Thursday, September 03, 2015

Support Kim Davis and Die!

I would openly wonder whether publicly issuing death threats could land you in jail, but then I thought, well, maybe jail now is just for people who practice their religion.

Don't you love this tolerance stuff?


Anonymous said...

It's easy to pick extremists from the other side (either one) and make fun of them.
Publicly issuing death threats seldom lands you in jail (Google threats against the president).
What other option did the judge have? Davis refused to do her job, she can't be fired, and fines would most likely be paid 10 fold over by her supporters (that's your true prosperity gospel).
How would Martin feel about some radical Islamist slaughtering some Christians and then claiming he is just practicing his religion and shouldn't be punished?

j a higginbotham

Martin Cothran said...

Well, let's see, he could have employed the state's religious freedom law. That way, instead of preaching to Kim Davis about following the law, he could have done it himself.

Anonymous said...

OK, good point. Let me rephrase the question. What legal options did he have?
A state law can not override the Constitution. When there is a conflict, the Constitution (current interpretation thereof) prevails.
It's true that Davis, when sworn in, did not have to issue same-sex marriage licenses. Maybe she would not have run under current conditions. But she still should resign if she can't do her job.

j a higginbotham

Singring said...

"Well, let's see, he could have employed the state's religious freedom law."

Martin, I think your blag might have been hacked by an impostor!

I seem to remember you telling everyone to take a chill pill about the religious freedom law. Those concerns about it being used to allow public officials to just override laws because of their religious beliefs? Pish Posh! You assured everyone that it was no big deal and would just codify the same protections already in place, give or take.

Now here's another Martin Cothran telling us a judge should have used this very law to allow a county clerk to flaunt the law.


Here, for example, is you (March 24, 2013) bloviating about the critics of the bill:

"I expect those groups to distort the truth. They do it all the time. For them, it seems a daily ritual. But those in the journalistic profession are supposed to be better than that.

When it came to that the issue actually was, some journalists just parroted the Fairness Alliance's press releases: "The bill," said Philip Bailey of WFPL, UofL's public radio affiliate, "would have allowed Kentuckians to ignore laws or regulations that violated their faith."


Here he is again from that same post:

"Here's Joe, doing is best imitation of a Fairness Alliance press release:

See, the bill allows folks to ignore laws that run counter to their deeply held religious beliefs.

Oh, C'mon. It does no such thing. Either Joe knows this, in which case he's knowingly stating a falsehood, or he doesn't know it, in which case he doesn't need to be writing an editorial on the issue for the state's largest newspaper.

HB 279 simply re-installs the standard of "strict scrutiny" in religious freedom cases that prevailed universally in this country from 1938 to 1990, and which applied at both the federal and state level once again after the Religious Freedom Restoration Act (RFRA) in 1993."

Here's that Martin again (16th of March 2013), in an official press release, no less, telling his critics how wrong they are:

"When it's been pointed out that you are mistaken, it's time to stop saying what you've been saying. This is just a measure of how low the standards of integrity are with the groups that are trying to stop this bill."

Well I never.

So what you just posted - well, it couldn't have been you, because that would mean you were lying repeatedly when you were defending the law!

Singring said...

PS: I meant 'blog, but 'blag' just about nails it, actually.

Anonymous said...


I'm a Catholic lawyer who leans right. I'm sorry, but you couldn't be more incorrect about the religious freedom restoration act. It has literally nothing to do with this case. The law says that the Kentucky State Government can't burden free exercise. Judge Bunning, a conservative, Catholic Republican jurist applied federal law. Federal law requires that the licenses be issued. Additionally, the state of Kentucky was not the Plaintiff. If the state was acting against her, then maybe, maybe she would have a defense under Kentucky's RFRA. But the Plaintiffs are private people who have been denied their federal rights as established by the Supreme Court. If you want to argue that the Supreme Court overreached, disregarded natural law, etc., go right ahead. Make a moral argument or a philosophical argument. But please stop making legal arguments because you are not a lawyer, and you have no legal training. Frankly, I find it highly insulting that you are implying that Judge Bunning did not follow the law. Kim
Davis is not in jail because she is a Christian. She is not in jail because she is opposed to same sex marriage. She is in jail because she has willfully ignored a valid order of a United States district judge. Bunning as much said yesterday that he doesn't agree with same sex marriage, but he followed our civil law. If Kim Davis doesn't want to issue licenses, she resigns. It's that simple. Martin, I'm not trying to be mean or otherwise insult you, but please stop making legal arguments that are quite simply incorrect. Stick to moral philosophy and logic, both of which don't have much to do with the American legal system anyway.

