Counsel, speaking for Davis at the press conference, the marriage licenses Davis' deputy clerks handed out last week were not legal, and he suggested that it was a criminal violation for them to have been issued. He also refused to directly answer the question of whether Davis would cooperate with Bunning's order and not interfere with the handing out of marriage licenses. Staver said she would not violate her conscience and we would "find out in the near future" what was going to happen next.

Staver did reiterate that what Davis wants is to be able to be a conscientious objector. Because of her position and Kentucky law, all the marriage licenses coming from Rowan County must have her name on them. She wants her name taken off. This, obviously, would require some changes in the law, and that's going to take some time.

And let's just comment on that for a moment. There's this attempt at a defense that Kentucky is caught up in this because it was caught unprepared by the Supreme Court decision in Obergefell v. Hodges. Libertarian-leaning GOP Rep. Thomas Massie is calling the judge's action "premature" because the legislature needs to update the laws.

Well … whose fault is that, exactly? It was widely—extremely widely, even among conservatives—predicted that the Supreme Court decision would come down exactly as it did. Legislators in North Carolina were able to predict this outcome. They set up a system (over the governor's objection) that would allow county officials responsible for registering marriages to decline on religious grounds. But it also obligated each county to make sure somebody in each jurisdiction would fill in. So somebody like Kim Davis could refuse and let her clerks deal with it.

That seems to be clearly what Davis and Staver are going for here, but it's not quite clear what's going to happen in the meantime while such a procedure gets hammered out. Or rather: If such a procedure gets hammered out. There's no guarantee that the legislature is going to be willing to let an elected official shift away her job duties on the basis of a religious exception.

Also: Gay marriage is back on the menu at the next GOP debate, isn't it?

Comments

[Crusty Juggler]

Don't the best of them bleed it out
While the rest of them peter out
Truth or consequence, say it aloud
Use that evidence, race it around
There goes my hero
Watch him as she goes
There goes my hero
She's ordinary

[Crusty Juggler]

Watch her as she goes! I am the worst. I was so proud of myself, too.

[Heroic Mulatto]

Hey, Bobby! Why do you like soul food?

Because it makes me happy!

[Palin's Buttplug]

Mike Huckabee was on hand to insert himself into her post-release press conference, saying with a straight face, "People are tired of the judicial activism that takes people's freedoms away." (Relevant: Check out Ron Bailey's blog post earlier today about the influences marking the rise of the "culture of victimhood.")

The Buttplug called it.

[woody the woodchipper]

Unrelated, what gripes do libertarians have with Jarod Diamond's thesis in guns germs and steel?

[commodious spittoon]

Not enough guns, too much germs and steel.

I really have no idea.

[Lee G]

It's sitting on my shelf. I have not read it yet.

[Restoras]

Don't bother

[AlmightyJB]

Not sure. I found it interesting. Been a long time since I read it.

[R C Dean]

Same here. I thought it was interesting, especially his thoughts about how very small societies can do without any kind of "government", but above a certain size a society cannot function without a final authority to resolve disputes. Since it confirmed my minarchist biases, I naturally thought it was spot-on.

He has the predictable/inevitable proggy multi-culti twitches (at one point, I recall him saying that South Pacific islanders were "at least as " intelligent as Europeans, for example), but once you get past that, I thought there were some interesting ideas.

[Tony]

Could you survive if you were dropped into a South Pacific tribal society? Wouldn't they be entitled to think you were the dumb one, then?

[R C Dean]

Let's see if you can give me the evidence that Diamond never did, namely, that South Pacific Islanders are at least as intelligent as Europeans.

I'll check back later.

[Tony]

He gives a few hypotheses for his general impression (after working there for 30 years) that they are smarter:

In dense European communities, disease kills people more frequently than things like war. Disease does not discriminate based on intelligence, while in the forms of death that more commonly happen in small tribal societies (not getting enough food, warfare, and murder) do bias genetic selection for intelligence.

Also, Europeans spend a lot of time doing passive recreation, while New Guineans spend all their time engaging their minds in active pursuits.

The whole point of his text is to refute racist explanations for differences in culture. He makes the point I was trying to make, as well: that "intelligence" is ill-defined. What are you talking about when you say it? Being good at things Europeans are good at? Why can't intelligence mean being good at things Guineans are good at but which Europeans are shit at? I think intelligence should always refer to some specific skill and is rather meaningless as a general concept.

[R C Dean]

So, as I expected, no evidence.

Thanks.

[Heroic Mulatto]

I'm not sure what's behind your premise that there would a particularly libertarian critique of Diamond, but some...I repeat some...liber-folk might argue that the geographical and cultural milieu of Zomia as a better model to emulate.

[Almanian - I Hardly Knew Her]

Steel it - I never HEARD of it

[tarran]

I've read it. He basically argues that the dominance of Europeans in World Affairs is the product of three things:

1) The Euroasian land mass has a uuuge eastern and western extent, unlike the America's which are north/south. As a result, the climate experienced in different bits of the continent is pretty much the same as that in other bits. So, food crops that worked well in one place could work well in others, meaning that Europeans had access to the best of what had evolved/been bred over a huge continent while in the America's they only could work with what had evolved locally.

2) In Europe, lots of little polities (ie countries, counties, city states etc) were constantly at war, whereas everywhere else you had less war and less competition. As a result there was a more rapid pace of innovation.

3) Finally, Europeans were exposed to a bunch of diseases that peoples with less access to commerce hadn't developed an immunity to.

[tarran]

Basically, he overdoes his argument:
1) He argues that primitive people are smarter than civilized people because they have to be to survive.

2) He argues that Europe's unique geographical properties are what made it dominant. I think that's bullshit - if it hadn't been for its political institutions sabotaging its colonization efforts, the Chinese would have dominated the Americas.

3) If anything it was capitalism that was the engine of European economic growth that allowed such luxuries as gunboats sailing around the world, and he pretty much ignores centuries of economic analysis to postulate what is essentially a primitive agrarian economical analysis. Which is stupid.

I don't really see his thesis as being problematic from a libertarian perspective, since what he is arguing has no bearing on the question of political philosophy. But his thesis is pretty nonsensical as it ignores economics.

[Restoras]

I read the book years ago, when it first came out. I got to this...

2) He argues that Europe's unique geographical properties are what made it dominant.

...and stopped taking him seriously. I finished the book but decided it was largely crap.

[Tony]

Don't forget about the fauna.

[*GILMORE*]

"he pretty much ignores centuries of economic analysis to postulate what is essentially a primitive agrarian economical analysis. Which is stupid.'

Yeah.

He oversimplifies the development of Western society and pumps up the comparative 'sophistication' of primitive peoples in an attempt to suggest that the most important factors in development are actually mere 'material circumstances' (geography, access to resources, biological robustness, etc), rather than cultural developments like western philosophy, and speedier cultural/technological development out of competitive necessity.

[Tony]

Even if you don't like Diamond, you can't just stop there. Something has to explain why certain cultures developed more rapidly. I don't see how you get away from an ultimate environmental explanation.

[BigT]

"I don't see how you get away from an ultimate environmental explanation."

If you consider that Europeans had to learn to plan to survive the tough winters compared to the climate in Africa, then OK. But until a few hundred years ago people almost never ventured farther than 25 miles from home, so the breadth of a continent was irrelevant.

[Tony]

He addresses that argument:

Although formerly popular, [the cold climate explanation], too, fails to sur-
vive scrutiny. As we shall see, the peoples of northern Europe contributed
nothing of fundamental importance to Eurasian civilization until the last
thousand years; they simply had the good luck to live at a geographic
location where they were likely to receive advances (such as agriculture,
wheels, writing, and metallurgy) developed in warmer parts of Eurasia. In
the New World the cold regions at high latitude were even more of a
human backwater. The sole Native American societies to develop writing
arose in Mexico south of the Tropic of Cancer; the oldest New World
pottery comes from near the equator in tropical South America; and the
New World society generally considered the most advanced in art, astron-
omy, and other respects was the Classic Maya society of the tropical Yuca-
tan and Guatemala in the first millennium A.D.

[Limpee Wiltstock]

"As we shall see, the peoples of northern Europe contributed
nothing of fundamental importance to Eurasian civilization until the last
thousand years"

What about the eyed needle? Firing clay? It's also the origin of the more sophisticated techniques of using dairy products, as well as the origin of a number of agricultural techniques. Then there's a lot of cultural innovations whose relative value may be disputed but whose importance can't be. The oldest attestation of pure democracy I've encountered in an organised society was that of the primitive Baltic hamlets.

