Every parent has been there. You tell your child to do something—Clean your room! Go to bed! Do your homework!—and your child just refuses. So you escalate. You may yell or take away privileges or even make a threat so extreme that you hope you never have to carry it out. These parent-child standoffs become spectacles of authority and submission—and they’re counterproductive. The drama typically delays the completion of the assigned task, and while the child might eventually learn the lesson that you best not cross your parents, the reasons why we asked the child to act in the first place often get lost.
Judges are guilty of this, too, and recently we have seen two prime examples: the depiction, in David Simon’s HBO miniseries Show Me a Hero, of federal District Judge Leonard Sand’s efforts to enforce housing desegregation in Yonkers, New York, in the 1980s and 1990s; and federal District Judge David Bunning’s punishment of Kim Davis, a clerk in Rowan County, Kentucky, who was jailed last week for refusing to issue marriage licenses to gay couples, then released on Tuesday. In each case, the judge’s focus on demanding a show of submission likely delayed compliance with the underlying principle of equal protection of the laws, and diverted attention from that basic principle to a claim of judicial authority.
When the Supreme Court ruled this summer that the Fourteenth Amendment demands that same-sex couples have the same right to marry as a state affords opposite-sex couples, that ruling rested firmly on the Constitution’s foundational guarantee of equal citizenship, particularly as regards such fundamental personal matters as the decision of whom to marry. If Davis does not feel that she can, in good conscience, comply with that ruling, she should resign from her job. Davis is no private citizen, and this is not a matter of private conscience. As the elected clerk of her county—the office that has responsibility, under Kentucky law, for issuing marriage licenses—she has a constitutional obligation to issue those licenses on an equal basis to same-sex and opposite-sex couples. Her religious objection to same-sex marriage affords her no more legal or moral basis to hold office as clerk but refuse to do her job than would a religious objection to interracial marriage.
So Davis is in the wrong. But once she refused to comply with the court’s order to issue marriage licenses equally, the question became what to do about it. Like many district judges in his position, Judge Bunning chose to initiate the authority-submission cycle. He found Davis in contempt of court and ordered her to jail until she agreed to comply with his original order (or resign). Notably, the plaintiffs in the case—same-sex couples who want to get a marriage license in their home county, as is their right—specifically disavowed any desire to have Davis placed in jail as a contempt sanction. They asked the court to impose financial penalties instead, on the premise that those penalties would eventually encourage Davis to comply with the court’s original order without, presumably, making her into a martyr.
Bunning concluded, quite reasonably given Davis’s expressed obstinacy, that financial penalties would not ensure her compliance. But did he have to hold her in contempt in the first place? No. To the contrary, Bunning had powerful tools available to ensure that the plaintiffs and other same-sex couples could get their marriage licenses in Rowan County without demanding that Davis sign those licenses.
Many members of the public—and even lawyers and judges—assume that contempt is the only power that federal judges have to enforce their orders. That is not true. The Supreme Court has long held that when a defendant fails to comply with an injunction, the court has the power to issue a further order imposing broader obligations, even outside of the contempt process, to ensure compliance. In Rowan County, Bunning could have simply ordered that, if Davis would not carry out her constitutional obligation to issue marriage licenses on an equal basis, she would be forbidden to issue marriage licenses at all. Under Kentucky law, the responsibility for issuing marriage licenses would then devolve onto Rowan County Judge/Executive Walter “Doc” Blevins, who had expressed willingness to issue the licenses on an equal basis. To ensure that Davis did not reap a windfall from that decision, Bunning could have ordered the county to withhold whatever portion of Davis’s salary was attributable to her marriage-license duties and to use that money to reimburse the judge/executive’s office. And she can still be held personally liable for compensatory and even punitive damages for refusing, after the Supreme Court’s decision, to perform her duties because she did not wish to issue marriage licenses to same-sex couples.
Had Bunning followed such a course, he would have ensured that same-sex couples could exercise their constitutional rights to marriage equality. And he would plausibly have achieved that result more quickly—and would certainly have done so with less drama—than by sending Davis to jail for contempt. Once Davis was in jail, her deputies issued marriage licenses to which she had refused to attach her name. Bunning released Davis from jail Tuesday after all of the plaintiffs received their licenses from the deputy clerks, but there remains a dispute over the legal status of licenses signed by the deputies. Judge Bunning could have resolved any question about the legal status of the couples’ marriages, without sending anyone to jail, simply by barring Davis from issuing any marriage licenses and letting the judge/executive do it.
Same goes for the Yonkers case depicted in Show Me a Hero. After finding that the city had engaged in a longstanding practice of intentional racial segregation in housing by directing subsidized housing to the areas of Yonkers that were already predominantly populated by minorities, Judge Sand entered a consent decree ordering the city to adopt an affordable housing ordinance. As the Supreme Court summarized it, that ordinance would condition “the construction of all multifamily housing on the inclusion of at least 20 percent assisted units, granting tax abatements and density bonuses to developers, and providing for zoning changes to allow the placement of housing developments.”
The affordable housing ordinance became the focal point for massive political opposition in Yonkers, and the city council refused to adopt it. Sand found the city in contempt and ordered that it pay fines that would escalate each day until it adopted the ordinance. As for the individual councilmembers who voted against the ordinance—notably the demagogic ringleader Hank Spallone, played by Alfred Molina—Sand found them in contempt as well and ordered them to be fined and jailed until they changed their votes. Although the Supreme Court stayed, and ultimately overturned, the contempt sanctions against the individual councilmembers, it left the sanctions against the city in place. With Yonkers facing bankruptcy due to the escalating fines, a majority of councilmembers eventually voted for the affordable housing ordinance.
As in Rowan County, the defendants were clearly in the wrong. But was all the drama necessary? Once the council refused to adopt the affordable housing ordinance, Sand could have just ordered into place its essential components. He could have prohibited any developer from building multifamily housing in the city without including the required number of assisted units. And he could have mirrored the required tax abatements, density bonuses, and zoning changes by simply barring the city from collecting taxes from or enforcing its zoning code against developers to the extent they would be entitled to them. Such a course would have ensured quicker compliance without the spectacle of forcing the councilmembers to go back on their word to their constituents and adopt an ordinance they had opposed.
To many observers—and, one suspects, to judges Bunning and Sand—the drama is the point. By making a prominent example of those who obstinately refuse to comply with federal-court orders, they believe, we send a strong message that no individual is above the law. But what is the lesson courts are teaching in these cases: that the constitutional principle of equal citizenship is a basic commitment, or simply that judges are powerful people who, like parents, are not to be messed with? Sometimes, basic constitutional principles cannot be enforced without drama; without the 101st Airborne, the Little Rock schools would not have been desegregated. But federal judges should always be focused on vindicating the rights of those who invoke their jurisdiction. If the judges can vindicate those rights without demanding an ostentatious show of submission to their authority, they should do so.