What is the name of the county clerk under whose authority these licenses are issued? ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Saturday, September 12, 2015 6:23 PM To: Law & Religion issues for Law Academics Subject: Re: What's happening in the Kim Davis case
They are one and the same. The authorization "statement" is at the top of the form, and does not mention an official. The official is only mentioned in the "issued by" line, which refers to Brian Mason, not Kim Davis (as the statute permits): https://www.justsecurity.org/wp-content/uploads/2015/09/davis.mason_.licenses.pdf On Sat, Sep 12, 2015 at 4:54 PM, Walsh, Kevin <kwa...@richmond.edu<mailto:kwa...@richmond.edu>> wrote: The point about validity and authorization is not about the signature required by Ky. Rev. Stat. 402.100(1)(c) but "the authorization statement of the county clerk issuing the license" required by Ky. Rev. Stat. 402.100(1)(a). What is the authorization statement of the county clerk issuing the license on the licenses issued by Mason to plaintiffs? Read Davis's PI testimony (below) for her interpretation. ________________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Marty Lederman [lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>] Sent: Saturday, September 12, 2015 4:34 PM To: Law & Religion issues for Law Academics Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman; Samuel Bagenstos Subject: Re: What's happening in the Kim Davis case The license is valid even if Mason rather than Davis signs and issues it: As I posted earlier, KY law provides that the license must contain “[t]he date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license.” Moreover, KRS § 61.035 states that “[a]ny duty enjoined by law . . . upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.” What Davis and Kevin call "county clerk authority" is no more needed here than in the case where the SG recuses from a case and the brief is signed, on behalf of the U.S., by the Deputy SG (as John Roberts did in, e.g., Metro Broadcasting). Indeed, Davis agrees that the license could be valid without her name, since that's ostensibly the remedy she's seeking--she insists that RFRA requires the Governor to issue a new license form that would omit her name and title. If Davis had genuinely been interested in making sure the marriages could go forward without her "imprimatur," she could have done in the first instance what the Deputy has done now--namely, left her name (and even her title!) off the licenses issued. (Kentucky marriage law would not prohibit that. But even if it did, Davis thinks RFRA requires an exemption, and she's the chief state official in the office; presumably Davis herself could implement RFRA.) Or she could have brought a state-court RFRA case seeking such a remedy from the Governor when she received the standard license form. Instead, she instructed the Deputies to deny licenses altogether, unless and until the legislature changes the law. But of course she didn't do any such thing, presumably because she has a quite different objective: She genuinely and sincerely and passionately believes that the Supreme Court got it wrong in Obergefell, and wishes not only to distance herself from that decision -- in the same way I wouldn't want to work on or to sign a government brief urging the death penalty -- but also to register a very vocal and public objection, based upon what she understands to be a biblical dictate about marriage. I think that registering such dissent from the Court's judgments is perfectly appropriate--honorable, even--even for a public official, as long as she does so in a way (such as by publicly announcing that Mason, rather than she, will henceforth be issuing licenses, or by resigning) that does not undermine the constitutional rights of the people who she was elected to serve. What I don't find plausible is her argument that her religious exercise is substantially burdened if the Clerk's Office, without her involvement, issues licenses that read either: "Issued this 9/_/2015 in the office of Kim Davis, Rowan County County Clerk, Morehead, Kentucky by Brian Mason, Deputy Clerk,” or "Issued this 9/_/2015 in the office of the Rowan County County Clerk, Morehead, Kentucky by Brian Mason, Deputy Clerk.” On Sat, Sep 12, 2015 at 11:30 AM, Walsh, Kevin <kwa...@richmond.edu<mailto:kwa...@richmond.edu><mailto:kwa...@richmond.edu<mailto:kwa...@richmond.edu>>> wrote: If I were a plaintiff and the validity of my marriage depended on the validity of my license, I would argue that the deputy clerk issued the license under Davis's authority. Otherwise, I would have to point to some other county clerk, and there is no other candidate. Now maybe that would be a losing argument. If so, then I would end up having to argue that my marriage was valid (or should be regarded as valid for whatever purpose I find myself arguing about) even though the license was not. I am not an expert in family law, but I understand there are some pretty good arguments one could make to that effect. So maybe I don't care that I have an invalid license. I have been assuming, though, that one of the plaintiffs' objectives is to receive _valid_ licenses through in-person application at the Rowan County Clerk's