She stated that she has ordered that the licenses issued by the Deputies will not include her name *or title or "authority" *[not clear what that means, since the form doesn't mention her "authority" in the first place], and that the licenses will bear the notation "Issued pursuant to a federal court order."
http://wishtv.com/2015/09/14/kentucky-clerk-jailed-over-gay-marriage-to-return-to-work-today/ On Sat, Sep 12, 2015 at 5:56 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > 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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