Kim Davis’ Hearing For Contempt Of Court Has Been Scheduled. Here’s How It Could Play Out

by IAN MILLHISER –

kim davis

Kim Davis, the anti-gay clerk in Kentucky who has refused to comply with court orders requiring her to issue marriage licenses, will appear in federal court Thursday for a hearing that will determine if she will be held in contempt of court.

It is unlikely that Davis will escape some sort of contempt sanction. She’s proudly defied federal court orders. Her request to stay federal District Judge David Bunning’s original order commanding her to issue marriage licenses was rejected by an appeals court and by the Supreme Court. The morning after the Supreme Court rejected her request, she once again refused to obey the Constitution, telling a same-sex couple that unsuccessfully sought a marriage license that she was acting “under God’s authority.” If Bunning does not sanction Davis after her repeated refusals to obey his order, he will send a clear message that the federal judiciary is impotent.

A more difficult question than whether Bunning will hold Davis in contempt, however, is just what sanction he should impose on the anti-gay clerk. Federal law gives any “court of the United States” the “power to punish by fine or imprisonment, or both” a litigant who engages in “disobedience or resistance to [the court’s] lawful writ, process, order, rule, decree, or command.” In a motion seeking contempt sanctions against Davis, however, attorneys representing same-sex couples specifically state that they “do not seek to compel Davis’ compliance through incarceration” and instead request that she be subject to “financial penalties sufficiently serious and increasingly onerous to compel Davis’ immediate compliance without further delay.”

There are obvious political reasons why these lawyers may prefer not to see Davis hauled off to jail. Several LGBT advocates expressed concerns to ThinkProgress that Davis could inspire others to defy the Constitution if she is perceived as a martyr. One quipped that they would prefer not to give her an opportunity to pen a self-righteous document styled as a “Letter from a Louisville Jail.”

So that leaves fines. In this case, the purpose of contempt sanctions would be to cause Davis to end her defiance of the law, rather than to punish her for past conduct. To this end, the Supreme Court has held that “a court is obliged to use the ‘least possible power adequate to the end proposed’” when deciding how to sanction a party in contempt of court. If fines are adequate to the task, imprisonment will probably be deemed unnecessary. Similarly, a large fine is not warranted when a smaller fine is adequate.

In their contempt motion, the plaintiffs in this case seem to suggest a starting point for fines against Davis — noting that “Defendant Davis continues to collect compensation from the Commonwealth for duties she fails to perform.” It is unlikely, however, that Davis, who earns $80,000 a year as a county clerk, will be swiftly moved if Judge Bunning merely requires her to give up her salary. Kim Davis quite literally believes that she is on a holy crusade mandated by the Lord Almighty. That’s not the sort of mindset that is easily deterred by a little financial hardship.

It’s also worth noting that the Supreme Court has instructed lower courts to “consider the amount of defendant’s financial resources and the consequent seriousness of the burden to that particular defendant” in determining the amount of a contempt sanction — a fine of $1,000 a day, for example, would deter most Americans from disobeying a court order, but it’s peanuts to a billionaire or multi-national corporation. Thus, stiffer fines may be necessary to ensure that a wealthier party held in contempt of court feels the bite of those sanctions.

Davis may not be wealthy, but people who harbor anti-gay sentiments have shown considerable willingness to donate to individuals or businesses who present themselves as high-profile martyrs to their cause. An Indiana pizzeria whose owners made anti-gay comments earlier this year, for example, raised over $840,000 from donors who apparently share their animus.

For this reason, it may be necessary for Judge Bunning to order Davis to turn over any donations she receives from donors sympathetic to her defiance to the Constitution.

Thus far, Davis has said that she will not resign from her elected position as county clerk, and it is unlikely that there are sufficient votes in the state legislature to remove her from office via impeachment.

 

Reprinted with permission from Think Progress, a branch of The Center for American Progress