[Limpee Wiltstock]

I imagine he's weasling round this all by his peculiar expression "peoples of Northern Europe". If he wanted to be a dick about it, he could limit it to the Goths and the Lapps. The Goths didn't do anything to speak of and barely extended beyond their native island till the decline of Rome, and the Lapps have had their thing going for some time but never really engaged in much cultural exchange with the other Europeans, since the area south of Lappland was largely unsettled till the eighteenth century. Still, it's only if he never has to define what he means by "of importance" or by "Eurasian civilization", and he gets to limit "peoples of Northern Europe" to peoples who were just starting out a little over a thousand years ago and limits his period of analysis to the last thousand years. Even then it falls flat less one imagines a really strange definition to "of importance" or "Eurasian civilization", which seems likely with the rest of it.

[Dan Bongard]

Something has to explain why certain cultures developed more rapidly.

Human populations vary slightly. Some spent as little as 3.4 million years in the stone age, while others spent as much as 3.405 million years in the stone age. There doesn't have to be an explanation for that beyond "random variance among isolated populations".

Think about it this way: why are humans intelligent in a way that other African primates aren't? We evolved alongside each other, but somehow we got lucky and they didn't. And, well, that's just it: we got lucky and they didn't. When a particular evolutionary advantage will arise isn't predictable. The reason we've sent men to the moon and orangutans haven't is that our ancestors got the lucky mutation and theirs did not. Europe and China got the lucky memetic mutations and Africa and the Americas didn't.

There may be a deeper explanation, of course -- but given that we're missing essentially ALL of the information we would need to establish one, any attempt to invent one is going to be a just-so story.

[Circle (formerly Square)]

"Human populations vary slightly. Some spent as little as 3.4 million years in the stone age, while others spent as much as 3.405 million years in the stone age. There doesn't have to be an explanation for that beyond "random variance among isolated populations"."

^ This.

"The reason we've sent men to the moon and orangutans haven't is that our ancestors got the lucky mutation and theirs did not. Europe and China got the lucky memetic mutations and Africa and the Americas didn't."

And . . . this is where you lose me. I don't think we actually need any biological differences in order to account for the differences between different civilizations given your first observation. In the broad perspective, there just isn't *that* much difference to be accounted for that we would need to refer to some fundamental genetic difference to explain it.

[Dan Bongard]

I said "memetic", not "genetic".

[OldMexican]

Stop arguing with the Marxian. You only encourage him.

[Suthenboy]

That it relieves non-western cultures of responsibility for their own conditions by claiming they are all victims of circumstance? That it hand-waives away credit to those responsible for the greatest innovations, inventions, and ideas in human history?

Just spitballing here.

[AlmightyJB]

Yeah, I think with a lot of these kind of wide reaching sociologist/history books, the authors tend to bake a lot of their conclusions into their premises so when they get through their logic low and beyond guess where they get to. It's always pretty arrogant to think you can so simply explain such complex history with a few bullet points. I did thing he had some interesting observations though. He just gave he's ideas too much credit and therefore ignored so many other contributing factors.

[*GILMORE*]

I read the book and didn't find anything objectionable. I thought his analysis of New Guinea cargo cult-ism was interesting.

When the book was made into a documentary (or mini series?) i thought the producers tried to stretch the points of the book in ways that the book itself didn't support. Basically, made it more of an sob-story about how underprivileged cultures are doomed to get stomped on by technology and capitalism, etc. I think his subsequent (collapse) book went more in that direction, but i never read it.

[Tonio]

I couldn't make it past the foreword, which consists of Diamond's preening about how very, very smart he is and about how the book is not a racist history. By the latter, he means that all the technological advances were due to fortuitous advantages of geography and natural resources.

[Knarf Yenrab!]

If we want to get really meta, I suppose Newton only became Newton because he didn't starve to death as an infant or die of some horrible disease at the age of two.

I don't mind the environmental explanations for the dominance of western civilization or the rise of Buddhism or the cross-fertilization of ideas that emerged within ancient, autonomous city states. They're explanatory, and it's only an error if you transform them into a political football for the dimwitted (which will happen, of course, like everything else).

[Warty]

The only work of Diamond's I've ever read was The Worst Mistake in the History of the Human Race, which I thought was interesting enough, but not really something that you can base much on.

*I can't believe I'm typing out HTML like a chump.
**Come to think of it, does Bo's refusal to learn how to do simple HTML tags strike anyone else as very much the same thing as Tulpa's "text parsing is simple" retardation?
***Fuck Tulpa.

[Cream of Tulpa]

Address parsing, not text parsing.
And it's not similar at all.

[Brandybuck]

Unrelated, what gripes do libertarians have with Jarod Diamond's thesis in guns germs and steel?

Pop anthropology. Other than lacking evidence that his thesis holds water, I find the narrative somewhat convincing (although a bit simplistic).

[Circle (formerly Square)]

I've never called myself a libertarian, but here's my take, although I didn't read it because I found the thesis reductive when it came out, as it didn't place any weight on either modern banking practices or innovations in navigation, which were probably the two biggest immediate real-world factors in the economic rise of Europe.

The successes in the New World were at times simply coincidental ? the Aztecs were in decline when the Spanish showed up, for example. The English East India Company simply laid in wait while the Indian and Chinese monarchies collapsed and insinuated themselves into them.
Europe simply played the role the Greeks did as the Persian Empire receded, the Romans as the Greek kingdoms receded, the Arabs as the Roman Empire receded, etc.

Diamond makes the classic mistake of attempting a deconstructive reversal and only getting halfway there. He tries to do a narrative of history that is not Euro-centric, but simply flips the same racist narrative on its head and argues that Europeans are uniquely *inferior* rather than uniquely superior, when actually the incremental advances that led to modern European hegemony were hardly earth-shattering ? just well timed.

[Limpee Wiltstock]

I think one could argue that the Europeans differed from everyone else in actually making a persistent, concerted effort at attaining hegemony. I don't see that coming out of any place else. Even the ancient Romans didn't really have the same drive we see arising in Europe during the Middle Ages, and other cultures clearly value symbolic gestures of authority over actual influence in matters relating to trade or the exploitation of natural resources. I think it all goes back to the Danelaw and it's deputies, a cultural not a genetic or environmental matter. It's how the Scandinavians resolved the basic conflict of chaos and cosmos, which is handled some way by every culture. To their own minds, the Danes were investing a world of disorganised barbarians who bumbled around meaninglessly and wastefully with order and meaning and purposefulness. Since then, every European power of broad influence has imagined itself to be bringing order and enlightenment to an impoverished, depraved world, and seeing that all the precious resources of the world are rightly used and not gone to waste.

[Limpee Wiltstock]

Eliade made the point that a cultural archetype (by which he meant a sort of ideal habit of behavior, by which people could be oriented and know how to act) could arise in any number of ways, but that this was not important; what was important was whether or not it made the people who employed it successful enough that it was propagated and diffused to other cultures. So the question isn't what factors led to Europeans acting in this manner, but what is so advantageous about acting this way that European cultures that do it have survived while those that did not have not and that it has been taken up in part by everyone who comes in contact with the successful European cultures. I believe this is also in line with Skinner's version of cultural selection by consequences (though he ended up carrying it to an extreme of absurdity).

[HazelMeade]

A minor point but Europe's drive for hegemony actually derives from the Roman Empire, because after the Roman Empire fell apart all of the pieces kept fighting to put it back together and all the monarchs wanted to declare themselves Emperor.

[commodious spittoon]

The face of conservatism, at least for this month, ladies and gentlemen: not a baker being railroaded by extralegal social censure and death threats, but a government employee who threw a hissy fit rather than resign in protest.

[Illocust]

Resigning in protest would have accomplished nothing. Letting them throw her in jail is forcing the legislature to consider ways to hand out licenses without violating people's beliefs.

[paranoid android]

Resigning in protest would have accomplished nothing. Letting them throw her in jail is forcing the legislature to consider ways to hand out licenses without violating people's beliefs.

There were already several deputy clerks perfectly willing to not be assholes and give out the licenses, and if Davis had simply let them do their jobs, none of this would have happened. Her tantrums and dubious legal reasoning about how all licenses require her personal consent and not allowing her deputies to fulfill those duties are the reason she's in jail, not any actual violation of her beliefs.

[SugarFree]

Her tantrums and dubious legal reasoning about how all licenses require her personal consent

This is not dubious. I don't care about her religious nonsense, but the deputies can give out licenses, but they are still issued in the clerk's name. I've seen no confirmation if the licenses are currently be issued under her name or the County Judge Executive as would be legal while she was absent. (And presumably no long so now that she is not langer absent.)

