There is a difference between not being expressly permitted and being expressly forbidden to do something. Right?
Whether it makes sense to you personally or not, it is the law.
When it comes to making an illegal order, be it an illegal order of commission or an illegal order of prohibition, an illegal order is illegal.
Commission: a warden commands a deputy to shoot a prisoner, just for the hell of it.
Omission: a warden commands a deputy to never again permit a prisoner to eat or drink, just for the hell of it.
Both are illegal orders, and neither are binding on the deputy.
The clerk has made an illegal command, just for the god of it. Her illegal order is not binding on the deputies.
And in hindsight, “the political left” turns out to have been right.
Funny how that keeps happening, over and over again, every single time a culture clash of this nature occurs.
To assist the clerk who doesn’t have the time to do all of the work. The clerk has full authority over the deputies unless she orders them to do something outside of the scope of their job or, as in this case, orders them to do something illegal. Specifically, denying people marriage licenses was illegal. Since the clerk is in jail and unable to do her job, the deputies will take over her duties.
It wasn’t against CA law at the time. That’s why Prop 8 was put on the ballot which made it illegal until Prop 8 was found to violate the U.S. Constitution.
The fault in this reasoning is the requirement of her being in jail for deputies to issue the licenses. If the arguers in this thread were correct, the deputy clerks could issue the licenses with the clerk being in the office with no jailing needed.
At the risk of playing Devil’s Advocate, it actually was unlawful in CA at the time. The voters in CA banned SSM via Prop 22 in 2000. It was its being overturned by the state Supreme Court in 2008 that lead to Prop 8 being proposed and enacted.
Somebody has to be in charge of the office, hire the deputies, instruct them in their duties, and so forth. That person is the clerk.
The clerk hires the deputies, and in the act of hiring them gives them the authority to perform the ministerial functions of her office.
Once she has hired them, she can discipline the deputies as needed, including firing them if they do not perform properly (and since they are almost certainly at-will employees rather than civil service, she can also fire them for any other reason). However, instructing them to perform an illegal act (by commission or by omission) is not a power she has.
The deputy clerks could be fired if they did that, and they know it. Are they going to risk their jobs with her standing over them, or in the office next door?
They could have but they were intimidated. She threatened to fire them if they did. If one of them managed to do so while she was out at lunch or something, the marriage would have been legal.
Then she should fire all the deputies. Would be legal and accomplish the same purpose.
If they were intimidated by anyone, it was by the judge.
Nope. She is in jail for contempt of court by breaching an order (specifically a writ of mandamus) that directed her to carry out her legislated duties as clerk. It doesn’t matter that someone else is picking up the slack. What matters is that she has refused to do her job as a public officer.
Being in jail, though, seriously restricts her ability to do anything of the sort.
A couple of them were. At least one said publicly that he wanted to license the couples but his boss ordered him not to do so. She could have let him do all of the marriages in the first place but she wouldn’t let him.
Would not be legal. There is a “public policy” exception to “at will employment” in Kentucky.
How? She is still the county clerk. She can sign the order to fire them and pass it through her attorney. There is nothing that requires she do this in person.
So basically, your argument at this point is that any bureaucrat in any office anywhere in the country has the unilateral authority to nullify the Constitution of the United States by personal fiat, and may order their subordinates to either break the law or lose their job.
So much for that “nation of laws” you were pretending to advocate for a few hours ago.
She would be charged and convicted for official misconduct in the first degree (a.k.a. abuse of public office in the first degree).
And then she would be sued into oblivion by the deputies.
And by the way, right now she could be charged and convicted on two counts of official misconduct in the first degree, first for refusing to issue marriages licences, and second for ordering the deputies to not issue marriages licences.