Obergefell reliance interests is a post from Overlawyered - Chronicling the high cost of our legal system

On Rick Sincere’s The Score podcast is a post from Overlawyered - Chronicling the high cost of our legal system

2. In deciding whether to respect stare decisis and follow a precedent deemed wrongly decided, justices apply standards that can appear wobbly and uncertain. But whatever else is on their minds, they always claim to take seriously the practical dangers of upending a decision on which many people have relied.

Few legal strokes would be as disruptive, yet fully avoidable, as trying to unscramble the Obergefell omelet. Large numbers of marriages would be legally nullified in a moment, imperiling everyday rights of inheritance, custody, pensions, tax status and much more. These effects would hit on day one because an earlier generation of social conservatives managed to write bans on same-sex marriage and equivalents into many state constitutions. Those bans would prevent elected officials from finding legal half-measures to avert massive dislocation for innocent persons.

The piece is paywalled, but Jonathan Adler has a write-up briefly summarizing some of its other points. I’ve discussed Pavan v. Smith here and Masterpiece Cakeshop here.

Obergefell overturned? is a post from Overlawyered - Chronicling the high cost of our legal system

Constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

March 29 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Don’t expect Trump to roll back gay rights is a post from Overlawyered - Chronicling the high cost of our legal system

Let genuine diversity bloom is a post from Overlawyered - Chronicling the high cost of our legal system

Whole piece here. Dale Carpenter at Volokh Conspiracy has some kind words for my piece along with thoughts about the possible constitutional infirmities of the draft bill’s blatant enlistment of government power on behalf of one viewpoint and set of beliefs as against others; he also links to this Christianity Today piece by three leading religious liberty scholars, Richard Garnett, John Inazu, and Michael McConnell, who acknowledge some of the problems with FADA in present form while urging support for a less sweeping measure (“We think the best approach is to tailor FADA to the core area of concern: religious nonprofits.”)

P.S.: Stephen Bainbridge reprints a letter in which I link and summarize some of my recent writing on religious accommodation.

My Newsweek piece on the First Amendment Defense Act (FADA) is a post from Overlawyered - Chronicling the high cost of our legal system

Across the political landscape this morning, people on one side are discovering that lawlessness is bad, while people on the other are discovering that the machinery of our justice system is harsh. If experience is any guide, these lessons will last a lunchtime.

Whole thing here.

“Are you showing contempt for this court?” “No, I’m doing my best to hide it.” is a post from Overlawyered - Chronicling the high cost of our legal system

Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country. We must defend #ReligiousLiberty!

— Gov. Mike Huckabee (@GovMikeHuckabee) September 3, 2015

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.

A note on Kentucky county clerk Kim Davis is a post from Overlawyered - Chronicling the high cost of our legal system