And, no, Illocust, the legislature is not considering anything. They are on recess until January.

[SugarFree]

(And presumably no long so now that she is not langer absent.)

Wow, that's a shitty sentence.

(And presumably that is no longer legal now that she is no longer absent.)

[Almanian - I Hardly Knew Her]

"I'll have what he's having..."

[Limpee Wiltstock]

What the fuck is your problem? Let's just be a bitch about everybody fucking it!

[paranoid android]

According to a footnote to the order releasing Davis:

While the Status Report reflects that Plaintiffs' marriage licenses have been altered so that "Rowan County" rather than "Kim Davis" appears on the line reserved for the name of the county clerk, Plaintiffs have not alleged that the alterations affect the validity of the licenses. Nor do the alterations impact the Court's finding that the deputy clerks have complied with the Court's Order.

Since the deputy clerks are indeed legally enabled to issue the licenses, the only question is whether it's illegal for the deputy clerks to issue licenses while the county clerk is stamping her foot and saying they shouldn't be doing that, but I see no reason to believe that's case.

[creech]

But sooner or later one of the couples married with such a license is going to contest it when the relationship sours.

[HazelMeade]

I'm curious to see what will happen when one of these couples gets married, files the license, and requests a marriage certificate. Is she going to throw another hissy fit because the marriage certificate has her name on it?

[Just say Nikki]

The state can't do anything without violating people's beliefs.

[Hugh Akston]

Or without violating people.

[Dan Bongard]

She took an oath to obey the Constitutions of both Kentucky and the United States, the latter of which does explicitly note that the Supreme Court is the highest court in the land.

There was no "unless my religious beliefs conflict with my duties, in which case I won't bother carrying out my duties but will keep cashing my paycheck while citing no authority other than 'God' for my actions" clause in that oath.

[Knarf Yenrab!]

I missed the part in the Constitution where the federal government possesses the power to define the nature of civil marriage.

I even took out my magnifying glass and stared long at hard at the really tiny text at the bottom of the 10th Amendment, but it's basically just a giant smudge that looks an awful lot like "klaatu barada nikto" to my untrained eye.

[Knarf Yenrab!]

Actually, now that I look at it again, I'm pretty sure it's "necktie."

[Paul.]

How many couples got the Mother's Milk of a waiting period before committing themselves to marriage?

[Almanian - I Hardly Knew Her]

It wasn't enough time, the fools. They'll learn the hard way, just like the rest of us. Poor, dumb bastards...

[The Last American Hero]

Key and Peale did an excellent send up of this.

[Almanian - I Hardly Knew Her]

Yes! I am very familiar with Keys and Peeles work - they are my JAM!

[Tonio]

Perhaps some of those couples had been waiting a long time, years in fact.

[Paul.]

You know who else turned the refusal to issue licenses into an indefinite waiting period?

[Illocust]

If the licenses require her name on them to be valid, and her name was placed there against her explicit wishes, then the licenses are invalid. The clerks handing them out are committing fraud by forging her signature without her approval. I imagine the judge is going to suddenly find a reason not to enforce the laws, though.

[paranoid android]

If the licenses require her name on them to be valid, and her name was placed there against her explicit wishes, then the licenses are invalid.

This should explain why this line of reasoning is completely wrong:

http://balkin.blogspot.com/201.....whats.html

[paranoid android]

It should furthermore be noted that the licenses currently being issued *do not* have Davis's name on them, but the actual name of the clerk is not a required element for the license to be valid.

[IceTrey]

"Any clerk who knowingly issues a marriage license in violation of KRS Chapter 402 shall be
guilty of a Class A misdemeanor. Any clerk who knowingly issues a marriage license to any
persons prohibited by KRS Chapter 402 from marrying shall be fined $500 to $1,000 and
removed from office by the judgment of the court in which convicted (KRS 402.990)."

Prohibited marriages
http://www.lrc.ky.gov/statutes.....x?id=36466

Penalties
http://www.lrc.ky.gov/statutes.....x?id=36498

[Tonio]

Wait, I was frequently informed on this very blog that there were no actual criminal penalties for gay marriages, only penalty-free prohibitions against them.

[kbolino]

The penalties in question apply to clerks of the court acting outside of their authority, not to gay couples seeking to be married.

[DesigNate]

Shh, don't harsh Tonio's buzz.

(Just joshing you Tonio)

[paranoid android]

Well, per Obergefell, any of the prohibitions under that law that would apply here (i.e. those based on sex) are unconstitutional

I could see a colorable argument that Obergefell has created a contradiction that can only be resolved by the legislature revising the statutes, meaning that nobody would be able to get married in all of Kentucky until new laws are passed, but have Davis's lawyers ever made that argument?

[Tonio]

No, they haven't.

Also, as pointed out by someone else, it's not like the decision was a surprise, or unforeseeable.

[jesse.in.mb]

Ah, now we're concerned about enforcing laws?

[Almanian - I Hardly Knew Her]

JUST the ones we want, jesse. Just the ones we want.

[Illocust]

Equality of enforcement. I've got no problem with Kim going to jail for refusing to hand out licenses, but bad laws mostly get by because they aren't enforced on 'good' people.

[jesse.in.mb]

Wait, what's the "bad law" here? It doesn't sound like KY is planning to end state issuance of marriage licenses over this.

[Illocust]

General principle as a preventive measure to bad laws, not specific instance of bad laws here.

[Tonio]

She was also refusing to issue marriage licenses to people who would have qualified (ie, opposite-sex couples) before those icky gays got all uppity.

[Illocust]

I'd heard that. How does that apply to my comment?

[Just say Nikki]

Has anyone claimed signatures were forged?

[Almanian - I Hardly Knew Her]

Some people who didn't think Shakespeare wrote his plays?

[Citizen X]

Hitler?

[Professor Woland]

There probably won't be a signature, documents recorded by the county have the clerk or recorder's name listed on a stamp. Also, to hell with this "against my beliefs" bullshit, she's being asked to hand out a government license, unless she thinks that the state is the equivalent of her Abrahamic god, then what's her fucking gripe? It's a civil marriage certificate, it's what makes you married according to the laws of the state you live in, I assume she doesn't think that it makes you married in the eyes of her deity. So her issuing a marriage license to two lesbians is no different than filing a deed when they buy a house together, it is a purely secular transaction. Fuck her. It's not good that she was thrown in jail for this, but she deserves no sympathy and she is not some fucking hero for freedom. Just because we dislike the proggies, it doesn't mean we need to twist ourselves in knots to justify standing up for their enemies.

[Fist of Etiquette]

It will be too late. The same-sex couples will have already consummated their marriages in the name of Kim Davis.

[Brandybuck]

So if the county clerk dies or is otherwise unable to perform his/her functions, no one is allowed to get married until such a time as a special election can be held? Dubious at best.

[Pl?ya Manhattan.]

I'm actually glad Huckabee hitched his wagon to this. He's gone from unelectable to completely unelectable.

[Paul.]

He stands by her conviction!

[Tonio]

Hah! Good one.

[Sapient Mulch]

I just wish Paul hadn't issued a statement of support.

[Sapient Mulch]

*Rand

[Paul.]

Phew!

[Almanian - I Hardly Knew Her]

*pats Paul in the shoulder*

[Tonio]

Hey, Sappy, in case you're still reading - welcome aboard. You've done an admirable job defending transgender rights against the screechy socons here. In recognition of that, and because no good deed goes unpunished, I'm going to pass the torch (as it were) to you.

Still got your back, dude, but I'm letting you take point on all things TG.

[Another David]

If there's one person who deserves a "gone from suck to blow" reference, it's him.

[Trump-o-Matic 5000]

NEEDZ MOAR KULCHER WOR!!!11!!!!1111!

[IceTrey]

So the only way to get rid of an elected official who refuses to do their job is impeachment or recall election. What if tomorrow she just fires all the deputies, locks up the office and walks away?

[AlmightyJB]

What if all government officials did that?

[IceTrey]

The people who post here would be super happy?

[Almanian - I Hardly Knew Her]

What if everyone put forth questions like this? What if they weren't named "Judge Nap"? What if everyone thought logically, and not so emotionally? What if Kim Davis were a hotty instead of a notty? What if Kim Davis were a Republican? What if Kentucky decided that it wasn't in the marriage-license business any longer? What if your aunt were really your uncle? What if....

[IceTrey]

It is super funny that she's a Democrat.

[DesigNate]

I love that that isn't being discussed at all.

