The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
U.S. District Judge David Bunning has ordered Rowan County Clerk Kim Davis released from jail, but also ordered her not to interfere with the issuing of marriage licenses:
On September 3, 2015, the Court held Defendant Kim Davis in contempt and jailed her for her refusal to issue marriage licenses, directly or through her deputy clerks, in accordance with the U.S. Supreme Court's decision in Obergefell v. Hodges and this Court's Memorandum Opinion and Order of August 12, 2015. After remanding Defendant Davis to the custody of the U.S. Marshal, five of her six deputy clerks stated under oath that they would comply with the Court's Order and issue marriage licenses to all legally eligible couples.
On September 8, 2015, Plaintiffs filed a Status Report at the Court's behest. According to the Report, Plaintiffs have obtained marriage licenses from the Rowan County Clerk's Office. [Footnote: While the Status Report reflects that Plaintiffs' marriage licenses have been altered so that "Rowan County" rather than "Kim Davis" appears on the line reserved for the name of the county clerk, Plaintiffs have not alleged that the alterations affect the validity of the licenses. Nor do the alterations impact the Court's finding that the deputy clerks have complied with the Court's Order.] The Court is therefore satisfied that the Rowan County Clerk's Office is fulfilling its obligation to issue marriage licenses to all legally eligible couples, consistent with the U.S. Supreme Court's holding in Obergefell and this Court's August 12, 2015 Order. For these reasons, the Court's prior contempt sanction against Defendant Davis is hereby lifted.
Accordingly, IT IS ORDERED as follows:
1. Defendant Davis shall be released from the custody of the U.S. Marshal forthwith. Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples. If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered.
2. CJA counsel for the five (5) deputy clerks who indicated they would comply with the Court's Order shall file a Status Report every fourteen (14) days from the date of entry of this Order unless otherwise excused by the Court. Within those reports Counsel shall report on their clients' respective compliance with the Court's August 12, 2015 Order enjoining the Rowan County Clerk from enforcing her "no marriage licenses" policy, as well as its Order of September 3, 2015 requiring them to issue marriage licenses to all eligible couples in compliance with the Court's prior Order.
Also, yesterday Davis's lawyers asked the Sixth Circuit for relief pending appeal; after reading that, I got in touch with the lawyers to make sure I fully understood the accommodation that they are currently seeking. They confirmed that Davis would have no religious objections to her office handling the marriage licenses and certificates if a judge applying Kentucky's Religious Freedom Restoration Act (or, as they argue is possible, the Governor, under certain authority that he has) held that:
- the licenses would be issued, as a matter of Kentucky law, under the authority of someone other than Davis or the County Clerk, for instance the County Judge Executive or a deputy clerk who was willing to put his name on them, and
- the licenses reflected that accommodation, by including the name and office of the authorizing person (again, the Judge Executive or deputy clerk or whoever else) instead of Davis's name and office.
Davis's objection to the federal judge's order—and the licenses and certificates issued pursuant to that order—is that the licenses and certificates are still being issued (in her view) under her ostensible authority, even though Davis has not authorized them.
This accommodation is somewhat broader than the one I originally discussed in my post Friday (which was just removing her name from the licenses and certificates, and possibly replacing it with "Rowan County Clerk"). She would object to the documents noting that they come from the office "Rowan County Clerk," and she would also want an official declaration from the court that the licenses aren't being issued under her authority. It's possible that these demands go a bit too far for the Kentucky RFRA (as I noted in my post, the more burdensome a requested accommodation is, the less likely it is that a court will grant it), though it's hard to tell, given that RFRAs are written in general terms, and a lot of the line-drawing questions are left for judges to make on a case-by-case basis. Still, the accommodation doesn't seem tremendously burdensome, or that different from what's already being done under the judge's order, so it's possible that this is what will happen.
However, (1) whatever Davis thinks of the federal judge's order, she has to comply with it or risk being jailed again, though she is of course free to continue appealing it; and (2) my tentative sense—given Pennhurst State School & Hospital v. Halderman (1984)—is that to get an injunction mandating an accommodation under the Kentucky RFRA, she would have to refile her claims in state court, because a federal court would be unable to issue such an injunction ordering compliance with a state statute.