Gay Marriage

No Qualified Immunity for Kim Davis

Government officials fail to follow Supreme Court decisions at their own risk.

|The Volokh Conspiracy |

Kim Davis believes same-sex marriage is immoral. While serving as County Clerk in Rowan County, Kentucky, Davis refused to issue marriage licenses to same-sex couples because, as she explained, "To issue a marriage license which conflicts with God's definition of marriage, with my name affixed to the certificate, would violate my conscience."

Davis persisted in her position even after Kentucky Governor Steven Beshear ordered county clerks within the state to issue same-sex marriage licenses in order to comply with the Supreme Court's decision in Obergefell v. Hodges. She even spent time in jail for refusing to comply with a court order instructing her to follow the law.

Davis is no longer the Rowan County clerk, but the legal dispute over her refusal to issue marriage licenses to same-sex couples continues. Two same-sex couples who were unable to obtain marriage licenses sued Davis (and the county) seeking damages for the unlawful denial of their constitutional right to marry.

Like just-about-any government official sued for damages, Davis invoked qualified immunity and claimed she was immune from suit. No dice, said the district court in a decision affirmed by the U.S. Court of Appeals for the Sixth Circuit last week. While the county may be immune under sovereign immunity, the court held, Davis could not claim qualified immunity because the right at issue was clearly established at the time of her actions.

Judge Richard Griffin wrote the opinion for the court, joined by Judge Helene White. Judge John Bush wrote separately, concurring in part and concurring in the judgment. While Judges Griffin and Bush disagreed on the proper way to evaluate Davis conduct—and whether they needed to determine the proper level of scrutiny to apply to discrimination against same-sex couples seeking to marry—they agreed on the bottom-line result.

It's quite astounding that this case went this far. As I explained at the time in a series of posts, Kim Davis was entitled to her views about same-sex marriage, but as a government official she was not entitled to place her personal religious views above the obligations of her office. Once the Supreme Court decided Obergefell and lower courts issued orders to enforce the Supreme Court's decision, she had a simple choice: Comply or resign.

Davis' obstinacy is not only going to cost her. It will cost the county as well. In separate litigation, same-sex couples who were ultimately able to obtain marriage licenses sought attorney's fees for their efforts under 42 U.S.C. § 1988. They prevailed in the district court, and the same panel of judges on the Sixth Circuit affirmed that decision last week as well.

 

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  1. “Two same-sex couples who were unable to obtain marriage licenses sued Davis (and the county) seeking damages for the unlawful denial of their constitutional right to marry.”

    Just as a minor point: in Kentucky, you may obtain a marriage license from any county in the state, regardless of the county of residence of the couple or the county in which one intends to marry.

    Not that I agree with what Kim Davis did, nor disagree with the plaintiffs, but the harm isn’t a denial of right to marry; it’s the hassle of going to another county clerk for the license. (Given the limited hours of many county clerks, this is not a minor issue.)

    1. Just as a major point, they tried your argument. Both the court and the U.S. constitution were unimpressed.

      1. County Clerks are open 8am-5pm all non federal and state holidays. Many keep late hours, staying open to 6pm. The drive from one county seat to another in the East is an hour at most. It wasn’t a hassle, nor major issue, it was the principle of the matter.

        The Constitution is silent, or it would have said something by now about gun control an abortion, the Courts, though purport to speak for it like a Biblical prophet or a Roman sear, reading chicken entrails.

        1. “There are lots of other towns on whose courthouse steps you can avail yourself of your free speech rights” is not how rights work. And again, “you can always shop around for other places to get a marriage license” was rejected by the court.

          1. That is an unfair analogy, as getting a marriage certificate isn’t a free speech right. And it is, often, how rights work. Don’t like having to do a bunch of extra paperwork to buy a gun, and wanna have an AR-15, then live in Wyoming, not California.

            I agree, the courts rejected it as a rationale. What’s your point there, that courts usually have the final word?

            1. If memory serves, Obergefell was also decided on EP grounds. For EP, the issue is not going to be sufficient access or substantial burden or any other SDP sort of thing. It’s going to be equal access. You wouldn’t argue that Brown was wrongly decided because separate but equal.

              1. Theoretically, from a pure textual analysis of the words of the Fourteenth Amendment, all protections of the Bill of Rights should have applied to all citizens in all states immediately after its passage in 1868. However, such a reading is somewhat disingenuous to say the least, as history shows that the same Congress, the 39th, that submitted the amendment to the states also provided for segregated schools in the District of Columbia, and the ratifying states maintained segregated school systems, which was later deemed by the Supreme Court a violation of the Fourteenth Amendment. The eminent constitutional historian Alfred H. Kelly, who the NAACP had brought in to convince the Supreme Court that the Fourteenth Amendment had been intended to prevent school segregation in Brown, later confessed that he had perhaps misrepresented the matter, but all for a good cause, he justified.

                1. There was (and is) a lot of flawed legal logic around this issue.

                  The status before was that everyone had the same right… to marry the person (of opposite gender) of their choice, except for a few categories prohibited (incapacity, consanguinity, lack of mutual consent, state of prior marriage.) Equal protection doesn’t mandate that this change, and so it didn’t.

                  But, what happened was that the California Supreme Court found that when drafting the marriage statute, the California legislators hadn’t actually put “spouses must be of different gender” into the law. Because that requirement wasn’t in the law, then people who didn’t happen to be of different gender could get married just like the people who were, barring the same disqualifications. Several people then proceeded to register marriages in full compliance with the law.

                  THEN, some other people decided to invalidate those marriages by suggesting an amendment to the California constitution, which passed. Taking something away from some people but not others, is what triggered the Equal Protection clause. If they’d been content to close the loophole but leave the existing marriages be, you get a different outcome.

                  1. That’s an answer that is entirely oblique to the issue in this particular comment thread. The 14th Amendment shouldn’t have been used in Brown, nor should it have been used in Obergerfell.

                    And there was no need to spell out “marriage between a man and a woman” because that was the only type of marriage for all of American history prior to that point, so they shouldn’t have been allowed to marry. By the silly logic you propose, dogs could play on an NBA team because the rules don’t say that all players have to be human.

                    1. ” By the silly logic you propose, dogs could play on an NBA team because the rules don’t say that all players have to be human.”

                      Yeah. “Air Bud” has been around for a while now.

                      There wasn’t a rule that said you couldn’t send up a midget with a 2-inch strike zone to bat, until they sent Eddie Gaedel up to bat. Just because nobody ever thought to ask for something doesn’t make it illegal.

                2. I understand and am in general agreement that from an originalist standpoint, Brown was wrongly decided. That’s not what we’re talking about. You wouldn’t say that Brown was wrongly decided, from an equal protection perspective, because separate but equal. You would say Brown was wrongly decided because the 14th narrowly granted certain rights to black people, but desegregated schools wasn’t one of them. A narrower reading, perhaps, is that it only provided them the 1868 Civil Rights Act rights (like entering into contracts, etc.).

                  If you view Obergefell as an EP case–and it was an EP case–the issue is not a fundamental constitutional right. And so there’s no need to address sufficient access. The analysis will be whether or not gay people have equal access to straight people.

                  1. By framing the question as a case of equal access to a governmental policy (the recognition of a marriage), you presuppose your conclusion because one class of people (was) denied access by definition of the policy. By way of analogy, suppose a non-minority sued because they couldn’t access a minority set-aside.

                    1. “…you presuppose your conclusion because one class of people (was) denied access by definition of the policy.”

                      Yes, because that’s how EP jurisprudence works.

                      “By way of analogy, suppose a non-minority sued because they couldn’t access a minority set-aside.”

                      I don’t have to suppose they did. They did. In Adarand and Gratz and Hopwood and Fisher. And what do you think the plaintiffs sued under? 14A Equal Protection. For those plaintiffs, it wasn’t a question of equal access, it was that one group was given preferential treatment over another. That was enough to state a claim under the EP clause.