[Limpee Wiltstock]

"It is super funny that she's a Democrat."

And a serial adulteress.

[Illocust]

She'd be exercising the powers granted to her by the voters, and it would be up to the legislature to call for a new vote to make sure this is what the voters really wanted (odds are her voters approved of what's going on).

[SugarFree]

Only impeachment in Kentucky for county court clerks.

[Mike Moffit]

Apparently a federal judge can also simply declare that the elected official's assistants can do the job and the official can't question their authority to do so. Where that's in the law I don't know.

[IceTrey]

Well there is this:

KRS 402.100(1)(c)

(1) A marriage license which provides for the entering of:

(c)The date and place the license is issued, and
the signature of the county clerk
or deputy clerk issuing the license

So it seems deputies CAN issue marriage licenses.

[Paul.]

Serial question, is the guy in the straw hat and overalls the gay man waiting for a license?

[Sapient Mulch]

Her bodyguard? Her 4th husband? Waldo Jim Bob?

[Fist of Etiquette]

It's Huckabee's Secret Service detachment. Even they know he's never going to be president.

[AlmightyJB]

The soil of a man's heart is stonier, Louis. A man grows what he can, and he tends it. 'Cause what you buy, is what you own. And what you own... always comes home to you.

[Almanian - I Hardly Knew Her]

So what you're saying is - if you love something, set it free. If it don't come back to you, hunt it down and kill it.

Right?

[AlmightyJB]

I'm saying Sometimes dead is better.

[Rhywun]

Ayuh!

[Limpee Wiltstock]

Or Grace Slick, "And if, you see, you think that woman is going to leave, you can follow her, but she's already gone."

Between Grace Slick, Donovan Leitch, and Irving Berlin, there's always a bit of wisdom to guide a person steady through any troubles.

[IceTrey]

That's Kentucky formal wear.

[Almanian - I Hardly Knew Her]

He's ready for a Waffle House wedding.

[MJGreen - Docile Citizen]

Alt-alt-text: FREE AT LAST!

[R C Dean]

Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.

I thought she was refusing to sign marriage licenses. If her signature isn't required, its all good, I guess.

If it is, then I wonder if refusing to sign is "interference" with the deputy clerks.

[IceTrey]

She is allowed to designate her notary powers to a deputy.

[Mike Moffit]

So is refusing to designate those powers considered "interference"? Is continuing to claim that the licenses are invalid "interference"?

A few years ago we were all tied up about inactivity being considered interstate commerce by federal judges; soon we'll see if federal judges also consider inacitivty to be interference.

[The Last American Hero]

If she tries to grab the clerk's arm before he can grab the pen to sign the license, it's interference. If she faces the pen and puts herself between the pen and the clerk, she is allowed to try to get the pen herself.

[Dan Bongard]

The norm in offices like this is for lesser clerks to "affix" the clerk's signature with a stamp or pre-printed form. It saves your top official from having to spend 100% of her workday frantically signing bits of paper.

Since the clerks are legally allowed to (legally required to, in fact) issue licenses to legally qualified couples, there's no need for her involvement at all. She chose to insert herself into a process that would have worked just fine without her.

[JW]

Did she pick up hubby #5 in the slammer?

[Fist of Etiquette]

IT'S FINE AS LONG AS IT'S A DUDE.

[JW]

Wait, what if it's a dude who's now a woman? Or a woman who's now a dude? Which one is allowed?

SO CONFUSED.

[Limpee Wiltstock]

Or a dude who identifies himself as an eight year old hindoo girl?

[jesse.in.mb]

I think it'd just be hubby #4 since her second and fourth marriage were to the same guy.

[Limpee Wiltstock]

WRONG.

My grandparents were married six times, three times to each other, and each time they remarried, the ordinal was incremented!! No matter t'om it was!

[junyo]

I really hope Ms Davis goes on a country wide - Hiding From Signing - tour, citing Jesus and those brave Wisconsin legislators who fled the state rather than grapple with reality or their sworn duty as her inspiration. This is what democracy looks like people! And please, let ALL the GOP candidates ride shotgun.

Meanwhile, I hope every progressive nitwit on Facebook who believes in crystals, continue to post infographics about how Jesus would have loved the gays and 'West Wing' clips to "prove" how awful everyone who isn't them is.

As that happens, i want the leading candidate for Leader of the Motherfucking Free Motherfucking World to continue to be a man with a weasel on his head, an avowed socialist, the former lackluster POTUS fucker, former ineffectual SecState - and in any sane universe, convicted felon - that is Hilary Clinton.

[Tonio]

Did junyo get in to Agile's stash, or is he always that way?

[Limpee Wiltstock]

There's a motherfucking "Christian Church" here that's got a sort of thrift shop, that gets robbed pretty much every Saturday, but that's beside the point. I was down there onced and arsked one of those silly girls how she's doing, and she says, "I'm doing great! Bathed in the blood of Jesus!" I was sort of awed. Since then I've employed that as my default answer whenever anybody comes arsking me how I'm doing.

It's a tricky thing. One time they refused to sell me a bottle of sake at Safeway on account of that when the clerk arsked me, "How you doing?" I said, "Regular." It was straunge. I got to checkout, she arsks me this question, I answer, she pauses a mo, then says she doesn't feel comfortable selling to me. I say why, since that's a crasy thing to tell someone. At first I guessed it was a rape thing. But she says based on my answer to her question that I musb intoxicated. Also, because I had on dark glasses, and I wasn't smiling. So I say, okay, and walked out. As I'm leaving, she's shouting, "It's the law!" at me, really vehemently, which was odd, since I never disputed nothing, but just said okay and left.

[Limpee Wiltstock]

Later my wife went in and tried to buy a bottle of sake. They wouldn't sell to her because they said she might give it to me. This seems commoner all the time. Not this in particular, but people freaking out because someone or other doesn't speak or act according to some script that everyone else is following. I used to walk around town all the time. I gave it up last year because it got too fucking hard getting razzed all the time. Women get in the cars and drive up to me, even though I'm only a few score feet away, and then demand to know what I'm doing walking on the street. One time it happened only a block from the edge of my property! It's always women, or else, a couple times, peace officers. Regular men don't come up and say, "How dare you walk on the street!" The attitude is that it's no longer normal to just walk around the neighbourhood to look at things and get some exercise. One only walks if he's going somewhere or walking in a designated trail, and these days everyone fucking drives everywhere. I remember when a person didn't drive unless it was too far to walk; gas was too expensive. Now it's ten times as high price and everybody drives every fucking where. What in hell is going on?

[Limpee Wiltstock]

Akk and peace officers always put it as, "Can I help you with something?" I tell you the easiest way to get rid of him. Say, "Oh yeah, there's this dog been getting in my chickens. I'm trying to track it down..." start describing it and saying where you seen it and arsk if he can help you looking for it. Works every time. Usually not very far into it, he comes up with some reason he got to be on his way, and scurries off. Never had one say, "Oh yeah? Let me give you a hand with that!".

[Limpee Wiltstock]

Then guess what I get a new neighbour a few months ago, and yesterday his kids wander in my back yard, which takes going all the way around and through a gate to do, and they're fucking around back there and one of them comes up the porch, opens the door, and wanders in the house, looking around. What the fucking hell is going on with people? And he can't keep the kids in his yard. He can't keep them out of my yard, despite the lengths they got to go to get in it, and he can't keep them out of my fucking house. But he can somehow make sure they never gets on a bicycle without a fucking helmet! I've seen them a-bicycle numerous times. Never have I seen one dare to go acycling without a helmet on. Bloody fucking hell. Something's wrong with people. Everybody looking at me. I can't fix it. Cocksuckers?

[Fist of Etiquette]

Furthermore, he ordered the deputy clerks under Davis to file a report every two weeks to let him know they're complying with the order to hand out marriage licenses.

Oh, I have a feeling the judge wouldn't have to wait for any report to find out.

[Palin's Buttplug]

Someone ought to name a buttplug after her.

[Bobarian (Would Chip Her)]

Well ? whose fault is that, exactly? It was widely?extremely widely, even among conservatives?predicted that the Supreme Court decision would come down exactly as it did.

To be fair to the KY legislature, they would have needed to call a special session to make these changes, and the Governor has blocked their attempt to have that session.

"The Kentucky legislature convenes in regular session on the first Tuesday after the first Monday in January for 60 days in even-numbered years and for 30 days in odd-numbered years. It convenes in special sessions at the call of the governor."

The Gov is denying the session based on budget.

