Marty's Balkanization post is, as usual, remarkably illuminating on the legal issues under Kentucky law. As I read it, I found myself thinking of the statues on public property cases, where the claim, as in the Texas Ten Commandments case is that the observer will attribute to the state the speech of the private parties who put it up. (There's also the Texas license plate case, of course.). Davis' argument is that here name (which is different from her physical signature) constitutes her personal endorsement of same-sex marriage. But all reasonable observers who find O'Connor's arguments remotely plausible know that is a mistake. To have her name on the license is simply and exclusively stating a fact: she is the clerk. It's like having a sign saying Rowan County Courthouse and Grounds and then seeing an Eagles Ten Commandments statue.
Sandy Sent from my iPhone On Sep 5, 2015, at 7:52 AM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: FWIW, my effort to make sense (?) of the mess; please let me know if I've gotten anything wrong (or if anyone has a transcript of the contempt hearing on Thursday, which might help explain things). Thanks http://balkin.blogspot.com/2015/09/does-anyone-have-any-idea-whats.html On Thu, Sep 3, 2015 at 5:49 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: The reports I've seen (e.g., http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) do not make clear exactly what's happening, other than that Davis is incarcerated. 1. Is the County Executive Judge now issuing certificates and licenses (which might ironically eliminate the grounds for Davis's contempt incarceration . . . until she refuses to allow the documents to be issued to the next couple that appears)? 2. What was the deal the judge offered her, regarding her deputies issuing the documents? Did she refuse it because her name would continue to appear on the two lines? Or did the judge say that she could omit her name and she still refused? Thanks in advance for any info, or, better yet, links to actual documents. On Thu, Sep 3, 2015 at 2:14 PM, Cohen,David <ds...@drexel.edu<mailto:ds...@drexel.edu>> wrote: Hi all - a mootness question for you. In the case of the KY clerk who was jailed today for refusing to comply with a district court order that required her to issue a marriage license to a gay couple (and stay denied from the 6th Circuit or Supremes), according to some news reports, now that she is in jail and not able to serve, state law allows a county’s executive judge to now issue licenses. So, presumably that will happen relatively quickly, and the plaintiffs will get their licenses. Is the case now moot and the clerk can get out of jail because she’d no longer be in contempt of a court order, since the case is vacated as moot? And the issue isn’t capable of repetition at this point for the plaintiffs, as they now have a license and can’t get another (until divorced, which may never happen). It certainly is capable of repetition for other people, but not these plaintiffs (and they haven’t filed a class action, to the best of my knowledge). We’ve been around this issue before, and to the best of my recollection, most people believe the cases say that the “capable of repetition” part has to be for the particular plaintiffs, not for someone else. In other words, is she in jail for an hour, maybe a day, and then back at it shortly to deny someone else a license (when that eventually happens) only to repeat the whole thing again? David David S. Cohen Professor of Law Thomas R. Kline School of Law Drexel University 3320 Market St. Philadelphia, PA 19104 Tel: 215.571.4714<tel:215.571.4714> drexel.edu<http://drexel.edu/law/faculty/fulltime_fac/David%20Cohen/> | facebook<https://www.facebook.com/dsc250> | twitter<https://twitter.com/dsc250> Available NOW<http://www.livinginthecrosshairs.com/>: Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism (Oxford) _______________________________________________ To post, send message to conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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