                    2. Should be “wasn’t a question of sufficient access”. It very much was a question of equal access.

                    3. Thanks for those well written replies. But honestly, it just further shows the BS nature of the EP claims for gay marriage in the first place, and that the change should have come from the legislature, not the courts.

                    4. “By framing the question as a case of equal access to a governmental policy (the recognition of a marriage), you presuppose your conclusion because one class of people (was) denied access by definition of the policy.”

                      OK. And?

                      Would it have been OK if, say, instead of invalidating the same-sex marriages, A vote of the people had decided to invalidate marriages between Christians, while leaving everyone else’s marriages in place?

        2. Assuming the person requesting the marriage certificate has access to a car or can fork over hundreds to drive to another county.

          It was right to strike it down.

          1. Poor people without money can’t do a lot of things they have a right to do. The marriage license itself costs money. Is that like a poll tax that should litigated against as well?

            1. IIRC, there isn’t technically a right to marry. Obergefell simply says that, if civil marriage exists in a state, it must be made available to all couples regardless of sexual orientation. Whether a court could be persuaded to recognise a right to marry (and, by extension, to do so without incurring a tax) is an interesting experiment for someone with too much time on their hands.

              1. Wrong.

                “These considerations lead to the conclusion that the
                right to marry is a fundamental right inherent in the
                liberty of the person, and under the Due Process and
                Equal Protection Clauses of the Fourteenth Amendment
                couples of the same-sex may not be deprived of that right
                and that liberty. The Court now holds that same-sex
                couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.”

                1. Thanks for that clarification ML.

                  I want to marry my mistress as well as my spouse. What is keeping the Court from taking things just a half a step further?

                  1. Absolutely nothing is preventing that, mad_kalak.

                    The formula in practice has been that if you have (a) acceptance and agitation by the cloistered liberal intelligentsia + (b) a handful of opinion polls showing majority support for the underlying normative policy view, then you can = (c) a new “Constitutional” rule. Even that could change, though.

                    There is very little, if any, tether remaining to any static constant, or original meaning of the Constitution. There is just a grandiose procedural ruse where the meaning is argued about, following which the robed officials do whatever they want.

                  2. Nothing, you can marry your mistress. And you’ve already married your spouse.

                    If you’re asking why you can’t marry both, it’s because the Supreme Court’s decision in Obergefell was limited to marriage between two people, and the arguments against polygamy are different than the arguments against homosexual marriage.

                    1. And what are the differences, such that it makes plural marriage any different substantively, from gay marriage?

                    2. “And what are the differences, such that it makes plural marriage any different substantively, from gay marriage?”

                      The existing marriage statutes grant powers to spouses on the assumption that there is only one of them, and therefore do not provide methods of resolution for when there are more than one, and they are not of like mind. For example, a spouse can make decisions for a person to ill or injured to decide for themselves. But what if spouse A selects one option, and spouse B selects a different one? Which one must the doctor follow?
                      This is not an impossible situation… the statutes could be revised and rewritten such as to provide a mechanism to account for the possibility of multiple spouses, and resolve conflicts among them, but it won’t be as simple as changing “husband” and “wife” to “spouse”.
                      Maybe they’ll solve it “civil union” style… you still only get one spouse, but the state will recognize as many “civil concubines” as you can get to sign the paperwork.

                    3. Soooooo…those sound about as weak as the practical case against gay marriage sounded in about 2003. “Think of the logistics of it” wasn’t a winning argument then, and it isn’t now. The only real case against plural marriage is a moral one, when you get down to it. Frankly, many women would rather be a billionaire’s 2nd or 3rd wife then married to the manager of a local Circle K.

                    4. ” The only real case against plural marriage is a moral one”

                      There isn’t any real case against plural marriage, if groups of three or more want to consider themselves all married to each other, whose business is it what word they use to describe the relationship(s)?. The question is whether there’s any point in having the state recognize the ones that exist, or if they should continue their current policy of not doing so. The secondary question is whether the advantage to be gained from such recognition is worth the cost of combing through the statute books to identify, and rewrite, the legal presumptions formed by “marriage”.

                    5. Exactly….

                    6. “The secondary question is whether the advantage to be gained from such recognition is worth the cost of combing through the statute books to identify, and rewrite, the legal presumptions formed by “marriage”.”

                      That secondary question is/should be irrelevant to the question of whether there is a right to marry more than one spouse.

                    7. @mad_kalak,

                      If you’d like a comprehensive discussion of the differences between plural marriages and marriages between two people, generally (not as a constitutional matter), see here.

                      Why do you frame it in terms of plural marriage being “any different substantively, from gay marriage”? Do you not think plural straight marriage is different, substantively, from non-plural straight marriage? Maybe you should consider the differences between polygamy as practiced by heterosexuals and non-plural marriage practiced by heterosexuals, and whatever differences you find, will inform what the substantive differences are between plural marriage and “gay marriage”.

                    8. The point I’m trying to make, which you alide off of NToJ, is that once it was decided by SCOTUS that “this was the new rule” it’s patently clear upon very little reflection that there is very little distinction between what society found acceptable at point A but still finds entirely unacceptable at point B. There is almost no daylight between the two.

                    9. @mad_kalak,

                      If there’s no daylight between 1:1 gay marriage and polygamy, where’s the daylight between 1:1 heterosexual marriage and polygamy? Why would a polygamist’s argument be any better the day after Obergefell? And your A->B analysis is so prosaic you could fit anything into it. Why is gay marriage a slippery slope but interracial marriage isn’t? What about marriage between people of two different religions? Or people who live in two different states? Or people with brown hair and red hair? Fat and skinny? If an OSU man can marry a UM woman, what next? Dogs and cats? Men married to tractors? Where will it all end!

                    10. “That secondary question is/should be irrelevant to the question of whether there is a right to marry more than one spouse.”

                      But it’s entirely relevant to the question of “should we change the law to include a right to marry more than one spouse”.

                      And, again, you currently have the right to marry more than one spouse. You may or may not be able to get your state to recognize it (or to get your church to recognize it). But nobody’s stopping you from having a plural marriage… until you try to get the state to recognize it.

                    11. @ NToJ

                      exactly….

                2. To be fair, Kennedy left the operation of how a fundamental right works up in the air, as he often does.

          2. – “or can fork over hundreds to drive to another county”

            You think it costs “hundreds” to drive from one KY county to the next? Hundreds of what? Venezuelan Bolívar?

            1. I believe that was an alternative to having a car and wouldn’t be surprised at a taxi ride (round trip) costing hundreds

              1. – “I believe that was an alternative to having a car and wouldn’t be surprised at a taxi ride (round trip) costing hundreds”

                Had he meant “hundreds to take a taxi” (which would be an odd option to exercise, as opposed to a bus, a train, a rent-a-car, etc) it seems like he would have mentioned a taxi. Also, the wording “to drive to” as opposed to “to ride to” or “take a taxi to” or something similar suggests the parties doing their own driving.

                1. As with the Affordable Care Act, yours is the most natural reading, but we can read it as implying the need to use a Taxi because otherwise it’s a idiotic claim. 😉

            2. “You think it costs ‘hundreds’ to drive from one KY county to the next?”

              Depends on how many “and the next” you have to add to the sentence to finally end at a clerk who’ll actually issue the license. If Ms. Davis is the only objector, then you get one answer. If her disinterest in doing her job turns out to be just the vanguard of other county clerks not wanting to do their jobs either, I would imagine a person could easily spend hundreds of bucks driving from courthouse to courthouse to courthouse…

          3. Then why are you liberals okay with counties banning gun stores and 99% of guns and then arguing that you still can get the 1% of guns left in a neighboring county? Why is the “right” of two deviants to get a sodomy license more important than enumerated gun rights?

            1. “Deviants” already had license to commit sodomy; my understanding was that Obergefell was about same-sex marriage, which, most narrowly, has nothing to so with sexual acts, deviant or otherwise, but with a form of contractual relationship between two adults.

              1. Yes, but it was their way of getting society to put its stamp of approval on their sodomy-based relationship.

                1. Whereas society put its stamp of approval on my sodomy-based relationship without any kind of fuss, because our naughty bits were different from each other.

