Current status of SSM in the holdout states (MAP)

[SteveRogers]

An example of how overhyped the remaining "resistance" is. When push comes to shove, most county governments don't have the time or the resources to waste on a frivolous legal battle that they'll 100% for certain lose.

https://www.texastribune.org/2015/07/06/gay-couple-sues-hood-county-clerk-over-marriage-li/

As for which state will be "last" to eliminate all holdouts, I don't think it will really be possible to determine in the immediate future. Texas has 254 counties. In some of the backwoods, sparsely populated ones, it may be years before any openly gay couples try to get a marriage license, so the county clerks there will remain a question mark until put to the test.

[SteveRogers]

Why isn't this woman fired or in jail yet?

She's an elected official, not an employee so she can't be fired, only impeached or voted out of office.

Contempt of court?

Looks like that's what's in store for her. The updated story says that the lawyers representing the couples seeking marriage licenses have filed a motion to have her held in contempt of court. For now they're seeking fines, not incarceration. Unfortunately, even if she ultimately ends up jailed for contempt the federal court can't remove her from office. If possible the state legislature should act to impeach her immediately since this woman clearly has no interest in performing the duties of her elected office.

[SteveRogers]

You must be logged in to read this quote.

You must be logged in to read this quote.

Well that escalated quickly. But yeah, this was the inevitable and appropriate result. That being said, facebook is going to be unbearable for the next week, isn't it?

[SteveRogers]

I assume she'll also be released if she resigns, is impeached,  or her term expires?

I bet she stays in as long as possible to make a point.

Yeah, they have to release her if she resigns or is removed as at that point it would become impossible for her to carry out the court order.

[SteveRogers]

This is fycked up.  They can't fire her for not doing this but they can jail her?

The world is oh so much safer I'm sure with her behind bars.   

What would you have the court do instead to enforce its order? She has the keys to her own release. All she has to do is either agree to comply or resign her position, and she's free to go.

[SteveRogers]

This is fycked up.  They can't fire her for not doing this but they can jail her?

The world is oh so much safer I'm sure with her behind bars.   

She defied a direct court order. Go to jail. Go directly to jail. Do not pass Go, do not collect $200.

This isn't monopoly, we are talking about real people.

Again, what would you propose instead?

[SteveRogers]

This is fycked up.  They can't fire her for not doing this but they can jail her?

The world is oh so much safer I'm sure with her behind bars.   

She defied a direct court order. Go to jail. Go directly to jail. Do not pass Go, do not collect $200.

This isn't monopoly, we are talking about real people.

Again, what would you propose instead?

If it's not worth removing her from office, then it is not worth jailing her.   If she is duly elected and can't be removed because her office is a trust from the people, then she is answerable to the people who can choose not to reelect her.  Or, if she is answerable to the law for her duties, then there should be a way to directly remove her from her office if she is not abiding by them.

No, a federal judge cannot remove a state elected official from office for a number of reasons. It simply cannot be done. Actually, it doesn't really have anything to do with her being an elected official. Judges don't fire people. That's not how the law works. Whether or not her "employer" (the people of her county, as you point out) choose to "fire" her has nothing whatsoever to do with how federal law applies to her.

You understand that this is true of any case, right? When a congressman gets indicted on corruption charges, whether or not they resign their house seat won't effect whether they are convicted and go to jail. Same thing with private companies. When a CEO does something illegal, a judge doesn't fire them, the board does. The courts just apply the law to them.

Now you also understand that she's not being charged with a crime here, right? She's not serving a prison sentence. She doesn't have to stay in jail any longer than she chooses to.

[SteveRogers]

Five of her six deputies have decided that they'd rather not go to jail and will begin issuing marriage licenses tomorrow.

http://www.usatoday.com/story/news/politics/2015/09/03/rowan-county-ky-court-clerk-marriage-licenses-gays/71635794/

[SteveRogers]

This is fycked up.  They can't fire her for not doing this but they can jail her?

The world is oh so much safer I'm sure with her behind bars.   