Anonymous said...

I for one want Martin to live! Just so I can see him royally taken down by singring and others in the comments after his unintentionally funny posts.

Martin Cothran said...


I'm quite willing to have legal rank pulled on me here, but, just so I can better understand the point you are making, maybe you could explain here how a person could obtain relief in a case, for example, in which his level of protection under state law exceeds that of any federal law.

It is my understanding, that a state can have a higher degree of protection than under federal law on issues like religion, and that, in fact, that is the case here, since the state RFRA re-instituted a higher standard the government has to meet than does federal law.

The issue of her obligations under federal law notwithstanding, if she has higher protections in Kentucky, where does she go to have them addressed?

Anonymous said...


The history of RFRA is a bizarre one. Long story short, Scalia didn't want Native Americans to smoke peyote. So he wrote an opinion saying that a law that is facially neutral that affects the free exercise of religion does not violate the free exercise clause. In this case, the law said "no one can smoke peyote." It was facially neutral, so it was upheld. Had the law said "Native Americans can't smoke peyote in religious ceremonies" it would have been struck down, because that is a law that clearly targets free exercise.

In response, RFRA was passed. To my recollection, it originally applied to both the states and congress. However, the Supreme Court struck it down as it applied to the states as an unconstitutional infringement on states rights. It still remains law at the federal level, i.e. congress. That's why Hobby Lobby was decided the way it was; it was decided under the heightened protection of federal RFRA. Hobby Lobby would have lost on the constitutional level absent RFRA.

Kentucky's RFRA is pretty much identical to the federal equivalent. The reason there was so much controversy over the Indiana version is that it went one step further. It said not only can government not infringe on free exercise, but it essentially immunized businesses from suits from citizens as long as the otherwise discriminatory conduct was based on a religious belief.

In Obergefell, the Supreme Court held that marriage is a fundamental right that cannot be restricted. So, right off the bat, even if RFRA did apply, there is your "compelling interest" sufficient to restrict free exercise. But, RFRA doesn't apply in this case, because the plaintiffs were private actors seeking to have their fundamental rights made available in their county of residence. The state of Kentucky was not the Plaintiff, nor was the United States congress. Judge Bunning did "not pass a law restricting" Davis' free exercise. He ordered her to comply with federal law requiring access to fundamental right of marriage, and to that end, he ordered her to comply with Kentucky's law requiring that county clerks issue marriage licenses.

I suppose you could make a very nebulous and strained argument that Kentucky's RFRA requires that the legislature change how marriage licenses are issued to satisfy at most 120 people, but that's not a realistic argument. The intent of the law was to protect the cake baker who does not want to make a wedding cake for a same sex marriage on religious grounds. BUT, the law only protects the cake baker from fines or penalties imposed by the government. It does not protect him from civil suit by the same sex couple. Our version of RFRA was not written to allow our elected officials to selectively enforce laws. So, to be quite frank, Kim Davis' only recourse is to resign from public service or issue the licenses. In my personal opinion, it would be a criminal waste of tax payer dollars to hold a special session when Kentucky's RFRA almost certainly doesn't require the law regarding the issuance of marriage licenses to be changed.

Anonymous said...

Thanks anonymous lawyer for the informative and illustrative comments.

j a higginbotham

Martin Cothran said...


You say, "RFRA doesn't apply in this case, because the plaintiffs were private actors seeking to have their fundamental rights made available in their county of residence. The state of Kentucky was not the Plaintiff, nor was the United States congress. Judge Bunning did "not pass a law restricting" Davis' free exercise. He ordered her to comply with federal law requiring access to fundamental right of marriage, and to that end, he ordered her to comply with Kentucky's law requiring that county clerks issue marriage licenses."

I am trying to determine if you are making a jurisdictional argument here or a substantive one, but, in any case, setting aside Kentucky's RFRA for the moment (I don't think that actually played a part in the actual case anyway), you seem to be saying that there is a "federal law" (one that did not exist when Davis took her oath of office) by which the "right" of same-sex marriage trumps Davis' right of religious exercise.

Could you clarify for me why the one right overrides the other?

Let's take an analogous case. Let's say it was not Davis' right of religious exercise that was the issue here, but another First Amendment right: her right to free speech. Let's say that her duties of office required her not to sign a document in order to effect a same-sex marriage, but to perform some speech act which she was unwilling to make and she appealed to the First Amendment right of free speech instead.

I realize this is a little fanciful, but it is not outlandish and serves the purposes of illustration.