[Notorious UGCC]

Oh, look, I just noticed another angle of this case:

Davis' lawyers are saying that the judge *denied her the constitutional right to a trial by jury.* That claim is at pp. 9-10 of this brief (page numbers at bottom of page).

tldr version: There are two types of contempt, civil and criminal. Civil contempt is tried by judge alone, criminal contempt has a jury if (as here) the sentence is over six months (an indefinite sentence is over six months).

Davis' lawyers say the judge started these proceedings on the assumption that they would be criminal in nature, and at the last minute switched to calling it civil contempt. Also, the judge indicated that the purpose of the proceedings was not to obtain relief for the plaintiffs (who IIRC didn't even ask for a prison sentence) but to vindicate the authority of the court. Vindicating judicial authority is the job of *criminal* contempt.

OK, then, this seems to me like a serious issue - someone convicted of a crime and sent to prison by a judge alone, without the benefit of a jury of her peers.

There's a lot of talk here about judges interfering with juries by denying them the right to render verdicts according to conscience. Well, it seems we now have a way for judges to do an end-run around this problem: Don't have a jury at all!

Thoughts?

[Lee G]

Total shitshow.

/thoughts ended

[Notorious UGCC]

OK, but what about the right to trial by jury?

[Illocust]

Don't know if enough about the difference between the two to say, but I wouldn't be surprised. This whole hubabaloo has been running on pissed off people being furious that someone wouldn't follow their orders. That kind of environment often leads to willingness to stretch, bend, and break rules to enable punishment. I could especially see it if the judge was worried a jury would have agreed with the clerk.

[Notorious UGCC]

"I could especially see it if the judge was worried a jury would have agreed with the clerk."

Here, I think, we come to the crux of the issue.

75% of Kentuckians voted that the government could only recognize man/woman marriages.

This is the pool from which they're going to get 12 jurors to unanimously convict Davis?

No, the judge doesn't want to take that risk.

I thought that in America *everyone* accused of a crime had the right to a trial by jury. This includes alleged pirates, accused terrorists, Mafia bosses, and all sorts of other people.

I bet we'd be hearing about it if some judge sent a Mafia boss to prison without a jury trial!

But apparently Davis comes within the "icky" exception to the right of jury trial.

[Notorious UGCC]

"Don't know if enough about the difference between [civil and criminal contempt] to say"

Don't feel bad, I'm not sure *anyone* is fully sure of the difference. It's a famously ambiguous issue.

But this situation looks more criminal than civil to me.

[paranoid android]

Two minutes researching the issue produced this:

Contempt of court is considered a prerogative of the court, and "the requirement of a jury does not apply to 'contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States'"

- United States v. Barnett, 376 U.S. 681 (1964)

[Notorious UGCC]

I'm afraid you cited an outdated source.

The rule today is that unless the contempt is "petty," it must be tried by a jury.

http://ow.ly/RWZ0w

The only petty contempts are those which get punished by six months or less. Here there was an indefinite sentence which could have extended to 2019 or longer.

[Notorious UGCC]

This doesn't apply to civil contempt - there need not be a jury even if the person is detained for years. But I explained the factors making the Davis case criminal contempt, not civil.

[Notorious UGCC]

An up-to-date discussion of these issues:

http://www.bafirm.com/publicat.....-of-court/

[paranoid android]

It's your claim that this is criminal contempt that is mistaken. Davis was only in jail because she failed to comply with the court's order, which falls under civil contempt. Based on my reading, "Criminal contempt" only applies when the court is punishing you above and beyond attempting to make you comply with the order you are disobeying--so you're punished anyway even if you end up complying with the order eventually.

[Notorious UGCC]

See the link above. As Davis' lawyers point out, (a) the judge started off the contempt proceedings under the assumption that they were criminal, purporting to change his mind later, and (b) the judge indicated clearly that the sentence served the criminal-contempt purpose of vindicating the court's authority, rather than the civil-contempt purpose of providing relief to the plaintiffs.

[paranoid android]

From your own link:

The court, for instance, explained that a contempt sanction is civil if it is "intended to be remedial by coercing the defendant to do what he had refused to do."

and

In contrast with the purpose of a civil contempt sanction, the purpose of a criminal contempt sanction (e.g., an unconditional and determinate period of imprisonment or a fixed monetary fine) is to punish the contemnor and vindicate the authority of the court. Consequently, criminal contempt is punitive in character.

and

The revised analysis adheres to the following premise: if the contemnor is given the opportunity to purge him or herself of the contempt by complying with the violated court order, then only the Protections of a civil proceeding are required

[Notorious UGCC]

From Davis' brief:

"Even though the district court rejected notions that it was holding a criminal
proceeding...at the very
outset of the contempt hearing, and throughout, the district court repeatedly cited the
criminal contempt section (18 U.S.C. ? 401) as the authority for its contempt
proceeding.... The district court had pre-arranged for
each of the six deputy clerks of the Rowan County clerk's office to be appointed a
federal public defender under the federal Criminal Justice Act....Furthermore, the district court stated that "This case, at its core, is about individuals following the Court's order."...But it was an emphasis on "compliance" without also determining that the
licenses being ordered without Davis' authorization were even lawful. This calls into
question statements that the district court intended only to issue a remedial order and
coerce compliance (as in a civil contempt proceeding), and instead suggests that the
district court sought to vindicate its own authority and punish Davis for past actions.
Thus, Davis is entitled to heightened due process, which she did not receive."

[Notorious UGCC]

There is arguably precedent that the U.S. Supreme Court may allow *state* judges to get away with that kind of thing. Not that the Supreme Court was right.

But as the supervisor of the country's federal courts, the U.S. Supreme Court should certainly insist on higher standards - specifically, that a judge can't play bait and switch by telling you it's a criminal proceeding with all the protections thereof and then - surprise! - telling you it's civil after all, so off to prison with you.

[Cream of Tulpa]

The judge was totally in the wrong, but the only people who can check and balance a sitting federal judge are other federal judges, who are unlikely to be enthusiastic about limiting the power of federal judges.

[Notorious UGCC]

There we go.

The federal judiciary has every motive to expand civil contempt beyond its proper boundaries, so that pesky juries won't get between the judge and his prey.

[paranoid android]

So fucking what? Davis's lawyers can claim in a brief that the judge's orders are invalid because he's an alien lizard-man, that doesn't make it a valid legal argument. Everything about the order and Davis's violation of it appears to be textbook civil contempt.

At the very worst there's a minor procedural technicality here, and who knows, maybe an appellate court will agree.

But admitting that fact wouldn't feed your insatiable victim complex, so I'm not surprised you went with the "liberal usurpers conspiring to destroy Christian America" narrative like you always do.

[Notorious UGCC]

Wow, your handle sure is accurate!

I don't think a judge playing bait-and switch games is "a minor procedural technicality," especially when human liberty is at stake.

If the judge says he's proceeding under a criminal statute, he should be held to that, and should recognize the rights of the criminal defendant.

[Notorious UGCC]

"liberal usurpers conspiring to destroy Christian America"

The eddie in your head sure sounds as paranoid as your handle.

The *real* eddie, meanwhile, believes the government is pretty much violating *everyone's* rights, including of course many Christians.

[Notorious UGCC]

Seriously, would you think it was a minor procedural technicality to be charged under one law and suddenly get convicted under another law?

If you're going to convict someone in a civil-contempt procedure, you should first alert them that civil-contempt proceedings have been commenced, you know, to allow time to prepare a proper defense. You can't just start a criminal prosecution and at the end simply declare, "oops, never mind, all along I was doing a civil contempt hearing and I send you to jail!"

[Notorious UGCC]

I mean, you *can,* because you're a judge, but you *shouldn't* be able to do it.

[paranoid android]

From the brief:

Even though the district court rejected notions that it was holding a criminal
proceeding, R.78, Contempt Hr'g, PgID 1596, 1610, 1654, 1656, 1715, at the very
outset of the contempt hearing, and throughout, the district court repeatedly cited the
criminal contempt section (18 U.S.C. ? 401)

This is wrong, by my reading. Section 401 simply defines "contempt" , and defines it thus:

A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as?
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

Section 402 defines "contempts constituting crimes" and specifies:

This section shall not be construed to relate to contempts committed...in disobedience of any lawful writ, process, order, rule, decree, or command...

In short: Davis's conduct falls under section 401 but specifically section 402; it's contempt, but not contempt constituting a crime. The court cited section 401 because that is the relevant section of the penal code for defining both civil and criminal contempt. If there is some completely different section of the U.S. code that deals with civil contempt, please cite it.

[paranoid android]

Correction to the above: "...under section 401 but specifically NOT section 402..."

