Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at the Kim Davis case and how a judge in Kentucky used one of the legal system's "awesome" powers - the ability to hold someone in contempt of court.
THE STATEMENT AT ISSUE:
“Judge Bunning has just issued a court order that requires deputy clerks to authorize same-sex marriage licenses. And so he has released Kim Davis from her federal jail cell. The judge in this case appears to be attempting to manufacture what the Kentucky legislature has not done: a conscience exemption for gay marriage dissenters. So far, so good.” – News release on September 8, by the American Principles Project, a Washington, D.C.-based advocacy organization that supports religious freedom and opposes same-sex marriage. This was the organization’s reaction to the release of the Rowan County, Ky., clerk from jail after serving five days for contempt of court.
WE CHECKED THE CONSTITUTION, AND…
Controversy never ends over the constitutional fairness – or lack of it -- of one of the most awesome powers that a judge can exercise: the power to punish someone without a charge, without a jury, and even without a trial, in the usual sense. That is the authority that, by common understanding, a judge can use to hold someone to be in contempt of court. It has deep roots in English legal history, and the American Constitution clearly tolerates it – up to a point.
Normally, of course, the Constitution insists upon a wide range of legal safeguards before a person can be punished by the government. Not least of the guarantees is that the process will be fair, and will be carried out in a way that offsets the vast power of the government by respecting the security and freedom of the individual caught in the web of the law. That is what is called “due process.” The Fifth Amendment guarantees it in federal courts; the Fourteenth Amendment in state courts.
The contempt-of-court process does not really involve a complete abandonment of due process. It has its own procedure that, for most judges, is measured and restrained. And it is supposed to be used (and, most of the time, is only used) to achieve a single goal: to assure that the court can continue to carry out its normal duties of applying the law to given factual scenarios.
No court, of course, could do what it is supposed to do if its orders and mandates are routinely ignored or disobeyed. Most of the time, the courts depend upon the executive branch of government – that is, the prosecutors – to deal with disobedience or lawless conduct. That is done through civil or criminal legal process.
But, the exception that allows the judge to act directly to exists when the disobedience has occurred directly in front of the judge. This is how that particular situation will unfold: the judge, after hearing both sides in a legal controversy, makes a decision, and issues an order to carry it out. If someone refuses to obey, the judge, acting on the court’s own authority or at the suggestion of the side that had won the order, may open a contempt-of-court proceeding.
The person believed to be disobedient is not put immediately in jail or otherwise restrained. Instead, that individual is summoned to the courtroom, and given a chance to comply with the order. If that individual remains defiant, the judge has the option – then and there – to make a formal legal finding of contempt. That is not, ordinarily, a criminal conclusion.
What the judge is most interested in seeing happen in this circumstance is that the order be obeyed, not that someone be punished for failing to obey. If the judge is convinced that a fine or jailing will encourage obedience, such an order is issued. But the individual involved will almost always have the option of “purging” the contempt – that is, agreeing to give up the defiance and obey. If that happens, the judge has no interest in prolonging the process.
The nation has seen this process unfold in recent days in the high-profile case of a Kentucky county clerk, Kim Davis, who faced a specific order by a federal judge to issue marriage licenses to newly eligible same-sex couples. Because she believed that doing so would violate a religious belief, that same-sex marriage is not a valid form of marriage, she wanted to be exempted from having to obey the order. The judge refused, and she ended up a federal prisoner for five days.
When the judge decided at that point to order her release, this was not – as some of the county clerk’s fervent defenders have insisted – giving in to her claim for a religious exemption. It simply was not within the judge’s power to excuse her from her duty as county clerk to issue marriage licenses.
By sending Davis to jail for a direct contempt of his order, and by then threatening her deputies with the same if they, too, refused to issue licenses to gays and lesbians, the judge achieved his objective: to get licenses issued. At that point, leaving Davis in jail would have moved the situation from a corrective gesture to a punitive one, and that is not the kind of contempt case that this one was.
Of course, however restrained the judge and the other side in this controversy may have felt that he had been, it was entirely predictable that some of clerk Davis’ supporters would accuse the judge of “tyranny.” Indeed, some of them did argue explicitly that she had been punished because of her faith. Had the judge done that, however, he would have directly violated her First Amendment right to believe as she chose.
The contempt power, when used directly by a judge, certainly can be deeply threatening. If viewed superficially, it can look like a stark exception to constitutionally fair process. And, in the wrong hands, it may well be subject to abuse.
The fact that, each time it is used in a case that gains notoriety, the old controversy over whether that power is too great arises anew, and gets debated all over again. That is probably a fairly practical way of keeping it in check, instead of being used without hesitation out of a judge’s personal pique.