                2. No, I think Lawrence v Texas did that.

          4. From the state, was actually born in Morehead, the county seat for Rowan County.

            The closest county seat is a 30 minute drive along I-64. There are 5 other county seats within a 40 minute drive and a lot more within an hour. An hour drive would get you to downtown Lexington.

            Keep in mind another fact about KY is that the vast majority of the counties are dry (no alcohol sales) with Rowan being moist (you can buy by the drink at restaurants). The closest wet county is two counties to the west, Clark, and I guarantee you people regularly make the trip even with bootleggers still being a thing in those parts of the state.

            1. Need to correct one thing, the city of Morehead is wet. Regardless, people in that part of the state are used to driving long distances to get stuff done.

              1. Sure, sure. Back in my parents’ day, Washington’s drinking age was higher than Idaho’s, so people drove from Pullman to Moscow to drink.

                It was tougher in my day. Oregon AND Washington set the drinking age at 21, but B.C. set it at 19. It’s a longer drive from Corvallis to Vancouver, but if you picked Victoria instead you could ride on the ferry boat.

        3. “County Clerks are open 8am-5pm all non federal and state holidays. Many keep late hours, staying open to 6pm. The drive from one county seat to another in the East is an hour at most. It wasn’t a hassle, nor major issue, it was the principle of the matter. ”

          This assumes that they would be served in another county seat, and knew this. Do you know exactly what they were told when they went seeking a license?

          1. You’re really reaching here James. How long does it take to look up a County Clerk on the internet, where their webpage has their hours and a phone number for assistance to ask the question.

            Check out the Bourbon County Clerk’s webpage, they are like one county over from Rowan. Open until 6pm on Fridays. Phone number is right there at the bottom of the page.

            Bourbon County, KY

            1. That might affect how much damage was done, but not the principle of the right itself.

            2. ” How long does it take to look up a County Clerk on the internet, where their webpage has their hours and a phone number for assistance to ask the question. ”

              Please hold. Your call is very important to us…

              1. Reaching even further….about about two minutes on the Bourbon County website, I find and answer. It says county residence doesn’t matter, except if the person getting married is under 18, and that’s due to a judge’s or parent’s permission being required.

                1. Please continue to hold… your call is very important to us.

                  1. No shit, but with my nationwide wireless plan meaning it didn’t cost me anything additional, I called Bourbon County and asked the cost for a marriage license and if you need to be a resident of the county. They picked up on ring 4, told me cost was $35 and that you don’t need to be a resident of the county. The woman had a warm southern accent, the kind one just loves to hear.

                    Call, I dare you.

                    1. Great. Are you sure that if you asked them on the phone if they’d issue a marriage license to you and your gay fiance, the answer would be yes, and more importantly, would STILL be yes by the time you got to the window?

                      ” The woman had a warm southern accent, the kind one just loves to hear. ”

                      I live south of Kentucky.

                    2. James, I already went above and beyond to prove your douchebaggery. Call them yourself and ask that question.

                      I live north of Kentucky, and I like southern accents on a woman. And depending on where south of Kentucky, i.e. Florida, you don’t hear one.

          2. This assumes that they would be served in another county seat, and knew this.

            Why would they have to know it? Mitigation of damages means you have to try to mitigate.

            If the other counties were issuing licenses for SSM, then that would be a reasonable way to at least try to obtain. As I said below, this does not obviate liability, but does severely lessen the damages.

            1. And, in fact, the plaintiffs in the case dropped their claim for damages, but successfully obtained $222,695.00 in attorney’s fees because they were successful in their claims. That’s the subject of the second 6th Circuit decision linked in the post.

              1. That seems like a lot of attorney fees for a suite that really shouldn’t take all that much work. Pretty open and shut, possible even a summary judgment.

            2. “Why would they have to know it? Mitigation of damages means you have to try to mitigate.”

              How can you mitigate damages that have already occurred? Once Davis refused the court order requiring her to issue licenses to the plaintiffs in this litigation, the Constitutional violations were complete and the damages (whatever they may be) were set.

              1. I don’t think that is right. The Constitutional harm claimed here is deprivation of a marriage licenses (which would have been proffered to a hetero couple.) If they could have acquired the same Kentucky marriage license by driving to the next county for an hour, I think mitigation of damages requires them to do that.

                (Mitigation applies post injury as well. Let’s say I damage your car in an accident. I would have to pay you the costs of repair. But if you claim lost work time, for example, you cannot just let that go on indefinitely. You have to repair it, or rent or buy another car.)

                1. “The Constitutional harm claimed here is deprivation of a marriage licenses (which would have been proffered to a hetero couple.)”

                  Are you saying that Davis refusing to abide by the court order requiring her to issue marriage licenses to the gay and straight plaintiffs in this case (she refused to issue them to anyone) wasn’t a constitutional violation? Because it seems to me that that, in and of itself, is a pretty clear violation that’s completely independent of what’s available the next county over.

                  I’m also pretty skeptical of your general claim that reasonable mitigation of a deprivation of constitutional rights by a government official requires the victim to seek out a different government official. Do you have any examples where a person whose constitutional rights were violated by one government official was expected to mitigate his damages by going to a different government official. I’m pretty skeptical.

                2. ” If they could have acquired the same Kentucky marriage license by driving to the next county for an hour”

                  If, of course, driving to the next county gets them a different answer, and not a “sorry, we don’t serve your kind here” when they get to the window. If one county clerk can deny service, then so can another, and another, and another….

        4. “County Clerks are open 8am-5pm all non federal and state holidays. ”

          County clerk in my town is 8:30 am to 4:30 pm, M-F. County clerk in the county in which I got married, 8 am to 4:30 pm, M-F.

          People who work jobs with normal hours have to schedule a morning off from work to get things done at the county clerk (marriage license, vehicle registration, license – the latter two which must be done in the county of one’s residence).

          FYI.

          1. The county of ones residence didn’t matter in KY unless the one getting married is under 18.

            My Clerk’s office is open until 6pm on Fridays.

            Isn’t any government license a hassle of some sort. Do you really want to compare this to spending hours at the DMV on a busy day? Unless it’s the middle of an election, a County Clerk’s office is not like a bread line in the Soviet Union.

            1. “Isn’t any government license a hassle of some sort.”

              Sure is. That’s why being told “go away, you can’t have one because even though you’re entitled to get one by paying the correct fee, I don’t want to give it to you so I won’t” is an infuriating position for a bureaucrat to take.

              ” Do you really want to compare this to spending hours at the DMV on a busy day?”

              By coincidence, I spent the day before yesterday waiting in line at the DMV. And, just before it was my turn, they actually announced that a nearby DMV office had no line and suggested that people take a 10-minute drive over there instead of waiting in line.
              But, when it DID get to be my turn, they didn’t say “go away. You can’t have one.”

              1. And the point of your anecdote, while amusing, is?

                1. “And the point of your anecdote, while amusing, is?”

                  Geez, I wrote it down for you and everything. It was
                  “But, when it DID get to be my turn, they didn’t say ‘go away. You can’t have one.'”

                  1. Uh huh.

                    Brevity is the soul of whit, which you are lacking in.

        5. Not to mention the couple came all the way from California and were not even Kentucky residents.

      2. Well, of course the the court was unimpressed. As a rule, the courts have been unimpressed with, “There was another florist across the street.”, so you can’t expect them to care that there were other clerk’s offices a short drive away.

        The US Constitution is a document, and incapable of being impressed by anything.

      3. It is an all too familiar refrain. “Available elsewhere” has been used in efforts to sustain segregation and now homophobia.

        1. It is, none the less, a perfectly appropriate rejoinder in the case of private discrimination, where the only justification for the denial of the discriminating citizen’s personal liberty is exigent circumstances such as motivated the original public accommodation laws. Public accommodation law has spread, cancer-like, far past any reasonable application.

          The matter is quite different in the case of government services, because people don’t stand in the same relation to government as they do to other citizens.