[Notorious UGCC]

Section 401 says "punish by fine and imprisonment" - you're saying that's civil?

Section 402 provides for jury trials in certain types of criminal contempt - this goes back to 1914, before jury trials were recognized as a constitutional right in criminal contempt cases. Thus, to protect that right, it was necessary to go to Congress and get a statute passed, and that statute was riddled with exceptions, etc., etc.

Seriously, anyone who is interested in this subject can learn about it. Heck, even *I* was able to research it!

But the topic *does* require a bit of research.

[Notorious UGCC]

"This section shall not be construed to relate to contempts committed...in disobedience of any lawful writ, process, order, rule, decree, or command"

read the rest of the sentence, it has to do with proceedings brought by the U.S. government.

[kbolino]

If you want a criminal law analogy, she walked into arraignment and plead guilty. There is no proceeding to be had at that point. None of this blindsided her. The judge was not conspiring in secret then launched a malicious attack against her. He gave her an order, she refused to obey it, that's automatic contempt.

The question at hand is whether he had any power to issue the order he gave.

[kbolino]

The question at hand is whether he had any power to issue the order he gave.

Correction: Obviously, he had the power. The question is whether he had the authority to do it.

[Notorious UGCC]

Is this the "obviously guilty" exception to due process and jury trial?

A person could be caught red-handed with the body, and he's still entitled to a fair hearing.

No, Davis was entitled to either a jury trial or - assuming she was charged with civil contempt - entitled to be notified that civil contempt proceedings were being initiated and entitled to present a defense.

Apparently the judge allowed a shortcut where he started a criminal proceeding and then switched without warning to civil contempt.

[kbolino]

Look, I'm no fan of the inquisitorial feeling of this whole thing, but there is no violation of process here. She was given an order and she blatantly refused to comply. She has no defense to mount--she is (or at least was) unapologetic about violating the order. Yeah, the guy can be "caught red-handed with the body" but if he shows up to arraignment and says "I'm guilty" then the "fair hearing" is over and he goes straight to sentencing. You are skipping over that whole part where she tells the judge to his face that she won't comply.

[Notorious UGCC]

As I said, even the guy who was caught red-handed is entitled to a hearing on his guilt.

"She has no defense to mount"

She raised several defenses - the court didn't agree with them. But she mounted a defense. Before rejecting someone's claims, a judge has to follow due process.

[kbolino]

You are just repeating the same thing without bothering to respond to what I said. The court does not have to indulge your desire to ignore what it says. The question is whether it had any right to issue the order in the first place. If the order is legitimate, then nothing else matters.

[Dan Bongard]

Is this the "obviously guilty" exception to due process and jury trial?

She received due process, and told due process to go fuck itself. That's why she was jailed for contempt.

[Cream of Tulpa]

At the very worst there's a minor procedural technicality here, and who knows, maybe an appellate court will agree.

If a prosecutor changed his mind about what the defendant was charged with halfway through a trial, you all would be up in arms.

[paranoid android]

If a prosecutor changed his mind about what the defendant was charged with halfway through a trial, you all would be up in arms.

That is not analogous to what happened here.

[Mike Moffit]

Didn't you get the memo? Federal judges' orders are not to be criticized, questioned, or stalled upon under any circumstances. How that became the libertarian position barely a month after Woodchippergate, well I don't know the answer to that one.

[kbolino]

The two situations aren't analogous. Davis is a (state) government employee, while the editors of Reason are not. Furthermore, Davis's treatment follows directly from a Supreme Court decision (whether you agree with it or not), while the orders given to the staff of Reason were contradictory to established precedent concerning the nature of criminal threats and the suppression of speech.

[Dan Bongard]

Federal judges' orders are not to be criticized, questioned, or stalled upon under any circumstances.

It says a lot about the Davis case that her supporters need to lie about it to make her look sympathetic.

[Limpee Wiltstock]

My uncle made this argument when he got throwed in jail for a dispute with another driver in a drive-through bank. The sentence for the crime was a couple months, but all the contempt charges that got added on during the trial brought his stay in jail to nearly a year. So he argued such extensive punishment required a jury trial. The judge responded by giving another few more weeks in jail. Curiously, he was held in contempt when he complained the jail cells were too cold and arsked if he could be allowed a sweater.

Strange was when my father was threatened with being held in contempt, he responded saying, "All I have is contempt for this court!" and it was never brought up again. Motherfuckers. Clips of that interchange was put on the TV news a number of times, but my father's statement was always muted for some reason.

[Paul.]

I've really tried to not pay attention to this matter, but maybe someone with a poli-sci degree can hip me to the process here.

If someone in an elected position simply refuses to discharge the duties of their office, can they simply be removed from office by a court, or does that require a democratic process as well?

[Another David]

It generally (including in this case) requires impeachment, depending on the laws of the state in question.

[Mike Moffit]

Apparently a federal judge can simply declare that their assistants can take over the job, even if the state law controlling the office makes no provision for that.

Which means that Davis' imprisonment was simply a matter of punishment, and the "aw shucks the judge had no choice but to put her in jail!" claim that liberals and Reason writers were pushing last week was bunkum. Weren't we being told just a few days ago that there was no way to get licenses issued without forcing Davis to comply or resign?

[Paul.]

I believe one of the early Reason posts on this was one criticizing throwing her in jail.

Why can't she merely be removed from office?

At that point, her only method of fighting that would be to keep coming into work, no? I suppose some sort of changing of locks might be in order.

[Mike Moffit]

Maybe Valerie Jarrett and Rahm Emanuel would know some alternative means of resolving this little conflict.

[Notorious UGCC]

That's what it looked like.

I thought it was an apocalyptic showdown between Davis and the federal courts over the legitimacy of Oberdorfer.

Now it turns out that Davis would have no objection if her assistants could issue licenses on their own authority, without Davis' name on them.

So what is this all about, really? Are same-sex couples really sitting around saying, "we'd love to get marriage licenses from the county clerk's office, but only if the licenses have the name of some homophobic politician on them!"

[Tonio]

Mike, there is actually a provision in KY law for issuing licenses when the clerk is absent. And sitting in the slammer certainly counts as absent. Also, as clerk she probably rarely, if ever, actually issues licenses herself; the deputies do that under her (rubber-stamped) signature. Bottom line: not up for doing your job? Quit.

[Mike Moffit]

That's a pretty slimy way to do it. It would be like the Vice President drugging the President so he can act as President himself under the 25th amendment.

[Dan Bongard]

She broke the law, got sued, lost, appealed, lost the appeal, appealed again, lost the appeal again, and then told the judge she not only wouldn't obey the law, but would order everyone else in her office to ignore the law, too.

Then she got jailed for contempt.

What's "slimy" about that? The way you describe it sounds like she was calmly minding her own business and then got jailed to get her out of the way. The reality is that she had her day in court, lost, and decided to be a bad loser.

[Dan Bongard]

The other members of her office were able to take over *because* she was in jail and thus unable to order the clerks not to issue them, Mike. The law already provides for the issuance of the licenses; Davis has no role in the process unless she chooses to insert herself into it.

[kbolino]

Technically, Davis "has a role in the process" insofar as she is required by the law to ensure that all persons presenting themselves for marriage are eligible to be married under Kentucky law. There are people who can't be married legally: siblings, parents to their children, minors under a certain age, people who are already married, etc. What she doesn't have is a lot of discretion in the matter, but that is precisely what she is trying to exercise here.

[Dan Bongard]

I should have said "Davis has no discretion in the process", not "Davis has no role". She can either issue the licenses, or she can allow her underlings to issue the licenses, or she can break the law.

[IceTrey]

Deputies can issue licenses.

KRS 402.100(1)(c)

[tarran]

If someone in an elected position simply refuses to discharge the duties of their office, can they simply be removed from office by a court

What you are describing is a process of impeachment. The actual process varies from office to office. A judge simply can't fire and elected official.

In the case of the county clerk's office, the impeachment process is a vote in the state legislature.

So, Kim Davis is the county clerk until her term of office expires or she is removed from office by the legislature.

But that's a separate matter from the powers judges have to enforce their rulings. If a person fails to comply with a judge's order, that is contempt, and judges can jail or fine people in order to coerce their compliance. That's what is happening here. The judge is given a great deal of discretion in crafting the punishment. So the judge can choose to jail her and he can choose to fine her until she complies. There was a case of a man jailed for well over a decade for refusing to comply with a court order to disclose some financial information in his divorce.

This whole affair is a bunch of children in adult bodies throwing very public temper tantrums.

