I don’t think she’s in violation. She has not prevented the deputies from
issuing marriage licenses. Marty does not say that she has ordered them,
threatened them, penalized them, or even verbally discouraged them from issuing
licenses. I would read “in any way” to refer to the means of interfering, not
as modifying what it is that she is not to interfere with.
The requirement of specificity is something like the rule of lenity – before we
send her to jail for contempt, she is entitled to know with specificity exactly
what it is that she is not to do. I don’t think that any of Bunning’s orders
specifically tell her not to instruct her deputies to say the licenses are
issued by authority of the federal court instead of the authority of Rowan
County. Probably he should order that. But he hasn’t done it yet.
The sloppy off-the-cuff drafting is inexcusable when both the judge and the
plaintiffs knew that they had a defiant defendant who would test limits and
exploit loopholes.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: Marty Lederman [mailto:lederman.ma...@gmail.com]
Sent: Monday, September 14, 2015 6:08 PM
To: Doug Laycock
Cc: Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu
Subject: Re: Judge Bunning's Injunctions
This is extremely helpful, thanks, Doug. A couple of reactions:
1. First, Davis clearly is in flat violation of the judge's order of 9/11,
which stated that "Defendant Davis shall not interfere in any way, directly or
indirectly, with the efforts of her deputy clerks to issue marriage licenses to
all legally eligible couples. If Defendant Davis should interfere in any way
with their issuance, that will be considered a violation of this Order and
appropriate sanctions will be considered."
She is interfering, by ordering Mason to amend the license form. I doubt
anyone will care enough to try to have her held in violation of the order, but
she is.
2. At the contempt hearing, Judge Bunning said that as long as the plaintiffs
thought the licenses were valid, he would not insist that the Deputy Clerks use
any particular form. Therefore, if the plaintiffs were to now come into court
and argue that the new version of the licenses raises serious questions about
their validity, I suspect Bunning would craft a more specific injunction about
what must be on the form. I'm very, very doubtful it will come to that,
however, because, like Mae K., I can't imagine anyone ever seriously arguing
that the marriages in question are invalid, even if there were a technical
defect in the licenses issued in terms of what KY law requires.
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