office. And county clerk authority is needed to make that happen. Marty is charitable to say an assumption about Davis endeavoring to work out a reasonable accommodation is generous; others might call it naive. In any event, I'm happy to extend the same assumption to the plaintiffs as well. I don't know whether they would have accepted a proposal like the one I have proposed if somehow the judge had been able to bring the parties to see it. But I hope so. At least some people I've expressed this hope to disagree, usually with reference to a race analogy. But the particulars matter. One frustrating aspect of this episode is that the transition in marriage licensing is not remotely as complicated as desegregating schools. There are not that many moving parts and what has to happen in the world is really quite simple to accomplish without conscripting or coercing those who refuse to cooperate on grounds of conscience. Some argue that the undermining of other interests involved in a workaround is unacceptable. With respect to the particular proposal I've put on the table for how things could work in Kentucky, at least until a more systemic fix can be adopted, I'm unpersuaded that there are unacceptable harms to the interests of plaintiffs and others similarly situated. ________________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu><mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu><mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>>] on behalf of Marty Lederman [lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com><mailto:lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>] Sent: Saturday, September 12, 2015 10:01 AM To: Law & Religion issues for Law Academics Cc: Michael Dorf; Dellinger, Walter; Samuel Bagenstos; Howard Wasserman Subject: Re: What's happening in the Kim Davis case The licenses currently being issued don't say that the Deputy Clerk is acting "on Davis's authority," and no one in their right mind would now understand him to be doing so--as the whole world knows, he's acting in direct contradiction to her attempted, and very public, direction. Kevin generously assumes that Davis is actually endeavoring to work out a reasonable accommodation that could have avoided this public contretemps and guaranteed that these couples would receive licenses in Rowan County, consistent with her religious obligations . . . but of course that would defeat the whole point of the exercise. On Sat, Sep 12, 2015 at 9:49 AM, Walsh, Kevin <kwa...@richmond.edu<mailto:kwa...@richmond.edu><mailto:kwa...@richmond.edu<mailto:kwa...@richmond.edu>><mailto:kwa...@richmond.edu<mailto:kwa...@richmond.edu><mailto:kwa...@richmond.edu<mailto:kwa...@richmond.edu>>>> wrote: There's a sense and consistency to Davis's position that, understood together with the requirements of Kentucky law and the desire to obtain licenses from Davis's office, can guide us to some potential terms of peace that require neither surrender nor conquest. Under Kentucky law, every license must contain "an authorization statement of the county clerk issuing the license." Ky Rev. Stat. 402.100(1)(a). Davis's understanding of the way that this is implemented on the current license is through the "you are hereby authorized" language on the form, together with signifiers of which county clerk is doing the authorization. This came through in her testimony at the July 20 preliminary injunction hearing. (Available at http://mirrorofjustice.blogs.com/files/d29-2-july-20-2015-pi-hearing-transcript-miller-v.-davis.pdf). BY MR. GANNAM: Q. Miss Davis, I've handed you an exhibit, which will be Defendant's Exhibit 2. Do you recognize this document? A. I do. Q. Can you describe what it is? A. It is the old version of the marriage license that was prescribed by the KDLA for us to use for the issuance of marriage applications. Q. When you say old version, do you mean the version prior to the Supreme Court decision? A. Yes, sir. Q. So this would be the form of marriage license used by your office up until June 26 of this year? A. Yes. Q. I wanted to point out for you the very first sentence after the heading that says Marriage License, Valid Only in the Commonwealth of Kentucky. It says, To any person or religious society qualified to perform marriages per KRS 402.050, you are hereby authorized to join together in the state of matrimony, according to the laws of the Commonwealth of Kentucky. Do you see that language? A. I do. Q. And when this license says "you are authorized," who do you understand to be authorizing the people on this license to be getting married? A. That would be me, the clerk. Q. And is it your understanding that that is dictated by the law of the Commonwealth of Kentucky? A. Yes. Q. And did you prepare this form yourself? A. No. Q. Who prepared or created this form? A. The Kentucky Department of Library and Archives. Q. I want to call your attention down to the middle of the form. And just for the record, there are areas blacked out of this form that would contain the personal information of whoever these applicants are. The original forms would not contain those black boxes, correct? A. Correct. Q. So in the middle of the form, it says, We hereby certify the above information is true to the