The chatter about what kind of punishment Kim Davis, the refusenik Kentucky clerk, deserves for defying a federal court order to issue same-sex marriage licenses misses a key point. The judge in the case at this stage is primarily interested not in punitive action in the narrow sense but in compelling Davis to obey the order.
The victims here, or the aggrieved parties is probably a better way of putting it, remain the same sex couples in Rowan County who cannot get married because of Davis recalcitrance. That’s where the focus should be, and where I assume the judge is focused.
The argument about whether Davis deserves a fine or jail time in the abstract, or whether jailtime will reward her by making her a martyr, puts the focus on her instead of on the couples injured by her inaction. The judge should be focused on what coercive action is most likely to compel her to act in accordance with the his order. She still has to act to issue the licenses, and so in that sense she controls not just her fate but that of the couples seeking to lawfully wed.
Of course, the two things overlap: The more punishing the court sanction the more likely she probably is to act, but the distinction is an important one.
