Judicial Shell Game: Kim Davis and the Case of the Missing Statute

The other day, as I scanned my news feed on Facebook, I read a comment that caught my eye.  In it, a woman who was clearly in support of marriage between sodomites said she wished she could punch Kim Davis in the throat.  My first thought was, “that seems like a visceral reaction to a woman she had probably never met!”  When I looked closer, I noticed that she was not the only one who had this reaction.

So I stopped and took the time to watch the video that elicited this type of reaction.  In it, Kim Davis was just released from jail and walked to a microphone where she 1) thanked her supporters, 2) told them that she loved them, 3) gave God the glory, 4) affirmed the strength of her supporters, 5) acknowledged that God knows each of us intimately, and 6) encouraged them to “keep pressing”.

Nothing that should cause such a reaction from a rational individual.  So that is when I began to consider the possibility that it wasn’t the video to which they were reacting, but more than likely the strong moral stand that Mrs. Davis took; and her willingness to stand up to unlawful orders.  Next, it occurred to me that these social media commentators probably did not have a firm grasp how federalism works, or the doctrine of “separation of powers” as codified in the U.S. Constitution.  For that matter, depending on the quality of their education, many of them may not have ever read the Constitution or remember it well enough to understand how the 1st, 5th, 10th, and 14th Amendments apply or don’t apply.

I guess I cannot blame them…neither did the attorneys and judges in the case!

So, let’s dive into this case and reveal why, for several reasons, Mrs. Davis should never have been incarcerated.kim davis

Mrs. Davis first appeared on the legal radar when she was sued in Federal District Court for choosing not to issue marriage licenses to sodomites for religious reasons.  In the end the court ordered that Mrs. Davis was prevented from maintaining her policy of “no marriage licenses.”  At best, this order amounts to the circumvention of an elected official by a judge to prevent her from representing her constituents.  At worst, it compels an elected official to disregard her constituents and perform a specific act against her judgement.

At this point in the discussion, it is important to note that Mrs. Davis’ job, when issuing marriage certificates, is precisely to discriminate: against the mentally disabled, against the currently married, against more than 2 people, against “members of the same sex,” etc.  That is the subject of an entire sub-chapter in the Kentucky Revised Statutes 402.020.

Imagine if a federal judge ordered your congressman to vote a certain way on a bill (oh, I don’t know….an immigration bill perhaps) because to do otherwise would violate an equal protection decision by the Supreme Court!  In both cases, the office-holder was elected to represent a constituency’s principles and values, yet those principles and values are subjugated to the whims of one man who is unelected.  This is scary stuff, gang!

This brings us to the meat of our discussion.

law book

Reason #1:  What law was broken?

The reason given for Mrs. Davis’ incarceration was “contempt of court” implying that she did not comply with a “lawful order” of Judge Bunning, who presided over the case.  The problem is that the judge’s order was not lawful.  He did not cite one law that Mrs. Davis was violating through the course of action she chose in her elected position as county clerk.  In his ruling, Judge Bunning wrongly assumes that Mrs. Davis must issue marriage licenses in all cases.

The Supreme Court’s opinion in Obergefell v. Hodges relied on yet other Supreme Court opinions that claim that the Equal Protection and Due Process clauses of the 14th amendment guarantee the right to marry.  Yet, there was no discussion of the distinction between a religious ceremony which truly cannot be infringed, and a civil document (or license) which is at the discretion of the states to grant according to their own laws.

There are no rights, privileges, or liberties for sodomites seeking to receive marriage licenses in Kentucky that are a) secured by the Constitution, and b) are being deprived.  In fact, it is quite the opposite! There are laws that restrict sodomites from receiving marriage licenses, but none that restrict them from performing a ceremony in a religious setting.  The bottom line is anyone who wishes to receive a marriage license (including the parties to the law suit), must follow the state laws that have been properly enacted.  This brings us to Reason #2…

Reason #2: States’ Rights and Federalism. tenth amendment

The 10th Amendment of the U.S. Constitution states, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  Granting marriage licenses is not a power that the Constitution delegated to the United States, but it is also not prohibited by the Constitution to the states.  As a result, the power to issue marriage licenses, as well as any guidelines and restriction, is reserved for each state to decide individually.

In the case of the Commonwealth of Kentucky, the issue was fundamental enough to codify in the state Constitution in Section 233A which states, “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”  This section in the Kentucky Constitution is further supported in the Kentucky Revised Statutes 402.020(1)(d).

The crazy thing to remember about all of this nonsense is that it is essentially a shell game.  There is no law that is central to the case against Mrs. Davis!  The supreme court case Obergefell v. Hodges is not a law–only an opinion of the Supreme Court.  Judge Bunning’s order was unlawful because it was not based on any federal or state law that mandates the granting of marriage licenses.  A judge cannot simply give any unlawful order he comes up with, where if a citizen refuses, he can unilateral send them to prison.  This is exactly why we are protected by the 5th Amendment against the deprivation of liberty without due process which brings us to Reason #3.

jefferson on jury trials

Reason #3: All trials must be by jury. 

Article III, Section 2 of the U.S. Constitution states, “The trial of all crimes, except in cases of impeachment, shall be by jury…”  (emphasis added).  Additionally, the 6th Amendment to the Constitution states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…” (emphasis added).  When Mrs. Davis was ordered to jail for allegedly committing the crime of “contempt of court”, she was not granted a trial by jury.  The Constitution could not have been clearer in two distinct places (one of them specifically outlining the protections of all Americans) about which trials and criminal prosecutions must be by jury: all of them.   Even in a Supreme Court opinion nearly 50 years ago, the justices recognized this danger and reaffirmed the Framer’s intent:

“Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right trial by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” (Duncan v. Louisiana, 391 U.S. 145 (1968))

As a final note, though it is technically not a reason that Mrs. Davis should not have been jailed, it should be equally as alarming to you that the doctrine of “separation of powers” is clearly violated in this case.

An elected official in the executive branch of government of a county, was ordered by an appointed official in the federal judicial branch to perform one of her discretionary duties in a specific manner (against her discretion and in contravention of state law and the U.S. Constitution) thereby circumventing and disenfranchising her constituents and resulting in her incarceration without “due process” or the option of a jury trial as required by the Constitution.

That about sums it up!  Nothing to see here….please move along.


Leave a reply