        2. It’s interesting what you define as homophobia, to say the least.

          1. Liberals define “homophobia” to mean “won’t enthusiastically knock on the door of the neighborhood “married” couple and ask for a threesome.

            1. Liberals define “homophobia” to mean anything it needs to mean in order to crush conservatives.

              1. I think the three of y’all are homophobiaphobic. Or maybe you’re just liberalphobic. You do sound like cowards.

                1. Phobia means “fear”. I’m not afraid of much, let alone a bunch of queers playing at marriage.

                  1. They also purchase children and play house.

                  2. Phobia doesn’t mean “fear”, it means “irrational fear”.

                  3. You seem really unconcerned about it, I can tell from the things you type.

                    1. Concern and fear are separate things, not to mention the various levels of fear; existential dread, worry, all consuming, nightmarish, fretting, etc, etc.

                      Like I said elsewhere, gays can have marriage, because by the time they got it, straight people had already mostly ruined it anyway.

              2. Pretty much.

      4. But that argument, though it does not work on liability, does work on the issue of damages. Mitigation of damages is still a principle of civil litigation, including civil rights claims under Section 1983.

        So if they could have gotten the same result (a marriage license) by driving to the next county an hour away, then their damages should be limited to the costs of that. Say two hours of time and gas money.

        If I were her counsel, I would make an offer of judgment of $1000. Then demand they give me a “computation” of damages as required by Rule 26(a). And then move for summary judgment that damages would not exceed $1000.

        1. Those are rookie numbers. I’m sure there is some mental anguish in there somewhere, right?

          1. But that is just the point. They could have avoided all that just by driving to the next county. That is what mitigation of damages means.
            (And I am dubious that mental anguish even applies here. The harm they claim is they were denied a marriage license. If they could get one with just a bit of additional inconvenience, it is hard to see what mental anguish there is anyway.)

            1. Suffering though Davis’ theological judgement that their proposed union was a sin in the eyes of God has gotta be worth a couple mil, c’mon, work with me here Bored Lawyer.

              1. But that is the point. Section 1983 only deals with civil rights — meaning governmental actions. Not her personal convictions. That she thinks they are abominable sinners is not a Constitutional harm, or indeed, any civil harm.

                Think of the following hypothetical. Suppose when this same-sex couple came in, she had instead said,”What you are doing is a sin and an abomination. You will burn in hell for it. But the Supreme Court says the Commonwealth of Kentucky has to give you a marriage license, and the law of Kentucky says I am the one to do it in this county. So I am giving you one under protest, but just saying again that what you are doing is an abominable sin.”

                Would they even have a claim then? No.

                1. Good points, I give up my charade here. At most they should get the value of a tank of gas, a lunch, and a day’s pay from their job for the time of their drive.

                2. “Would they even have a claim then? No.”

                  It’s like you’re not even trying.
                  If a government official subjects you to preaching as a condition of receiving your rights, you have an establishment claim.

            2. “Just drive an hour” assumes they have an hour to drive. If they’re trying to get a license just before closing time, “Just drive an hour” includes “take another day off work”. And of the boss doesn’t feel like giving a day off, it means quitting a job. (Yes, obvious edge cases. But valid possibilities.)

            3. “They could have avoided all that just by driving to the next county.”

              They could have possibly avoided all that just by driving to the next county. Another possibility, they drive to the next county and ge turned away by a different clerk.

  2. I am curious how the court is supposedly upholding a law that was not in existence at the time. SCOTUS can determine that a law violates the Constitution however they cannot “create” a new law nor can the Governor of a State “create” a law.

    I am also curious why the court continues to ignore the basic issue of the couple being residents of CA not KY yet insisting on their “right” to a marriage license from this particular county in KY.

    Finally, if Obergefell is so pervasive then it can be used to attack all the gun control laws of State’s like CA that deny a person their 2A Rights.

    1. They can’t create new laws, but they’re capable of pretending that an old law suddenly means something nobody previously thought it meant.

      And the courts are almost totally on board with the program of ruthlessly crushing anybody who doesn’t want to pay along with the game.

      That said, I do believe that Davis was somewhat abusive in the manner of her resistance to the ruling. If the legally required activities of her office conflicted with her conscience, she should have sought other employment.

    2. Uh, Obergefell was the law of the land at the time that Davis frustrated what were then the constitutional rights of these gay couples. You are also asking a question that was settled a couple hundred years ago. The Supreme Court is the final arbiter of the Constitution. Both couples had legal residency in Rowan County, KY. Davis was not targeted.

      1. SCOTUS cannot make law therefore it is impossible that Obergefell is a law, let alone the law of the land. Duhhhh

        Again, SCOTUS struck down a law which means there was no law for Davis nor the courts now to enforce.

    3. “I am also curious why the court continues to ignore the basic issue of the couple being residents of CA not KY yet insisting on their “right” to a marriage license from this particular county in KY.”

      People are only allowed to have weddings in the state they live in?

      1. The courts are creating a rule that wealthy liberals have a right to crush middle class and lower class conservatives anytime and anywhere.

        1. Oh. OK. Turnabout, fair play, and all that stuff.

      2. It depends on the State however they could have easily got their license in a nearby county, after all, they traveled thousands of miles in the first place.

    4. The Supreme Court is not the final arbiter of the Constitution.

      Finality in Supreme Court decisions is not judicial supremacy, because the Court does not, ultimately, have the final say, due to the Court’s inherent weakness. In two examples: Eight years after the Supreme Court in Dred Scott v. Sanford (1857) said that Congress could not ban slavery in the territories, it was banned throughout the whole country. In the Legal Tender Cases, the Supreme Court did an about face and affirmed the constitutionality of paper money after just a few years previous saying it wasn’t constitutional.

      1. “Eight years after the Supreme Court in Dred Scott v. Sanford (1857) said that Congress could not ban slavery in the territories, it was banned throughout the whole country.”

        The Emancipation Proclamation did not ban slavery throughout the entire country. Slave holding states in the Union were completely unaffected by the Proclamation, as were Confederate states and parts of states that were already occupied by Union troops.

        1. Add eight to 1857 jph. What happened then?

          1. My mistake. Math error.

        2. “‘Eight years after the Supreme Court in Dred Scott v. Sanford (1857) said that Congress could not ban slavery in the territories, it was banned throughout the whole country.’”

          But not by Congress.

          1. Yes, I’m pretty sure Congress funded the war effort.

            1. I am, too. So? We weren’t fighting a war against states that allowed slavery.

              1. You see that point….it just went right over your head like a startled bird. Try reading the comment thread again from the start, then come back and ask a cogent question.

                I try to be patient, but at a certain point, your pithy one liners are a determent to real conversation most of the time.

                1. “You see that point….it just went right over your head like a startled bird.”

                  You seem to have me confused with somebody else.

                  ” at a certain point, your pithy one liners are a determent to real conversation most of the time.”

                  Fuck you, too.

                  1. Damn, James, you double down. Expected though.

    5. I am also curious why the court continues to ignore the basic issue of the couple being residents of CA not KY yet insisting on their “right” to a marriage license from this particular county in KY.

      My (now) husband and I are residents of CA. We got married in Nevada last week.

      What was your point again?

      1. Simple really. If one can travel that far, then how hard is it to get your license in the nearby county? I was stationed overseas and came back to the US to get married in SC. It was easier and less wait to get our marriage license in a nearby county instead of fighting the crowds.

  3. Damages?

    What, the cake went bad?

    The plaintiffs won, they get a faux marriage, god help them. Now they are just bayoneting the wounded by filing suit.

    1. Ole Bob is pretty salty that gays can get married huh?

      1. No, his point is that when it comes to gay marriage the left has won that battle of the culture war, now they are just going around shooting the survivors.

        Look at it this way, if the right had won on an issue lately, say gun control (with totality like the left has) this situation is akin to if an activist did an open carry event inside CNN headquarters then filed suit when they asked him to leave, and to top it off, the courts sided with the activist.

        1. “No, his point is that when it comes to gay marriage the left has won that battle of the culture war, now they are just going around shooting the survivors.”

