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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