Thursday, October 15, 2015

Responses of Kim Davis and Judge Bunning to plaintiffs' motion to require issuance of unadulterated marriage licenses

Marty Lederman

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."

Judge Bunning presumably will address the constitutional argument after he receives Governor Beshear's pleading in mid-November.

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