United States News
See other United States News Articles
Title: APPELLANT KIM DAVIS' EMERGENCY MOTION FOR IMMEDIATE CONSIDERATION AND MOTION TO STAY DISTRICT COURT'S SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL
Source:
Sixth Circuit Court of Appeals
URL Source: https://assets.documentcloud.org/do ... 315injunctionpendingappeal.pdf
Published: Sep 11, 2015
Author: Roger K. Gannam, Counsel for Appellant K
Post Date: 2015-09-12 00:07:53 by nolu chan
Keywords: None
Views: 13151
Comments: 112
The complete filing, with appendices, is a 244 pp PDF. Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 1 No. 15-5880 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT APRIL MILLER, Ph.D; KAREN ANN ROBERTS; SHANTEL BURKE; STEPHEN NAPIER; JODY FERNANDEZ; KEVIN HOLLOWAY; L. AARON SKAGGS; and BARRY SPARTMAN, On Appeal From The United States District Court For The Eastern District of Kentucky In Case No. 15-cv-00044 Before The Honorable David L. Bunning APPELLANT KIM DAVIS' EMERGENCY MOTION FOR IMMEDIATE CONSIDERATION AND MOTION TO STAY DISTRICT COURT'S SEPTEMBER 3, 2015 INJUNCTION ORDER PENDING APPEAL A.C. Donahue Horatio G. Mihet, Counsel of Record hmihet@lc.org / rgannam@lc.org / j christman@lc.org - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 2 Pursuant to Fed. R. App. P. 8(a)(2) and 27, Appellant Kim Davis ("Davis") hereby moves this Court, on an emergency basis, for a stay pending appeal of the district court's September 3, 2015 injunction order. (R.74.) INTRODUCTION This appeal began with the district court's entry of its August 12, 2015 preliminary injunction ordering Davis to issue marriage licenses to the named Plaintiffs. (R.43 (the "Injunction").) Davis immediately filed a notice of appeal of the Injunction, bringing it within this Court's jurisdiction, and depriving the district court of jurisdiction to alter or expand the Injunction's scope.1 (R.44 (Injunction and notice of appeal attached hereto as Exhibit A).) But the district court did just that, without fair notice or hearing, by entering a new injunction order that materially expanded the original Injunction while it was already on appeal to this Court. (R.74 (the "Expanded Injunction").) The district court's Expanded Injunction lays waste to well-established principles of jurisdiction and due process in the federal court system while an appeal is pending. And, under color of the Expanded Injunction, the district court has coopted a supervisory role over the operations of the Rowan County, Kentucky Clerk's Office. __________ 1 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 3 Davis timely appealed the Expanded Injunction. (R.82 (Expanded Injunction and notice of appeal attached hereto as Exhibit B).) Quite apart from Davis' religious liberty interests involved in her appeal of the original Injunction on the merits, her appeal of the Expanded Injunction, and this request for stay, involve only the issue of the district court's acting without jurisdiction. The district court's far-reaching expansion of the original Injunction must be reversed, and should be stayed pending this Court's decision on the merits. STATEMENT OF FACTS The Injunction On July 2, 2015, less than one week after the Supreme Court decided Obergefell v. Hodges and the Kentucky Governor issued a directive ordering all county clerks to personally authorize the issuance of Kentucky marriage licenses to same-sex couples, Plaintiffs filed this lawsuit demanding that Davis authorize and approve their Kentucky marriage licenses, despite widespread availability of licenses and Davis' undisputed religious conscience objection to same-sex "marriage."2 (R.1, Compl.) __________ 2 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 4 Plaintiffs filed the action on behalf of themselves and a putative class consisting of "all present and future individuals who, though legally eligible to marry in Kentucky, will be denied a marriage license pursuant to the Defendant's policy." (R.1, Compl., PgID 9.) "Named Plaintiffs" also moved for a preliminary injunction to bar Davis "from enforcing the challenged policy of refusing to issue marriage licenses against them" (R.2, Pls.' Mot. Prelim. Inj., PgID 34 (emphasis added)), and submitted a proposed Order enjoining Davis "from enforcing the policy of refusing to issue marriage licenses to any future marriage license applications submitted by the Named Plaintiffs" (R.2-2, Proposed Prelim. Inj. Order (emphasis added)). The district court hastily scheduled a full evidentiary hearing on the injunction motion, to occur on July 13, 2015—just eleven days after the motion was filed. (R.5, Order.) Plaintiffs did not, however, obtain service of process on Davis prior to the hearing. (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 105:15-107:7.) Thus, Davis' counsel appeared specially and objected to the district court's proceeding with the hearing, without having obtained jurisdiction over Davis through service of process. (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 102:19-24, 105:15-106:2, 117:1-10.) Deeming the fundamental jurisdictional defects mere "Road blocks to getting to the merits," the district court overruled counsel's objection to proceeding without Davis, took evidence, and heard argument on Plaintiffs' preliminary injunction motion. (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 117:1-119:7.) 