Qualified immunity and judicial departmentalism

The Sixth Circuit on Friday held that Kim Davis was not entitled to qualified immunity from a claim for damages by same-sex couples denied marriage licenses in the early weeks after Obergefell. Obergefell clearly established the constitutional right the plaintiffs sought to vindicate--to receive marriage licenses and a reasonable official should have known about that right. And Davis did not show her entitlement to a religious accommodation, as the court said:

Davis provides no legal support for her contention that Kentucky’s Religious Freedoms Restoration Act required her to do what she did. Her reading of the Act is a subjective one and, as far as we can tell, one no court has endorsed. In the presence of Obergefell’s clear mandate that “same-sex couples may exercise the fundamental right to marry,” and in the absence of any legal authority to support her novel interpretation of Kentucky law, Davis should have known that Obergefell required her to issue marriage licenses to same-sex couples—even if she sought and eventually received an accommodation, whether by legislative amendment changing the marriage-license form or by judicial decree adopting her view of the interplay between the Constitution and Kentucky law.

Under judicial departmentalism, an executive official, such as Davis, is free to adopt and implement her "subjective" reading of the statute and judicial precedent. She does not need "legal authority to support her novel interpretation of Kentucky law"--the legal authority is her power as an executive official to act on her understanding of the law she is empowered to enforce. But qualified immunity is focused on precedent and the judicial understanding of precedent. So it could check executive officials going too far in a departmentalist direction, by tying them to judicial precedent on pain of damages.