[Tonio]

^This. Also, she's grandstanding to feather her nest for the inevitable book deal, speaking tour, and guest appearances on talk shows. She only has a few more months before the legislature impeaches her, and no career possibilities after that. Remember, she was denying licenses to all...

[Paul.]

and no career possibilities after that.

Not even an AM talk radio show with her name on it?

[Warty]

She's gonna cash in so hard.

Taking a Stand: How Kim Davis Took on the Liberal Establishment...And Won
Fearless: The Kim Davis Story
No Further: Kim Davis's Fight Against the Elites Who Hate Her for Her Religion

[Warty]

Taking it Back: Kim Davis's Fearless Fight Against the Liberal Establishment That is Hijacking America

[Paul.]

Kim Davis: Ponytail Warrior

[Warty]

Cross to Bear: Kim Davis and her Battle to Restore a Christian America

[Rich]

Out of Wedlock: The Attempt to Destroy Kim Davis's Morality

[Notorious UGCC]

Doesn't it suck that Kim Davis conspired to get the Supreme Court to issue its Oberdorfer decision, then to have herself put in prison, all in a long-range scheme to put across her story in exchange for (shudder) money?

[kbolino]

Is there a reason you keep referring to the decision as "Oberdorfer"? The name of the petitioner is Obergefell.

[Notorious UGCC]

Sorry about that. One Kraut word sounds very much like another.

(I can say that because I have German ancestors.)

[Limpee Wiltstock]

or, DIARY OF A SERIAL ADULTERESS.

[Paul.]

So what if the legislature refuses to impeach?

And why, for god's sake is the county clerk an elected position? (suspecting Ms. Davis might have clarified that already)

So many questions...

[tarran]

Then she keep her job.

If the KY legislature feels she is doing an adequate job, then they don't impeach. If the voters approve of how she is doing her job, they may even reelect her.

I personally find the situation hilarious and depressing simultaneously. Hilarious in that so many people are having meltdowns as they witness the various institutions of the state puncturing the myths that the state is a benevolent expression of the peoples' will. Depressing that this is the issue that is exposing the sham - rather than some more worthy issue like the drug war.

Basically, people are more angry about gays getting married than their sons and daughters being locked up for smoking weed. I'm at the point where if aliens invaded and sought to ruthlessly subjugate humanity, I'd seriously consider supporting the aliens.

[Paul.]

Well said, I'm with you on this sentiment.

[R C Dean]

I'm at the point where if aliens invaded

Geez. Not every thread has to be an immigration thread.

[DesigNate]

Yes. It. Does.

Also deep dish is pizza.

[R C Dean]

So, any reason why the court couldn't order the legislature to impeach her, and, until she was impeached, jail anyone who didn't vote for impeachment?

[Dan Bongard]

Davis got into trouble because there is a federal law allowing lawsuits against any government official who uses her office to deny legal rights and privileges to others. Davis indisputably did that -- even the "gay marriage doesn't count" die-hards must concede that the *hetero* couples Davis denied were entitled to licenses under the law.

There is, so far as I'm aware, no federal law obligating state legislatures to impeach criminals. So no, the judge couldn't order the legislature to impeach her. He'll just lock her back up again if she continues her illegal behavior.

[Cream of Tulpa]

The fundamental right to marriage claptrap in Kennedy's decision is dicta and thus not binding on any lower court. It was unnecessary for the decision.

[Dan Bongard]

First of all, the right to marriage was recognized by the Supreme Court before Anthony Kennedy was born.

Secondly, Davis' actions would have been illegal even if the Supreme Court had ruled against gay marriage, because Davis denied marriage licenses to *everybody*. She used her office to deny people that which they were entitled to under established Kentucky law. Doing *that* violated both the 14th amendment and the federal law passed to support it.

People keep making this about gay marriage. The truth is that Davis' actions were illegal whether you think the SCOTUS's gay marriage ruling is valid or not. She overstepped.

[kbolino]

The right to marriage does not imply the right to obtain a marriage license. As far as I can tell, that latter "right" was established by Obergefell.

[Dan Bongard]

The principle that governments may not require a license for the exercise of a right and then refuse to issue such licenses was established long before Obergefell. It is common sense, really.

[kbolino]

They will refuse to issue the licenses on all sorts of grounds, most of which are not under any meaningful challenge and would survive such challenges if they were to occur. Indeed, the entire purpose of the license is to deny it. The reasons under which the licenses can be denied or not are subject to the whims of the courts.

[Lord at War]

Go get a CC permit in any "may issue" jurisdiction...

[kbolino]

Go get a CC permit in any "may issue" jurisdiction

Indeed, and even "shall issue" jurisdictions have exceptions.

[Limpee Wiltstock]

that a license should be required to exercise a right flies in the face of fucking common sense first

[IceTrey]

In looking at the KY laws all her duties come with fines if not carried out, except marriage licenses.

[Warty]

At first, I was all like, this story is fucking stupid. But then I was all like, at least it got Trump off the news cycle. So...I'm still not sure if this caused a net gain or loss in national enstupidation. But fuck, this is fucking stupid.

[Cream of Tulpa]

This judge has discovered a great strategy. Next time Rand Paul filibusters against surveillance laws, just have a federal judge throw him in jail for contempt so the Senate can carry on with business. Now that we have a precedent for judges being able to create vacancies and absences in elected offices by [ab]using their contempt powers, the opportunities are endless.

[Warty]

Amazing insight, Tulpy-poo. Say, would you say you're more of a gigantic failure or a colossal idiot? Or maybe you're both. Are you a gigantic colossal idiotic failure?

[Tonio]

No, Tulpy-poo. Senators and congressmen have immunity for anything they do on the floors of their respective houses.

[Cream of Tulpa]

Technically, speech or debate are the only protected activities. And the contempt could be claimed for something else that happens outside the capitol.

[Warty]

That's really stupid, Tulpy-poo. Kind of exactly like you, come to think of it. Say, do you remember how you're a moron?

[Tony]

Fuckleberry saves the day again. They won! (Everyone tell them they won.)

[Dan Bongard]

Whether or not Davis obeys the order probably depends on whether she has a book deal and speaking gigs lined up yet or not. If not, she might need to arrange to be "denied her rights" a little longer first.

[William Pilgrim]

The cynicism is strong with this one.

[Dan Bongard]

I'm open to the possibility that she's going through this because she genuinely hates gay people for non-religious reasons. It is clear to me, though, that (a) she wanted to go to jail, and (b) her stated religious objections make no sense. For example, a Christian could defend denying licenses to gay couples on the grounds that it (somehow) prevented sin... but the fact that she was willing to issue the licenses if her name wasn't on them destroys that argument.

If there is a "go ahead and license sinning, but make sure your name isn't on the paperwork" clause anywhere in the Bible, I have yet to encounter it.

[Notorious UGCC]

Her other stipulation is that it not be done under her authority. Thus, if the power were to given to her assistant clerks, that power should be independent of her, not necessitating her approval.

[Dan Bongard]

It never required her approval in the first place. That's why she had to actively forbid her clerks from issuing the licenses.

[Limpee Wiltstock]

"a Christian could defend denying licenses to gay couples on the grounds that it (somehow) prevented sin"

Only if he's a mendacious jerk. There's no Christian doctrine by which the licensing of marriage may be defended, nor is there any by which the declining to give out licenses may be defended neither. The only argument which might be made honestly is a semantic one, which has no relation to Christianity. Certainly there are religions which might legitimately provide a basis for licensing or not licensing marriages, but Christianity is not one of them.

[William Pilgrim]

It is not mentioned in this article, but Huckabee has volunteered to serve any more prison time for the county clerk. He would do better in prison than at the next debate in terms of public perception of his campaign. But he might have trouble explaining how a thrice-divorced person might feel justified in forcing other people to conform to her religious views, when her last two marriage licenses could have withheld by a firmly Catholic clerk who saw her new marriages as illegitimate.

[Notorious UGCC]

"how a thrice-divorced person might feel justified in forcing other people to conform to her religious views"

The meme that could not die.

She doesn't want her name on the certificates, and she wants her deputy clerks, if they issue licenses, to act on their own behalf and not her behalf. That wouldn't stop anyone from getting a license.

But you'd think it was the Inquisition all over again! Because same-sex couples want the name of some "homophobe" politician on their marriage license, and they'll be disappointed not to get it!

And her conversion was *after* her serial marriages, so I suspect that part of the conversion process was giving up that sort of libertine lifestyle. And presumably she knows that messing with the institution of marriage wasn't all that good for her, so she won't help others do it, but she won't obstruct them, either, so long as her name and authority are removed from the process.

