Commentary

With Kim Davis, Federal Court Botched Opportunity to Show It Can Protect Religious Liberty

By Lynn Wardle | September 8, 2015 | 9:37am EDT
Christian clerk of Rowan County, Kentucky Kim Davis walks with her lawyer. (AP Photo/Timothy D. Easley)

Federal and state judges have the power to hold a person in contempt of court for refusing to obey a direct order from the court.  The judicial power of contempt is an inherent power necessary to enforce court orders when parties obstinately refuse to comply with a clear, direct order made by a court that has jurisdiction over them.  The contempt power also exists to vindicate the authority and image of the court.

Any lawyer who has dealt with civil litigation involving passionate parties knows that sometimes drastic steps are necessary to motivate a party to comply with a legal obligation – even when the obligation is quite cut-and-dry. The power of contempt is necessary to make the judicial system work and to vindicate some judicial decisions.

The judicial power of contempt should be, and usually is, exercised very sparingly – for many good reasons.  For example, it puts the court in the position of acting as both the prosecutor and the judge.  It also may undermine the public’s trust of the impartiality of the court. 

Moreover, the contempt power easily can be abused. Stories of intemperate judges holding someone in contempt because that person did something minor that irritated a petty judge are legion.  Holding someone in contempt sometimes seems like mere judicial coercion, a manipulative move in a power struggle between a judge that has become emotionally invested in a dispute and a party before the court.  Those cases carry the unpleasant scent of judicial arrogance and abuse of power. 

That is why most courts (and all good judges) are very reluctant to issue contempt orders, and do so very rarely.  One good example is the sparing use of contempt against men who fail to pay alimony or child support orders in full and on time.  Jailing a man for contempt for late payment is relatively rare.  While studies have shown that jailing a man for contempt of court is the most effective way to insure that he makes support payments, persons familiar with support disputes know that there are many circumstances that justify exceptions to any simplistic “pay-or-go-to-jail” policy. Courts have learned to get the facts first, and then to be patient and look for alternatives before putting people in jail for being late in paying support.

Moreover, most astute trial judges can find other sanctions that are effective but are less drastic and less controversial than jailing someone for contempt.  Putting someone in jail often is just a lazy judicial response to contumacious behavior.

U.S. District Judge David L. Bunning last week ordered Kim Davis, the County Clerk in Rowan County, Kentucky, to be taken into custody by federal marshals "until she complies" with a court order that she issue marriage licenses to same-sex couples. That is a classic example of a civil contempt order.  The party in jail, in this case Ms. Davis, “holds the keys” to get out of jail in her hands.  She needs only to comply with the court order to issue marriage licenses to same-sex couples in order to get out of jail.

The plaintiffs in the case had asked the judge to fine Davis until she complied, but Judge Bunning reportedly did not believe that a fine would motivate Ms. Davis to issue the marriage licenses to same-sex couples, in violation of her conscience and faith.  So viewing the matter as a personal competition between him and Ms. Davis, it seems like Judge Bunning used his power to put her in jail in order to win the battle of wills.  His personal and institutional authority, power and prestige were at stake.  That certainly taints the use of contempt.

There are at least three concerns about the contempt order in this instance.  First, there are many other ways to motivate reluctant parties than to throw them in jail.  Jailing should be the last resort.  Judges who throw people into jail for contempt often are very impatient, creativity-stunted persons. 

Second, federal judges do not have the power to repeal or ignore the First Amendment, not even District Judge Bunning.  The “free exercise of religion” is a pretty important constitutional right and guarantee.  If a public official like Ms. Davis wishes to be excused from performing an official duty because it violates that official’s religious obligations, the First Amendment wins!  That’s a no-brainer that even Judge Bunning should understand! 

Third, why could not Judge Bunning order that someone else issue and sign the marriage license?  A court that has power to throw a public employee in jail for refusing to issue or sign a marriage license because of religious beliefs certainly has the power to order someone else who does not have religious objection to issue or sign the license.

We would like to believe that judges are bright enough and considerate enough to find solutions that balance the 224-year-old First Amendment religious liberty rights of Ms. Davis and the 71-day-old newly-invented right of same-sex couples to get married.  Sadly, this case shows that some judges simply are not motivated to or astute enough to strike that kind of win-win balance.

Interestingly, a Tennessee Chancellor on August 21, 2015, dismissed a divorce complaint in part because: 

“With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that Tennessee's judiciary must now await the decision of the U. S. Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage. The majority's opinion in Obergefell, regardless of its patronizing and condescending verbiage, is now the law of the land, accurately described by Justice Scalia as a naked judicial claim to legislative— indeed, super-legislative— power." Obergefell, 135 S. Ct. at 2629 (Scalia, J., dissenting). Thus, it appears there may now be, at minimum, (and obviously without any specific enabling legislation) concurrent jurisdiction between the state and federal courts with regard to marriage/divorce litigation.”

Bumgardner v. Bumgardner, Case No. 14-0626.  While this opinion may have some tongue-in-cheek dicta aspects (as the court also based dismissal upon unclean hands and failure to comply with a local rule) it highlights, just as the Davis jailing does, some of the bizarre aspects of the controversial Obergefell ruling.

The belief of the Kentucky County Clerk, Ms. Davis, that the Supreme Court decision in Obergefell interpreting the Constitution as mandating the legalization of same-sex marriage in all American states is an egregious error and distortion of the Constitution is a belief that many other thoughtful persons share.  Her view that the federal government must defer to the states regarding the regulation of marriage is one that has very deep historical, legal, and practical roots.  Ms. Davis certainly has a constitutional right to express those views.  Although those views may irritate Judge Bunning, he cannot jail her for holding or expressing those views.

However, her refusal to allow same-sex couples to get marriage licenses in her county raises another issue about government employee’s obedience to the rule of law.  Just as Judge Bunning seems to be guilty of a lack of creative thinking in dealing with the issue before him, so also Ms. Davis might have found other creative ways to express her objection to the Obergefell ruling without defying that dubious new constitutional interpretation and depriving same-sex couples of their newly-minted right to marry.

Given the conflict of deeply-held views, perhaps the case moved too fast for the judge to process the situation and find a balanced solution. Sadly, the federal court stumbled and botched an opportunity to show the parties, and the nation, that same-sex marriage and religious liberty both can be protected.

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.

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