Thursday, September 3, 2015

O/T -- An Elected Government Official Must Obey Governor's Lawful Orders -- And The US Supreme Court. Full Stop.

UPDATED: 09.04.2015 @ 2 PM EDT: As we indicated overnight, in comments -- per the Gray Lady's account:

". . .With clasped hands and tight smiles, James Yates, 41, and William Smith, 33, made their way through a dense thicket of reporters and photographers and stood before an employee of the clerk’s office to request a license — a routine clerical act turned into a national spectacle.

Mr. Smith said he and Mr. Yates, who live here in this small Appalachian city, had tried to obtain a license several times, but were denied each time. They spoke softly as they conducted their business with Deputy Clerk Brian Mason, their voices barely audible in the din. . . .

He and Mr. Yates could have gone to another county for a license, but "this is where we live," Mr. Smith said. "This is where we pay taxes. This is our home. . . ."

Love wins -- and the above makes it. . . obvious. Basic human dignity, now prevails. End updated portion.

I mention this largely in passing, since we have covered the emergence of the fundamental right of people to marry whomever they love, for some time here, now.

I must say that I think this Kentucky clerk has received extemely poor legal advice from Liberty Counsel. There is no plausible reading of the existing law that would allow an elected official to choose which laws she will obey, and which she will not. Here her choices are plain: issue marriage licenses to all (as she had previously sworn to so do), or resign her office. There is simply no fundamental right to "be an elected official" -- it is a privilege -- a privilege that remains contingent upon obeying the law of the land -- and discharging the lawful duties of office. Marriage equality is now clearly the law of the land.

I am genuinely sorry she is now in a federal jail-cell (likely believing, in error, that she is somehow being persecuted for her religious views) -- but it is largely the poor legal advice of Libery Counsel that has landed her there, in my opinion. Liberty ought to admit that no good faith extension of existing law would support the position they've backed her in taking.

Onward -- and I do trust now that love will prevail.


Anonymous said...

well, in that case~~you should also report on the Brady verdict~!!!

Anonymous said...

though, I have to say, I'm not sure putting her in jail will do anything but 'rile' up the faithful. This is just going to be a circus show for several months. Though, the fun stuff will be when/as the GOP presidential candidates start really throwing the mud.

Condor said...

I do hear you, Anon. --in order, then. . .

I cannot stomach Brady. He will answer to another authority one day. Maybe even five decades from now -- but he will.

As to "what jailing her does" -- on that my opinion is clear: it says that we all must respect the rule of law.

I agree it will lead to some people foaming at the mouth (on each side of the issue). . . but it was needed. Just as the National Guard was needed when Gov. George Wallace tried to prevent the school doors from opening to integration.

We must affirm that your liberty to "swing your arms" -- in the practice your religion -- ends where your arms. . . strike me in the face. That's conduct, not status -- its discrimination; not free exercise.

No one is forcing her to be an elected official -- she chose that privilege -- if those duties are now incompatible with her genuinely held beliefs, she ought to resign, and no longer disgrace her oath of office.

Here endeth the sermon. I suspect most of the current field of candidates well-know that a majority of Americans no longer support her view. It will be interesting, as 2016 approaches.

Namaste -- and forward!

Anonymous said...

I agree with the need/use of the National Guard and opening integration. Furthermore, I would support the use of force to open such again, or similar, if required.

But, how to you 'force' someone to sign a document? Now, normally I would say you remove her from office but, that appears to be a bit more difficult given her elected position.

On the other topic, it was a joke~and I'm no fan of Mr. Brady either. I am surprised by the court even getting involved. It seems to me that it is all 'within the guidelines' of the agreed rules of the NFL. What's next? Court cases challenging a referee's call?

thanks for the space to vent~safe travels as you mentioned you're off to the airport.

Condor said...

Well, this evening brings news: the Deputy Clerks (5 of 6 -- saving only get own son) will issue marriage certificates tomorrow, to gay and straight couples alike.

This makes the Clerk's stance meaningless. The judge will likely release her in a week or two, with the instruction that if she interferes with the Deputy Clerks' work, he'll drop her right back in a cell.

So it seems the showdown is over -- but make no mistake (despite what Liberty Counsel claims, this is NOT MLK in Birmingham jail)... She is George Wallace, refusing to obey the law she swore she would uphold.

And I can smile about that now... Poorly-educated lawyers often leave their clients in untenable positions...


Condor said...

Per the NYT this noonday -- "...Amid tight smiles, James Yates, 41, and William Smith, 33, made their way through a dense thicket of reporters and photographers and stood before an employee of the clerk’s office to request a license — a routine clerical act turned into a national spectacle...."

This is where they live; this is where they pay taxes. That they should be allowed to get a marriage registered here is... Obvious.

Love wins.


Anonymous said...

Did you see the comment that 'the certificates' are not legal by her lawyers? What's your thought about the legality of that position?

And also, did you see her appeal?

Condor said...

Yes -- thanks Anon. -- I did see all of those items. In order, then:

(1) "Her lawyers" have no authority to opine (as a matter of definitive law) on what is a valid marriage certificate in Kentucky. Zip. None. Frankly, nor does she. If a federal court judge has declared that the Deputies' issuance and delivery is adequate, that is going to be quite powerful prima facie evidence of the validity of the marriage certificates in question. A hurdle any complainer will likely be unable to overcome. The grandstanding by her lawyers is. . . just that. Grandstanding.

