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Sunday, September 06, 2015

Many other takes on the Kim Davis mess (Updated)

Both from Balkinization. Marty Lederman parses Kentucky law and suggests that either the deputy-issued licenses are invalid or there was no need to hold Davis in contempt it was improper to throw Davis in jail (the contempt order was proper). Mark Graber discusses a "class bias in rights" (which Paul already commented on), under which rights that inure, in whole or in part, to the wealthy are more easily implemented than those that inure largely to the less wealthy.

Both are worth a read.

Update: Mike Dorf adds his take, arguing that a district court has broad powers to remedy constitutional violations, even where those remedies might otherwise violate state law. Thus, even if Davis's  name/consent ordinarily is necessary, once it became necessary for licenses to issue without her name (in order to ensure compliance with the underlying injunction), those licenses could be made valid. Note that Mike and Marty agree that it was unnecessary to put Davis in jail.

Further Update: More from Sam Bagenstos (Michigan) in The New Republic.

Posted by Howard Wasserman on September 6, 2015 at 05:32 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Probably to try to link it to the main federal claim and perhaps obtain a single order accounting for both claims.

Posted by: Howard Wasserman | Sep 8, 2015 2:23:15 PM

I can't figure out why Davis' counsel thought it would be a good idea to bring her quite plausible Kentucky RFRA claim in Federal court tied to a very dubious Free Exercise claim. Why not bring it in state court?

Posted by: Brad | Sep 8, 2015 2:12:20 PM

Although both "Mike and Marty agree that it was unnecessary to put Davis in jail," I believe they are solely focusing on the question of the validity of any licenses that may be issued but may be missing an important aspect of the situation: What is Davis's authority over the Deputy Clerks? If, as it's been claimed, at least one of the Deputy Clerks had been willing to issue licenses even before Davis was found in contempt, then it would seem to me that they were worried about defying Davis, not because they didn't want to issue an invalid license, but because they didn't want to get fired for defying her. If she was not in jail, and only being subjected to fines, couldn't she just fire any Deputy Clerk that attempted to issue a license against her order? Under Kentucky law, would the Deputy Clerk have any protections?

Posted by: Dan | Sep 8, 2015 11:39:23 AM

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