Davis has now filed a couple of briefs in the Sixth Circuit, and attached the transcript of the contempt hearing to one of them . . . so now it's possible to figure out where things are heading, at least to a certain extent.
*1.* *Judge Bunning construes his P.I. to cover the Deputy Clerks* The judge is of the view that the P.I. enjoins the Rowan County Deputy Clerks, as well, under FRCP 65(d)(2)(B), because they are Davis's "employees," are on notice of the injunction against her in her official capacity, and (as I described in my first post) are themselves authorized by Kentucky law to issue marriage licenses. Judge Bunning therefore threatened to hold the Deputies in contempt, too, if they continued to refuse to issue licenses. That's why Deputy Clerk Mason is now issuing the licenses--although he also asserted that he was willing to do so earlier, and would have issued them prior to the P.I. but for Davis's direction to him not to do so. *2.* *Davis is moving to overturn Judge Bunning's expansion of his injunction to cover nonparties. * She claims that Bunning should not have expanded the P.I. beyond the four named plaintiff couples, and is asking the Sixth Circuit to reverse that expansion. I'm not sure about the procedural questions, but she actually might have a point on the merits. It turns out that the judge did *not *(as I hypothesized earlier) expand the P.I. in anticipation of granting class certification. That was the rationale offered by the plaintiffs for why he should do so, but it's not the reason Judge Bunning gave for expanding the scope of the P.I. Instead, his rationale for expanding it was that he has before him two companion cases, Nos. 15-46 and 15-62, each involving one other plaintiff couple (David Ermold/David Moore, and James Yates/Will Smith, respectively), "that involve, in essence, the very same allegations with the same lawyers." "[I]t just makes judicial sense," he said at the hearing, "to have the Circuit review the decision for all three of [the cases]. I'm not granting a class certification motion. But I do believe that allowing the injunction as it currently exists to apply to some, but not others, simply doesn't make practical sense, so that's the Court's ruling." If that's his reason for expanding the P.I., however, it's not clear to me why he wasn't required to limit the expansion to the two couples who had filed lawsuits in the companion cases or, at most, to all couples who have filed or do file such cases. He doesn't really offer a justification for having expanded the P.I. to cover couples who appear at the Rowan County Clerk's Office but who do *not *file a suit. (Perhaps he assumes that any couple turned away by David *would *promptly file a suit; but I doubt that's a valid assumption.) Accordingly, I think there's at least some chance that the court of appeals will limit the P.I. to the named parties. Five of the six plaintiff couples (including both of those in the companion cases) have already obtained licenses on which Davis's name does not appear. (Only Shantel Burke and Stephen Napier have not yet done so.) Therefore, a reduced P.I. would cover only one remaining couple (Burke/Napier), at least until such time as Bunning certifies a class in one or more cases before him. *3.* *Davis wishes to instruct the Deputy Clerks not to issue licenses to nonplaintiff couples* There appears to be little doubt that if the court of appeals limits the P.I. to the named plaintiffs--and perhaps even if it does not--Davis will instruct her Deputies not to issue licenses to any couples other than (perhaps) Burke and Napier, *even if those licenses do not include her name*. And the Deputies will likely obey such an order if the P.I. is cut back, because they are of the view that but for the injunction they'd be subject to Davis's direction and control. If the injunction remains in its present form, and Davis directs the Deputies not to issue licenses, I imagine at least one of them (Mason) will ignore her order, in order to avoid being held in contempt. *4.* *Davis continues to argue that she is legally entitled to issue such an order to the Deputy Clerks by virtue of Kentucky's RFRA, even if the licenses would not bear her name* As Eugene prophesied, Davis has, indeed, changed her theory of religious obligation to fit the changed circumstances. (I realize that's not the way you would put it, Eugene!) As I noted earlier, her previous papers indicated that deleting her name from the form would be an adequate accommodation of her religious obligations. Among the alternatives that Davis argued would "accomplish" the state interest "without substantially burdening Davis’ religious freedom and conscience" was: Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ *name*, and *thus* to remove the *personal nature *of the authorization that *Davis* must provide on the current form. Similarly, at the contempt hearing she testified that she would not have any objection "if there were a way to issue a marriage license from Rowan County that did not depend on [her] authorization and bear [her] name." Her lawyer also stated that if the form had "no personal authority, no Kim Davis name on it, available in a Rowan County Clerk's office, . . . this case would be over." Now that