          Interesting framing. I agree the left won the culture war. They also won the Supreme Court decision, although I disagree with the holding. But then some crazy, dogmatic nut job who happened to be a government employee refused to accept defeat and denied them what, at that time, was a legal right. This was not a case of a culture warrior on the losing end being gratuitously shot. Instead this was a culture warrior on the losing end who refused surrender and kept firing.

          By the way, why aren’t you limited fucking government on this thing? Kim Davis is a government official who exercised power above and beyond anything she was authorized to do. She isn’t the victim here. She’s the state.

          1. Did you feel the same way about dogmatic gov’t employees not acceding to defeat when Donald Trump orders them to do X or Y and they claim to be part of the resistance, or slow walk compliance, or worse, use the mechanism of the intelligence system to spy on him?

            1. I can see both sides. One the one hand, the President should expect (indeed, demand) some pushback from federal employees who are tasked with independent judgment. If Trump orders the 101st to go occupy Tijuana to handle the “bad hombres”, I might expect some top-level military officers to ask questions before jumping out of the airplanes, because they need to know the answers before jumping out of the airplanes. The President has the authority to order the military, but the military officers have responsibility for (and to) those serving under them.

              1. Well, that’s a start. But just to clarify, military officers take an oath to the Constitution, while enlisted swear to obey the President and the officers appointed over them.

                1. Enlisted swear to both. I suspect so do officers, though I was never commissioned, so I don’t know.

                  1. Go look it up, but then again, you’re pretty used to speaking from a position of ignorance but with authority, so I don’t expect you’d take the time.

                    1. James Pollock is correct. See 10 USC 502. Enlisted swear to support and defend the Constitution. Just like officers. In other words, “Enlisted swear to both”. Maybe you should not speak from a position of ignorance with such authority?

                    2. Touche…sort of. As enlisted, you vow to support and defend the constitution, but *obey* officers and the president. Officers only swear to support and defend the constitution.

                      The Oath of Enlistment (for enlisted): “I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

                      The Oath of Office (for officers): “I, _____ (SSAN), having been appointed an officer in the _____ (Military Branch) of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God.”

                    3. ” As enlisted, you vow to support and defend the constitution, but *obey* officers and the president.”

                      As an enlisted man, I swore to obey the lawful orders of officers placed over me. Strictly speaking, the President wasn’t in my chain of command.

                      So that’s TWICE you’ve incorrectly “corrected” me, while simultaneously complaining of my “ignorance”.

                    4. Strictly speaking the president is the HEAD of your chain of command, not to mention it is the president who appoints the officers.

                      How many more times are you going to be wrong?

                    5. “Strictly speaking the president is the HEAD of your chain of command, not to mention it is the president who appoints the officers.”

                      Ah. Hate to point this out, but you’re speaking from a position of ignorance again.

                      “How many more times are you going to be wrong?”

                      Zero, same as before.

            2. Maybe I do? I mean, I’d have to know more facts. In the case we’re talking about, a state actor is interfering with the rights of a private citizen. It’s conceivable that a governmental agent (the President) could ask an underling (another governmental agent) to do something against a private citizen that is not authorized by law, and so under those circumstances I’d side with the underling. I generally think the underling should loudly retire rather than disobey. But you’ve changed the hypothetical from the state doing something to a citizen, to the state fighting with itself. Which is generally not that objectionable to me, as government ambition must be made to counter government ambition.

          2. One small issue with your contention; there was no law authorizing Davis to issue a license for a SSM.

    2. They didn’t get married, actually. Again, this is addressed in case in the second link of the post. Didn’t change their right to pursue the claim or, ultimately, the right to collect attorney’s fees for doing so.

      1. I assume they subsequently got a license.

        They have the legal right to file suit but not the moral one. They suffered no actual damage.

        1. Which is why they dropped their damages claim. But since they succeeded on getting an injunction, they get their attorney’s fees – to the tune of about $225k.

          1. And that is the point of the American justice system…to get lawyers their fees. This country will descend into madness and chaos, but the lawyers will still get paid…until the very end when we all end up dead.

            1. Richard the Butcher: “The first thing we do is kill all the lawyers”

              1. Q: What do you call 1000 lawyers at the bottom of the ocean?
                A: A good start!

                /SARC

    3. The plaintiffs won, they get a faux marriage, god help them. Now they are just bayoneting the wounded by filing suit.

      Our marriage is just as valid as yours is (assuming you are married). And considering we’ve been together 20 odd years – we’ve lasted longer than the most straight couples have in their “real” marriages.

      1. Good for you. Still not a marriage despite what Tony K said.

        1. You continuing to be a dick after society has moved on doesn’t change what marriage is.

          1. Marriage is what the people in it say it is, and it isn’t what that they say it isn’t, and you’re free to not recognize one you don’t approve of… unless you took an oath to carry out the duties of your job, and your job is to handle the pieces of paper that have to do with the marriages the state recognizes.

            Could have solved the problem by having the government get out of the business of recognizing (or not) people’s marriages.

            1. You are free to be a dick and insist someone’s marriage is fake, yes.

              1. Would you call a Mormon Polygamist marriage fake?

                1. I may think it, but I wouldn’t enthusiastically go out of my way to tell them that as much as I could.

                  It’s not the judgement, it’s the performance.

                  1. I’m sure you feel the same way about all the screaming at the sky performances when it comes to people saying “Donald Trump is not my president!” #resistance

                    Imagine you’re a conservative Christian who thinks plural marriage is against God’s will, or a radical feminist who thinks marriage is a oppressive hetero-patriarchal and you’re put into this position where you’d violate you’re conscience by validating with the power of the gov’t a union between one man and three women.

                    Frankly, Davis should have resigned, but it wasn’t a “performance” whatever it was.

                    1. It’s dumb, but whingeing about Trump isn’t being a dick.

                      Some faiths require you to be a dick. So happens.

                      And yes, if some feminist goes off and tells every married couple that their marriage is just rape-slavery, they’re dicks as well.

                      Davis is actually fine, by my book – it’s civil disobedience. Where I have an issue is that true civil disobedience involves embracing the penalty for disobeying an unjust law.

                      That is not the same as every time a homosexual mentions their spouse rushing to say ‘not a real marriage!’

                    2. Whining about Trump is being a dick via performance art virtue signaling.

                      Is Pluto still a planet? Did it cease to be a planet just because some authoritative body voted that it wasn’t, yet simultaneously most of us, including the current head of NASA, insists that it is still a planet. By comparison, for about all of human history it wasn’t a real marriage because marriage by definition excluded gays. Give it 20 years, in the West at least, and you’ll see that comment pretty much go away in your lifetime if you live that long. (*psst….still not a real marriage by natural law)

                      Civil disobedience is correct in my mind as well. Just like that judge who let the illegal alien escape.

                    3. We’re talking about dickery, not performativeness, which is the superset.

                      If Pluto had feelings, then we could talk dickery there.

                    4. “still not a real marriage by natural law”

                      Neither is anything else. Marriage isn’t natural.

                    5. There are multiple ways to be a dick, and virtue signaling to make yourself seem superior, is one of the myriad ways.

                      Why do feelings matter? Facts don’t care about your feelings, as the quote goes. Just because Pluto is an inanimate object the comparison is not invalid, because the key issue in both cases is the capacity for humanity to *record scratch sound* alter course suddenly from traditions and laws so ancient they pre-date written history and not have a significant part of the population reject it.

                    6. “Marriage isn’t natural.”

                      Humans are part of nature, by definition anything humans do is natural.

                    7. @mad_kalak,

                      “Humans are part of nature, by definition anything humans do is natural.”

                      You mean like… be gay?

                    8. I never said being gay was unnatural, did I? Nice argument by extension.

                      In human history, there is typically a small % of the population that is gay, about 1-3% (cause scientifically unknown at this point) but the % varies on how many young they get to access too.

                      Likewise, hetrosexual male revulsion of male homosexuality is innate, but there is also way more acceptance of female *bisexuality* but not so much lesbianism.

