RE: Kim Davis announcement about what she'll do at work today
Fair enough, but going forward does everyone in this County have to go through the courts in the future to have their marriage secured? And what happens with the next Kim Davis is in some other agency, probate, the agency that deals with child custody, or a hospital, and says “no valid marriage” so you 1) can’t visit your spouse in the hospital; 2) we can’t transfer the deed from your deceased spouse; 3) no joint custody of your kids, etc. Are you seriously arguing that relying on some court in the future to “save” a marriage is Equal Protection of the law? Paul Finkelman Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, and Constitutionalism 518-439-7296 (w) 518-605-0296 (c) paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com> www.paulfinkelman.com<http://www.paulfinkelman.com/> From: conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Kuykendall, Mae Sent: Monday, September 14, 2015 12:25 PM To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>; Law & Religion issues for Law Academics; Michael Dorf; Samuel Bagenstos Subject: RE: Kim Davis announcement about what she'll do at work today Indeed, if the earlier couples had gone ahead and married without a license in that county, there would be a strong case for saying they had a valid constructive marriage license. Courts have saved marriages done without a license where there was less justification. mk Professor of Law Michigan State University College of Law 648 N. Shaw Lane Rm 366 East Lansing, MI 488241300 517-432-6894 (office) 734-645-5769 (cell) 517-381-2082 (Haslett land) http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=233952 ___ 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.
RE: Kim Davis announcement about what she'll do at work today
It will make the license a collector’s item. Eugene From: James Oleske [mailto:jole...@lclark.edu] Sent: Monday, September 14, 2015 9:15 AM To: Law & Religion issues for Law Academics Cc: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; conlawp...@lists.ucla.edu; Michael Dorf; Samuel Bagenstos Subject: Re: Kim Davis announcement about what she'll do at work today Update: Unlike the licenses previously issued by deputy clerk Brian Mason to same-sex couples, which included "in the office of Rowan County," the license he issued this morning has the words "in the office of" crossed out and the language "Pursuant to the Federal Court Order" in the place where ordinarily the names of the clerk and the county would be inserted (image here: https://twitter.com/alanblinder/status/643447815641899008). So Davis appears to have imposed her position from the deposition (that both her name AND the name of her county must be removed from the form). As several of us have noted on the religionlaw list, this approach raises both establishment and equal protection questions, but the more immediate question is whether it is consistent with Judge Bunning's non-interference order. - Jim On Mon, Sep 14, 2015 at 6:32 AM, Marty Lederman mailto:lederman.ma...@gmail.com>> wrote: summarizing: http://balkin.blogspot.com/2015/09/kim-davis-developments.html ___ 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.
Re: Kim Davis announcement about what she'll do at work today
The license for the first couple (nonplaintiffs Carmen and Shannon Wampler-Collins) reads: "*Issued this 9/14/2015* [crossed out: "in the office of , ___ (blanks for "name" and "county")"] *Pursuant to Federal Court Order No. 15-CY-44, DLB,* [crossed out: "County Clerk"]* Morehead, Kentucky* *by* *Brian **Mason** [signature initials] *[words "Deputy Clerk” not added]" That is to say, it reads: *"Issued this 9/14/2015,* *Pursuant to Federal Court Order No. 15-CY-44, DLB,* *Morehead, Kentucky* *by* *Brian *Mason* [**signature initials]." *No indication of the Office, the County, or Mason's title or role (and no mention of Davis, of course). This *might *suffice to make the license valid under KY law, which requires that the license include, inter alia, "the date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license." If "Morehead" suffices for "place," then these requirement are literally satisfied, although nothing on the face of the license indicates that it was issued by a Clerk or Deputy Clerk. On Mon, Sep 14, 2015 at 9:32 AM, Marty Lederman wrote: > summarizing: > > http://balkin.blogspot.com/2015/09/kim-davis-developments.html > > On Mon, Sep 14, 2015 at 8:45 AM, Marty Lederman > 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 > > 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 >
Re: Kim Davis announcement about what she'll do at work today
Sorry -- "deposition" in the message below should be "preliminary injunction hearing." - Jim On Mon, Sep 14, 2015 at 9:14 AM, James Oleske wrote: > Update: > > Unlike the licenses previously issued by deputy clerk Brian Mason to > same-sex couples, which included "in the office of Rowan County," the > license he issued this morning has the words "in the office of" crossed out > and the language "Pursuant to the Federal Court Order" in the place where > ordinarily the names of the clerk and the county would be inserted (image > here: https://twitter.com/alanblinder/status/643447815641899008). > > So Davis appears to have imposed her position from the deposition (that > both her name AND the name of her county must be removed from the form). As > several of us have noted on the religionlaw list, this approach raises both > establishment and equal protection questions, but the more immediate > question is whether it is consistent with Judge Bunning's non-interference > order. > > - Jim > > > > On Mon, Sep 14, 2015 at 6:32 AM, Marty Lederman > wrote: > >> summarizing: >> >> http://balkin.blogspot.com/2015/09/kim-davis-developments.html >> >> ___ 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.
Re: Kim Davis announcement about what she'll do at work today
Update: Unlike the licenses previously issued by deputy clerk Brian Mason to same-sex couples, which included "in the office of Rowan County," the license he issued this morning has the words "in the office of" crossed out and the language "Pursuant to the Federal Court Order" in the place where ordinarily the names of the clerk and the county would be inserted (image here: https://twitter.com/alanblinder/status/643447815641899008). So Davis appears to have imposed her position from the deposition (that both her name AND the name of her county must be removed from the form). As several of us have noted on the religionlaw list, this approach raises both establishment and equal protection questions, but the more immediate question is whether it is consistent with Judge Bunning's non-interference order. - Jim On Mon, Sep 14, 2015 at 6:32 AM, Marty Lederman wrote: > summarizing: > > http://balkin.blogspot.com/2015/09/kim-davis-developments.html > > ___ 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.
Re: Kim Davis announcement about what she'll do at work today
summarizing: http://balkin.blogspot.com/2015/09/kim-davis-developments.html On Mon, Sep 14, 2015 at 8:45 AM, Marty Lederman 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 > 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 ord
Kim Davis announcement about what she'll do at work today
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 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