Would the same criteria hold? That her First Amendment right of free speech could be overridden--even in a civil case in which no government entity served as the plaintiff--by
a federal marriage law?

Could an act normally performed by a public official which violated her Constitutionally enumerated free speech rights be commanded by a judge on the basis of a federal law that recognizes another, un-enumerated right?

Anonymous said...


My point is that Davis doesn't have a free exercise right in this situation. No one has a free exercise right in this situation as the law has been developed in the late 20th century. Kentucky has a facially neutral law. The facially neutral law says that county clerks issue marriage licenses. There is no direct mention of religion, so it's facially neutral. Under Scalia's opinion from the early 90s, facially neutral laws that affect religion do not violate the free exercise law of the US constitution. That's what the Supreme Court has said. I'm not endorsing it, but that's the law, no ifs, ands, or buts.

So, it's a two pronged analysis. Under prong 1, you look at the bare constitutional test. If it's a facially neutral law, then legally, there is no free exercise violation from a constitutional standpoint.

Prong 2 is RFRA. This is the heightened standard. It's stricter than the US Constitutional test for a free exercise violation. For reasons already discussed, RFRA is not implicated in this case.

So, under both the constitutional test and the RFRA test, her free exercise rights were not violated under American civil law.

Now, American law is not some sort of magic, platonic "good." It's flawed, as are all man made laws. You appear to be making a philosophical argument that her free exercise rights were violated. You are free to do so, and many would agree with you. I'm not taking a position on it one way or the other. My only point is that, under the artificial structure of American law, her rights were not violated. Judge Bunning correctly applied secular law.

What frustrated me was your LEGAL critique of Bunning's actions. If you want to critique his actions within a higher moral framework that's fine. Throughout history what the law demands is not justice. But please understand that Bunning's decision was absolutely correct, when viewed in the vacuum of American jurisprudence, with no other considerations.

Anonymous said...

As for your freedom of speech question, freedom of speech jurisprudence is an incredibly jumbled and highly specified area that I am not really familiar enough with to comment on. Suffice to say there are tests within subtests within analyses, etc. It is common for certain government officials to be forced to voluntarily give up certain freedom of speech righs before they can accept office, such as judges.

Martin Cothran said...


See Eugene Volokh's article in the Washington Post in which he has a different opinion than yours in regard to the applicability of Kentucky's RFRA:

Anonymous said...

I was actually going to post that here. He argues that Kentucky's RFRA could be applicable in suit by Kim Davis against the state. However, he seems to suggest that it doesn't do her any good in the present litigation. Which is mostly what I have been trying to say, albeit far more articulately than I was saying it. RFRA isn't relevant for the current federal lawsuit because the plaintiffs are private persons, but it could be relevant in a separate state court action by Davis. Admittedly, I didn't think she would get anywhere with a state court RFRA claim, but this article has caused me to rethink that.

Martin Cothran said...

That was actually my question about Volokh's article: He says that it probably would not work in federal court. So does that mean they just file another case in state court? And, if the RFRA did work in state court, would that get her out of jail despite the federal judge's order? I'm unclear as to how the state and federal systems relate in this situation. Any light you could throw on this would be appreciated.

Anonymous said...

I need to read the article again, but I think he is saying as follows:

1) Federal Courts can issue injunctions against state officials for not abiding by federal law.

2) Kim Davis did not abide by federal law as articulated by the Supreme Court, i.e. her actions prevented the issuance of marriage licenses in Rowan County.

3) Therefore, the federal courts can order her to comply with federal law, i.e. the fundamental right to marry.

4) Federal Courts traditionally do not issue injunctions requiring state officials to comply with state law. Therefore, the federal court would not order Kentucky officials to comply with Kentucky state law, i.e. Accommodations under RFRA.

5) It's possible she could get an injunction against the state under RFRA in state court.

6) If this happened, she may no longer be in violation of federal law, because her violation of federal law was predicated on her not issuing marriage licenses, which was her duty under state law. If her duty is modified under state law, she is presumably no longer violating federal law, because it's no longer her job to issue licenses.

7) Again, this is my interpretation at first blush. I need to read the article again. I also think her likelihood of success under a state court RFRA suit is slim, but the author, who knows far more than me, seems to think otherwise.

KyCobb said...


Judge Bunning has already agreed that Kim Davis doesn't have to do her job. All he has required of her is that she not interfere with her deputy clerks in the performance of their jobs. They aren't even putting her name on the licenses, so she really doesn't have any grounds left to complain that her religious liberty is being violated. As bad as her argument is that she doesn't have to do her job, further claiming that she has a religious liberty right to prevent other people from doing their jobs is completely untenable.