Jailing The Marriage Clerk? School Busing And Same-Sex Marriage: Same Solution

Much drama has accompanied the case of Kim Davis, the once-jailed Kentucky County Clerk who refused to comply with a federal court order that she issue marriage licenses to same-sex couples, a right recently guaranteed by the U.S. Supreme Court’s Obergefell v. Hodges decision. After being found in contempt of court by the presiding federal judge, David L. Bunning, Davis was jailed and promptly thrust into the national spotlight, garnering significant local support, and prompting presidential candidate Mike Huckabee, in a flourish of perhaps predictable hyperbole, to declare her case the "criminalization of Christianity."

After days of contentious picketing between gay rights activists and groups from the religious right, Davis was released on Tuesday once Bunning determined that deputy clerks in the Rowan County office were indeed issuing licenses to all couples. This whole episode begs the question: Was the “martyrdom” of Davis inevitable, or, for that matter, wise? No, it was neither. Bostonians of a certain age are in a particularly good position to exercise a bit of historical perspective to understand why.

Davis had refused to confer marriage licenses upon gay couples, arguing that being forced to place her imprimatur on the document infringed on her Apostolic Christian faith. Though her attorneys have claimed that the licenses issued in her stead — by her various deputies and without her signature — are invalid, Kentucky law suggests otherwise. Nonetheless, as Professor Eugene Volokh of The Volokh Conspiracy has expertly explained, debates about accommodations for Davis as provided by Kentucky’s RFRA (Religious Freedom Restoration Act) laws continue. Yet one overriding fact does remain clear: Davis’ jailing has produced an instant martyr.

While these particular legal questions must be explored, the inflammation of the culture wars was entirely avoidable if Bunning had exercised his authority in a more subdued and wiser manner. Indeed, relevant history teaches us that the Kentucky federal judge could, and should, have resolved the controversy by taking action — well within his power and discretion — to relegate the pious clerk to the sidelines and promptly endow her deputies with the authority to grant the licenses without taking any coercive or punitive action that would turn her into a martyr and a symbol. The happy couples would have been on their honeymoons, and the recalcitrant but bypassed clerk would have been a mere footnote in the history books.

A Precedent In South Boston

Anyone who was alive and of sufficient age in Boston during the infamous school desegregation battles of the 1970s knows how powerful a federal judge can be when tasked with protecting the constitutional rights of a beleaguered minority group. In Boston, there was overwhelming and powerful opposition to school desegregation, and especially to busing as a means of achieving that end. That opposition was spearheaded by political leaders in South Boston, most notoriously by School Committee member Louise Day Hicks. But in the case of Morgan v. Hennigan (1974), federal Judge W. Arthur Garrity Jr., ruled that attempts to block integration violated the Fourteenth Amendment equality rights of black students. Garrity surmised that the School Committee could not be trusted to effectively carry out his order, so he took it upon himself to engineer and execute an entire, multiyear school desegregation plan under his own supervision, triggering a tumultuous and troubled era in Boston’s history that was expertly recounted by the late J. Anthony Lukas in his award-winning history of those struggles, "Common Ground."

Garrity’s actions were widely unpopular but completely within the scope of his authority, as the First Circuit Court of Appeals ruled. This enormous and wide-ranging judicial authority to curb and even do an end-run around local violators and violations of constitutional rights is derived from two short and often underappreciated clauses of the United States Constitution. Article I, Section 8 declares that Congress has the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers … " (emphasis added), while the equally important “Supremacy Clause”, Article VI, Paragraph 2, establishes that the federal Constitution, and federal laws generally, take precedence over state laws and even state constitutions. Between the “necessary and proper” and “supremacy” clauses, federal judges have long been vested with the authority to cut to the chase and sweep away state laws (and state officials’ obstructionism) that stand in the way of effectuating federally-protected rights.

Technically, Garrity could have ordered the School Committee to desegregate the schools, and when they failed to do so, declared all members in contempt of court and thrown them in jail. This is how Benning handled Davis in Kentucky, and he was legally justified in doing so. But his actions were shortsighted and unwise. If Garrity could oversee a vast school busing operation without jailing the local school committee or other school officials, Bunning could — and should — have immediately stripped Davis of her authority and endowed willing members of the clerk’s office with the power to issue marriage licenses. The entire brouhaha would have been over before even the first presidential candidate arrived on the scene.

It does not matter that Davis was elected. It does not matter that she stood upon her First Amendment religious freedom rights. All of her rights could readily have been protected, without her having been turned into a religious martyr, by the simple exercise, by the federal court, of its undoubted power to fashion an effective remedy for achieving equal marriage rights in Rowan County, Ky. Such a simple and sensible resolution of the seeming conflict between two constitutional rights of equal magnitude — marriage equality and religious liberty — could have saved the nation from the current melodrama enhanced by the presidential election season.

The author, a criminal defense and civil liberties lawyer and writer who is “of counsel” to the Boston law firm of Zalkind Duncan & Bernstein LLP, is the author, most recently, of "Three Felonies a Day: How the Feds Target the Innocent" [Encounter Books, 2009]. He thanks paralegals Samantha Miller and Timothy Moore for their research and editing assistance.