3 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 5 After allowing all of Plaintiffs' evidence and hearing argument, the district court "continued in progress" the July 13, 2015 hearing (R.21, Prelim. Inj. Hr'g Tr. July 13, 2015, PgID 207:2-4), and concluded the hearing on July 20, 2015 (R.26, Prelim. Inj. Hr' g Tr. July 20, 2015). Plaintiffs' evidence at both hearings was limited exclusively to the named Plaintiffs' claims.3 On August 12, 2015, the district court granted Plaintiffs' motion for preliminary injunction by its Memorandum Opinion and Order (R.43 (the "Injunction").) Exactly as requested by Plaintiffs in their motion and proposed order (R.2, 2-2), the Injunction enjoins Davis "from applying her 'no marriage licenses' policy to future marriage license requests submitted by Plaintiffs." (R.43, Inj., PgID 1173 (emphasis added).) Thus, there was complete agreement between what Plaintiffs requested and what the district court ordered.4 __________ 4 In contrast to the expedited treatment of Plaintiffs’ preliminary injunction motion against Davis, the district court brushed away any urgency regarding Davis’ own motion for preliminary injunction against Third-Party Defendant Governor Beshear (R.39), and effectively denied the motion by ordering a stay (on the court’s own motion) of all proceedings on Davis’ motion pending this Court’s decision on the merits of Davis’ appeal of the Injunction against her. (R.58, Order Aug. 25, 2015, PgID 1289.) Davis appealed to this Court the district court’s effectual denial of her preliminary injunction motion (R.66, Notice of Appeal), which appeal is docketed at Case No. 15-5961. - - - - - 4 Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 6 Plaintiffs' Request For Class Certification On August 2, 2015, Plaintiffs filed a motion for class certification. (R.31, Pls.' Mot. Class Cert.). On August 11, 2015, Davis filed a motion for extension of time to respond to Plaintiffs' class certification motion, requesting that the Court set a response date for ninety (90) days after the district court ruled on all of the motions pending before the district court at that time.5 (R.42, Mot. Ext. Time Respond.) Plaintiffs filed no written opposition to this motion in the time allotted under the Local Rules. On August 24, 2015, Davis filed a reply brief after Plaintiffs' time to oppose expired, showing that "Plaintiffs' failure to file a timely written opposition constitutes a waiver of any opposition to Davis' motion for extension of time." (R.56, Reply Br. Supp. Mot. Ext. Time Respond, PgID 1289.) On August 25, 2015, the district court granted Davis' motion for extension of time. (R.57, Virtual Order Aug. 25, 2015 ("Plaintiffs having filed no opposition to the MOTION, IT IS ORDERED that Defendant Davis' response to said motion is due 30 days after the Sixth Circuit Court of Appeals renders its decision on the appeal of the Court's granting of Plaintiffs' motion for a preliminary injunction.").) __________ 5 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 7 The effect of this order was to stay all proceedings on Plaintiffs' class certification motion until this Court decides the appeal of the Injunction on the merits. Plaintiffs' Motion to "Clarify" the Injunction and the "Hearing" Despite the unambiguous agreement between what Plaintiffs requested in their motion for preliminary injunction and what the district court granted in the Injunction, Plaintiffs manufactured a disingenuous motion to "clarify" the Injunction to encompass a class of persons not covered by the Injunction. (R.68, Pls.' Mot. "Clarify" Prelim. Inj.) Specifically, Plaintiffs moved: for an order to clarify or, in the alternative, to modify the preliminary injunction to state unambiguously that the preliminary injunction applies not only to future marriage license requests submitted by the four named Plaintiff couples in this action, but also to requests submitted by other individuals who are legally eligible to marry in Kentucky. (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1488 (emphasis added).) Thus, rather than a motion to "clarify," Plaintiffs actually sought to convert the Injunction's relief, which was limited and personal to them by their own request, into a class-wide preliminary injunction even though (1) they had never previously requested a class-wide injunction (R.2-2, Proposed Prelim. Inj. Order), (2) they presented no actual evidence regarding the purported "other members of the putative class" (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1489); and (3) their actual motion for class certification was stayed. (R.57, Virtual Order Aug. 25, 2015.) 