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Sunday, August 25, 2019

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 coupleseven 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.

Posted by Howard Wasserman on August 25, 2019 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


"this case held that a county sheriff can't use excessive force, but it never held that a city cop can't use excessive force."

Maybe SCOTUS hasn't but plenty of lower courts have drawn seemly inane or minor distinctions; if SCOTUS wanted too (not saying they want to) they could find city/county a plausible distinction.

I mean, this is exactly one of the reason why QI is such a joke. There is no rational way to determine which case is a case on point and which is not because every case, or almost every case, has factual distinctions that one could use as a hook to assert QI if one wants too.

Posted by: James | Aug 28, 2019 6:52:59 PM

One of the consolidated cases in Obergefell involved issuing marriage licenses and said that the officials responsible for issuing marriage licenses cannot fail to issue them to same-sex couples. Otherwise, it would be like saying "this case held that a county sheriff can't use excessive force, but it never held that a city cop can't use excessive force. The Court has never suggested it must be narrower than that.

Posted by: Howard Wasserman | Aug 26, 2019 11:35:20 AM

I think qualified immunity is a stupid, dangerous doctrine but if you think it has merit then Davis certainly should win. Under traditional QI analysis the question would not be whether there was a case saying "gay rights," there must be a case where the courts have said that a county clerk is bound by gay rights. There certainly has been no such case establishing that doctrine prior to this one.

Posted by: James | Aug 26, 2019 11:14:30 AM

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