Saturday, September 05, 2015

Does anyone have any idea what's happening with marriages in Rowan County, Kentucky?

Marty Lederman

I doubt it.  At a minimum, it’s virtually impossible to make sense of what is occurring, and why, simply by reading the press accounts.  So here’s one modest effort to untangle the mess.  Please be advised, however, that it’s based entirely on a perusal of some of the accounts of proceedings over the past 48 hours, and a cursory look at Kentucky law and some of the pleadings in the case.  The true story might be much more, or less, complicated than my account suggests. 

The Facts

Kim Davis was a Deputy County Clerk in the Rowan County Clerk’s Office for several decades.  Last November, she ran for election to the office of Clerk of the County, and won that election, at a time when she believed the duties of the office would likely require her to issue and “approve” licenses for same-sex couples to be married.  (A district court had already so ruled, and the Supreme Court’s decision in Obergefell was foreseeable.)  Accordingly, she wrote letters to the Kentucky Governor and legislators, asking them to change the law to permit County Clerks to recuse themselves from such functions or to remove the licensing function from the hands of County Clerks altogether.  The legislature did not act. 

Davis alleges that her religion forbids her—even in her official capacity as County Clerk—from  “authorizing” or “approving” a proposed sex-same union as a “marriage.”  She also believes that a marriage license issued from her office would constitute such authorization or approval by her.  (As I explain below, she’s almost certainly wrong about that, as a matter of Kentucky law.)  Therefore she has refused to issue any marriage licenses, for the marriage of any couples, same-sex or otherwise.  And, for reasons explained below, she has also instructed the six Deputy Clerks in Rowan County not to issue any such licenses because, in her view, such a license would have to include her name, which would, in turn, constitute her own “authorization” of the marriage, which her religion allegedly forbids. 

Four couples--two same-sex and two opposite-sex--sued to compel Davis to issue licenses respecting their proposed marriages, as federal (and Kentucky) law requires.  They also have asked U.S. District Court Judge David Bunning to certify a class “comprised of all present and future individuals who, though legally eligible to marry in Kentucky, will be denied a marriage license pursuant to the Defendants’ policy of refusing to issue marriage licenses.”  The judge has not yet ruled on the motion for class certification. 

On August 12, 2015, Judge Bunning issued a preliminary injunction prohibiting Davis “from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by Plaintiffs.”  This past Thursday, Judge Bunning expanded the terms of his preliminary injunction so that it now prohibits Davis “from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by Plaintiffs or by other individuals who are legally eligible to marry in Kentucky”—presumably in order to protect members of the class who seek licenses in Rowan County, in the event the judge later certifies such a class. 

It is important to note that the case, and the preliminary injunction, is focused on the question of the issuance of marriage licenses in Rowan County.  A marriage license does not render a couple as married under Kentucky law.  It is, instead, an authorization to a person or religious society, qualified to perform marriage ceremonies under Kentucky law, “to unite in marriage” two named individuals.  KRS § 402.100(1)(a).  That is to say, such a license is a prerequisite to a minister or other officiant performing a marriage that will be recognized under Kentucky law.  See also KRS § 402.080 (“No marriage shall be solemnized without a license therefor.”).

Davis has refused to comply with the court’s preliminary injunction to cease applying her “no marriage licenses” policy, and therefore, this past Thursday, Judge Bunning found Davis to be in civil contempt and ordered that she be “remanded to the custody of the United States Marshal pending compliance of the Court’s Order of August 12, 2015, or until such time as the Court vacates the contempt Order.”

Yesterday, once Kim Davis was in federal custody, at least one of her Deputy Clerks, Brian Mason, began signing and issuing licenses authorizing the marriage of several couples.  However, in the place on the standard license form where the County Clerk’s name would ordinarily appear, Mason has not included Clerk Davis’s name, or any other.  Instead, as drafted by Deputy Clerk Rowan, that line reads:  “Issued this 9/4/2015 in the office of Rowan County, Rowan County County Clerk, Morehead, Kentucky by Brian Mason [signature initials], Deputy Clerk.”  (Of course, “Rowan County” is not the “Rowan County County Clerk.”  It would have made more sense for Mason simply to leave blank the space before “Rowan County County Clerk.”)

One of Davis’s lawyers insists that the licenses signed by Mason are “void” because they do not include Davis’s name.  The County Attorney of Rowan County reportedly says otherwise.  And as for Judge Bunning, he’s quoted as saying at the contempt hearing on Thursday that he is not sure whether or not a license is valid without Davis’s name:  “I am not saying it is or it isn’t.”

What a mess. 

[UPDATE:  On Labor Day, Davis's attorneys filed an "Emergency Motion for Immediate Consideration and Motion for Injunction Pending Appeal" to the U.S. Court of Appeals for the Sixth Circuit.  I discuss the complications raised by that pleading here.]

