Monday, September 21, 2015

A "stamp of animus"? Plaintiffs in Miller v. Davis ask court to order Deputy Clerks to issue unadulterated marriage licenses

Marty Lederman

The plaintiffs in the Kim Davis case have now made a motion to Judge Bunning to require the Deputy Clerks in Rowan County to go back to issuing marriage licenses in the form that Deputy Clerk Mason was issuing while Clerk Kim Davis was in federal custody--rather than the radically adulterated form that Davis directed Mason to issue once she returned to work.  (For much more on the machinations that led to this motion, and the differences between the two marriage license forms, see my post from Saturday.)

The plaintiffs are also asking the judge to require the Deputy Clerks to reissue, in proper (i.e., pre-Sept. 14) form, any licenses that they issued over the past week, and to specifically order Kim Davis not to interfere with the Deputies' issuance of licenses.  For the time being they are not asking the judge to hold Davis in contempt of his orders; but they are asking the judge to put Davis on notice that any violation of the new order--that is, any interference on her part--"will result in civil sanctions, including but not limited to (a) the placement of the Rowan County Clerk’s Office into a receivership for the limited purposes of issuing marriage licenses, and (b) the imposition of civil monetary fines as appropriate and necessary to coerce Davis’ compliance with this Court’s Order."

What is the ground for plaintiffs' complaint about the Davis-prescribed, adulterated form of marriage licenses?  They do not invoke the Fourteenth Amendment in so many words but, as I read it, they are alleging that the use of the altered forms violates their rights under the Fourteenth Amendment in two respects:

(i) First, although the plaintiffs do not argue that a marriage performed pursuant to such a license would be invalid under Kentucky law (to the contrary--see the quotation from Pinkhasov v. Petocz in footnote 2 of the plaintiffs' filing), they assert that couples acting in reliance upon such licenses will live under the shadow of possible future challenges to the validity of their marriages:
Because a valid license is a prerequisite to solemnization, see KRS § 402.080, and because Kentucky courts have yet to address whether defects in a license of this magnitude can void the marriage, any marriage performed pursuant to the licenses issued last week by Davis’ office is potentially open to a future challenge to its validity. . . .
[E]ven if the altered licenses were ultimately determined to be valid at some future point,  . . . Davis’ interference has caused substantial injury to Plaintiffs and members of the putative class by intentionally creating uncertainty surrounding their exercise of the fundamental right of marriage."
Presumably it is plaintiffs' view that the creation of this "uncertainty" violates their Fourteenth Amendment rights:  Davis's "intentional creation of such uncertainty surrounding the exercise of a fundamental right like marriage," they write, "--an uncertainty not faced by couples in other counties – is a significant burden and injury that Plaintiffs and members of the putative class ought not bear."

(ii) Second, and more interestingly, plaintiffs allege that their (presumably federal) rights have been violated because they have been subject to "humiliation and stigma associated with the receipt of marriage licenses that are effectively imprinted with Davis’ opprobrium."  They write:
The marriage licenses currently issued by the Rowan County Clerk’s Office are so materially altered that they create a two-tier system of marriage licenses throughout state.  The adulterated marriage licenses received by Rowan County couples will effectively feature a stamp of animus against the LGBT community, signaling that, in Rowan County, the government’s position is that LGBT couples are second-class citizens unworthy of official recognition and authorization of their marriage licenses but for this Court’s intervention and Order.
For more on the possibility that such a "stamp of animus" might violate the Fourteenth Amendment, even if the same license form is used for same-sex and opposite-sex couples alike in Rowan County, see Mike Dorf's post from earlier today.  (I contributed a comment to that post with respect to this Fourteenth Amendment question.)

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