                      Evo-psych is an emerging field fraught with social controversy.

                    9. Well you said gay marriage isn’t natural law. When someone pointed out that marriage isn’t natural, you said everything that people have ever done is natural. So your theory appears to be that some natural things are not natural law.

                      Very confusing. Natural rights are supposed to be inherent. Yet you’re pegging natural law to societal institutions (like marriage). Being gay predates those institutions.

                    10. “Imagine you’re a conservative Christian who thinks plural marriage is against God’s will”

                      I guess I’d remember what Jesus had to say about whether or not his followers had to follow the Earthly government, and what he did when his followers urged him to replace the extremely unpopular Earthly government extant at the time.

                      ” or a radical feminist who thinks marriage is a oppressive hetero-patriarchal”

                      Why did I take the job giving out marriage licenses if I’m that opposed to giving people marriage licenses?

                      “Frankly, Davis should have resigned[…]”

                      All the part of the sentence that I left out, you should have left out, and ended with a period right there.

                    11. “the % varies on how many young they get to access too. ”

                      And how heavily the OTHER % persecutes them. No gay people in Iran, because when they find them, they get executed. The Nazis had a bugaboo about it, too.

                      Funny thing, bedfellows.

                    12. “Likewise, hetrosexual male revulsion of male homosexuality is innate”

                      No, it isn’t. Some hetero folks are deeply disgusted by the very idea, some just don’t think about it, some don’t care as long as they aren’t doing it in the street and scaring the horses… a broad spectrum, of which “revulsion” is but one of many possible answers.

                    13. So much wrong there JP, so little time.

                      Let me stick to the biggest mistake, as I really don’t want to take the time to educate you, and to be honest, I know you won’t listen. Maybe someone else will.

                      Just like there is always a small % of the populace that is gay, there has always been universally across all human societies a simultaneous dislike, rejection, or aversion to homosexuality. From whence does that spring forth? Straight men look at a picture of gays kissing and they react the same way as if it was rotting food, disgust, as measured by their saliva

                    14. Your survey of history seems pretty scanty, m_k. Plus lots of social stuff on the modern era doesn’t conform to long past tradition. The current institution of marriage being one of those things.

                      Your attempt to lean on scientific historical analysis(!) as proscribing the proper ways to live nowadays isn’t scientific, or even rational.

                      It’s just a fancy way to be a dick.

                    15. “So much wrong there JP, so little time.”

                      Yet that doesn’t stop you. You’re so damn SURE you’re right.

                      ” I really don’t want to take the time to educate you”

                      Plus you went 0-fer-3 upthread, so capacity has to also be a question.

                      ” there has always been universally across all human societies a simultaneous dislike, rejection, or aversion to homosexuality.”

                      It’s still not true. Some people are disgusted by gay people, and some aren’t. Insisting that you speak for the ones who don’t even after they tell you they don’t just makes you look stupid(er).

        2. Bad day for bigots. Great day for decent Americans.

          Carry on, clingers.

      2. Hey, you know why I don’t care that much about gay “marriage”? Straight people ruined it already, long before gays got ahold of it.

      3. You can call it what you want. A marriage it ain’t.

  4. Actually Rowan County is off the hook. The Sixth Circuit assigned responsibility for the nearly quarter-million dollars in fees to the Commonwealth of Kentucky.

    America’s dumbest lawyer (Mat Staver) still represents Davis. The objection based on the fact that the county clerk’s name was on the paperwork surfaced about the time that Staver entered from stage-right. At first (if memory serves me) Davis simply proclaimed that her office would never issue a marriage license to a same-sex couple adding something to the effect that she had “prayed on it” and fasted to get her god’s guidance.

    Living proof that a woman can be a schmuck.

    1. A government license isn’t marriage from a religious point of view. How the religious keep confusing this!

      It’s an interloper insinuating itself into an ancient process so you can have different taxes and legal protections and divorce settlements (and outside of religion, government can’t cancel a religious marriage any more than create it)) nothing more.

  5. Seems quite right but underscores what a joke our Constitution has become.

  6. If the defendant had been a police officer, the Court would have found that although the law was clearly established, there was no precedent that violating the law was unconstitutional, and thus the defendant was entitled to qualified immunity.

    1. Actually the court would have found that there was no precedent and never reached the question s to whether it was a clearly established law.

  7. I certainly think this was a good start.

    Kim Davis is out of office and no longer in a position to harm anyone. Thanks to the media, there is no risk anyone will give her any honor.

    But there are still some people whose culpability in denying fundamental equality rights is much more egregious, since they were high-placed Supreme Court Justices who should have known better.

    On October 10, 1972, a day which will live in infamy, the Supreme Court ruled against gay-marriage plaintiffs. They didn’t stop there – they declared that the issue of gay marriage presented no substantial federal question.

    Now, I understand how a reactionary like William Rehnquist would join such a cruel, fascist opinion. But what defense is there to offer to William Brennan, Thurgood Marshall, and Harry Blackmun, who also signed off on this abominable and despicable betrayal of gay rights – a betrayal which wasn’t remedied until 2015 after the 1972 members had left the court?

    Since denial of gay rights leads to suicide, AIDS, and other deadly consequences, these so-called “liberal heroes” Marshall, Blackmun and Brennan have literal blood on their hands.

    Yet to this day these three apostates are honored. William Brennan has the “liberal” Brennan Center named after him. They need to change their name at once to something like the Kennedy Center.

    Marshall, Brennan and Blackmun are honored by statues all over the country. The least the LGBT community is entitled to ask is that these statutes be torn down.

    Bear in mind that we’re honoring people who violated the clear constitutional requirement of gay equality, and who rubbed salt into the wound by claiming that the gay plaintiffs had not raised a significant constitutional question.

    Now that this horrible decision has finally been repudiated, the people responsible for that decision should have their memory erased and no longer given any honors.

    1. The bigoted presuppositions of the Court in 1972 were made clear in Joyce Murdoch and Deb Price’s opus *Courting Justice: Gay Men and Lesbians v. the Supreme Court* (Basic Books, 2002, 171-72):

      “The truth probably is that it was difficult, if not downright impossible, for the nine married men then serving on the Supreme Court to see *Baker v. Nelson* as anything but frivolous, perhaps even disrespectful. The justices’ personal lives and court traditions were grounded in that era’s assumptions of heterosexual marriage – a man took a wife; she took his name and became his satellite….Marriage was equated with procreation, so much so that the court acted as if reproduction was impossible outside wedlock.”

      I don’t see why we should continue to honor Justices who held retrograde views like this, any more than we should honor a public figure of the past who upheld slavery and Jim Crow.

      The statues need to come down!

      1. No, too radical. We need a plaque next to each of the statues that may exist of these men, describing how wrong they were in their decisions instead.

        1. No, if Chief Justice Taney’s statues in his home state had to be taken down because of his decisions favoring slavery,

          https://www.baltimoresun.com/politics/bs-md-taney-statue-removed-20170818-story.html

          then the statues of the judges who decided *Baker v. Nelson* need to be taken down, too, otherwise we’re sending the message that heteronormativity is a lesser sin than slavery.

      2. Time eventually brings all monuments down.

        “Look upon my works, ye mighty, and despair!”

    2. Literal blood? Really? Do you know what the word “literal” means? I know plenty of couples that choose not to get married. I remember debating the issue of same sex marriage late into the night with a gay rights activist. We were both working at a law firm that handled a lot of domestic relations (divorce) work. After seeing all the ugly divorces, he wondered if pushing for same sex marriage really was a good idea.
      But you go on hating the people who disagree with. How does disallowing same sex marriage have anything to do with HIV? Most people in this country still disapprove of same sex marriage; but since it has been forced on us by the courts, they will tolerate it. Too bad the winning minority refusing to be gracious winners.

      1. I’m simply suggesting that Kim Davis is the little fish and the 1972 Supreme Court Justices – all of them straight men and hence unqualified to pronounce on anything relating to sexuality – are the big fish who got away, and who continue to be honored, sometimes as “great liberal justices.”

