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Friday, September 04, 2015

Out George Wallace-ing George Wallace

I was quoted (mostly out of context) in yesterday's New York Times on Kim Davis; I said that Davis was "out George Wallace-ing George Wallace." Wallace's stand in the schoolhouse door, and accompanying speech, remain one of the signature moments of Massive Resistance to Brown and integration. But after making his speech, Wallace stood down when facing the Attorney General, rather than being hauled off by a federalized National Guard or facing a contempt charges (the University had been enjoined to allow Vivian Malone and James Hood to register and Wallace had been enjoined not to interfere with the prior injunction). Wallace made his point and had his moment, but in the end chose not to defy the forcible execution of a court order or to go to jail for a lost cause.

What does it say about society, this issue, current politics, and attitudes towards the judiciary that Davis believed it necessary or proper to take that next step? Is it that she believes she is fighting for conscience rather than secular principles such as federalism?  Is her stand less popular locally or nationally than was Wallace's, necessitating the bigger step in order to be heard? Is her stand more popular locally or nationally, such that she garners more support and sympathy by going to jail than Wallace would have? How does the relative popularity of Obergefell as opposed to Brown affect the respective choices each make.

Does Davis go down as this generation's George Wallace? She might, if only because she is proving so rare. According to this WaPo story, citing the group Freedom to Marry, there are only a handful of counties (fewer than 20) in Southern states refusing to issue licenses, at least as a matter of formal office policies.*

* And 13 of those are in Alabama, where probate judges are waiting for the Supreme Court of Alabama to lift the mandamus prohibiting them from issuing licenses (or for SCOTUS to quickly reverse if the Supreme Court of Alabama refuses to lift the mandamus).

Posted by Howard Wasserman on September 4, 2015 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Why in the world would you think this would be an appropriate or effective place to proselytize?

Posted by: brad | Sep 7, 2015 1:35:58 AM

Joe, one can know through both Faith, including the Faith of our Founding Fathers, and Reason, that marriage cannot in essence be both existing in relationship as husband and wife, and not existing in relationship as husband and wife, simultaneously.

Posted by: N.D. | Sep 6, 2015 7:39:55 PM

You are defending secular law.

Kim Davis did not go to court and say she has a right to an exemption here because she accepted a need to prove as a "fact" that same sex marriage was not marriage. She did so as a matter of religious belief.

So, I wondered if her supporters will support someone, based on religious belief, that a divorced person could not be remarried & refused to grant a license. Or, interfaith people. Or, those who don't truly love each other. Or, any number of other things that might be based on God's law to them.

Religious freedom is not based on needing to prove the truth of things, though I fully am aware N.D. and others think the truth is that marriage does not include same sex couples. Before Loving, many thought it didn't include interracial marriage. The district judge quoted the Bible.

I don't want to belabor the point and debate with people like N.D. doctrine, but I think it is warranted to say this because she (I believe so) is not alone here. Some will evenhandedly apply these exemptions but at the end of the day, I over and over again see people not doing that. They support some because they personally believe in them. This is fine but it isn't really a neutral application of religious freedom.

Okay. I promise to move on.

Posted by: Joe | Sep 6, 2015 6:40:14 PM

Joe, with all due respect, based upon the erroneous logic of the majority of Judges on The Supreme Court, having ruled that it is permissible to grant special marital privileges to some persons who do not have the ability and desire to exist in relationship as husband and wife, they are obligated to give those same marital privileges to all persons who do not have the ability and desire to exist in relationship as husband and wife. The Supreme Court, in essence, no longer discriminates between existing in relationship as husband and wife, and not existing in relationship as husband and wife, so why the need for a marriage license or a divorce? What Law are you defending or not defending when a Court rules marriage can be both existing in relationship as husband and wife, and not existing in relationship as husband and wife, simultaneously?

Posted by: N.D. | Sep 6, 2015 6:04:37 PM

"a few courts" should be "a few people" though I'm sure a few judges will get into the act:


I agree with the comment at 2:46:09 PM too, basically. I particularly don't think refusal to defend a law by a person with a constitutional obligation, especially if the person will still enforce, is akin to a low level official refusing to follow an order that went all the way up to the USSC. How is the "personal belief" issue the same in both cases?

Posted by: Joe | Sep 6, 2015 11:29:37 AM

Any number of court rulings have been resisted. Police blithely reject various requirements in various cases. So, especially this soon afterwards and given the power of religious faith, the fact a few courts will resist to me is not that striking. George Wallace reflected a more concerted effort. Don't think we will see a Southern Manifesto of sorts.

N.D.'s personal religious beliefs are duly noted. I wonder how people supportive of her actions would think if some other clerk decides to not give licenses to divorced people or some other requirement on what marriage "means" that arises from their personal religious beliefs, honestly held, but not as well held as the opposition to same sex marriage. As with some against the contraceptive mandate (I speak from experience), I have this idea there will be some inconsistency regarding religious freedom.

