Brian Mason is a deputy county clerk. Is there a county clerk under whose authority these licenses were issued, or not?
[Note: I originally sent this before ND threw a touchdown pass to pull ahead of UVA a few minutes ago, but am resending now after being notified it was too long. Go Irish.] ________________________________________ 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 6:37 PM To: Law & Religion issues for Law Academics Subject: Re: What's happening in the Kim Davis case Kevin Mason -- it is the Deputy County Clerk. On Sat, Sep 12, 2015 at 6:34 PM, Walsh, Kevin <kwa...@richmond.edu<mailto:kwa...@richmond.edu>> wrote: What is the name of the county clerk under whose authority these licenses are issued? ________________________________________ 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 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><mailto: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><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 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>><mailto: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. _______________________________________________ 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.