        I’m simply suggesting that monuments to these justices do not fit with our modern civic religion. Would a Muslim country tolerate Buddhist statues? If not, why would a militant secularist country like ours tolerate statues to people who believe that marriage is between a man and a woman?

        1. There’s a saying, “Roma locuta est, causa finita est” which in our modern political idiom translates as “the Supreme Court has spoken, the case is over.” Obviously, this applies to the Obergefell case (and not to the egregiously wrong decision the Court made in 1972 – clearly *that* was not binding on anyone).

          It is simply not enough for the majority to resentfully “tolerate” same-sex marriage. All good citizens must reverently submit themselves to the Obergefell decision, accept it as true, teach it as true, and strive to implement it in spite of any resistance from clerks, bakers, candlestick makers, videographers, etc.

          Obviously, an example needs to be made of this Kim Davis character. It’s unfortunate that branding has been abolished by squishy criminal-justice “reformers,” because it would be quite useful to brand the word “homophobe” on her forehead with a hot iron, so that nobody else will dare to offend again as she did.

          1. “Too bad the winning minority refusing to be gracious winners.”

            What fun is winning if you can’t destroy your enemies, see them driven before you, and hear the lamentations of their spouses, partners or significant others?

            1. OK, look, I admit that I was testing the limits of Poe’s Law – “an adage of Internet culture stating that, without a clear indicator of the author’s intent, it is impossible to create a parody of extreme views so obviously exaggerated that it cannot be mistaken by some readers for a sincere expression of the views being parodied.”

              https://en.wikipedia.org/wiki/Poe%27s_law

              I wanted to see if the use of terms like “fascist” and “Kennedy Center” and “otherwise we’re sending the message that heteronormativity is a lesser sin than slavery” and “blood on their hands” would signal that I was kidding. Without suggesting that I’m on the same literary level as Dean Swift or Daniel DeFoe, like them I have bumped up against Poe’s Law.

              1. No, I get it, which is why I pretended to respond as a Fredocon and just say we need a plaque. That sort of spoof comes out better on twitter.

                1. You got it, I know, but poor Tarkin took me literally. Unless he was doing his own Poe’s Law schtick.

                  1. I also was fooled. When someone does endless replies to their own posts, I quickly stop reading said posts and instead mentally stick them into my “this is a nutbag poster” category.

                    Satire, like fine Gorgonzola cheese, is best served in small portions.

                    1. Yeah, but a sarcastic nutbag, which is better than the serious kind.

                    2. You can be both at the same time.

        2. How do you know none of the justices were in the closet, possibly together?

  8. @The Article
    Yep. Justice served.

    @The Comment Section
    Some days I wonder why Shackford has been so incredibly ineffectual at convincing gay folk that libertarians are our natural allies. Then I remember how libertarians behave, and it all becomes clear.

    1. @Escher

      You presume that any of us know who the heck Shackford is; why should we care about his or her opinion.

      Second, this comment section is hardly are representative sample. Libertarians when polled, were “meh, why not?” on gay marriage.

      1. He is an editor at Reason.

        How many commentators here are even libertarian?

        I am certainly not one.

        1. Some are full idealist libertarians. Some are just shy conservatives hiding behind another brand.

          1. A conservative using the libertarian “brand” is like someone using RC Cola instead of Coke.

          2. Newer, smarter libertarians tend to favor the simple dictionary definition of libertarianism as minimal government and maximal freedom. Older establishment libertarians, like some contributors here, are more caught up in the libertarian = economically conservative socially liberal canard that stopped working sometime in the 80s. Establishment ‘libertarians’ also tend to put off others from joining and are terrible for a dynamic movements because they are generally set in their ruts and stodgy academic offices, satisfied with Libertarians as being perennial losers. Fighting for the cause is mostly writing long academic dissertations and expending more energy attacking conservative/libertarian insurgent movements that might actually have a chance of success in disrupting the comfortable status quo of leftwing institutional dominance.

            1. Newer, smarter libertarians don’t have a monopoly on loving freedom. Liberals and conservatives are also into freedom, they just think your methods are wrongheaded.

              Though I do note that your definition of libertarian is looking a lot like a Rush Limbaugh conservative reactionary.

              So again, like a conservative worried about PR and hiding behind a different brand.

              1. Are you sure about that? I see more and more leftists ragging on free speech now that the tech companies are controlling more communications. Of course they’ve long been against right to self defense and freedom of association.

                If you go down the list in fact you’ll find the left nowadays seems to dislike and ban or regulate a lot more things than the opposition. Straws, light bulbs, sodas, sea parks, pronouns, language, fashion ads, spontaneous sex, etc etc. What’s left?

                Freedom for the prog seems to be more of a hodgepodge of entitlements advertised as human rights with no connecting thread other than being giveways each tailored to appeal to one of the thousands of splinter grievance groups that populate the left.

                A person can’t speak their mind or conduct their life in any of the important ways. But they can shoot up heroin and kill their 9 month old fetus for any or no reason. Free in a vulgar sense I guess.

                1. They can shoot up heroin, but pretty soon they may not be able to get opioids for their chronic pain. And now the people who brought us the opioid crisis are now trying to bring us a Benzodiazepine crisis. Not only won’t people be able to get the pain meds they need, they won’t be able to get anti-anxiety meds to help them deal with the anxiety caused by their inability to get pain meds…and they won’t be able to get sleep meds to help them counter the insomnia caused by their pain (because they want to treat zolpidem as if it was a benzodiazepine). Life is going to get worse and worse. I probably won’t live long enough to see it get better.

                2. “Are you sure about that? I see more and more leftists ragging on free speech now that the tech companies are controlling more communications. Of course they’ve long been against right to self defense and freedom of association. ”

                  Which of them asked you to speak for them?

                  1. When did he claim to speak for them?

                    1. End of the first para.

    2. mandating gender neutral pronouns and state sponsored gender politics in history class and taxpayer funded sex change operations and forced cake baking is libertarian? I guess you must fall into the Gary Johnson school of libertarianism.

  9. The article seems a bit off in emphasizing Davis’s personal convictions and the governor’s orders but not giving the same billing to the statutes that defined Davis’s job, ones that gave Davis no choice in this matter.

    Regardless of her personal opinions, Davis was by statute barred from signing off on that marriage certificate.

    We could say that the statute was unconstitutional. Fine, but that means Davis’s position itself was unconstitutional, created expressly to engage in unconstitutional discrimination. Until the legislature had a chance to redefine the position, which it could do in short order, it would seem Davis still had no basis for issuing the certificate.

    The rules of Davis’s job barred her from issuing this certificate, regardless of her personal position, so it seems like qualified immunity would have been entirely applicable here.

    1. That’s not how it works.

    2. “Regardless of her personal opinions, Davis was by statute barred from signing off on that marriage certificate.”

      You could argue this was true immediately after Obergerfell, and many judicial departmentalists agree, but it was no longer true once the couples got a preliminary injunction requiring Davis to issue the marriage license and the Supreme Court refused her petition for a stay. She still refused to issue the licenses, leaving no doubt.

  10. Can’t not issue a marriage certificate.
    Can openly brag about actively interfering and undermining federal immigration agents and policy.

    Makes sense.

    1. Some animals are more important than others.

      1. Some things are rights that bind state officials, others are statutes that do not.

        1. A fake right of entitlement. If the right to a piece of paper from a specific official (regardless of the availability of others) conferring a specific title is on the same level as the right to free speech or defense than anything can theoretically be a ‘fundamental human right’.

          The SSM fight at its core is a battle over which cultural more to impose masquerading as a battle for civil rights. Do we keep looking at squares and circles as squares and circles or does the government mandate that they are all called squares from now on? The name matters the actual legal rights don’t matter at all.

          But most people are cowards and/or can’t think for themselves so its a good and evil fight against the dark lord Davis.

          1. Mixing your is and ought pretty hard there, Amos.

            Your 3:35 pm looked like it was about an inconsistency in the law. But your 5:18 pm makes it clear it’s actually about an inconsistency between what the law says and what you think it should say.

