Constitutional Law Professors Weigh in on Kim Davis Lawsuit

After spending six days in jail for her refusal to authorize marriage licenses to same-sex couples, Davis was released by U.S. District Judge David Bunning with the stipulation that she could not “interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.” This week, the ACLU filed suit against Davis over changes she has made to marriage licenses. A deputy clerk has been issuing the licenses, but Davis removed her name and the name of her office. The ACLU claims the alterations treat same-sex couples as second-class citizens and wants the court to enforce the return of the same licenses used across Kentucky.

marriage license

Western Michigan University Cooley Law School professors offer various opinions regarding the lawsuit filed against Rowan County, Kentucky Clerk Kim Davis by the American Civil Liberties Union.

Professor Michael C.H. McDaniel

Professor Michael C.H. McDaniel

WMU-Cooley Constitutional Law Professor Michael McDaniel believes Davis’ actions are in violation of her oath of office. “Article VI, Sec.1, clause 3, of the U.S. Constitution states ‘… all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…’ and as an elected official of the executive branch of local government, surely is bound by this oath. She breached that oath by interjecting her religious views into her duties as a public official, in violation of the Establishment Clause of the First Amendment.”

Professor Gerald Fisher

Professor Gerald Fisher

“I understood the ‘accommodation’ to solve the ‘problem’ was to allow Davis to remove her name from marriage licenses,” stated WMU-Cooley Professor Gerald Fisher. “As far as I know, we do not yet have good legal ground for concluding that her actions to date would undermine the efficacy of the license itself. Getting that point settled should be the cue for developing opinions on whether Davis should be punished.”

Professor Brendan Beery

Professor Brendan Beery

WMU-Cooley Constitutional Law Professor Brendan Beery said, “The Kim Davis story illuminates widespread misunderstanding about the difference between a citizen and a state official, about the power of courts generally, and about the fact that the Constitution is the law.”

Professor Emily Horvath

Professor Emily Horvath

Professor Emily Horvath explained that “When someone is elected to public office and carries out the duties of their office, they are no longer a private individual. They are, in fact, the embodiment of the government when they are acting in their official capacity. Therefore, they are required to follow the Constitution as it is the ‘law of the land.’ The Constitution has been interpreted to prohibit states from denying marriage licenses to same-sex couples. Ms. Davis’ individual opinion cannot supplant the opinion of five Supreme Court Justices, and the use of her office to enforce her individual opinion is, quite frankly, an abuse of power.”

Professor Devin Schindler

Professor Devin Schindler

“Civil disobedience has had a long and respected history in the United States, however, even Thoreau went to jail,” said Professor Devin Schindler. “Kim Davis took an oath to office, which she is now violating. Like Thoreau, Davis must pay the consequences of her decision.”



Filed under Faculty Scholarship, Uncategorized

3 responses to “Constitutional Law Professors Weigh in on Kim Davis Lawsuit

  1. Jeff D

    I am no constitutional law expert, but from what I learned in government schools back in the ’70s. I had to go back and re-read the constitution to be sure, but, I cant find where the constitution gives ultimate power to the supreme court? The way I read it, I thought it set up 3 co-equal branches of government. It is the legislature that the constitution gives the power to write the laws, the legislative branch, not the supreme court or our president in the judicial or executive branches.

    I also thought the oath she took as an elected Kentucky official is the Constitution of Kentucky and their Constitution specifically defines marriage (as voted by the people of the state) as one man and one woman. The rules you mistakenly refer to as law of the land were changed after she took the oath. The Constitution specifically limits the federal governments power. States have all rights not assigned to the federal government by United States Constitution, which does not even mention marriage which by definition, means it is up to the states to decide.

  2. QueenOfBattle

    Is there anyone at Cooley who would bother to address the other side of the coin? Or is everyone locking into group-think on this one? Or – more likely, is it that only those who agree with the popular opinion are allowed into the article?

    The fact of the matter is that you cannot simply state that because she is a governmental employee, she loses her constitutional right to religious expression. In fact, if her duties would cause her to violate her religion, then any governmental penalization — including jail — is, in fact, prohibition of and punishment for her religious expression. It is unconscionable to demand freedom by taking away someone else’s. The homosexuals may have won their little battle to matter, but at the end of the day America loses when remaining faithful to your beliefs gets you jailed.

    Merely allowing this woman to not violate the tenents of her faith is hardly too much to ask, but people are vilifying her as if she broke a law. She didn’t set them on fire: she declined their requests. She didn’t prevent them from getting their licenses to marry (a RELIGIOUS state of being, by the way), she simply stated that she herself would not provide the license. Big whoop! Go to someone else.

    Sadly, the homosexuals are so busy demanding they be “accepted” by people whose religious beliefs or personal choices preclude doing so that they wrongly bring the issue into courts of law. A judge cannot make someone accept you (lol). We have the right to REJECT homosexuals. This is a ridiculous situation: the homosexual cause is ridiculous, the homosexual (&supporters) response – which is to oppress the Xtians – is ridiculous, and the response of courts to actually waste everyone’s time by hearing these arguments is ridiculous. The fight homosexuals launched is nothing more than an assault on Xtians – which is why they had men dressed as Jesus in their nasty parades engaging in homosexual acts with other men. Homosexuality is a joke, so are it’s supporters, and it’s members.

    I fully support this woman and, in like manner, I offer NO SERVICES TO HOMOSEXUALS. And, quite frankly, I wish a twinkie would approach me in a negative way about it. I have the right to choose; so does this woman. #FREEDOMisNOTjust4U; #FREEDOMofSPEECH; #FREEDOMofRELIGION

  3. Pingback: Military Feature Michael C.H. McDaniel: Relish Challenge and Opportunity to Serve | cooleylawschoolblog

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