[kbolino]

Technically, it's her name, but the State of Kentucky's authority. An unenviable position, to be sure, but one she ran for election to hold.

[Limpee Wiltstock]

"But you'd think it was the Inquisition all over again!"

No, because the Inquisition was much more just and much more concerned with truth.

[Tony]

He's too fat to hang himself from a cross, I guess.

[Notorious UGCC]

I'm curious - what if the Supreme Court had gone the other way, saying there's no right to govt-recognized SSM, but Davis went ahead and issued gay-marriage licenses anyway, and then got sent to prison without a jury trial?

Would we still hear a lot of foaming at the mouth from people saying the [b-word] got what was coming to her?

[kbolino]

Would we still hear a lot of foaming at the mouth from people saying the [b-word] got what was coming to her?

If you're going to refer to the word, then use it outright. As it stands, you are trying to imply that others have called her a bitch, but you are too pious to repeat their malicious taunt. It is disingenuous in the extreme.

Setting that aside, it doesn't matter what the outrage machine wants. It is immaterial to the question of whether the SC had the authority to rule as it did in Obergefell and the federal court had the authority to order Davis to comply.

[Notorious UGCC]

"ABC'S 'VIEW' HOST MICHELLE COLLINS CALLS KY CLERK KIM DAVIS A 'BITCH,' 'MONSTER'"

http://www.breitbart.com/video.....h-monster/

[kbolino]

Who?

[pan fried wylie]

Some bitch, prolly.

[Tony]

I don't sense a lot of glee over her treatment. I for one bear her no ill will. She's a common bigot in a land of millions of them. Her only offense is ignorance (and contempt of court).

[OldMexican]

Re: Notorious UGCC,

Would we still hear a lot of foaming at the mouth from people saying the [b-word] got what was coming to her?

Well, she is a Demo-rat, so....

[R C Dean]

Well, I seem to recall that there were folks issuing gay marriage licenses when such licenses were illegal under state law.

I don't recall any of the usual suspects saying they should have been jailed, as such is the wages of civil disobedience.

I know, amazing, isn't it?

[Dan Bongard]

The folks who issued invalid gay marriage licenses ceased to do so when ordered to by the court. That is why they didn't go to jail. David broke the law, got sued, lost, and then told the judge she would ignore the result. That's why she went to jail.

Amazing, isn't it?

[Dan Bongard]

The most honest parallel would be this: the Supreme Court decision goes the other way, and Kim Davis reacts by refusing to license heterosexual or gay marriages in her county -- just like she did in the real, non-hypothetical world.

And the answer, of course, is that "Notorious UGCC" would be beside himself with rage at her flagrant defiance of the law. Because it is fine to ignore the law out of pique at a Supreme Court ruling, but only if you're on the right team.

[Notorious UGCC]

No, I've said (in other contexts) that anyone who believes that SSM recognition is a fundamental constitutional right should of course act consistently with that belief. In this case it means rejecting contrary Supreme Court opinions and following their consciences.

I think I've quoted Lincoln's First Inaugural and its passage on the Supreme Court often enough that you all should acknowledge I hold this view in every context.

Gay, straight, conservative, liberal - you don't have to take the say-so of the Supreme Court or submit to its constitutional interpretations.

The Supreme Court was never meant to be a Constitutional Magisterium. It certainly shouldn't be treated as such - by *any* part of the political spectrum.

Again, if you're convinced that the law of the land requires the government to recognize SSM, you should act accordingly and get your constitutional vision adopted.

People who fob off onto the Supremes the responsibility of defending the Constitution are leaning on a very weak reed.

[kbolino]

People who fob off onto the Supremes the responsibility of defending the Constitution are leaning on a very weak reed.

The Supremes do have the job of defending the Constitution. So do the other two branches. The problem is that the 14th Amendment is part of the Constitution. You can't get around the fundamental problem that the language of the 14A is overly broad. It was passed on a wave of moral outrage, having been written by the very unconservative faction known as the Radical Republicans. It was meant to cause problems.

[Notorious UGCC]

Indeed, and far from me to claim it has an obvious meaning or is self-interpreting. But the three key phrases of section 1 - guaranteeing due process, equal protection and privileges and immunities - all use language borrowed from elsewhere in the Constitution or from the Civil Rights Act of 1866. The implication is that the language refers to concepts already described in the law, applying these concepts to new contexts.

But regardless, the idea that you can come back 150 years later and suddenly discover that there's a right to govt-recognized SSM - this is *really* implausible.

[kbolino]

But regardless, the idea that you can come back 150 years later and suddenly discover that there's a right to govt-recognized SSM - this is *really* implausible.

Yet there exists a right to government-recognized marriage in the first place?

If you accept that premise, then you can ride the "equal protection" clause all the way to the bank.

1. Create a narrowly tailored law
2. Use the 14A to expand its scope
3. ???
4. Profit!

The repeal or clarification by further amendment of 14A is about all you can hope for at this point.

[kbolino]

Coincidentally, 150 years is also roughly the amount of time it took to discover the magical regulatory powers of the federal government hidden in the commerce clause. Intent is meaningless if you can't be bothered to put it in the text.

[Notorious UGCC]

"Coincidentally, 150 years is also roughly the amount of time it took to discover the magical regulatory powers of the federal government hidden in the commerce clause."

Are you saying SSM and the federal regulatory state as comparable constitutional developments?

Probably not, because you're for the former and against the latter.

[kbolino]

Probably not, because you're for the former and against the latter.

I thought you didn't like lying?

[kbolino]

Are you saying SSM and the federal regulatory state as comparable constitutional developments?

Maybe if you didn't impute motives you might be able to read plain English better. That is exactly what I said.

[Dan Bongard]

No, I've said (in other contexts) that anyone who believes that SSM recognition is a fundamental constitutional right should of course act consistently with that belief.

Yes, but you're probably lying.

[Notorious UGCC]

And what is it in your own consciousness which leads you to see dishonesty wherever you turn?

[DesigNate]

In what universe do you believe you're entitled to a jury trial after your appeals were smacked down and you told the court that you would IN FACT contemptuously refuse to follow its orders.

She was in contempt of court, there's no reason she should have gotten a jury trial.

[Notorious UGCC]

Heck, since she was so obviously guilty, why give her a trial at all?

This would actually be a wonderful idea - leave out the fuss and bother of a trial for everyone whose guilt is obvious.

[kbolino]

She had a trial. If there wasn't a trial then the judge wouldn't have been able to issue the order that she refused to follow in the first place. FFS

[Notorious UGCC]

I think you're confusing (a) the proceedings leading up to the injunction with (b) the hearing about whether she violated the injunction.

So again, unless you're positing a "she's obviously guilty" exception to the Constitution's fair-trial requirements, then she has the right to a hearing on any accusation that she violated the injunction.

And if the judge wanted to bypass a jury and use civil contempt, he should have made this clear when he started the contempt proceedings. Instead, he indicated he was proceeding criminally, then said "never mind" and acted as if it had been a civil proceeding all along.

He started a criminal proceeding - that was his choice. That choice carries with it certain consequences - in this case including the right to a jury, since the proceedings culminated in an indeterminate sentence which could have gone more than six months.

For the next round of contempt proceedings (if there is one), I'd say the judge should pick a story - civil or criminal proceedings - and stick with it.

[kbolino]

Civil and criminal contempt are distinct matters. The two can exist independently. Much as O. J. Simpson was acquitted of the murder charge but yet found liable in a civil trial, the judge can find that there is no criminal contempt but yet there was civil contempt.

Whether his exact actions constitute a process violation seems to be a question as yet unanswered by the courts. However, he has both the power to initiate criminal contempt proceedings and to find someone in civil contempt. From a legal perspective, he essentially did both. That the same "offense" triggered them is irrelevant, just as it was in Simpson's case.

Since you love playing games, I'm not making a moral equivalence between Simpson and Davis. I'm making a legal equivalence between the principles behind two well known cases, even if the exact circumstances are not equivalent.

The real question, which you keep evading for some reason that I don't begin to understand, is whether the judge had the authority to issue this order. Since that question gets to the heart of the federal-state relationship, Constitutional Law, and other legal matters, I'm at a loss to explain your refusal to discuss it.

[kbolino]

Well that ought to go down as a classic example of antecedent confusion. In the second paragraph, his/he refers to the judge, not O. J.

[Ken Shultz]

Has there been any indication that Lois Lerner will be going to jail for contempt anytime soon?

[Dan Bongard]

Have you sued her yet?