            I see why you’d want to kinda obscure that, as the second is much less worthy of interest to anyone but you.

            1. Show me in the Constitution where they draw the line saying every single Clerk in the nation must issue a marriage certificate to a gay couple in their own name regardless of the availability of a billion other Clerks ready and willing to do it. And not doing so is an intolerable defiance of Federal authority. But using taxpayer money to actively hide criminals and thwart federal agents and releasing murderers that end up killing again is acceptable assertion of local rights.

              1. I’m not walking you through remedies class.

              2. “Show me in the Constitution where they draw the line saying every single Clerk in the nation must issue a marriage certificate to a gay couple in their own name regardless of the availability of a billion other Clerks ready and willing to do it.”

                It’s right there in amendment 14. “No state shall […] deny to any person within its jurisdiction the equal protection of the laws.”

                1. James,
                  Amos is (I think) arguing that, if there are scores of clerks, or hundreds of clerks, then there has not been a denial of equal protection . . . .

                  It’s an unconvincing argument. It’s not a legally-sound argument in this case. But it is an argument.

                  1. The argument is potentially interesting because of what we’re practically asking people to do. Regardless of what we ask the involved parties to do, someone is inconvenienced. The gay couple has to go somewhere else. Such a suggestion reeks of ‘separate but equal’ and ultimately leads, voluntarily or not, to values-based segregation. If Davis is your clerk, you have to live closer to someone who will issue your marriage license. Don’t live or work here because we don’t respect your legally protected beliefs; that’s a terrible message to send someone.

                    On the other hand, Davis is forced to violate her religious beliefs. Her only option is to choose a profession that allows such private discrimination, but that suggestion presents the same problem due to the availability of jobs and your individual situation. We’re also telling her not to live and work here because we don’t respect her legally protected beliefs.

                    What is the remedy?

                    1. “On the other hand, Davis is forced to violate her religious beliefs.”

                      No, she isn’t. People who are not the clerk of the court are not required to touch any applications for marriage licenses, much less approve them. She’s required to decide if her religious beliefs are more important to her than working as the clerk of the court is… and then abide by her own decision.

                      Just like someone who has extremely negative views of the climate danger caused by burning hydrocarbons may find those beliefs in conflict with a job as a jet pilot, a fracking engineer, or a gas station attendant. If you don’t want to do the job, quit the job. Now, when the roving gangs of liberal-gay-coastal-elites start busting into houses, and dragging poor conscientious objectors to gay marriage down to the courthouse and making them fill out the gay marriage license applications, I’ll take up a position against that.

                    2. She requested a reasonable religious accommodation – that her clerks be allowed to sign the licenses themselves.

                      Her request was denied because the governor was a bigot.

                      How is this different than someone requesting time to pray during working hours? Should they be forced to choose between doing their job and their religious beliefs?
                      What about the person that has religious clothing they are required to wear, or a weapon they are required to carry?

                    3. ” Should they be forced to choose between doing their job and their religious beliefs?”

                      God works in mysterious ways. If He chooses to force them to choose, who am I to question His judgment?

                      Seriously, everybody decides what things they will, and won’t, do for money. You make your choices, I make mine, everybody makes their own*. Labeling some of them “special” because these are RELIGIOUS beliefs is just dumb. They’re either important enough for you to stand by them, or they aren’t, and “religious” or not doesn’t change the calculation. If your religion and your job conflict, get a different job, or a different religion… which way you resolve it isn’t my business. If you don’t want to do your job, quit.

  11. People want to grind the opposition into the dirt; they want to make those who disagree with them suffer. Davis was wrong for not performing her duties; but how much should she be made to suffer for her misconduct?

    1. Do you think she’s going to jail or something?

    2. Hmmm…if only there was some system or process, maybe something like a legal system where people could sue others in a civil setting.

    3. ” how much should she be made to suffer for her misconduct?”

      Enough to deter her from misconducting in the future (assuming anyone is dumb enough to place her in position to do so) and to deter anyone else from misconducting.

    4. “People want to grind the opposition into the dirt; they want to make those who disagree with them suffer.”

      Like when the California Supremes let some gay people get married, and the anti-gay-marriage groups got together and tried to pass a law making it illegal for any more same-sex couples to get married, AND strip away the marriages of the people who already had them.

  12. Judicial review is prohibited by Article I Section 1, giving “all” lawmaking powers to Congress. The Supreme Court decision is lawless. There is no obligation to comply with a lawless decision, in insurrection against our constitution.

    The lawyer profession is on a rampage Jihad against our nation. It must be stopped.

    1. “Judicial review is prohibited by Article I Section 1”

      You’d have thought someone would have brought this up, if it were true.

      1. If it was brought up, say in 1803, do you think the Supreme Court would have accepted the limit on its powers?

        1. If they didn’t, and nobody else did either, then it wasn’t a limit, was it?

    2. I wouldn’t say that prohibits judicial review; The Constitution places limits on the lawmaking power of Congress; The courts ‘striking down’ a law consists of them ruling that the law Congress purported to enact is outside those limits, and therefor never was a law in the first place.

      That’s why laws are struck down retroactively, not just going forward. Because the courts are just taking note of the purported law not really being a law, not actually changing its status.

      Now, severability? Yeah, I’d say that exceeds judicial power, as it creates laws that Congress never passed.

  13. To liberals, making a homosexual “couple” drive to the neighboring county or go to a florist down the street, or making a person get a free photo ID to vote is an “intolerable burden on fundamental human rights,” but $400 permits, 6 months of background checks, and other burdens to exercise an enumerated Constitutional right is a “common sense restriction.”

    1. If those two dudes over there get married, it affects you not a whit.
      If those two dudes over there start shooting at each other (or anything else), but neither one is a very good shot, then everyone nearby is at risk of being shot.

      That’s why they’re different.

      1. No, they’re not different. The 2nd Amendment evidenced the founders’ intent to protect arms in spite of the fact that they’re dangerous. Arguing that they are “different” because arms can be dangerous is not an argument. The founders already resolved that.

        1. Your defense of “they’re not different because they are different but Founders” is noted and ignored.

          1. You’re a fool.

            1. No, he isn’t. He’d have to not know what he’s doing to be a fool.

              This is bad intent, not stupidity.

      2. But we’re not talking about licenses to start shooting at each other, which almost everybody who owns a gun never does.

        And you know that.

        1. Ah. Then it would be OK with you to allow everybody to own a gun, but restrict ammunition to law-enforcement only. After all, nobody has a license to shoot anybody (or anything).

  14. Mad_Kalak, you have time to post a TNG clip but have not put the time and effort into Rollerball (1975)? Gotta say… little … dissapointed…

    1. My TV viewing time is limited to cooking shows during my workout and The Expanse on Amazon. Sorry!

      1. I used to watch Hannity during my workouts. Actually, I despise Hannity, but that was kind of the point: Being pissed off helped with the workouts.

        I mean, can you imagine working out to a Bob Ross video? How effective would that be?

        1. Brett, the only truly efficient workout accessory is The Clash.

  15. $225K in fees for this case….that’s a bit rich. But, I guess all is fair in litigation against unfavored classes of people. It’s going to be a pain when the pendulum swings in the other direction.

    1. You figure gay-bashing, misogny, racism, and other forms of bigotry are ready for a comeback in America, after many decades in which the intolerant and backward have been in retreat?

      What would precipitate this return to old-timey ways?

  16. “While the county may be immune under sovereign immunity, the court held, Davis could not claim qualified immunity because the right at issue was clearly established at the time of her actions.”

    So exactly where does the natural right to life, guaranteed by the US Constitution, stand when murdered by a cop?
    Had there ever been a prior case where a county clerk was convicted for refusing to issue a license based on personal religious belief?

    1. Yeah, a govt official would be better off killing a citizen than inconveniencing them regarding certain kinds of paperwork.

    2. “…the natural right to life, guaranteed by the US Constitution..”

      I’m not a lawyer, but I cannot find any mention of a right to life in the Constitution, and wondered what you are referring to?

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