Defying the Rule of Law

August 27, 2015

During a White House Press Conference in 1958, President Dwight Eisenhower explained why he sent the military to Little Rock when local officials defied court orders on desegregation: “There is no person in this room whose basic rights are not involved in any successful defiance to the carrying out of court orders.”

Nearly 60 years later, our system of justice is still threatened when local government officials defy the courts as part of their political grandstanding.

The Recent Standoff in Kentucky

Consider, for example, the recent decision to recognize that same-sex couples have a right to marry. On June 26th the United States Supreme Court issued its landmark ruling in Obergefell v. Hodges, holding that “the right to marry is a fundamental right inherent in the liberty of a person,” and that “couples of the same-sex may not be deprived of that right and that liberty.”

Just hours after that decision issued, Kim Davis (the County Clerk for Rowan County, Kentucky) announced that her office would not issue any marriage licenses at all. Davis said that her own religious beliefs conflicted with the idea of Same-Sex Marriage. Several Rowan County residents filed a class action to compel her to issue marriage licenses, but she still refused. She even filed a new lawsuit against the Governor of Kentucky, arguing that her County office should be excused from issuing licenses for Same-Sex Marriages, because of her personal beliefs.

On August 12th, the United States District Court for the Eastern District of Kentucky issued an injunction that barred Davis from using her “no marriage” policy, finding that her personal religious beliefs did not permit her to deny Rowan County residents the protections of the Obergefell decision. [1] Davis has disobeyed that injunction since it was issued. She has filed an appeal, but the Sixth Circuit has already said that it will not Stay the injunction during her appeal, finding that Davis has no basis for her refusal to follow the binding holding of Obergefell.

Through this all, Davis has used her government position for personal grandstanding. She has violated the duties of her office. And she has shown contempt for the rule of law and disdain for all of us who turn to the courts for justice.

Will Davis continue to defy the injunction (and continue to denounce the Obergefell decision)? Until she complies, justice for the Rowan County plaintiffs will be delayed.

The Long-Running Deadlock in Arizona

But Davis is not alone. Halfway across the country — in a completely unrelated legal battle — Sheriff Joe Arpaio in Maricopa County, Maricopa CountyArizona is similarly stubborn. Arpaio’s legal dispute began in 2007, when a group of Latino plaintiffs brought a civil rights class action in federal court. In Melendres v. Arpaio, the plaintiffs alleged that Arpaio violated their rights by authorizing racial profiling for traffic stops, all as part of a sweep for possible violations of the immigration laws.[2] In 2011, the District Court issued an injunction that prohibited Arpaio and his office from continuing with their wrongful patrol and arrest practices.[3]

In April of this year, the Ninth Circuit affirmed that judgment (with minor modifications).[4] Since then, the District Court has found that Arpaio and his senior staff have systematically violated the 2011 injunction, and those violations have included baseless charges against Latinos.[5] While admitting that he has violated the injunction,Arpaio has begun attacking the District Court judge, even using the sheriffs’ office to investigate the judge for misconduct. [6] On July 10th, Arpaio lost a motion to disqualify the judge, and the Court has renewed its efforts to get Arpaio to obey the 2011 injunction.[7]

Like Davis, Arpaio has refused to comply with an adverse ruling, simply because he disagrees with it. Meanwhile, justice for the Melendres plaintiffs has been delayed.

What Do These Examples Mean?

I have a few reactions.

First, I think that Davis and Arpaio illustrate the worst parts of politics in the 21st century: contentious, uncompromising, and opportunistic. Their selfish crusades are trampling the rights of their constituents, while wasting time and money. Yet somehow, these examples are not even that shocking, given how disgraceful our political system has become.

Second, I am troubled that these are not examples of pro se litigants gone wild. In both of these cases, experienced lawyers are representing the defiant local politicians. Surely those lawyers must realize that these cases have gone beyond proper advocacy. Surely they also know that this level of defiance tends to diminish everyone that it touches.

Finally, it is plain to me what should happen next. For Kim Davis and Joe Arpaio, the responsible options are obvious: comply with the Courts in full, or resign from public office. If Davis and Arpaio reject those responsible options – that is, if they continue to defy the Courts — they should face the severest contempt sanctions.

Our legal system cannot permit their defiance to succeed.


Photo Credit: Caravan 4 Peace


[1]          Miller v. Davis, 2015 U.S. Dist. LEXIS 105822, at *42 (E.D. Ky. Aug. 12, 2015).

[2]          Melendres v. Arpaio, 784 F.3d 1254, 1258 (9th Cir. 2015).

[3]          784 F.3d at 1259.

[4]          784 F.3d at 1267.

[5]          See Order Denying Motion for Recusal or Disqualification, dated July 10, 2015 (ECF No. 1164), in Melendres v. Arpaio , 07-cv-2513 (D. Az.), at 1-3.

[6]          Id. at 5-12.

[7]          Id. at 40.

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