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Saturday, September 19, 2015

Lederman on Kim Davis

At Balkinization, Marty Lederman discusses whether Kim Davis is violating the district court order, issued when she was released from custody, prohibiting her from interfering with the efforts of deputy clerks to issue marriage licenses to all eligible couples. Lederman questions whether some changes Davis has made to the forms--removing her name, the name of her office, the name of the county, and the position of the deputy clerk--constitute interference.

I trust Marty's analysis. But then we have two questions. The first is whether there is interference (and thus contempt) if the altered licenses are deemed valid, as the governor announced last week. The other is whether, even if Davis is interfering and thus is in contempt, Bunning will jail her, given the circus that surrounded it the last time.

Posted by Howard Wasserman on September 19, 2015 at 11:11 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink

Comments

Phil: "Davis sought a simple workplace accommodation for her religious beliefs. The state could easily have altered the forms at a minimal cost thereby granting Davis's accommodation while protecting the rights of same-sex couples to marry.

I think the state of Kentucky in the obstinate one here."


This is not only false, but it's a lie. Davis wants to *exercise government power* in terms of her religious beliefs[1]. We've been through this before - please read up on the 'Civil Rights Movement'.

[1] Not really, because her religious beliefs only kick in against certain sorts of 'anti-christian' things.

Posted by: Barry | Sep 21, 2015 11:07:56 AM

I don't know what Phil exactly wants especially since even when the judge offered a compromise, Kim Davis did not want to take it.

The issue here is not just going to come up for her. If we are going to change what elected officials can do, people specifically trusted with certain tasks by popular vote, not simply some fungible bureaucrat, it can be messy. At the very least, I think "the state" here set up a procedure that if you change it required legislative action.

Finally, part of it is that she simply had no right to a certain form of accommodation. The district judge's opinion at the very least explained why it was not so "simple" to grant it to her.

Posted by: Joe | Sep 20, 2015 11:11:42 PM

Davis sought a simple workplace accommodation for her religious beliefs. The state could easily have altered the forms at a minimal cost thereby granting Davis's accommodation while protecting the rights of same-sex couples to marry.

I think the state of Kentucky in the obstinate one here.

Posted by: Phil | Sep 20, 2015 6:14:10 PM

Regarding sanction, can Judge Bunning put the clerk's office into (limited) receivership? Presumably he could appoint a receiver to act as clerk for all purposes related to marriage licenses. That route, it seems, would probably ensure compliance without turning things into a circus (again).

Posted by: McMargo | Sep 19, 2015 12:34:14 PM

I'm wary of #5. It's symbolic but still troubling.

The basic bottom line here is that there shouldn't be some implication by the license that the state is favoring certain couples. So, surely, a clerk shouldn't have a policy where s/he signs marriage licenses of some types of couples, and lets deputies sign others. It must be uniform. But, then, why not be uniform state-wide?

This "under protest" stuff means some couples are required to have a license with an asterisk because of her religious beliefs. It is a sort of third party burden. It's symbolic, but a license is significantly symbolic as it is. At worse, just have a sign at the office and/or on the relevant state website. Doesn't have to be on every darn license. Some reasonable observer should at this point realize that she is being forced by court order.

This is an open-ended thing. There are various types of clerks who might worry about various types of licenses etc.

Posted by: Joe | Sep 19, 2015 12:00:51 PM

That is to say, there are at least five questions:

1. Is she in contempt?

2. If so, what should the sanction be?

3. Do the Davis licenses comply with KY law?

4. If not, does that affect the legality of resultant marriages under KY law?

5. Does the federal Constitution require that the licenses be conformed to those issued elsewhere in Kentucky, assuming that same-sex and opposite-sex couples receive the same sort of licenses within Rowan County?

My tentative answers would be:

1. yes
2. probably not wise to jail her -- fines ought to do the trick
3. probably (see my post)
4. almost certainly not (ditto)
5. need to think more about it

Posted by: Marty Lederman | Sep 19, 2015 11:31:33 AM

Thanks, Howard. I'm actually most intrigued by the third question, raised by the plaintiffs--namely, whether the Davis-amended licenses violate the 14th Amendment, and thus must be conformed closer to the licenses issued elsewhere in KY (perhaps on a theory of symbolic disfavoring by virtue of their "issued under protest" message), even if they do *not* affect the legality of the resultant marriages under KY law.

Posted by: Marty Lederman | Sep 19, 2015 11:26:30 AM

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