In response to Eugene: As I’ve said, it’s certainly true that the KY RFRA cannot affect determinations of US Constitutional law. And because the district court did decide against her on the US constitutional right-to-marry issue and did issue an injunction, she is obligated to obey the injunction until and unless it is reversed, on pain of being held in contempt. (Indeed, even if the district court erroneously ordered her to authorize licenses on the ground that KY law requires her to do so, she would have the same obligation to obey the injunction. It probably would not have only a frivolous pretense of validity, per the Walker v. Birmingham analysis.)
If it is reversed, then civil contempt sanctions will be eliminated to the extent possible. Of course we don’t have a time machine so that her time in jail for civil contempt could be undone, but she could not be held liable for civil contempt conditional fines that had been imposed. As we all know, she could still be held liable for criminal contempt even if the district court is reversed. Walker v. Birmingham. A list member noted that no one wanted to go there because it would make her more of a martyr. In any event, it isn’t the plaintiffs’ call whether she will be prosecuted for criminal contempt. The US Attorney can do so, and I believe the district court might appoint a disinterested person to deal with the matter. The plaintiffs cannot prosecute a criminal contempt – the Supreme Court held that very clearly, I believe in the Vuitton case. So, indeed, in order not to commit a crime, she must either obey the injunction or resign. That is independent of the merits. My points dealt with the merits, and with whether the federal court should interpret and enforce Kentucky law in a case in which there is no diversity jurisdiction. I don’t see how the federal court can find that Kentucky had a compelling interest in requiring marriage licenses to be available in every county; is that a call for a federal court to make, even if otherwise possible? Or that the legislature had no alternative means of advancing such an interest, if compelling, without burdening Davis’s religious exercise (or more appropriately her religious conscience). There obviously are alternative means -- if that is the compelling interest -- and under the Kentucky RFRA the legislature bound itself to use them rather than burdening Davis’s religious exercise. If I were her I would authorize issuance of the licenses, and if I were her attorney I would be required to advise her to do so (though I could also explain the law of civil and criminal contempt, as noted above, and tell her that in the end the decision is hers). That’s about all I have to say, though I may respond further to Steve, if the press of other business allows me to. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Sunday, September 06, 2015 1:59 PM To: Law & Religion issues for Law Academics Subject: RE: What's happening in KY? -- wrong case, wrong parties Mark Scarberry: > The only real questions for the federal court should be whether her > even-handed > refusal to authorize issuance of any licenses violates the 14th Amendment's > equal protection clause and whether her refusal impermissibly burdens the > right > of all couples to marry (when they can get licenses from other counties by > driving an hour). Perhaps if one of those issues is decided against her, then > the > federal court could exercise jurisdiction to decide the state law issue, but > otherwise it seems to me that the federal court should leave the issues to > state > officials and state courts. I appreciate that the right-to-marry issue isn't open and shut, but the district court did decide it against her: The state action at issue in this case is Defendant Davis' refusal to issue any marriage licenses. Plaintiffs contend that Davis' “no marriage licenses” policy significantly interferes with their right to marry because they are unable to obtain a license in their home county. Davis insists that her policy does not significantly discourage Plaintiffs from marrying because they have several other options for obtaining licenses: (1) they may go to one of the seven neighboring counties that are issuing marriage licenses; (2) they may obtain licenses from Rowan County Judge Executive Walter Blevins; or (3) they may avail themselves of other alternatives being considered post-Obergefell. Davis is correct in stating that Plaintiffs can obtain marriage licenses from one of the surrounding counties; thus, they are not totally precluded from marrying in Kentucky. However, this argument ignores the fact that Plaintiffs have strong ties to Rowan County. They are long-time residents who live, work, pay taxes, vote and conduct other business in Morehead. Under these circumstances, it is understandable that Plaintiffs would prefer to obtain their marriage licenses in their home county. And for other Rowan County residents, it may be more than a preference. The surrounding counties are only thirty minutes to an hour away, but there are individuals in this rural region of the state who simply do not have the physical, financial or practical means to travel.5<https://a.next.westlaw.com/Document/I95b9b473446c11e5b86bd602cb8781fa/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604070000014fa46fad50b54f9c63%3FNav%3DCASE%26fragmentIdentifier%3DI95b9b473446c11e5b86bd602cb8781fa%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=476ca35114bd249d44b10de6c8c43bea&list=ALL&rank=1&grading=na&sessionScopeId=07ec083a71a481eca5671cf7ea341fd6&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29#co_footnote_B00552036878200> This argument also presupposes that Rowan County will be the only Kentucky county not issuing marriage licenses. While Davis may be the only clerk currently turning away eligible couples, 57 of the state's 120 elected county clerks have asked Governor Beshear to call a special session of the state legislature to address religious concerns related to same-sex