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
As I explained in these twoposts, 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 marriage licenses that they have issued since September 14. The plaintiffs have also asked the judge to specifically order Davis not to interfere with the Deputies' issuance of such unadulterated licenses.
The plaintiffs argue that the adulterated licenses harm them in two distinct ways: First, although the plaintiffs do not believe that a marriage performed pursuant to such a license would be invalid under Kentucky law, 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. Second, plaintiffs allege that they have been subject to "humiliation and stigma associated with the receipt of marriage licenses that are effectively imprinted with Davis’ opprobrium."
The Governor's Brief
In order to assess the first argument, about the validity of a marriage solemnized pursuant to an adulterated license, Judge Bunning ordered the Governor of Kentucky to file a brief addressing "the validity of the marriage licenses issued by the Rowan County Clerk’s Office on or after September 14, 2015."
Governor Beshear filed that brief last week. In it, he concludes that the altered licenses do not fully comply with the requirements of Kentucky law, and that therefore County Clerk Davis and Deputy Clerk Mason could be "subject to statutory sanction under KRS 402.990," for misdemeanor violations of the Kentucky statute.
Even so, the Governor also stressed that, on his reading of "well-established Kentucky law," there will be "no adverse effect on the couples who marry pursuant to a facially deficient license," who have "done everything within their ability to be lawfully married." "Where the couples are legally eligible for marriage and have complied with the statutory prerequisites within their control," he writes, "Kentucky’s courts will recognize the marriage as valid notwithstanding the fact that a functionary in the process did not perform his/her obligations precisely as required." The Governor cites Kentucky case law that appears to support this conclusion. Accordingly, the Governor himself, as well as Executive Branch agencies over which Governor Beshear exercises supervisory control, "have and will continue to recognize as valid those marriages solemnized pursuant to the altered licenses for purposes of the governmental rights, benefits, and responsibilities."
The Governor cautioned, however, that he is not the official Kentucky arbiter "of whether a lawful marriage has been consummated," and that it is possible (although he thinks very unlikely) that a court could call into question the legality of a marriage solemnized pursuant to an altered license "as part of some other court proceeding, such as a claim for dissolution."
The Plaintiffs' Response
In response to the Governor's filing, the plaintiffs yesterday filed a reply brief arguing that the court should grant their motion for the same two reasons they previously offered.
First, because there remains at least a chance that a future court--e.g., in a dissolution proceeding--might determine that a marriage solemnized pursuant to a license that's been adulterated in Rowan County is not valid, the couples who are marrying with such licenses "now face fear and doubt that a marriage solemnized pursuant to an altered license could be held invalid at some unknown time in the future."
Second, even if there were no substantial risk of such a future determination of invalidity, "Davis’ alterations to the marriage licenses effectively brand those licenses with a stamp of animus against gay people."
In her brief in opposition to this animus-based argument, Davis emphasized that Rowan County is issuing the adulterated licenses to same-sex and opposite-sex couples alike. Plaintiffs respond that their argument is not "that Davis is treating gay couples and heterosexual couples differently," but instead that marriage license applicants in Rowan County "receive distinctly different licenses than applicants in other counties in Kentucky" as a result of Davis's well-known view that "that gay couples are second-class citizens, unworthy of official recognition and authorization of their marriages." Thus, according to the plaintiffs, "all marriage license applicants in Rowan County – including heterosexual couples, such as Fernandez and Holloway [a plaintiff couple that postponed their marriage and who must now reapply for a license] – are forced to bear the burden of Davis’ animus against gay people." "Such animus should have no place in the official government functions of Rowan County," plaintiffs write.
In my earlier posts, I had assumed that this "animus"-based argument was premised on the claim that the adulterated licenses violate the Fourteenth Amendment equal protection rights of at least some plaintiffs, even if they are issued to same-sex and opposite-sex couples alike (thereby raising the Palmer v. Thompson question). Interestingly, however, in their reply brief the plaintiffs make no mention of a constitutional violation; they appear to raise the animus argument merely in order to demonstrate that the plaintiffs are suffering harm by virtue of the Rowan County officials' issuance of adulterated licenses. Perhaps they mean to suggest that Judge Bunning--a federal judge--can order the defendants to comply with what the Governor now confirms are Kentucky statutory requirements, without regard to whether such noncompliance violates any federal rights. But if so, they have not explained why the federal court has such authority to enforce state officers' compliance with state law. Posted
by Marty Lederman [link]