Saturday, September 05, 2015

Ruminations 59: On the Follies of Using Criminal Contempt Against Religious Dissenters; Ought this to be a Question of Legal Capacity?

(© Carter County Detention Center via AP This Thursday, Aug. 3, 2015 photo made available by the Carter County Detention Center shows Kim Davis. From  Adam Beam, Kentucky clerks to license marriages as their boss is jailed, AP through MSN, Sept. 3, 2015)

It was expected that the U.S. Supreme Court decision in Obergefell vs. Hodges would produce push back along religious lines.Many across the globe have been following what has become the spectacle of an elected official of the state of Kentucky refuse to abide by the Supreme Court's interpretation of the scope of her duties--in this case to issue marriage licenses to same sex couples (see here).   

Most people seem to agree that the county clerk, Kim Davis, ought to be required to fulfill the functions of her office.  Many probably believe that the contradictions between the duties of the office and her religious beliefs should have been resolved by her resignation--thereby preserving her beliefs intact and not interfering with the beliefs of others now entitled to protection.  

But that is not the way events have progressed.  Having been abandoned by the courts to which she turned for the vindication of her substantive right to either (1) assert a duty to avoid application of a constitutional interpretation and any law grounded therein which she believes is unconstitutional (compliance with which would force her to violate her oath of office); or (2) assert a right to dissent from the law as interpreted by the Supreme Court, absolving her from issuing marriage licenses that violate her religious beliefs, Ms. Davis chose to engage in an act of civil disobedience.  She chose to defy court orders to do her duty as the elected clerk and issue marriage licenses. 

To no one's surprise, this has infuriated the judge whose order she defies now on religious grounds. Because she both refused to issue licenses or to allow officials in her employ to do so, the judge incarcerated Ms. Davis. (Adam Beam, Kentucky clerks to license marriages as their boss is jailed, AP through MSN, Sept. 3, 2015). 

This post considers the consequences  for the continuing national discussion about the relationship between the state, the individual, religious belief, and religious institutions. My sense is that the court, while technically within its authority to use its power of contempt, undermined its authority by doing so.  It might have been better, and especially in cases involving religious dissent, to consider the legal capacity of the actor in her ministerial role rather than asserting a power of contempt over the person for the exercise of her personal religious convictions. 

The contours of the confrontation leading to prison are both stark and simple.

A defiant county clerk went to jail Thursday for refusing to issue marriage licenses to gay couples, but five of her deputies agreed to issue the licenses themselves, potentially ending the church-state standoff in Rowan County, Kentucky.

U.S. District Judge David Bunning said he had no choice but to jail Kim Davis for contempt after she insisted that her "conscience will not allow" her to follow federal court rulings on gay marriage.

"God's moral law conflicts with my job duties," Davis told the judge before she was taken away by a U.S. marshal. "You can't be separated from something that's in your heart and in your soul."

Bunning offered to release Davis if she would promise not to interfere with her employees issuing marriage licenses on Friday morning. But Davis, through her attorneys, rejected that offer and chose to stay in jail.

For the judge, Ms. Davis engaged in an egregious act of willful disobedience of a court order. This is an issue not of religion but of the authority of the courts and of the preservation of a system grounded on rule of law and overseen by the courts. The courts have jurisdiction over the bodies of persons. It is onto those bodies--the individual person--that judicial power is projected. That is true regardless of whether that individual stands before the court in her individual or institutional capacity. Yet here, the court appears to punish the individual, asserting religious conviction, for failing to perform, in her official capacity, a duty that strikes at what she claims to be, and we must accept as, core religious beliefs. The object is sound--to ensure that the office carries out its responsibilities as required by law. The method ought to trouble us--because it is grounded on the punishment of the person of the individual for religious dissent.

In a sense, the judge appeared to have little choice. All that was left to the judge was the body--the person of Ms. Davis--in the face of the representative branches of the government of Kentucky, in turn to do their duty. The legislature, also asserting a power of contempt for the judicial branches and its imposition of an interpretation of the Constitution in Obergefell vs. Hodges have refused to invoke their power of impeachment. That, they might well believe is a power reserved to them as a means of asserting their own authority to interpret and apply the Constitution within their own spheres of activity ( Edwin Meese III, The Law of the Constitution, 61 Tulane Law Review 979 (1987) online version here). The courts, of course, followed by many academics, have a quite different view (Cooper v. Aaron, 358 U.S. 1 (1958) ). It was for the court to ensure that government ministers did their duty. It was through the actions of the ministers that such duty would be performed. And thus it was through coercion applied to the bodies of the individuals that such duty could be enforced. Yet there is a bit of medievalism here--one that continues to insist on the conflation of individual and office ion ways that are both archaic and unhelpful. They are archaic in the sense that the notion of fusing an autonomous individual with the autonomous office which she serves goes against both modern notions of human dignity and the basic principle of fairness that allocates responsibility to those autonomous legal personalities to which they may be assigned. The practice is ancient--Americans, like their English forebearers, embraced the concept of mandamus as a contemporary expression of an ancient conflation because it was traditional, easy and efficient. But they did so even as the notion of the individual was changing--losing its concept as property (though that took until the 1860s) or dependency (that took until the early 20th century for women) and acquiring notions of autonomy founded on personal liberty. That autonomy ought to carry over to the actions by individuals in a representative capacity--because the essence of a representative capacity is an acknowledgement of the autonomous relationship between two juridically distinct persons. Modern notions of fiduciary duty have moved in this direction, suggesting that for directors, for example, the fusion of their institutional role (the management of an autonomous corporation) and their personal role are not identical. Concepts such as the corporate opportunity doctrine provide a hint at the American approach that is both pragmatic and realistic.

