A note on Kentucky county clerk Kim Davis

Former Arkansas Governor and presidential candidate Mike Huckabee responds as follows to a federal judge’s contempt finding against Rowan County clerk Kim Davis:

Henceforth when I think of Gov. Mike Huckabee it will be as someone unfamiliar with the legal concept of contempt of court. Gabriel Malor has dissected Huckabee’s enthusiasm for a purported right to defy SCOTUS rulings.

Kim Davis purges the contempt if she either carries out her public duties or quits her public office. So she is not in jail for refusing to violate her religion, unless her religion requires her to keep her public job (cool religion!). And while the traditional contempt power of the Anglo-American courts does generate various disturbing results — jailing dads for breaking a court order to see their kids, for example — pressure to resign a public office rates, to me, fairly low on the scale.

Speaking for myself, if my lawyers encouraged me to commit contempt of court, I might begin to wonder whose side they were on. Kim Davis’s Liberty Counsel lawyers, of course, were at the center of the extraordinary Miller-Jenkins case, much covered at this site, in which a client not only defied a court order but kidnapped a child along the way. And from Michelle Meyer, professional obligations of lawyers counseling clients re: contempt. (N.B.: Staver says Liberty Counsel “would never counsel a client to violate the law.”)

Plus: As Chris Geidner notes at BuzzFeed, Kentucky does not provide for recall of county clerks or removal by the governor for official misconduct. And Carly Fiorina, grown-up in the room: “when you are a government employee, I think you take on a different role.”

P.S. In general, courts have a range of remedial options when faced with contempt, such as fines. Their discretion is bounded by various factors; for example, they are not supposed to resort to harsher remedies if milder ones would obtain compliance. Many of the comparisons being bandied about, by the way, involve officials who were defying some law but were not themselves personally under a court order not to do so.

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

And: Thoughtful Dan McLoughlin what-goes-around-comes-around on lawlessness, Kim Davis, and the pervasiveness of double standards.


  • The Kentucky clerk’s defiance points up the real issue: power. Let’s not pretend this is about law–the Supreme Court’s decision was lawless. So that pretty much negates the idea that we’re talking about the rule of law here. The idea here, it seems to me, is that the Supreme Court gets to be lawless and the machinery of government makes it so everyone else has to listen. That works–until it doesn’t.

    Courts overreach all the time. Ultimately, if it gets out of hand, there will be a reaction, and that reaction could spell the end of “judicial supremacy.” People right now (Obamacare) are being taxed not because Congress said so, but because Obama said so, and the Supreme Court let him. From the standpoint of liberty, that is an intolerable state of affairs not made any more tolerable because some judges said so.

    • By definition SCOTUS’s decision was not lawless. Unless you are conceding that Citizen’s United or Bush v. Gore are also lawless decisions.

      • Um, the Constitution that once sanctioned the punishment of consensual sodomy with death now, in the absence of amendment demands that society recognize relationships wherein sodomy is practiced.

        I’m not religious in the slightest, and I am a lifelong urban dweller so the SSM thing isn’t an issue for me at all. But the Supreme Court’s decision is naked ipse dixit. When power to say so becomes the Court’s calling card, it cannot complain when others do what they can to thwart judicial overreach.

  • First logical appraisal of this story I’ve seen. Great read, Walter.

  • “Because some judges said so?” Your comment pretty much negates the idea that you have any idea how the government works and should work in a FREE SOCIETY. Here’s a hint: separation of Church and State specifically refers to illegal theologically driven laws and actions like this County Clerk which is an abuse of her authority. Note that she was elected, but is not performing her elected duties. Your argument is basically that she can choose not to issue documents because a Flying Spaghetti Monster told her not to. Sorry, she’s defying multiple courts (the lower courts, the Federal courts, the SCOTUS, and now she’s getting exactly what the law prescribes: punishment for being a DICTATOR. Because only a dictator uses their religious beliefs to deny others their due process or civil rights. The fact that she’s still being PAID for violating multiple court orders means she is a lying hypocrite.

  • I think it’s also relevant that they offered her a deal to allow her deputies to issue licenses, if she personally objected to doing so. She was not trying simply to avoid performing an obligation she found violated her religious beliefs; she was actively trying to impose those beliefs on others, in violation of the law. You just can’t do that.

  • I just mentally replace “refuse to issue marriage licenses to couples of the same sex” with “refuse to issue marriage licenses to couples of different races” and it’s pretty obvious which side of history Kim Davis is standing on (and who’s she standing next to).

    Davis already has a perfectly valid way to express her religious beliefs: resignation.

  • I can’t help but feel both sides are looking to stir this pot. I agree the license should be issued, she doesn’t get to choose which laws she follows based on her belief. If you can’t follow them all it time to look somewhere else for employment.