best of our knowledge. And it has spaces for, on this form, the bride and groom to sign. Directly under that, it says, Issued this June 16, 2015, and the office of Kim Davis, Rowan County, County Clerk. Do you see that language? A. I do. Q. Who puts that information on the form, your name and your title as Rowan County Clerk? A. It populates from our software. Q. Do you have any control over that? A. No. Q. So when your software in your office is used to create a marriage license, does it automatically put your name and title into every marriage license? A. It does. Q. According to your understanding, who does this license say is issuing the marriage license? A. It was issued by my office. Q. And underneath, in the next line, it says By, and there's a name here, Brian Mason, Deputy Clerk. Is that a deputy clerk in your office? A. It is. Q. Do deputy clerks have the authority to sign marriage licenses? A. They have authority to sign it, yes. Q. Whose authority are they exercising when they sign it? A. Mine. Q. Are you aware of any marriage license currently available in the Commonwealth of Kentucky in Rowan County that would not require you to authorize it? A. No. Q. And do you have the discretion to create a different kind of license that would not require your authorization for it to be issued? A. No. MR. GANNAM: Your Honor, I move to admit Defendant's Exhibit 2 into evidence. THE COURT: Any objection? MR. SHARP: No objection. T HE COURT: Let it be received without objection. MR. GANNAM: May I approach again, Your Honor? THE COURT: You may. BY MR. GANNAM: Q. Miss Davis, I've shown you a document that's been marked as Defendant's Exhibit 3. Are you familiar with this document? A. I am. Q. What is this document? A. It is the marriage license that KDLA has prescribed that we use after the Supreme Court decision on June 26th. Q. And I want to draw your attention to the language at the beginning, To any person or religious society qualified to perform marriages per KRS 402.050, you are hereby authorized to join together in the state of matrimony, according to the laws of the Commonwealth of Kentucky -- I'll stop right there. Is this language the same as was on the prior form marriage license? A. Yes. Q. And under this new version of the marriage license who, do you understand, is authorizing the people named in the license to be getting married? A. That would be me, the clerk. Q. In moving down to the middle section of the form, after where the party information would be filled in, it says, We hereby certify the above information is true to the best of our knowledge, and then there are lines for signatures of first party and second party, correct? A. Yes. Q. Now, on the prior form, that said bride and groom, correct? A. That is correct. Q. Now, below that it says issued this -- there's a blank for the date, and the office of. There's a space for a name and then a county. When this form is used in your office, what would go in that space for name and county? A. That would be my name, Rowan County. Q. And is it your understanding that this signifies that the office would be -- the license would be issued under your authority? A. Yes. Q. Moving down to the part that reads Marriage Certificate, the third line down, it says -- I'm sorry, let me just read that whole section under Marriage Certificate. It says, I do certify that blank and blank were united in marriage on the -- there's a space for a date and location -- under the authority of the above license and in the presence of, please print witnesses' names. Do you see that language? A. I do. Q. What is your understanding to be the authority of the above license that it's referring to? A. That would be me. Q. And since the change in the form following the Obergefell decision, are you aware of any option in Rowan County to issue a marriage license form that's not issued under your authority? A. No. Q. Are you aware of any option for a marriage license form that would not show your name on it? A. No. Q. Apart from the sort of aesthetic differences in this form and the prior form marked as Exhibit 2 and the change in designation of parties from bride and groom to first party and second party, is there any substantive difference between the old form and the new form? A. No. MR. GANNAM: Your Honor, I move to admit Defendant's Exhibit 3 into evidence. THE COURT: Any objection? MR. SHARP: No objection, Your Honor. THE COURT: Let it be received without objection. Judge Bunning specifically asked Davis if she just objected to her name being on the license. Davis's answer was that a license issued by a deputy clerk without her name would still be a problem as long as the license is issued under her authority as county clerk: THE COURT: All right. You just object to your name being on the license? THE WITNESS: My name and my county, yeah. THE COURT: Well, your county, you're elected by the county. But if it said Rowan County and listed a deputy clerk -- let's say the deputy clerk that would be permitted to, or has agreed that he or she would not be religiously opposed to issuing the license, if it just was the deputy clerk's name with Rowan County and not your name, would you object to that? THE WITNESS: It is still my authority as county