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
Kim Davis developments [UPDATED as of Monday evening]
Kim Davis has recently filed a couple of briefs in the Sixth Circuit, and she attached the transcript of the September 3 contempt hearing to one of them. Moreover, she made a statement this morning announcing what she's going to do now that she's back at work. Therefore it's now finally possible to figure out where things are heading, at least to a certain extent.
1. Judge Bunning construes his Preliminary Injunction to cover the Deputy Clerks
The judge is of the view that the P.I. enjoins the Rowan County Deputy Clerks, as well as Davis, under FRCP 65(d)(2)(B), because (i) they are Davis's "employees"; (ii) they are on notice of the injunction against her in her official capacity; and (iii) as I described in my first post, they 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 nonparty couples
As I wrote last week, Judge Bunning expanded the terms of his preliminary injunction so that it now prohibits Davis (and the Deputies--see above) “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.” I surmised that he did this in order to protect members of the class that the individual plaintiffs are seeking to certify, in the event the judge later certifies such a class. But it turns out I was wrong: Judge Bunning's rationale for expanding the injunction is that he had 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 last week's 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."
Davis argues that Bunning should not have expanded the P.I. beyond the four named plaintiff couples, and is asking the court of appeals to reverse that expansion. I'm not up to speed on the various procedural nuances of this motion, but Davis actually might have a point on the merits. If Judge Bunning simply wanted to make sure his preliminary injunction covered the other two couples who are suing in the companion cases, it's not clear why he didn't simply extend the injunction to cover those couples or, at most, to cover all couples who have filed or do file such cases. The judge has not (at least so far) offered 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 Davis would promptly file a suit; but that might not be 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, if the court of appeals were to amend the injunction to be limited to the parties, that order would then cover only one remaining couple (Burke/Napier), at least until such time as Judge Bunning certifies a class in one or more cases before him.
3. Davis is instructing the Deputy Clerks to further alter the licenses they issue . . . and Deputy Clerk Mason is doing so
As I noted earlier, Davis had argued that deleting her name from the licenses issued by Deputy Clerks in Rowan County 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 this: "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." And 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, it turns out that the solution Davis earlier proposed does not suffice from her perspective. In her statement this morning, Davis said that she has ordered that the licenses issued by the Deputies in Rowan County may not include her name or title or "authority" [it's not clear what that means, since the form doesn't mention her "authority" in the first place], and that such licenses will bear the notation "Issued pursuant to a federal court order."
[UDPATE: The first couple to receive a license today from Deputy Clerk Mason was Carmen and Shannon and Wampler-Collins (who as far as I know are not plaintiffs in a case). Their license reads:
"Issued this 9/14/2015 [crossed out: "in the office of ________, _______" (blanks are designated 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).
A spokeswoman for Kentucky Attorney General Jack Conway said today that although the Attorney General has not been asked to issue a formal opinion on the validity of the licenses, he believes that they are valid. 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 be literally satisfied by hte Wampler-Collins, although nothing on the face of the license indicates that it was issued by a Clerk or Deputy Clerk. If Judge Bunning has any serious doubt about whether such a license would be valid, he might enjoin Davis and Mason from enforcing such revisions. Even if the new form does not conform completely to Kentucky statutory requirements, however, it's not obvious that the remedy for that inadequacy would be to find that the subsequent marriages were void because the officiant was not authorized to perform the ceremony. Perhaps Kentucky might take action to insist upon a particular form going forward. It is highly unlikely, however, that any future court or Kentucky official would conclude that a marriage is invalid just because Mason issued a form that turns out to have been in technical noncompliance with Kentucky law, especially now that the Attorney General has publicly opined that they are valid.]
There is also some chance that a couple who receives such a bowdlerized license might argue that it violates the federal Constitution for Rowan County to issue such an "under protest" license. (It appears from Davis's statement that the County will issue such licenses to all couples, both same-sex and opposite-sex; but that remains to be seen. Obviously, the federal constitutional problems would be more acute if the notation in question appears only on the licenses of same-sex couples.) I might have more to say about the merits of such an argument if and when we see it.
At a minimum, Davis appears to be in 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."
Davis is interfering with the efforts of the Deputy Clerks to issue licences, by ordering Mason to amend the license form. I doubt anyone will (or should) care enough to try to have her held in violation of the order, but she is, indeed, violating it.
4. Davis continues to press her claims against the Kentucky Governor
Meanwhile, Davis continues to urge the federal courts to order the Governor to amend the marriage license form to conform to her preferred amendments--but the courts are unlikely to grant her any such relief.
On Friday, Judge Bunning ruled 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 sovereign immunity because denial of that claim is itself a violation of her federal constitutional rights. But that argument is groundless.) Posted
by Marty Lederman [link]