    At the same time, why keep going back to her for the license. Any county in KY can issue the license, correct? If the issue is about getting married then get it somewhere else and be done with it. If the point it to rub her nose it it, well…

    Personally I would just do the license somewhere else and let the judge take care of her.

    • When I pay taxes in a county where I live I expect the county employees to do their job and not force me to drive hours away because they are having a bad day.

  • As I understand the matter, the only reason she has been in court is that she continues to refuse to do her job. Were everyone to go elsewhere, there would be bo legal case.

  • What disturbs me about all this is the selectivity of the laws being enforced. “Sanctuary Cities” have for years refused to enforce federal immigration law with nary a consequence.

    • Its hard to argue against the facts here but I too am disturbed about how some civil disobedience is tolerated and some is met with the full force of government disapproval. I do not recall Gavin Newsom going to jail or being held in contempt for handing out illegal marriage licenses to Gays and Lesbians against both State and Federal laws at the time. Selective enforcement erodes trust in the judicial system.

      • A little history: after Newsom and the County Clerk started issuing marriage licenses to same-sex couples (because, according to them, they believed they were violating discrimination law by not doing so, a position that was later actually vindicated in the courts), both the California AG and taxpayer groups sued to stop it. About a month later, the California Supreme Court issued a stay ordering the City to stop issuing licenses to same-sex couples. Importantly, and here’s where the case differs radically from Kim Davis, they all complied with the order and stopped. A court later voided the resulting marriages as illegal. The City continued with its lawsuit to argue for gay marriage, just as Davis is welcome to continue to fight for her position in court, but they never blatantly refused to obey a court order, which is what’s happened here.

      • This is different from sanctuary cities and handing out marriage licenses because, here, there was a court order. If Newsom had violated a court order or had the cities taken action that was precluded by a court order, then your comparison would stand.

        Furthermore, sanctuary cities were and are under no obligation to enforce federal laws.

        That said, this is a form of civil disobedience and Davis should be forced to face the consequences. I see the most similar comparison to be the lunch counter demonstrations in the mid 20th century. Those brave folks were willing to take the consequences of breaking what they thought were unjust laws.

      • “I do not recall Gavin Newsom going to jail or being held in contempt for handing out illegal marriage licenses to Gays and Lesbians against both State and Federal laws at the time.”

        Because he actually stopped when the court ordered him to.

        Ms. Davis is in jail for contempt of court because she has defied a court order.

  • EG, you lose credibility with this? ” Your argument is basically that she can choose not to issue documents because a Flying Spaghetti Monster told her not to.”

    Seems like you could make your point without insulting a lot of people who agree with you.

    Tim says, “When I pay taxes in a county where I live I expect the county employees to do their job and not force me to drive hours away because they are having a bad day.”

    I’m not sure the issue is someone having a bad day.

    JayDub, there are a lot of important differences, I think between states not pushing hard enough to support federal laws and someone’s being denied a right granted by the Supreme Court.

  • Jonathan Adler on the sanctuary city comparison:


    There are good reasons to criticize the sanctuary city notion, but “it’s just like violating a court order” isn’t one of them.

  • Gavin Newsom’s legal position was that the United States Constitution forbade refusing marriage licenses to same-sex couples. As the Constitution is controlling law, his actions were lawful if his interpretation of the Constitution was correct. The Supreme Court has now, basically, said it was. Religious texts, however, are not controlling law in the United States whether they ultimately turn out to be correct or not.

  • […] attitude but Kentucky clerk Kim Davis can’t, as I explain in my (revised and expanded from last night’s post here) post at Cato. First […]

  • I once worked for Aerovironment Inc. They are a military contractor. I am morally disgusted that they make products that spy on people and kill people. EVEN THE “Enemy”. Its wrong to kill. I believe christians call it THE SIXTH COMMANDMENT. I ended up getting very physically ill and while I was on disability, they “Asked me to leave or come back to work immediately” even against doctors orders. I made a choice. I could have gone back… but I left. I dont have the money for fancy lawyers such as the object of our discussion. And I did not make a big ta-do about it. And not once did I try to make them stop killing people because it is against my own moral code. I ended up working for a company that makes oncology capital equipment. “CyberKnife” if any of you are unfortunate to have cancer or know someone that does. My dad passed away from brain cancer while I worked there. I have since met many people who have been treated with a product that I contributed to, and they thanked me over and over. Much more rewarding than killing people. I made a moral decision, so can she. So can YOU! (Everyone)

  • I wince when I see the Left trying to attack Ms. Davis on her religious convictions. You cannot win any argument by doing that.

    It’s a simple matter of a person who has a job to do, and refusing to do it, complicated by the fact she’s an elected official.