clerk that issues it through my deputy. THE COURT: All right. Very well. You may step down. Thank you. Marty says that Davis's understanding of the form and the way in which it is issued under authority is "nonsense." I disagree. If you look at the forms, the statute, and her testimony together, the understanding set forth in her testimony about the authority behind licenses issued out of her office makes good sense. Marty suggests an easy way "for Mason to call Davis's bluff." But under which county clerk's authority would a license in the form proposed by Marty be issued under? The answer would seem to be either (1) under the Rowan County Clerk's authority (and therefore an unacceptable accommodation under the criteria Davis has consistently held), or (2) under no county clerk's authority (and therefore statutorily invalid -- though the downstream effects of that invalidity may end up being small). In this vein, though, it is worth pressing harder and figuring out whether it is possible to have a form issued by Mason in Rowan County that is not authorized by Davis. For as long as the form remains unmodified, another constraint is that such a license would have to be on the current form. I have come to think that Davis was insufficiently imaginative in figuring out a way for a license to be issued out of her office without her authorization. After all, her office figured out a way to leave her name off of it even though the software automatically populates it. What else might Davis have been missing when she testified she was unaware of "any option in Rowan County to issue a marriage license form that's not issued under [her] authority." As I've argued elsewhere (http://mirrorofjustice.blogs.com/mirrorofjustice/2015/09/solving-miller-v-davis-licenses-in-rowan-county-explicitly-authorized-by-a-different-county-clerk-.html) and in a previous message, a simple workaround may exist that does not require modification of the form, that does not require Davis's authorization, and that is available from Davis's office. Given the need for county clerk authority, a deputy clerk could simply obtain another county clerk's authorization and note that on the form. Without any changes to the form, the deputy clerk could then simply add in "by the clerk of ____ County" and otherwise fill out the rest of the form without mentioning Rowan County other than in noting his or her office. Davis has previously stated that such an approach would not substantially burden her exercise of religion. Her PI opposition says that "Davis is ... not claiming that her religious freedom is substantially burdened if the license were issued by someone else in Rowan County (e.g., a deputy clerk), so long as that license is not issued under her name or on her authority." Kevin ________________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu><mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>><mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu><mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>>> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu><mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>><mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu><mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>>>] on behalf of Marty Lederman [lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com><mailto:lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>><mailto:lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com><mailto:lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>>] Sent: Saturday, September 12, 2015 5:56 AM To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu><mailto:conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>><mailto:conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu><mailto:conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>>>; Law & Religion issues for Law Academics; Michael Dorf; Samuel Bagenstos Subject: What's happening in the Kim Davis case 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<mailto:lederman.ma...@gmail.com><mailto:lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>><mailto:lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com><mailto:lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>><mailto:lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com><mailto:lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>><mailto:lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com><mailto:lederman.ma...@gmail.com<mailto: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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu><mailto:Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>><mailto:Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu><mailto:Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>>> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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 Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu><mailto:Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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 Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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 Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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.