6 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 8 Plaintiffs filed their motion to "clarify" the Injunction on September 1, 2015, three weeks after the district court entered its Injunction. (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1488-91.) Moreover, Plaintiffs' motion to "clarify" was filed on the heels of, or "contemporaneously with" (Plaintiffs' words), their motion to hold Davis in contempt of court for violating the Injunction by failing to authorize a marriage license for one Plaintiff couple. (R.67, Pls.' Contempt Mot.) Within minutes of Plaintiffs' filing the contempt motion, the district court scheduled a contempt hearing to occur two days later, ordered Davis and all of her deputy clerks to be present at the hearing, and limited Davis to filing a five-page opposition by close of business the next day (which Davis did).6 (R.69, Order Sept. 1, 2015, PgID 1496; see also R.72, Contempt Resp., PgID 1540-46.) Approximately forty-eight hours later, on September 3, 2015, the district court commenced the hearing it had exclusively noticed for Plaintiffs' contempt motion. (R.69, Order Sept. 1, 2015, PgID 1496 ("IT IS ORDERED that this matter be, and is, hereby set for a hearing on Plaintiffs Motion to Hold Defendant Kim Davis in Contempt of Court DE[67] on Thursday, September 3, 2015 at 11:00 a.m. in Ashland, Kentucky."); R.78, Contempt Hr'g (the hearing transcript, attached hereto __________ 7 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 9 as Exhibit C).) Before taking up the contempt motion, however, and without any advance notice to Davis, the district court called up Plaintiffs' motion to "clarify" the Injunction. (R.78, Contempt Hr'g, PgID 1570:21-1571:22, 1572:19-1573:19.) Davis' counsel objected to proceeding on the motion to "clarify" due to lack of fair notice, and due to the district court's lack of jurisdiction to expand the Injunction because it was already on appeal. (R.78, Contempt Hr'g, PgID 1573:20-1580:19.) The district court acknowledged that the motion to "clarify" was not noticed for hearing. (R.78, Contempt Hr'g, PgID 1571:18-20 ("The case wasn't noticed for that hearing. ").) The district court also acknowledged that the so-called "clarification" sought by Plaintiffs was, in fact, to add relief to the Injunction which was not sought by Plaintiffs in their motion for preliminary injunction. (R.78, Contempt Hr'g, PgID 1578:20-25 ("I recognize they did not request it in the original motion." (emphasis added)).) Nonetheless, over Davis' objection, and without taking any evidence to support this class-wide relief, the district court granted the expansion of the Injunction. (R.78, Contempt Hr'g, PgID 1580:3-15.) After expanding the Injunction, the court immediately passed the issue to this Court. (R.78, Contempt Hr'g, PgID 1580-81 ("We'll just include that as part of the appeal. . . . And the Sixth Circuit can certainly decide if that's appropriate.").) Having expanded the Injunction, the district court then proceeded with hearing the only motion the court noticed for hearing, Plaintiffs' contempt motion. 8 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 10 (R.78, Contempt Hr'g, PgID 1581:18-19 ("Let me now turn to the actual merits of the matter that's before the Court.").) The court ordered Davis to jail as a contempt sanction for Davis' refusal to issue a marriage license, in violation of her conscience, to one Plaintiff couple.7 (R.78, Contempt Hr'g, PgID 1659:22-1661:25.) The condition for Davis' release would be her compliance with the Expanded Injunction, not the original Injunction (R.78, Contempt Hr'g, PgID 1661:18-1662:16.) The district court then appointed criminal defense counsel for each of Davis' deputy clerks—all of whom had been summoned in advance to the hearing—and interrogated each deputy clerk as to whether each of them would issue marriage licenses without Davis' authorization. (R.78, Contempt Hr'g, PgID 1667:19 __________ 9 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 11 1730:6.) All but one (Davis' son) were coerced by the threat of contempt sanctions to answer "yes."8 (Id.) On September 8, 2015, the sixth day of Davis' incarceration, Plaintiffs filed a status report, showing the district court that the Plaintiffs had received marriage licenses from the deputy clerks.9 (R.84, Status Report.) Following the status report, the district court ordered Davis released, stating in its order the court was "satisfied that the Rowan County Clerk's Office is fulfilling its obligation to issue marriage licenses" under the Injunction. (R.89 (the "Release Order"), PgID 1827-28.) The Release Order commands, however, "Davis shall not interfere in any way, directly __________ 9 The status report showed that three of the four Plaintiff couples had received marriage licenses. (R.84, Status Report, PgID 1798.) Plaintiffs had previously shown the court, however, that as of August 13, 2015, Plaintiffs Burke and Napier were “making new wedding arrangements.” (R.46, Pls.’ Resp. Mot. Stay Prelim. Inj., PgID 1235.) This fourth couple has never testified in this case or otherwise supplied verified proof that they are qualified to obtain a marriage license, or that they have not received one, both prerequisites to injunctive relief. (R.29, Resp. Pls.’ Mot. Prelim. Inj., PgID 359.) Moreover, based on the status report, the district court found, “Plaintiffs have obtained marriage licenses . . . .” (R.89, Release Order, PgID 1827.) 10 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 12 or indirectly, with the efforts of her deputy clerks to issue marriage licenses," on pain of new sanctions for contempt. (R.89, Release Order, PgID 1828.) The order also requires the deputy clerks, through their appointed criminal defense counsel, to file status reports with the district court every fourteen days. (R.89, Release Order, PgID 1828.) Emergency Motion to Stay Davis now moves this Court for an order staying the September 3, 2015 Expanded Injunction pending appeal. Seeking a ruling from the district court on a stay request is "impracticable" under Fed. R. App. P. 8(a)(2)(A)(i), due to the extraordinary doggedness of the district court to expand the Injunction, without jurisdiction or fair notice and opportunity to be heard, and the district court's haste to pass the matter to this Court for determination—"the Sixth Circuit can certainly decide if that's appropriate" (R.78, Contempt Hr'g, PgID 1580-81). Accordingly, Davis now seeks a stay from this Court. ARGUMENT In deciding a motion for stay pending appeal, this Court balances the same four factors that are traditionally considered in evaluating a motion for preliminary injunction: "(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants 11 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 13 the stay; and (4) the public interest in granting the stay." Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). I. Davis has a sufficient likelihood of success on the merits of her appeal to warrant an immediate stay of the Expanded Injunction. The district court had no jurisdiction to enter the Expanded Injunction. Thus, it is a nullity. There is no doubt as to Davis' likelihood of success in obtaining reversal of the Expanded Injunction on the merits. "[A] a district court may not alter or enlarge the scope of its judgment pending appeal . . . ." N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). "The standard for jurisdiction after the filing of the notice of appeal . . . is that a district court may enforce its judgment but not expand upon it." Am. Town Ctr. v. Hall 83 Associates, 912 F.2d 104, 110-11 (6th Cir. 1990) (emphasis added); cf. United States v. State of Mich., Nos. 94-2391, 95-1258, 1995 WL 469430, *18 (6th Cir. 1995) ("[S]ince the district court's . . . orders were already on appeal, the district court lacked jurisdiction . . . to reduce the number of mental health beds which it had required defendants to provide in its . . . orders." (emphasis added)). Any amendment of an order without jurisdiction is a "nullity." Workman v. Tate, 958 F.2d 164, 168 (6th Cir. 1992) ("Since the district court was without jurisdiction to amend its order . . . the Amended Order . . . is a nullity."); United States v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984) ("In the present case, the 12 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 14 district court's order is 'null and void since that court was without jurisdiction . . . after the appeal had been taken.'"). Plaintiffs' Motion for Preliminary Injunction expressly, and only, sought to enjoin Davis to issue licenses to the "Named Plaintiffs." The resulting Injunction enjoined Davis to issue licenses, expressly and only, to the "Plaintiffs." The scope of the Injunction could not be clearer. There is no "confusion as to the Order's scope," as Plaintiffs facetiously allege in their thinly-veiled motion to "clarify." (R.68, Pls.' Mot. "Clarify" Prelim. Inj., PgID 1489.) Thus, expanding the class of persons entitled to licenses pursuant to the Injunction—to include anyone in the world who wants a marriage license in Rowan County—can in no way be described as a clarification. The expansion of the class is an expansion of the Injunction, which the district court had no jurisdiction to do. Thus, the Expanded Injunction is a nullity, and unquestionably is due to be reversed on the merits. II. Davis is substantially more harmed than the named Plaintiffs absent a stay of the Expanded Injunction pending appeal. In weighing the harm that will occur as a result of granting or denying a stay, this Court generally considers three factors: "(1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided." Michigan Coal., 945 F.2d at 154. The "key word" in this consideration 13 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 15 is "irreparable," and the harm must be "both certain and immediate, rather than speculative or theoretical." Id. Given the strength of Davis' position on the merits, her required showing on irreparable injury is reduced. "The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury [the moving party] will suffer absent the say. Simply stated, more of one excuses less of the other." Mich. Coal., 945 F.2d at 153 (internal citation omitted). In other words, "a stay may be granted with either a high probability of success and some injury or vice