The Law

So where do things stand now?  Let’s break it down into four key questions:

1.  If licenses issued in Rowan County included Davis’s name, would she be authorizing or approving the subsequent marriages?

2.  Must the licenses include the County Clerk’s name, “Kim Davis,” in order to be valid?

3.  Can Deputy Clerk Mason issue licenses if Clerk Davis has directed him not to do so?

4.  Was Judge Bunning justified in holding Davis in contempt and remanding her to federal custody?

If licenses issued in Rowan County included Davis’s name, would she be authorizing or approving the subsequent marriages?

Davis’s entire case for resisting the law is premised on her assumption that if the licenses include her name—which she thinks, perhaps mistakenly, Kentucky law requires—those licenses would thereby constitute her authorization or approval of same-sex marriages.  She’s wrong about that, however.

It is true that a Kentucky marriage license is, as the official form for a Kentucky marriage license indicates, an authorization to the officiant “to join together” two named individuals “in the state of matrimony, according to the laws of the Commonwealth of Kentucky.”  And it is also the case that one provision of Kentucky law (KRS § 402.080) states that a license “may be issued by any county clerk,” and that another provision (KRS § 402.100) provides that “[e]ach county clerk shall use the form prescribed by the Department for Libraries and Archives when issuing a marriage license.”  That same latter provision, however, also indicates that the license may, alternatively, be issued by a deputy clerk:  It specifically states that the license must contain “[t]he date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license.”  Moreover, KRS § 61.035 states that “[a]ny duty enjoined by law . . . upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.”

Accordingly, it appears that Kentucky law allows Deputy Clerk Mason, rather than Clerk Davis, to sign and issue the license.  And, as Judge Bunning noted, even before he held Kim Davis in contempt, Mason (or another Deputy Clerk in Rowan County) was willing to sign and issue such licenses.  The important point is this:  Kim Davis does not have to sign or issue any marriage licenses as long as one of her Deputy Clerks will do so.

Yet Davis still instructed her Deputies not to issue such licenses, on the ground that such documents would constitute her own “authorization” of the marriages.  Why?  Because, she claims, even if a Deputy Clerk signs and issues the license, her name must continue to appear on the form “as the authorizing person.” 

This critical assumption of Davis’s is, I think, mistaken in two respects.

It is true, as Davis emphasizes, that the official form for a Kentucky marriage license includes a space where the County Clerk’s name is to be inserted.  If Davis did not have a religious objection, for instance, the line in question on a license issued yesterday would read:  “Issued this 9/4/2015 in the office of Kim Davis, Rowan County County Clerk, Morehead, Kentucky by Brian Mason, Deputy Clerk.”

However, as the language of the form indicates, this use of Davis’s name would only indicate that the license was issued “in” her “office”—not that Davis is the “authorizing officer,” let alone that she approves of the marriage.  

But wouldn’t the inclusion of her name be understood as her endorsement of the marriage, thereby making her complicit in it?  No.  Particularly since it would be Deputy Clerk Mason’s signature, rather than Davis’s, that appears on the license, and Mason who “issues” the license, no reasonable observer, with any modicum of knowledge about the views of Kentucky County Clerks—especially Davis herself—in the wake of Obergefell, would possibly think that Davis herself has endorsed or approved a same-sex marriage merely because it was issued “in” her office.  And therefore, her basic claim about complicity-by-approval is predicated on a simple mistake of fact.  (For this and other reasons, I think that Davis’s argument that she is entitled to prevent her office from issuing marriage licenses under the Kentucky Religious Freedom Restoration Act is mistaken.  But that’s a subject for another post.)

Moreover, regardless of whether Davis’s name would, or reasonably could, be viewed as her approval of the marriage, it’s not clear that Davis’s name must appear on the license form, even on the “in the office of” line.  Indeed, the licenses that Deputy Clerk Mason issued yesterday don’t include her name.  Which brings us to our next question . . .  

Must the licenses include the County Clerk’s name, “Kim Davis,” in order to be valid?