her name has been removed, however, she insists that both her name *and *her title must be deleted from the form, and *then* "this case would be over." She doesn't ever quite explain why she's insisting on this extra amendment, except in a footnote, where she says that unless the licenses are scrubbed of her name and title, they would "appear to be, or can be deemed to be, issued on Davis’ authority." This is, of course, nonsense. Indeed, as I've previously explained, even *before *her name was removed, the license--which would have read: "Issued this 9/_/2015 *in* the office of Kim Davis, Rowan County County Clerk, Morehead, Kentucky *by* Brian Mason [signature initials], Deputy Clerk”--would not have "depended" on Davis's "authorization" nor conveyed, to any reasonable observer, that Davis authorized or approved or sanctioned any same-sex marriage. But surely, even if I were wrong about that, does anyone truly believe that Davis's religion prohibits *her office, and Mason*, from issuing a license that reads: "Issued this 9/_/2015 in the office of the Rowan County County Clerk, Morehead, Kentucky by Brian Mason [signature initials], Deputy Clerk,” on the ground that such a license would "appear to be, or can be deemed to be, issued on Davis’ authority"? At the hearing, Davis testified that she would have no religious objection if a license did not depend on her authorization or bear her name. These licenses don't do either thing. Perhaps there's an easy way for Mason to call Davis's bluff here, too: Just as he has omitted her name from the form, perhaps he could issue licenses that are further amended to read: "Issued this 9/_/2015 in Morehead, Kentucky by Brian Mason [signature initials], Rowan County Deputy Clerk.” I don't know whether Kentucky law would permit such a unilateral amendment by Mason. The statute requires that the license contain "[t]he date *and place* the license is issued, and the signature of the county clerk *or deputy clerk* issuing the license." Whether "Morehead" would suffice to designate the "place" is, I'd wager, a question of statutory interpretation no one has ever considered. In any event, the argument that Davis's exercise of religion is significantly burdened if a license to officiate a same-sex marriage indicates that it was "issued in the office of the Rowan County County Clerk, by Brian Mason, Deputy Clerk,” is, I think, quite obviously a mere ploy to keep her case alive no matter much her claims have been accommodated. *5. Davis continues to urge the federal courts to order the Governor to amend the marriage license form to delete the space for her name and office--but she's unlikely to get such relief* Davis continues to push her claims in *federal *court against the Kentucky Governor, insisting that he be ordered to amend the marriage license form to delete the references to her name and office. Judge Bunning ruled yesterday that Davis's federal claims against the Governor, under the First Amendment, have little to no likelihood of success, and that her claims under Kentucky law, including Kentucky RFRA, are barred by sovereign immunity. "Davis’ claims brought under state law should therefore be brought in Kentucky state court," he explained. The Governor himself has made similar arguments, as well as others, in the court of appeals, and that court is likely to agree with Judge Bunning. For what it's worth, in the Sixth Circuit Davis argues that her Kentucky RFRA claim is not barred by *Pennhurst *because *denial *of that claim is itself a violation of her federal constitutional rights. Her attorneys write: [S]overeign immunity does not preclude state law claims based upon violations of state statutes that compel nondiscretionary duties, as are involved here. The Kentucky RFRA mandates an analysis for all government action, and is not discretionary in its terms. See Ky. Rev. Stat. § 446.350 (“Government shall not substantially burden a person’s freedom of religion.”) (emphasis added). As such, the Kentucky RFRA creates a liberty interest protected by the Fourteenth Amendment’s Due Process Clause and thus a violation of it constitutes an unconstitutional denial of liberty without due process. I'll let that argument speak for itself. On Tue, Sep 8, 2015 at 6:28 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > Eugene reports, pursuant to a phone conversation with Davis's attorneys, > that she will continue to press her RFRA claim, and insist that the > licenses not be issued, because, even though her name is no longer on the > licenses, the name of her *office *is! > > > https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/ > > It's just like the contraception cases -- whenever the government > accommodates even the most implausible theories of complicity by > eliminating the aspects of the scheme that the plaintiff asserted made her > morally complicit, the plaintiff then unveils a new (and even more > attenuated) theory of responsibility that is said not to be left > unaddressed by the accommodation. In this way, the plaintiffs effectively > exploit the fact that the governments in question (admirably) do not choose > to challenge the sincerity of the ever-evolving theories of complicity. >
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