Wednesday, September 16, 2015

Regarding the Kim Davis Case

I have no desire to wade into the ideological sides of the debate regarding Kim Davis.  I would like to offer layman descriptions of the following ideas, hoping that they give folks a clearer picture of what is going on.

Contempt of Court (criminal vs civil applications)
Roots of Contempt of Court go waaay back hundreds of years.  Here in modern America any Judge, be they federal, state, or county, has huge, almost absolute power in their own courtroom.  Note: no specific law breaking need be in question.  If Judge says “no blue shirts in my courtroom” and you wear one, he will ask you to leave.  If you don’t, it is within his power to jail you (not totally realistic, but it’s the idea).  This would be an example of a Civil Contempt charge.  For these the Judge can award either fines, imprisonment, or both, with the sole purpose being to coerce the offender into following the Judge’s order.  It’s very important to understand this is NOT punishment.  If imprisoned, the offender can gain release simply by agreeing to follow the Judge’s order.  There is also a Criminal Contempt charge.  An example of this would be a person who a Judge orders to turn over handwritten letters.  That person burns the letters instead.  A Judge could impose fines, imprisonment, or both, for the purpose of punishment, to vindicate the authority of the court.

Folks may disagree on the larger picture, but from a legal standpoint, Kim Davis was jailed for Civil Contempt of Court, for failing to follow the Order of a Judge in His courtroom, to wit: Issuance of Legal Documents pursuant to the duties of the Office of County Clerk.

Public vs Private Entity (Kim Davis the Citizen vs The Office of Rowan County Clerk who happens to be a person named Kim Davis)
Sometimes citizens give up certain rights by virtue of being public servants.  For example, uniformed service members are prohibited from speaking disparagingly of POTUS, their Commanding Officer, and other High-office Individuals.  Seems like that would be a clear 1st Amendment violation, in the restriction of Free Speech, but the issue runs deeper.  When a citizen is employed by the Gov’t, their Individual Rights can be superseded by their Governmental Employment status.

Plenty of case law and other commentary on this one alone to keep a person busy for days, but this specific case has more to do with the Office of County Clerk than with Ms. Davis as a citizen. Citizens enjoy protection of their Individual Rights via the Constitution.  Official Offices, such as County Clerk, Governor, Congressman, do not, they are simply Offices with specific duties that must be carried out.

Federalism (State's Rights vs Federal Gov't Supremacy)
Super sticky issue.  Since our country’s inception, some folks want strong Federal Gov’t, some want all power to the States.  In this specific case a Federal Judge imposed his will on a County (her authority came via the State) Employee.  The SCOTUS case involving SSM was a federal thing, which is why a federal judge was the one doing the hearing here.

Folks big on State’s Rights (to include the Oath Keepers) question whether a Federal Judge even has jurisdiction over a county employee.  I’m inclined to say he does, but there’s not a cut-and-dry answer.  The idea the Judge didn’t have jurisdiction has legal merit and will play out in the courts in following months.

Religious Freedom Restoration Act (Both the Federal One and Kentucky’s)
A big word floating around is “Accommodation”, which is an element of both these laws.  The Federal RFRA was passed by Congress in 1993 and sought to outline what types of accommodation employers or the government have to provide to employees whose job might require them to participate in activities that violate their religious beliefs.  The Supreme Court ruled that the application of this law to the individual states violated the Constitution, so in turn some states enacted their own legislation, as did Kentucky.  When the states did this, they often used wording different than the Federal Statute, in some cases making the protections broader or changing what the required accommodations look like.

For the issue at hand, Ms. Davis’s name is on the licenses.  She feels this makes it a Freedom of Speech/Freedom of Religion issue, and I’m inclined to agree with her.  Their current work-around is to remove her name and her office, simply stating “by decree of Federal Court” or something to that effect, which I think fixes the issue.  But reading both of these laws will give a clearer picture on what options exist to fix the problem (because that is far from straightforward).

OBERGEFELL ET AL. v. HODGES (The SSM case at the heart of it all)
I'm really disinclined to even write on this, but I feel many folks have feelings/opinions on the case without understanding the exact nature of the Supreme Court decision.  This is a legal description of the case, not a defense or endorsement of any specific ideological viewpoint.

The 14th Amendment to the Federal Constitution contains what's known as the "Equal Protection Clause".  Basically the clause states that the laws of the Individual States cannot favor one class of peoples rights over another class of people without showing a substantial reason why.

The 5th and 14th Amendments of the Federal Constitution contain what's known as the "Due Process Clause".  Basically this clause states that neither the Federal Government nor State Governments can deprive citizens of "life, liberty or property" without showing s substantial reason why.

In Obergefell, the Supreme Court decided that marriage in America has two very substantial, but very different aspects.  One aspect is religious in nature.  It is relationship strictly between a Man and a Woman, sanctioned by God, binding two people together as one for eternity.  The other aspect is a legal one.  It is a contractual agreement between two people, agreeing to become a single legal unit with respect to the state/federal governments, binding them together for purposes of taxation, business, inheritance, and so forth.  SCOTUS has no authority over the religious aspect.  It can no more redefine marriage than it can attend church or temple.  Indeed, Separation of Church and State protects religious institutions from this very thing.  SCOTUS decided it did have authority over the legal aspect, by way of the 5th and 14th Amendments.  The Court stated that the lawyers for the States failed to prove a substantial compelling reason for only allowing certain individuals (one man one woman) to enter into this contractual agreement.  The Supreme Court has modified this legal aspect of marrage more than once in the history of our nation.  Of note would be the striking down of couverture and also the permitting inter-racial marriages.  The Opinion in the hyperlink above lays out exactly how the Court applied both Equal Protection and Due Process, but I'd be glad to expound on them by email or Facebook Private Message.

The Kim Davis case has increased the polarization of the SSM issue.  Many people on the News are presenting their opinions on the topic without any real consideration of legal facts of the case.  I’ve tried not to color the above topics with too much with my opinions.  If anyone would like to chat about my sources more, I’d be happy to discuss how I get my data.