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
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
Responses of Kim Davis and Judge Bunning to plaintiffs' motion to require issuance of unadulterated marriage licenses
As I explained in this post, the plaintiffs in Miller v. Davis have made a motion for 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 them 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--and to reissue, in proper form, any licenses that they have issued since September 14. They've also asked the judge to specifically order Davis not to interfere with the Deputies' issuance of such unadulterated licenses.
Kim Davis has now filed her opposition to that motion. With respect to plaintiffs' argument that the court should forbid issuance of the adulterated licenses because their validity under Kentucky law is subject to future challenge, Davis says that isn't so because the Kentucky Governor and Attorney General have already publicly stated that the licenses (and marriages performed pursuant to them) are valid.
Because there remains some uncertainty about this question of Kentucky law, Judge Bunning has now ordered the Governor, a third-party defendant in the case, to respond to the motion within 30 days, and in that response to "address the validity of the marriage licenses issued by the Rowan County Clerk’s Office on or after September 14, 2015." If the Governor informs the court that the validity of the adulterated licenses is uncertain, the court will almost certainly grant the plaintiffs' motion. If, however, Governor Beshear assures the court that the licenses will be treated as valid, the court would then need to address plaintiffs' second argument, which, as I wrote earlier, is constitutional in nature:
The plaintiffs argue 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.
Davis's brief response to this constitutional argument has two components: First, she emphasizes that the adulterated licenses are being issued in Rowan County to same-sex and opposite-sex couples alike, implying that such equal treatment eliminates the prospect of a stamp of animus. Balkinization readers will probably recognize this as a variation on the Palmer v. Thompson question (although Davis does not specifically invoke Palmer). For more on this, see Mike Dorf's post.
Second, Davis notes that none of the couples receiving adulterated licenses other than the plaintiffs themselves have complained about them--and that one nonplaintiff has even stated that she was "pretty excited" and "really happy" about receiving such a license. This appears to be Davis's way of questioning the sincerity of plaintiffs' claim that the adulterated licenses are stigmatizing: allegations of “humiliation” and “stigma,” she argues, are a "fabricated description by Plaintiffs."