Saturday, September 12, 2015

Just keeping up

Think Progress has an excellent (finally!) explanation of the legal issues involved in the Kim Davis farce.  Notably, many of the issues her lawyers have tried to litigate before the press were litigated before the judge:

During Davis’ contempt hearing last week, Liberty Counsel Senior Attorney Jonathan Christman told the court, “The governor can change that form, make it a state form with no personal authority, no Kim Davis name on it, available in a Rowan County Clerk’s office, and this case would be over.”

U.S. District Judge David Bunning humored this claim, asking Palmer Vance, an attorney representing Beshear, “Is this something where he can just change the form by executive order?”

“No, Your Honor,” Vance replied, “because the requirements for the composition of marriage licenses is dictated by statute, and the governor cannot change the statute.”

Christman countered with a point that many Davis supporters have made: Beshear did direct Kentucky’s Department for Libraries and Archives to produce a new marriage license form after the Supreme Court’s Obergefell ruling. The change removed gender-specific language so that the form could be used for same-sex couples. Bunning asked the governor’s attorney to respond.

Vance explained, “Judge, the form was changed in response to a final decision of the United States Supreme Court that did change marriage in the sense that same-sex marriage was protected by the Fourteenth Amendment, and so the form was modified to reflect compliance of the decision of the United States Supreme Court. The United States Supreme Court disturbed no other portion of Kentucky’s marriage laws, so the governor does not have the ability to change those himself because they are in the statute.”
But even if the form is changed, Davis is expected to raise an objection:

As Liberty Counsel’s Staver said in his interview with David Brody, “The problem is that the licenses have her name on them and/or they have her official title as the Clerk of the Court of Rowan County, so whether it’s ‘Kim Davis’ or it’s ‘The Clerk of the Court,’ it’s like saying — whether it’s the ‘President of the United States’ or ‘President Obama’ or ‘Governor So-and-so’ or a particular governor’s name, it’s the same person.

“So to issue a license under her name and authority, as Kim Davis as the Clerk of Rowan County, is something that she can’t do, because it authorizes a license for marriage that is contrary to God’s design for marriage as the union of a man and a woman.”

Poppycock, of course, but 'round and round that goes.  The legal battle here is not to free Kim Davis, but to block the implementation of Obergefell.  And what of the authority of the deputy clerks?  Back to the courthouse:

This question similarly came up during the contempt hearing as Bunning was considering requiring the deputies to issue licenses. Can deputies issue valid marriage licenses without Davis’ presence or approval? William Ellis Sharp, an ACLU attorney representing the same-sex couples who filed the complaint against Davis, explained to the court that it made little sense that she could actually prevent deputies from performing their duty.

“We don’t think her authority extends that far,” Sharp explained, “insofar as the office, apart from Kim Davis, exists to perform certain public functions. Kim Davis does not have to personally touch every marriage license. She employs people for the purpose of carrying out the duties of that office. To the extent Kim Davis has an erroneous instruction of her ability to block them from doing that, that, nonetheless, does not mean that they cannot perform those functions.”

Unless, of course, she fires any clerk who crosses here.  And that may well raise a question of Kentucky civil service law.  I rather doubt government employees are employed at the whim of their elected bosses, but I suppose we'll find out, huh?  At a minimum, it'll land Ms. Davis back before the federal judge.

And her counsel have now filed another appeal, claiming lack of jurisdiction for the court to rule in favor of parties not plaintiffs in the suit.  Yeah, their legal case is that ridiculous.

But speaking of legal cases, a bit of perspective.  Brown v. Board was handed down in 1954.  When Harper Lee wrote Go Tell A Watchman, she used that decision as the backdrop for her novel.  The year is unclear, but it is sometime after Brown and before Faubus.  And there's no indication Brown was being implemented in Alabama at the time, certainly not in her fictional Maycomb.  It was 25 years before Brown was fully implemented across the country, and at some point it was rolled back, at least as far as forced busing went.  The impetus of Brown ended with a whimper, and today almost no one notices that the landmark decision everyone praises, is buried beneath our neglect.  Does anyone speak of correcting our schools by making them less racially divided?  Has that solution ever even been broached in all the discussion of New Orleans public schools 10 years after Katrina?  It is, like the Lost Cause, gone with the wind.

Even Loving v. Virginia wasn't the law of the land until 1970, 3 years after it came down from a unanimous court.   And the interesting part is, anti-miscegenation laws were not limited to the south, or to African-Americans:

All but nine of the fifty states outlawed interracial marriage at some time in their history. These laws were not limited to the South—they existed at different historical moments in states ranging from Massachusetts to California, and they variously outlawed marriages between whites and those defined as black, Asian and American Indian. What they had in common was a shared intent in protecting the status of whites and communicating the subordinate position of nonwhite groups.
Loving was ignored in Alabama until 1970, when the Nixon Administration finally got the state to cry "Uncle!" in federal district court.

Yes, it's frustrating for a few people in Rowan County, and I understand there are two other county clerks in Kentucky who are Kim Davis-wannabes, as well as one in Texas.  In the Texas case, however, no same-sex couple has yet stepped forward in that rural county to make the clerk a martyr. Still, given the complete lack of support for their position at the state level (with the exception of Texas, briefly), the country is moving much faster to accept same-sex marriage than ever it moved to accept integrated schools or interracial marriage.



  1. As I understand it, Dred Scott has yet to be fully implemented...

    1. The Constitution can't overrule the Court. Which is not what the Founding Fathers meant!