an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Don't be surprised if Kim Davis is remanded to the custody of the federal marshal . . . again
Just over a week ago, on September 11, Judge Bunning issued the following order when he released Kim Davis from federal custody:
"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."
When Davis returned to work as Rowan County Clerk three days later, on Monday, September 14, she ordered Deputy Clerk Brian Mason to change the form of marriage licenses that he issues in Rowan County. The first such license Mason issued on Monday, for example, reads: "Issued this 9/14/2015, Pursuant to Federal Court Order No. 15-CY-44, DLB, Morehead, Kentucky by Brian Mason [signature initials "BM"], Notary Public." This is very different from the licenses Mason had issued while Davis was in custody, in at least three respects. On the new licenses, pursuant to Davis's order, there is no indication of (i) the Office from which the license was issued, (ii) the County, or (iii) Mason's title or authority as Deputy Clerk. (Nor is there any mention of Davis herself, of course--but that was also true of the licenses that Mason issued while Davis was in custody.). From all that appears on the face of the license, Mason has issued it in his capacity as Notary Public, not Deputy Clerk--even though Kentucky law authorizes only Clerks and Deputy Clerks to issue such a license. Once Mason began to issue such licenses, Davis's attorney issued the following statement:
"The license that went out today does not violate Kim Davis's conscience. If it's satisfactory to the ... court, then I think we will have found that win-win solution that we have been asking for all along."
Also on Monday, Kentucky Governor Beshear was quoted as saying that the licenses Mason was issuing "are going to be recognized as valid in the Commonwealth." And a spokeswoman for Kentucky Attorney General Jack Conway likewise said that although the Attorney General had not been asked to issue a formal opinion on the validity of the licenses, he believes that they are valid. As I wrote on Monday, I think that's probably correct as a matter of Kentucky law. KRS § 402.100 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 requirements would appear to be literally satisfied by Mason's new licenses, although nothing on the face of such a license indicates that it was issued by a Clerk or Deputy Clerk (it describes Mason as a "Notary Public"). Moreover, even if the new form does not conform completely to Kentucky statutory requirements, it's not obvious that the remedy for such an inadequacy would be to find that marriages were void because the officiant was not authorized to perform the ceremony. (The license is an authorization for an individual to join two others into marriage as a matter of Kentucky law.) Especially in light of the Governor and Attorney General's public assurances, it is highly unlikely that any future court or Kentucky official would conclude that such a marriage is invalid, even if it does turn out to be the case that the new form does not technically comply with Kentucky law. That does mean, however, that all is well in Rowan County. For one thing, as I noted on Monday, Davis appears to be acting in violation of the judge's September 11 order that she must not "interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples." Indeed, counsel for Deputy Clerk Mason suggested as much yesterday in a report filed with the court. That report explains what happened on Monday, and raises the question whether Davis (and therefore Mason) is violating the court's injunctions:
Comes now the Hon. Richard A. Hughes, counsel for the Defendant Brian Mason, and CJA having been appointed to represent him in the above styled matter, pursuant to the order of September 8, 2015, makes the following report.
Mr. Mason informs me and the record confirms such, that he has issued the appropriate marriage licenses for same-sex marriage pursuant to the court's orders, and has continued to do so in light of changes that had been made by the Clerk, Ms. Davis.
He is the only deputy clerk that is doing so by mutual agreement between the others wherein Mr. Mason agreed he would take care of those matters himself if it would ease the stress of the situation, although they all stand ready to do so in his absence as they had promised the court.
On September 14, 2015 Ms. Davis came into their office and he [Mason] tells me the following:
Kim Davis came to the office and confiscated all the original forms, and provided a changed form which deletes all mentions of the County, fills in one of the blanks that would otherwise be the County with the Court's styling, deletes her name, deletes all of the deputy clerk references, and in place of deputy clerk types in the name of Brian Mason, and has him initial rather than sign. There is now a notarization beside his initials in place of where otherwise signatures would be.
I discussed with Mr. Mason in my opinion he had done nothing wrong and is continuing to follow his sworn testimony to the court, however it also appears to this counsel those changes were made in some attempt to circumvent the court's orders and may have raised to the level of interference against the court's orders. Mr. Mason is concerned because he is in a difficult position that he continues to issue the licenses per the court's order, but is issuing licenses which had some remote questionable validity, but now with these changes may in fact have some substantial questions about validity.
It is part of this report to notify the court of the changes and it is expected there will be other parties to the action that will bring a request to this court for a review on whether or not her [Davis's] actions are against the orders of the court and the likelihood that the validity of these marriages licenses would have to be entertained if not in federal district court, state courts. A gain Mr. Mason's concern is he does not want to be the party that is issuing invalid marriage licenses and he is trying to follow the court's mandate as well as his superior ordering him to issue only these changed forms and only with initials and only as notarized, which in the last example I have seen are not even notarized. To date, upon the filing of this report the circumstances remain the same, and counsel addresses this court with the newest information he has available.
To similar effect, the named plaintiffs in the case, in a pleading concerning their motion for class certification, yesterday suggested not only that Davis is acting in violation of the injunction, but also that the resultant "two-tier system of marriage licenses issued in Kentucky"--the tiers being those licenses issued in Rowan County (to same-sex and opposite-sex couples alike), on the one hand, and those issued in all other Kentucky counties, on the other--might itself violate the Equal Protection Clause, even if all the licenses are valid under Kentucky law:
Davis has modified the marriage licenses currently provided by her office to state that they are issued only “Pursuant to Federal Court Order #15-CY-44 DLB.” . . . Additional material alterations made by Davis to the licenses issued by her office include requiring her clerk to issue licenses in his capacity as a “notary public” rather than a deputy clerk of the Rowan County Clerk’s Office. . . . These alterations call into question the validity of the marriage licenses issued, create an unconstitutional two-tier system of marriage licenses issued in Kentucky, and do not comply with this Court’s September 3 Order prohibiting Davis from interfering with the issuance of marriage licenses. Plaintiffs are exploring legal options to address these material alterations.
[UPDATE: To clarify, then, there are a few different issues in play: 1. Is Davis in contempt of the September 11 injunction? [Answer: Almost certainly, yes.] 2. If so, what should the sanction be? [Answer: It probably would not be wise to jail her -- fines ought to do the trick.] 3. Do the new Davis-prescribed licenses comply with Kentucky law? [Answer: probably] 4. If not, would that affect the legality of resultant marriages under KY law? [Answer: almost certainly not] 5. Do the Davis-amended licenses violate the 14th Amendment, as plaintiffs suggest, even if they do not affect the legality of the resultant marriages under Kentucky law, and even if same-sex and opposite-sex couples are treated equally within Rowan County? The theory here presumably would be that Rowan County is symbolically disfavoring same-sex marriage by virtue of appending an effective asterisk, or "issued under protest" message, to all licenses in Rowan County (same-sex and opposite-sex alike). [Answer: I'll need to think about this further if and when plaintiffs offer the argument. Cf. Palmer v. Thompson. In the meantime, check out Mike Dorf's thoughtful post on this question.] 6. If the Davis-prescribed licenses do not affect the legality of resultant marriages and do not otherwise violate the Federal Constitution, should Judge Bunning amend his order to permit Davis to demand that Mason issue them? It's also worth remembering that all the licenses currently being issued are to couples who are not (yet) plaintiffs in the case -- and that raises a legal question of Judge Bunning's authority to protect such nonparties. For this reason, plaintiffs are now asking the judge to rule on their motion for class certification. If Judge Bunning certified the class, that would resolve this issue.]