This separation of individual from office is particularly significant when an individual asserts religious conviction as a constraint on activity. On the one hand the individual under our system--as interpreted by our courts (the irony here is not lost on me in this context)--ought to be respected for the religious choices she makes. This respect extends even where we may disagree with her theology, her understanding and application of her religious duty, or her understanding of the faith she is purporting to apply in her daily life. On the other hand, her office is autonomous of her person. Her office requires its holder--who is not the office but merely an instrument for the actions required to be undertaken by that office--to fulfill its obligations as required by law. That office cannot have a religion, or religious scruples of any kind--except to the extent that such sectarian or anti-sectarian scruples are incorporated lawfully into the framework within which that office is formed and functions. To conflate the two within the body of the individual suggests, as in the 17th Century in Europe--that the state can be and assert religious choices, and that such choices are a combination of the office and the individual holder.  And in the U.S. system it suggests worse.  On the one hand it embraces the premise that the state cannot function beyond sectarianism, and worse, on the other, that the individual  office holder may be personally punished for religious dissent.  The stock answers usually involve conflations and separations that are well worn and unsatisfying--that Ms. Davis must put her religious scruples aside to provide the services required of her office, or that the office ought to find a way of accommodating her religious dissent even if it makes it harder or less likely that the office will fulfill its obligations faithfully, or that the individual through the office has a constitutionally protected right to use that office to counter what other branches of government impose in a constitutionally suspect way, etc.   

And perhaps it might have been better for the court to have started by first separating the person--Ms. Davis--from the office--county clerk. So separated, the question is no longer necessarily centered on the contempt of the individual for the order of the court. Instead, the question might have been better understood as the legal capacity of the individual to serve in her ministerial capacity as county clerk in the face of her lawful assertion of personal religious right. Her religious dissent as an individual might well have resulted in making her legally incapable of undertaking the duties (not her duties but those duties bound up in the office of clerk). That is, Ms. Davis, by asserting her religious convictions, Ms. Davis was no longer capable of serving in a representative capacity, that is to serve the office in accordance with its own principle and needs.  If she were found legally incapacitated, then the rules that might have applied on the finding of incapacity for other reasons--death, a debilitating illness, disappearance, etc.) would have applied and she would been effectively removed from an office she was no longer capable of serving in accordance with its (not her) obligations. Such an approach would be respectful of her religious choices as an individual, but also equally respectful of the obligations assigned to the office of the clerk. The result might have been the same from the perspective of state--the clerk's office would have begun to issue marriage licenses to all qualified therefor under law; but Ms. Davis would not be punished for her religious dissent. But she would also not be able to assert her dissent against others, amplified through a hijacking of the autonomous office of clerk for the expression of her personal religious dissent.

To summarize, the county clerk, Kim Davis, ought not to be compelled to violate her religious conscience--directly or indirectly.  Jailing religious dissenters is wrong and the spectacle of that jailing goes against our values and our basic principles of human dignity.  Her religion and religious views--her lived expression of those views, even her public expression of those views, ought to be respected. Yet, her religious conscience is hers, and hers alone.  It must inform her capacity to serve others, especially her capacity to assume a fiduciary or representative role as the voice or manifestation of a juridical or governmental person--in this case that of the office of the county clerk. Her personal religious convictions incapacitates her from acting in a representative capacity defined for the office she seeks to hold. That incapacity may well make her dead to the county clerkship, but not the subject of incarceration.   

It is lamentable that in this age in which the American people, grown luxuriously fat and forgetful on the sacrifices of earlier generations that brought a measure of sectarian peace and governmental stability, would squander that by the mis-deployment of medieval principles no longer really relevant to modern state organization or notions of individual autonomy in efforts to commence sectarian battles for the control of the state apparatus,. It is even more regrettable when our legal rules and principles provides methods for avoiding unnecessary confrontation. The court did what it did because that is what courts have done. But it need not have. By choosing the well worn path it made it easier to fuel sectarian flames when alternatives were available, but alternatives unsatisfactory to those on both sides of the underlying issue who would rather see blood than pragmatic efforts toward respectful social harmony.

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