Posted by: Joe | Sep 6, 2015 11:23:58 AM

It is a self -evident truth that existing in relationship as husband and wife does not depend on Race/Ancestry, which is why in Loving v.Virginia, it was not necessary to change the necessary requirement for a marriage contract, which is the ability and desire to exist in relationship as husband and wife.

Posted by: N.D. | Sep 6, 2015 12:19:24 AM

What separates Marriage from every other form of Loving relationship, is the ability and desire to exist in relationship as husband and wife. Now that The Supreme Court has removed the necessary requirement for a marriage contract in order to accommodate persons who do not have the ability and desire to exist in relationship as husband and wife, how can any Judge issue a valid marriage license when the The Supreme Court no longer recognizes that in order to be married, it is necessary to have the ability and desire to exist in relationship as husband and wife?

Posted by: N.D. | Sep 6, 2015 12:12:22 AM

What does it say? To me as a non-lawyer, I have to wonder whether it is her legal counsel that is serving as the primary agitator here. Which means, again to me, that the real question is, what does this say about the lawyers and the legal institution serving as her legal counsel?

Posted by: Walter Szymanski | Sep 5, 2015 1:04:27 PM

If it were me I'd be issuing the licenses (and I wouldn't need a court order) but now that Davis has chosen jail over compliance with what she believes to be an unjust law she is engaged in civil disobediance in which she is willing to suffer the consequences of her beliefs which I find admirable.

Her choice bothers me much less than those of sanctuary cities defying federal law, actions which have led to the death of American citizens and the advocates for which refuse to accept any personal responsibility.

Posted by: Mark | Sep 4, 2015 3:50:28 PM

I have no doubt that in two weeks we'll have SendMoneyToPeopleWhoLoveJesus.com. It isn't like it is a difficult business model to copy.

Posted by: Brad | Sep 4, 2015 3:10:52 PM

Or the new policy is to not allow people to crowd-fund their way out of their legal obligations so as to avoid obvious moral hazards.

Posted by: Howard Wasserman | Sep 4, 2015 3:10:49 PM


GoFundMe changed their policy in light of the effort to raise funds for her. Basically the new policy is you can't fund Wrongthink projects.

Posted by: Derek Tokaz | Sep 4, 2015 3:07:11 PM

Well, I consider the defiance of the court order a big thing. For me, that is what tipped Davis from "unwise, because she is going to lose in court but otherwise potentially within her discretion" to "breaking the law."

I don't think the AGs refusing to defend is on the same level, because state executives must have independent constitutional-interpretive authority, including to decide that a law is unconstitutional and not defensible.

I think part of the reason for the different reaction may have been the difference between violating state law (which is what Gavin Newsom and other liberal officials did in issuing licenses when state law forbade it) and violating the federal constitution--everyone gets a lot more worked up about the latter than the former.

Posted by: Howard Wasserman | Sep 4, 2015 2:46:09 PM

A big question for me is why I'm not seeing more discussion, other than from conservative sources, of comparisons to pro-SSM officials who seem Davis-like in their pre-Obergefell acts. The easiest comparison are those clerks or mayors who gave SSM licenses when their jurisdictions forbade it. The AGs who refused to defend seem close, too.

Yes, none of them defied court orders. But I think most of us have been critical of Davis from day one of Obergefell, not just from when she faced a court order. If we don't acknowledge the questionability when "our team" puts "personal belief above legal duties as a government official," then we're not only hypocrites, but fueling the fire of conservatives charging a one-way ratchet.

Posted by: Joe Smith | Sep 4, 2015 2:33:38 PM

Is she going to be a multi-millionaire when she comes out? Gofundme wasn't a thing back in 1963.

Posted by: Brad | Sep 4, 2015 2:11:42 PM

What is more common are local sheriffs denying concealed carry permits to persons who are statutorily qualified.


Posted by: Michael Ejercito | Sep 4, 2015 1:55:53 PM

I agree with Derek, this will not even rank as a footnote to the overall story of same-sex marriage legalization in 10 years; Wallace's stand was far more significant not only because he was governor but because it was far from an isolated event.

Posted by: Bruce Boyden | Sep 4, 2015 12:05:33 PM

What does this say about society, this issue, current politics and attitudes towards the judiciary?

Not much of anything.

Davis is a single clerk in a small county. She's not a legal scholar or a career politician. What this says is that in a large, diverse country, there's gonna be some diversity, and the law of large numbers is going to come into play.

What's noteworthy is, as you pointed out, that she's rare.

Posted by: Derek Tokaz | Sep 4, 2015 11:38:20 AM

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