Probably not.  KRS § 402.100 specifies that the marriage license must be in the form “prescribed by the Department for Libraries and Archives when issuing a marriage license,” which “shall provide for the entering of all of the information required in this section.”  Subsection 402.100(1), in turn, specifies the “information” that is “required in this section” to appear on a marriage license:
(a) An authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named; 
(b) Vital information for each party, including the full name, date of birth, place of birth, race, condition (single, widowed, or divorced), number of previous marriages, occupation, current residence, relationship to the other party, and full names of parents; and 
(c) The date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license.
Notice what’s not included in that list:  There’s no requirement that the name of the County Clerk appear on the license.[1]

To be sure, § 402.100 provides that the marriage license form prescribed by the Department for Libraries and Archives not only “shall provide for the entering of all of the information required in this section”—which does not include the Clerk’s name—but “may also provide for the entering of additional information prescribed by the Department for Libraries and Archives.”  And, as you can see from the form itself, the Department for Libraries and Archives has prescribed that the Clerk’s name should be included on the form.  Section 402.100 does not say, however, that a license is invalid if it does not include a piece of information prescribed by the Department for Libraries and Archives but not “required” by statute—such as the Clerk’s name.  I have no expertise (to say the least) in Kentucky marriage law, and therefore cannot opine with any confidence on whether the failure to include the Clerk’s name would render a marriage license invalid.  Because that name is not among the “information” that Kentucky law “requires” to appear on a license, however, it may well be that Kim Davis’s name need not appear on a valid marriage license issued by Deputy Clerk Mason.  (Of course, in some sense this is an academic question as long as Mason is issuing such licenses.  It's virtually inconceivable that anyone with standing will challenge the validity of the marriages.) 

[UPDATE:  I agree with Mike Dorf that even if Kentucky law provided that Clerk Davis's name had to be on a license in order for it to be valid, a federal court could--in order to guarantee the constitutional rights of the plaintiffs--either (i) order Deputy Clerk Mason to include Davis's name or (ii) decree that the license shall be valid regardless of whether her name appears.  As far as I know, however, Judge Bunning has not yet done either of these things.]

Can Deputy Clerk Mason issue licenses if Clerk Davis has directed him not to do so?

Let’s say—as appears to be the case—that Clerk Davis thinks Kentucky law requires her name to be included on a marriage license, and Deputy Clerk Mason disagrees with this understanding of Kentucky law.  Mason is also willing to issue licenses, at least if Davis’s name is not on them.  (That’s what he did yesterday.)  If Davis orders him not to do so—say, because she thinks they would not be valid licenses under Kentucky law without her name—does Mason have the authority to disregard her order and issue the licenses?

I have no idea what the answer to this question is under Kentucky law.  What does seem improbable to me, however, is the notion that the answer to the question turns upon whether Davis is in federal custody.  After all, the federal judge’s finding of civil contempt did not strip Davis of her authorities (whatever they might be) under Kentucky law—indeed, the whole point of holding her in contempt is to coerce her to exercise one of the duties of her office.  If this is right, then either Mason was free to issue the licenses in question before Davis was incarcerated (because he is not subject to her absolute direction and control), or he can’t do so now that she is in custody (because he must, under Kentucky law, abide by her directives).

Was Judge Bunning justified in holding Davis in contempt and remanding her to federal custody?

[CLARIFICATION:  It was proper for Judge Bunning to hold Davis in contempt:  She violated his injunction.  It’s not quite as obvious, however, that he has the authority to insist that she remain in federal custody.]  Whether he does so might depend, somewhat ironically, on whether Deputy Clerk Mason does in fact have the authority to issue valid marriage licenses, as he did yesterday.  Consider two possibilities, discussed in the previous question, above:

If Deputy Clerk Mason can issue valid marriage licenses, with or without Davis’s name attached, notwithstanding Davis’s directive to the contrary, then there’s no need for a federal judge to hold Davis in contempt, because the persons who are to perform the plaintiffs’ marriage ceremonies will receive valid licenses, anyway, from Mason.  (I hasten to add that even if Davis should not be held in contempt if Mason issues the licenses, Kentucky authorities should sanction her for not “well and truly discharging the duties of her office,” as her oath requires.  But that’s a matter for state officials, not a federal judge.)

On the other hand, if, under Kentucky law, Deputy Clerk Mason must follow Davis’s orders, and therefore he cannot issue valid marriage licenses, then it would be necessary and appropriate for the judge to hold Davis in contempt, in order to coerce her to comply with federal law (which is, of course, also Kentucky law that she has a state-law duty to implement).  But in that case, the licenses Mason is now issuing would not be valid. 

That is to say:  One way or the other, what’s currently taking place don’t seem kosher.  Either the licenses now being issued are not valid, or there’s no need (or justification) for holding Davis in contempt.

On 4, I agree that it was proper to hold her in contempt for violating the P.I.

[1] Wholly apart from the language on the license, subsection (1)(a) of the statute itself provides that the “authorization statement” to the marriage officiant “to perform marriage ceremonies” for the named couple is a statement “of the county clerk issuing the license.”  As subsection (1)(c) further indicates, however, the clerk who “issues” the license can be a deputy clerk—an alternative that can naturally be read back into subsection 1(a)’s reference to “the county clerk issuing the license.”

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