(2) The federal judge has allowed her to be released from jail today, and he has made clear that his continuing order requires that she do NOTHING to interfere with the issuance of any marriage certificate -- by her deputites. Violating that federal court order will land her. . . right back in jail. So, I think as a practical matter, she is going to have to sit in her office and ignore what her deputies are doing, insofar as marriage certificates are concerned.

(3) The release from jail makes her amended appeal moot (in part).

The part that is NOT moot is the original appeal she made, after being ordered to issue the certificates. She is fast running out of avenues to continue to litigate that issue, given that the US Supreme Court declined to grant her immediate relief.

I suppose an intervening appellate court could hand her a temporary victory, but the handwriting is on the wall, from the US Supremes: When squarely presented on direct on the merits appeal, she will lose.

(4) And that is the way the law works. No matter how much Cruz and Huckabee crow that this is a violation of her free exercise rights -- that does NOT make it so.

She has repeatedly violated her VOLUNTARY OATH of office. If she can't in good conscience do the job she campaigned (and was elected) to do -- enforce the law uniformly, then. . . she must resign. She has no right to an "elected" (i.e., political) job.

This is not a federal SSA or EHS job she holds. It is political -- an eleceted office, with an oath of office required for service. She violates the oath -- she loses. No doubt.

Great questions!


Condor said...

From the judge's order then:

". . .Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples. . ."

[Each of the five deputy clerks are to report to the Court, every fourteen days, as to whether Defendant Davis is complying with the above order. . . .]

". . .If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this order and appropriate sanctions will be considered
. . . ."

Anonymous said...

I willing to bet an iced tea that she will 'interfere.' There's too much circus left in this for the G.O.P.

Though, if I lose, I'm not sure how to pay up.......

Condor said...

I'll take your wager... And we will figure out a bitcoin solution! Hah!

Namaste -- actually I sort of expect her to go to jail one more time... But we will see... Make mine a root beer, please!

Anonymous said...


Anonymous said...

And the plot thickens:

Condor said...

Seems she realizes jail isn't her best bet -- she says this morning she won't interfere with her deputies' work:


Anonymous said...


Condor said...

Thanks Anon. As I've repeatedly said, she'd be in better shape if her lawyers had even a rudimentary grasp of the case law covering the intersection between free exercise and duties of elected officials, like her.

Oh well -- she's pretty much doomed to lose at every turn, in every court.

And -- thanks for the update!


Anonymous said...

Oh, just to clog your inbox~~~

What do you think of these:

Condor said...

Oh my. I mean no disrespect, but this law professor (from Florida International University) likely didn't bother to read the trial court opinion, nor the Sixth Circuit's, in the current slew of Davis cases.

In any event, he simply ignores the central principles at work, here: All the cases he mentions are private people asserting free exercise rights -- not elected officials, who swore an oath to uphold the law. All elected offcials hold a privilege, not a right. To use the words of the trial court:

. . .Davis’ free speech rights are qualified by virtue of her public
employment. See Draper v. Logan Cnty. Pub. Library, 403 F. Supp. 2d 608, 621-22 (W.D. Ky. 2005. . . . Accordingly, “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti, 547 U.S. at 418; see also U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, (1973). . . .

In short, the professor's discussion and analysis fails to address (1) her choice to be elected; (2) her sworn oath to ALL the people of the County who elected her; and (3) the fact that to the extent a male-male or female-female couple asserts a religious preference for marraige, she would be a STATE actor denying those couples their first amendment rights. Rights -- not privileges (like hers, here).

When rights collide with privileges, rights must prevail, and privileges must yield -- doubly so, when a private citizen is denied a first amendment right by a state official, acting squarely within her capacity as a public official.

Finally(!), as the courts opined -- Kentucky also has a countervailing interest in upholding the rule of law. See generally Papachristou v. City of Jacksonville, 405 U.S. 156, 171 (1972) (“The rule of law, evenly applied to minorities as well as majorities, . . . is the great mucilage that holds society together.”). Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions. Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that
does not excuse her from complying with it. To hold otherwise would set a dangerous
precedent. . . .

Hushing up now. . . but I may make all fo this a new off topic post on Friday.

Thanks so much! Namaste!

Condor said...

Gosh -- please excuse the myriad typos -- rushing to court now. . .

Namaste -- onward!

Condor said...

And -- just for fun -- the Sixth Circuit has set a mandatory mediation confernence between the parties for tomorrow. The idea here is to help Ms. Davis accept that letting her deputies do their job is about all the relief she's ever going to get -- and promising not to interfere with them:


September 8, 2015

William E. Sharp, Esq.
Horatio Gabriel Mihet, Esq.
Mathew D. Staver, Esq.
Jonathan D. Christman, Esq.
Roger K. Gannam, Esq.
Palmer G. Vance, II, Esq.

Re: April Miller, et al v. Kim Davis, CA Nos. 15-5880; 15-5961

Dear Counsel:

Pursuant to Rule 33 of the local Rules of the Sixth Circuit, this will confirm that a follow-up telephone mediation conference has been scheduled for September 17, 2015 at 9:00 a.m. EASTERN TIME.

Connie A. Weiskittel
Mediation Administrator
cc: Robert S. Kaiser

Hopefully, the mediation will resulty in an agreed end to this rather preposterous Liberty Counsel-fired litigation -- (in my opinion) an error riddled series of lawsuits.


Anonymous said...

Thanks Condor. I appreciate the insight. I asked my son (an Public Defender) who ventured a response similar to yours.

Sorry for clogging the "Smerck" blog with 'extraneous' stuff but, I do enjoy the diverse topics covered here.