Saturday, September 5, 2015

Really Brian Brown? Seriously? ... and a summary

I am just catching up on my email — I went AWOL at about 4:00 PM Friday. One interesting piece came from National Organization for Marriage. It is titled “Share This Petition to Free Kim Davis.”

Aside from the obvious (Judge Bunning doesn't run his court through petition), it is filled with the usual hyperbole in common use by anti-gay groups. Apparently tyrannical judges are doing the bidding of evil, mean gay activists in order to defy God. We have seen it all before and can quote it ad nauseum. One paragraph struck me as particularly dishonest (highlighting added):
I have one final request. Please consider making a contribution to NOM so that we may get our petition distributed far and wide. Coordinating a nationwide petition drive and rallying people to take action is a costly but worthwhile undertaking. We need your help! Please consider making a contribution of $25, $50, $75, $100 or even $250 or more to help free Kim Davis.
This is wrong on so many levels. NOM's means of “coordinating” and “rallying” is to send out emails. NOM can coordinate and rally around the globe until Brown's keyboard falls apart and it is not going to make the slightest difference in the plight of Kim Davis. Her contempt of court finding is now on appeal to the Sixth Circuit Court of Appeals. Given that they have already ruled on the underlying matter by denying a stay while her case was on appeal, it seems most unlikely that Davis can prevail in overturning her contempt of court ruling.

The notion that giving money to NOM is going to “help free Kim Davis” is ludicrous. When it comes to raising money, it is obvious that NOM has run out of even bad ideas. In the final analysis every penny of the tens of millions of dollars that NOM has received over the last eight years has gone to waste. It is not easy to counteract that track record.

In point of fact, we have no idea what NOM now is. Other than Brian Brown, working out of an office in the Philadelphia suburbs, what is left of NOM in DC? How many employees do they now have? What on earth do they do all day? How is Brown housed when he works out of DC? How much is NOM paying out in travel expenses so that Brown can shuttle between PA and DC?


As for Ms. Davis she is represented by the anti-gay hate group, Liberty Counsel. The more they do on her behalf — the more donations they receive. So just to summarize:

The underlying issue:

Whether or not Kim Davis, in her official capacity, must issue marriage licenses to gay couples when doing so conflicts with her religious beliefs. Davis lost the matter at trial. US District Court Judge David L. Bunning issued an injunction compelling Davis's office to issue the licenses.

Appeal I 

Davis has appealed Judge Bunning's decision to the Sixth Circuit Court of Appeals. the Court has signaled that Davis will not prevail (see below).

Stay I

  1. Davis' attorneys asked Judge Bunning to stay his own decision pending appeal. He refused but issued a temporary stay.
  2. They then appealed to the Sixth Circuit Court of Appeals for a stay while they considered her appeal. They declined primarily, they noted, because Davis is unlikely to prevail. The temporary stay was vacated.
  3. They then requested an emergency stay from SCOTUS. Judge Kagan referred the matter to the full Court. They declined.
The key paragraph from the opinion by the Sixth CCA seems to summarize this entire misadventure on Davis' part (emphasis added):
The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court. There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal.

Contempt of Court

After a lengthy hearing Davis was found guilty of contempt of court for continuing to deny (for herself, other county employees and her office) the issuance of marriage licenses to gay couples. She was jailed. After the remaining staff (with the exception of Davis' son) said that they would comply with the court's ruling, Davis was brought back to court and given an opportunity to agree not to interfere. She declined and was sent back to jail.

Davis is likely to be released after about a week. If she then interferes she will be held in criminal contempt of court which is a more serious matter.

Liberty Counsel now claims that the problem all along was the fact that Davis' name is on the marriage license as the county clerk. I don't believe that for a second but it allows Davis and LC an opportunity to save face and claim victory if the State of Kentucky changes the wording. In the interim, however, as a matter of law she is required to comply with the court which is something that she has refused to do.

Stay II

Davis' attorneys asked Judge Bunning to stay his own ruling while they appeal the contempt of court finding. Bunning declined.

Appeal II

Davis' attorneys have now appealed the contempt of court charge to the Sixth Circuit Court of Appeals. They are unlikely to prevail.

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