summarizing: http://balkin.blogspot.com/2015/09/kim-davis-developments.html
On Mon, Sep 14, 2015 at 8:45 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > 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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