by Michael Dorf
As the Kim Davis saga becomes a culture war Rorschach test, it is tempting to spend one's time gagging over the nonsense on the right, beginning with Mike Huckabee's characterization of the jailing of Davis for contempt as the "criminalization of Christianity," and perhaps ending with Davis attorney (and former Liberty Law School Dean) Mathew Staver's comparison of his client to Jews in Nazi Germany. Given the fate of gay and lesbian Germans under Nazi rule, this has to rank as one of the most inappropriate Nazi comparisons ever.
I will leave the cultural aspects of this farce to the cultural critics and continue to focus on the legal questions, which, as I tried to show in my earlier discussions of this odd case (here and here), are not entirely clear-cut. For now I'd like to take a stab at an issue that is clear-cut but that, for reasons I don't understand, has been treated by Federal District Judge Bunning as mysterious.
The question is whether the marriage licenses that Judge Bunning seemed to order* the deputy clerks in Rowan County to issue late last week are valid, notwithstanding the fact that Davis did not authorize them. Apparently, when Judge Bunning issued the order he said "I am not saying" the license issued by the deputy clerk pursuant to the order "is or it isn’t" valid. This statement is perplexing.
It may well be a difficult and/or unresolved question of Kentucky law whether a deputy clerk can issue a valid marriage license over the objection of the elected Clerk. In an excellent treatment of several issues in the Davis case over on Balkinization, Marty Lederman explains how the relevant provisions of Kentucky law might bear on this and related questions. But the right answer to the question whether Kentucky law treats a deputy clerk as having the authority to issue valid licenses despite the objection of the Clerk is "IT DOESN'T MATTER."
Federal district judges have broad authority to order remedies for violations of federal constitutional rights. Sometimes what they order will violate state law. For example, if Kentucky law forbade racially integrated public schools--as it did before and even for a few years after Brown v. Board--a federal district judge could nonetheless order a school board or principal to admit African American students into an otherwise all-white public school. The fact that doing so would violate state law would not deprive the remedy of its force. Federal law--including federal court interpretations of federal constitutional rights--displaces state law pursuant to the Supremacy Clause.
To be sure, there's a difference here. In the segregation case, the very state law in question--mandating segregation--is itself invalid. In the Davis case, assuming that Kentucky law required a county Clerk to authorize her deputy to issue marriage licenses for those deputy-issued licenses to be valid, that law itself--which concerns the allocation of authority between clerks and their deputies--would not be unconstitutional. But again, it doesn't matter, as the Supreme Court made clear in Missouri v. Jenkins.
In Jenkins the Court affirmed that a federal district court supervising constitutionally required desegregation could order a local government unit to collect taxes that were illegal under state law. It's true that four Justices disagreed with this aspect of the opinion, but they did so chiefly on the ground that imposing taxes is a uniquely legislative function, so that a court could not authorize taxation where the legislature had not. And the five Justices in the majority thought that principles of comity and federalism would counsel caution before a court should order a state or local actor to impose a tax without state legislative or state constitutional authorization. But the majority thought that it could be done in an appropriate case. More importantly, in a case like Davis--where the power conferred is to grant licenses rather than to raise taxes--the comity and federalism concerns are much less serious.
Accordingly, once Judge Bunning determined that ordering the deputy clerks to issue the marriage licenses was necessary to effectuate his preliminary injunction in light of Davis's refusal to comply, questions of state law became irrelevant--except with respect to comity. Sure, it would have be an aubsue of discretion for Judge Bunning to order a random state or county official (the highway commissioner, say) to issue marriage licenses. But deputy clerks who can issue marriage licenses with the Clerk's consent are not random actors, and thus it was hardly an abuse of discretion for him to deputize them--regardless of what Kentucky law might say about the matter.
Finally, it's worth noting that if I'm right about this, then Judge Bunning needn't have jailed Davis. He could have fined her for failure to obey his order, but coercing compliance would have been unnecessary to effectuate the plaintiffs' rights once it was recognized that, per the Supremacy Clause, the licenses issued by the deputies would be valid.
* Postscript (Update): I originally referred in this post to Judge Bunning's "order" to the deputy clerks to issue marriage licenses but I have learned that there doesn't appear to be such an order--even though Judge Bunning did threaten to hold the deputy clerks in contempt if they didn't issue licenses. Because contempt is premised on violation of an order, I had assumed that there was such an order. This (further) oddity provides a possible explanation for why Judge Bunning doesn't know whether the deputy-issued licenses are valid. If there is no order from him, then the validity of such licenses really would be a matter of state law. However, Judge Bunning himself can remove the uncertainty by properly joining the deputy clerks as defendants, issuing a show cause order, and then, after a hearing, officially ordering the deputies to issue (or reissue) licenses. At that point, the foregoing analysis would fully apply.