marriage licenses.6<https://a.next.westlaw.com/Document/I95b9b473446c11e5b86bd602cb8781fa/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604070000014fa46fad50b54f9c63%3FNav%3DCASE%26fragmentIdentifier%3DI95b9b473446c11e5b86bd602cb8781fa%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=476ca35114bd249d44b10de6c8c43bea&list=ALL&rank=1&grading=na&sessionScopeId=07ec083a71a481eca5671cf7ea341fd6&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29#co_footnote_B00662036878200> (Doc. # 29–9). If this Court were to hold that Davis' policy did not significantly interfere with the right to marry, what would stop the other 56 clerks from following Davis' approach? What might be viewed as an inconvenience for residents of one or two counties quickly becomes a substantial interference when applicable to approximately half of the state. As for her assertion that Judge Blevins may issue marriage licenses, Davis is only partially correct. KRS § 402.240<https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000010&cite=KYSTS402.240&originatingDoc=I95b9b473446c11e5b86bd602cb8781fa&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)> provides that, “[i]n the absence of the county clerk, or during a vacancy in the office, the county judge/executive may issue the license and, in so doing, he shall perform the duties and incur all the responsibilities of the clerk.” The statute does not explicitly define “absence,” suggesting that a traditional interpretation of the term is appropriate. See Merriam–Webster Online Dictionary, 2015, http:// www.merriam-webster.com/<http://www.merriam-webster.com/>, (describing “absence” as “a period of time when someone is not present at a place, job, etc.”). However, Davis asks the Court to deem her “absent,” for purposes of this statute, because she has a religious objection to issuing the licenses. While this is certainly a creative interpretation, Davis offers no legal precedent to support it. This proposal also has adverse consequences for Judge Blevins. If he began issuing marriage licenses while Davis continued to perform her other duties as Rowan County Clerk, he would likely be exceeding the scope of his office. After all, KRS § 402.240<https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000010&cite=KYSTS402.240&originatingDoc=I95b9b473446c11e5b86bd602cb8781fa&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)> only authorizes him to issue marriage licenses when Davis is unable to do so; it does not permit him to assume responsibility for duties that Davis does not wish to perform. Such an arrangement not only has the potential to create tension between the next judge executive and county clerk, it sets the stage for further manipulation of statutorily defined duties.7<https://a.next.westlaw.com/Document/I95b9b473446c11e5b86bd602cb8781fa/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604070000014fa46fad50b54f9c63%3FNav%3DCASE%26fragmentIdentifier%3DI95b9b473446c11e5b86bd602cb8781fa%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=476ca35114bd249d44b10de6c8c43bea&list=ALL&rank=1&grading=na&sessionScopeId=07ec083a71a481eca5671cf7ea341fd6&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29#co_footnote_B00772036878200> Under these circumstances, the Court simply cannot count this as a viable option for Plaintiffs to obtain their marriage licenses. Davis finally suggests that Plaintiffs will have other avenues for obtaining marriage licenses in the future. For example, county clerks have urged Governor Beshear to create an online marriage licensing system, which would be managed by the State of Kentucky. While these options may be available someday, they are not feasible alternatives at present. Thus, they have no impact on the Court's “substantial interference” analysis. Having considered Davis' arguments in depth, the Court finds that Plaintiffs have one feasible avenue for obtaining their marriage licenses-they must go to another county. Davis makes much of the fact that Plaintiffs are able to travel, but she fails to address the one question that lingers in the Court's mind. Even if Plaintiffs are able to obtain licenses elsewhere, why should they be required to? The state has long entrusted county clerks with the task of issuing marriage licenses. It does not seem unreasonable for Plaintiffs, as Rowan County voters, to expect their elected official to perform her statutorily assigned duties. And yet, that is precisely what Davis is refusing to do. Much like the statutes at issue in Loving and Zablocki, Davis' “no marriage licenses” policy significantly discourages many Rowan County residents from exercising their right to marry and effectively disqualifies others from doing so. The Court must subject this policy apply heightened scrutiny. This might be mistaken: It’s not obvious to me that it’s a violation of the federal Constitution to issue licenses only in some counties and not others – for instance, if Kentucky deliberately chose to issue licenses not on a county-by-county level, but on a region-by-region level, with licenses available only in one place in a multi-county region, it’s hard for me to see that this would be a Due Process Clause violation. On the other hand, perhaps that would be seen as a burden but a constitutionally permissible one, motivated by some state interest such as efficiency; perhaps in the absence of a state interest supporting the exclusion, this would be an arbitrary and thus unjustified burden on the right to marry. Compare, though recognizing that there are considerable differences, Schad v. Borough of Mt. Ephraim, a First Amendment case rejecting a “you can go to a neighboring town” argument in support of a ban on live entertainment, and Ezell v. City of Chicago (7th Cir.), a Second Amendment case rejecting such an argument in support of a ban on gun ranges. But in any event, there was indeed a finding by the federal court of a right-to-marry violation. Eugene
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