She defied a direct court order. Go to jail. Go directly to jail. Do not pass Go, do not collect $200.

This isn't monopoly, we are talking about real people.

Again, what would you propose instead?

If it's not worth removing her from office, then it is not worth jailing her.   If she is duly elected and can't be removed because her office is a trust from the people, then she is answerable to the people who can choose not to reelect her.  Or, if she is answerable to the law for her duties, then there should be a way to directly remove her from her office if she is not abiding by them.

No, a federal judge cannot remove a state elected official from office for a number of reasons. It simply cannot be done. Actually, it doesn't really have anything to do with her being an elected official. Judges don't fire people. That's not how the law works. Whether or not her "employer" (the people of her county, as you point out) choose to "fire" her has nothing whatsoever to do with how federal law applies to her.

You understand that this is true of any case, right? When a congressman gets indicted on corruption charges, whether or not they resign their house seat won't effect whether they are convicted and go to jail. Same thing with private companies. When a CEO does something illegal, a judge doesn't fire them, the board does. The courts just apply the law to them.

Now you also understand that she's not being charged with a crime here, right? She's not serving a prison sentence. She doesn't have to stay in jail any longer than she chooses to.

Personally I find it sickening that people can be jailed without even being charged with a crime.

It is a failure of her not doing her job, not that she has done anything she shouldn't have.  Is this a matter of criminal law or isn't it?  I can't fathom why it should be.

This is not a criminal matter; it is civil contempt. There is such thing as criminal contempt which involves  unconditional, fixed punishments and must be proven to a jury beyond a reasonable doubt, etc. This is not that. Here she gets out of jail the moment she (1) agrees to comply with the court order or (2) resigns. The point is not really punishment, but coercion.  

She did several things that she shouldn't have. First, she acted unconstitutionally when she denied same-sex couples the marriage licenses that they have a constitutional right to equal access to. But that is not what she was put in jail for. Next, when she lost her case in court, she blatantly refused to comply with the remedy lawfully ordered by the court. That is what she is in jail for.  

Supreme Court decisions simply wouldn't mean a thing if orders of federal courts could only be backed by wishes and stern looks from the judge.

[SteveRogers]

So what's the remedy? How do you discourage people like her from disobeying court orders?

Why in the first place are federal judges making orders concerning the duties of county offices?  Wouldn't it make sense to drop the pretense of local control and just make them employees of the federal government?

The 14th amendment of the U.S. Constitution forbids the state governments from discriminating. The federal government is charged with enforcing that provision. County officials are representatives of the state government. This is not complicated.

[SteveRogers]

What is the supreme law of the land that says that a county clerk has to issue marriage licenses?

The Supreme Court itself effectively denied her appeal which means the district judge's order stands and is the supreme law of, at minimum, the Eastern District of Kentucky.

The equal protection argument doesn't work here, since she has not been issuing marriage licenses to anyone.

It doesn't work that way. Shutting the doors altogether whenever the gay couples come around is effectively the same as issuing the licenses in a discriminatory manner.

If the Kentucky legislature finds her derelict on her duties under KY law, then she can be removed. Job duty descriptions of county offices are a matter of state not federal law.

Correct, but wholly irrelevant. 

[SteveRogers]

Guys, you're arguing with shua, who thinks discrimination against LGBT people should be legal if you can hide behind religion. Of course he doesn't get it. You're wasting your time.

Let's try something then.

shua:
Let's say the relevant state official refuses to give anyone in the county concealed handgun licenses because they just don't like guns. Federal judge finds that this violates 2nd amendment rights, orders that person to issue the licenses. They refuse. What should the remedy be?

Hell, let's take the constitution and federalism out of it entirely. You're a defendant in state court in a run of the mill lawsuit. You lose, and you refuse to pay up. What do you think happens to you?

[SteveRogers]

What is the supreme law of the land that says that a county clerk has to issue marriage licenses?

The Supreme Court itself effectively denied her appeal which means the district judge's order stands and is the supreme law of, at minimum, the Eastern District of Kentucky.

