Even knowing the reasons why Kim Davis can’t just be fired, it’s still hard to wrap my head around the inequity of it. Regrettably, Davis is an elected official. Since she was chosen by the voters, she can't be terminated as a normal state employee can be. Instead, she needs to be impeached and removed from office by the Kentucky state legislature, which currently isn't in session. Even if it were in session, it seems like the votes for impeachment aren't there.
Later today, Davis is almost certainly going to be held in civil contempt by Judge David Bunning of the Federal District Court for Eastern District of Kentucky. She’ll be fined. And maybe jailed. But it probably won’t force her to relent. Davis has said that it’s a “Heaven and Hell decision” for her. It’s hard to walk back from that. Plus, civil fines may not be enough to dissuade Davis, particularly if she gets funding from sympathizers, like the Indiana pizza place did via Kickstarter (BTW, that incident actually raises a completely different legal issue than Davis’ case, since there it wasn't a public official unlawfully refusing to carry out basic duties).
This got me thinking. There is arguably a basis for bringing various federal criminal charges against Davis, which I explain below. Although there’s some risk she’ll be seen as a martyr, that seems like it’s going to happen anyway with the contempt ruling. And the other advantages, on balance, outweigh the drawbacks.
Foremost, prosecuting Davis would drive home the message that people can't unilaterally defy and hold themselves above the law when serving in an official capacity. If someone's conscience forbids them from carrying out a public duty, they have a legal and honorable option: resignation. But public officials don't have the unilateral right—as Davis seems to claim—to redefine their legal duties based on their subjective interpretation of their preferred religious text.
Davis is violating the rights of everyone in Rowan County who applies for and is denied a marriage license. She's doing this, presumably, so that she can claim she's not discriminating on the basis of sexual orientation. But this misunderstands Obergefell v. Hodges (2015) 576 US _, which held that the right to marry is a fundamental right grounded in primarily under due process clause of the 14th Amendment (although equal protection was also cited). So, under Obergefell, it's not (just) the discrimination that makes her denial of marriage licenses unlawful, it's the denial itself. So Davis doesn't fare better by denying all marriage licenses. In fact, she just strengthens the case that she can't perform a fundamental duty of her public office—while conveniently clinging to that office and her $80,000 salary paid by the very people whose rights she's denying. By doing this, Davis is seizing control of the power of the state and using it, without authority, to defeat rights that are constitutionally-guaranteed against the state’s denial. That's why she needs to be prosecuted.
As the 6th Circuit Court of Appeal noted, in denying Davis’ request for a stay on appeal after the district court ordered her to issue marriage licenses:
“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.”
US Attorney for the Eastern District of Kentucky, Kerry B. Harvey, has already stated that he has “grave concerns” and warned that Davis must “follow the law.” Now he needs use the tools at his disposal to put an end to Davis’ nonsense and actually make her follow the law.
If Davis continues to refuse to perform her official duties based on her private religious beliefs, he should file criminal charges against Davis for deprivation of rights under color of law pursuant to 18 USC § 242-- which states, in the relevant part:
"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States ... shall be fined under this title or imprisoned not more than one year, or both."
These charges can be filed immediately based on Davis’ denial of marriage licenses to straight or gay couples—all of whom enjoy the fundamental right to marry, and all of whom have been willfully denied the right by Davis in her official capacity as Rowan County Clerk.
In addition, if anyone in the staff of the Rowan County Clerk's Office continues to follow Davis’ unlawful instructions to deny marriage licenses after she is held in contempt tomorrow, they will be on notice that they are assisting Davis in carrying out her illegal acts (especially since they’ve been ordered to attend the hearing). Unless they relent immediately, that may be enough to infer their implicit agreement to aid Davis, and the US attorney should then charge them and Davis with conspiracy against rights under 18 USC §241, which states, in the relevant part:
“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same … [t]hey shall be fined under this title or imprisoned not more than ten years, or both.”
Conviction under 18 USC § 241 is a felony. This is where things get interesting. Under Kentucky law, felons are constitutionally disqualified from holding public office.
Section 150 of the Kentucky Constitution provides that “[a]ll persons shall be excluded from office who have been, or shall hereafter be, convicted of a felony, or of such high misdemeanor as may be prescribed by law, but such disability may be removed by pardon of the Governor.” Ky. Const § 150; see also KRS § 335B.010(3)-(4); KRS § 335B.020(1)-(2) (permitting felons’ disqualification from “public employment”).
Moreover, Section 150 is “self-executing, and no statute enacted by the Legislature can dispense with their requirements or provisions.” Arnett v. Stumbo (Ky. 1941) 287 Ky. 433, 435 (holding that the constitutional disqualification from public office also applies to convictions for federal felonies).
So there would be no need for impeachment proceedings (particularly if the votes aren’t there) or figuring out what happens during the period of Davis’ incarceration (which would prevent her from occupying and exercising her public duties even if she continued to hold office). Rather, as soon as Davis exhausts her appeals of the possible criminal conviction, and maybe before then, she’d be out.
Problem solved. Decisive precedent set. Rule of law preserved.
[TL;DR] Davis can possibly be convicted of a federal felony, which would automatically disqualify her from serving as Rowan County Clerk under Kentucky law.
