Kim Davis files brief in contempt hearing arguing it’s “factually impossible” for her to comply with SCOTUS

Kim Davis will appear before U.S. District Court Judge David Bunning at 11:00 AM this morning to explain why she shouldn’t be held in contempt of court for refusing to issue marriage licenses despite Bunning’s previous order to do so starting this week. Davis appealed to the Supreme Court for a stay on Bunning’s ruling, which the Court declined to hear.

And when she appears before the court, she will make a boldly unusual defense.

In a brief filed yesterday, Davis’s lawyers cited precedent stating that: “The court’s power to impose coercive civil contempt is limited by an individual’s ability to comply with the court’s coercive order. A party may defend against a contempt by showing that his compliance is factually impossible.”

“…by showing that his compliance is factually impossible.”

“…factually impossible.”

Wow.

Are Kim Davis’s hands broken? Is she allergic to paper? Is there some other physical impediment keeping her from signing a form indicating that two people are married? Of course not. By impossible, she means her inability to commit unforgivable sins in the eyes of God.

Which she’s had no problem doing in the past.

In order for the factual impossibility defense to work, as the motion notes, the defendant “must show categorically and in detail why he or she is unable to comply with the court’s order.” Kim Davis isn’t unable to comply; she’s unwilling. We’ve been over this quite a few times.

She might have better luck claiming it’s legally impossible for her to marry couples involving more or less than one woman, as a strictly literal reading of the Kentucky statute outlining the issuance of marriage licenses specifies that the license should be obtained in the county where “the female” resides.

On second thought, she probably doesn’t want to call too much attention to that passage, as it’s almost certainly illegal post-Obergefell.

According to Buzzfeed, Davis’s motion also calls for a jury trial. Since she is facing criminal charges of official misconduct, she argues, holding her in contempt for violating the court order without granting her due process for the official misconduct charges would be a violation of her rights. I’m a bit behind on Law & Order, but I’m pretty sure that’s not how contempt of court works.

In any case, if this is the best Kim Davis has got, she’s going to lose. Badly. While there already isn’t much hope for Davis, as the facts of her case haven’t changed since Bunning issued his original court order, her strategy has devolved into the legal equivalent of the Elephant Theorem:

Elephant-thing

Kim Davis claiming that she is incapable of putting pen to paper on a marriage license if the couple in question doesn’t contain exactly one woman because God says so makes exactly as much sense as drawing an elephant to get out of answering a physics question. It may make sense to you, but it won’t earn points with anyone else.

(h/t New Civil Rights Movement)

Edit: That’s a physics question, not a calculus question.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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