The equal protection argument doesn't work here, since she has not been issuing marriage licenses to anyone.

It doesn't work that way. Shutting the doors altogether whenever the gay couples come around is effectively the same as issuing the licenses in a discriminatory manner.

If the Kentucky legislature finds her derelict on her duties under KY law, then she can be removed. Job duty descriptions of county offices are a matter of state not federal law.

Correct, but wholly irrelevant. 

Effectively?  No, not issuing marriage licenses doesn't have the same effect as issuing them only to some people. Maybe you were looking for another word?   

Yes it does. Either way, gay couples don't get their marriages licenses for no reason other than because they're gay.

But look, we could go back and forth all day about the proper interpretation and application of the Equal Protection clause, but that's not actually the issue here. It's clear that you disagree with the district judge's original ruling that Davis's actions violated the constitution. But that's over and done. The Supreme Court says so. The question here is what the proper remedy should be when one refuses to comply with a federal court's order. 

[SteveRogers]

Unfortunately, whether or not the deputy clerks have the authority to issue valid marriage licenses in the absence of the County Clerk is absolutely a question of Kentucky state law that the state courts may have to decide if it comes to that. The Kentucky government should immediately begin whatever impeachment proceedings are needed to remove a county clerk. Short of that, I wonder if Kentucky law allows a local judge or someone to step in and issue marriage licenses in the clerk's stead.  

[SteveRogers]

shua what would you propose be done with some bureaucrat who prevented people in a certain region from being able to register to vote.

You need to be registered to vote in a certain county in order to vote in that county.  You do not need to be registered as married in a certain county in order to be considered married as a resident of that county.  So the situations are not quite comparable as to the severity of the situation and the need for an immediate remedy.  The laws of KY should be updated to reflect the situation in an era where SSM is legal, which they haven't yet.  There's no need for the Court to bring down its wrath at this point.

btw, as a general rule, I don't think the legal recognition of a marriage should ultimately depend on the obtaining of a license.

If all it takes to deny marriage licenses is for a county clerk to refuse to issue them and there are NO consequences for doing so, there will be a lot more county clerks doing this. Really this line of logic is ridiculous. Why should Rowan County, KY be the only county in the country where one can not get a same-sex marriage license? Because one woman doesn't like it?

I am not suggesting that as a long-range solution, I was explaining why that would not be a matter of immediate threat before the legislature could deal with the issue of officials who refuse to do this part of their duties.

But it seems to be your position that federal judges should never be able to jail anyone for contempt, no?

[SteveRogers]

Any bets on whether she'll be back in jail within the next month?

[SteveRogers]

It is now clear that she isn't required to get involved, she can just let her deputies do any SSM licenses. So if she blocks them again I think there will be less sympathy. She has to actively get in the way of stopping her deputies instead of just letting it happen. That wont look like her religious liberty is being violated, that will look like discrimination.

Only the hardcore will back her if she stops her deputies from issuing licenses while she lobbies and/or goes through the courts to try and get her name off licenses. She can just step aside while she tries to get relief from the gov, legislature or courts. Anything more will be seen as mean spirited and self-serving.

It appears that the problem has been solved. Dominic Holden, a deputy clerk, will just blow Davis off, and ignore any order that she gives that he is not to issue SSM licenses, and instead issue them in accordance with the court's order. I suppose Kim Davis could attempt to fire Holden, but the court will probably just issue an order that her firing has no force and effect.

Unfortunately I don't think it's 100% clear whether or not this solves the problem. It is entirely a matter of state law whether marriage licenses issued by a deputy clerk  over the County Clerk's objection are valid. Someone from the state government needs to step in and clarify this ASAP.

[SteveRogers]

The judge asked her if a reasonable compromise would be to just let her deputies issue the licenses. She said, "absolutely not. I will not allow it." But then given some time to reflect on that decision in her jail cell, she decided, "you know what, I'm thinking we can make that work after all." So guess what, the system worked!