versa." State of Ohio v. Nuclear Regulatory Comm 'n, 812 F.2d 288, 290 (6th Cir. 1987). Nonetheless, Davis's harm from the denial of a stay will be both real and irreparable. Pursuant to the Release Order, the district court is now supervising the operations and personnel of the Rowan County Clerk's Office, including Davis as the Clerk, and her deputy clerks. (R.89, Release Order, PgID 1828.) Far from being straightforward, however, the Release Order's command that "Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses" substantially and ambiguously interferes with Davis' ability to manage the legitimate affairs of her office which are unrelated to her individual position on marriage licensing. For example, Davis' management judgment to assign a particular deputy clerk or clerks exclusively to non-marriage-licensing duties—based on the needs of the 14 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 16 office10—could be deemed "interference] . . . in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses . . . ." (R.89, Release Order, PgID 1828.) Furthermore, the Release Order's directive conflicts with Davis' own legal duty, as an employer, to consider and grant as appropriate any deputy clerk's request for religious accommodation relating to marriage licenses11 under laws like Title VII and the Kentucky RFRA. These ambiguous burdens on Davis' management of the affairs of her office all carry the specter of new (and presumably, more severe) contempt sanctions, and the threat is indefinite because the Expanded Injunction opens the Injunction's relief to everyone (in the world) who may desire a Kentucky marriage license issued in Rowan County. The harm from having to operate under this constant threat is irreparable, for even success on the merits of Davis' appeals cannot restore the months of constant strain imposed on Davis, her office, and her employees by the district court's intrusive supervision. The foregoing burdens and threats of contempt sanctions are more than hypothetical; Davis has already spent six days in jail that Plaintiffs could obtain the relief ordered by the original Injunction (while its merits are still on appeal). But, such burdens and threats are unnecessary and improper. As an order of enforcement, the Release Order serves no purpose with respect to the original Injunction because __________ 11 See supra, n. 8. 15 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 17 only the Plaintiffs were granted relief in the original Injunction, and the district court is already "satisfied" that Plaintiffs have received their ordered relief. (R.89, Release Order, PgID 1827-28.) Thus, the district court only has an enforcement interest under the Expanded Injunction which, as shown herein, is null and void as exceeding the district court's jurisdiction. Only a stay of the Expanded Injunction pending Davis' appeal will avoid this onerous and improper exercise of enforcement power. In stark contrast to the threat of sanctions hanging over Davis each day she enters her office while waiting for relief from an impartial audience in this Court on her appeals, Plaintiffs will suffer no harm if the Expanded Injunction is stayed pending appeal. Plaintiffs have already received the benefits of the Injunction, to the "satisfaction" of the district court. (R.89, Release Order, PgID 1827-28.) Plaintiffs received no additional relief from the Expanded Injunction; staying its enforcement pending Davis's appeal cannot harm them. III. The public interest favors granting a stay. No public interest is served by upholding an order exceeding a district court's jurisdiction. To the contrary, the public is only served by the disregard of any such order, which is "null and void." See Holloway, 740 F.2d at 1382. Furthermore, the federal court supervision over Davis' office imposed by the Release Order, in enforcement of the Expanded Injunction, violates established principles of federalism and comity, usurping the role of a publicly elected official 16 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 18 in the Commonwealth of Kentucky and invading the province, discretion, and affairs of her office. It is also contrary to contempt principles, for in devising enforcement remedies, federal courts are to "take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution." Milliken v. Bradley, 433 U.S. 267, 280-81 (1977). Indeed, it is incumbent upon federal district courts that sanctions imposed against state officials should be the "least intrusive" remedy available. See Kendrick v. Bland, 740 F.2d 432, 438 (6th Cir. 1984); Spallone v. U.S., 493 U.S. 265, 276 (1990). The public is not served by the violation of such principles for any length of time. As shown herein, from the commencement of this case, Plaintiffs have received procedural preferences, notwithstanding even fundamental jurisdictional defects. Davis has received the opposite, culminating in incarceration for conscience, and the threat of more severe sanctions under an invalid order which the district court had no jurisdiction to enter. For all of the foregoing reasons, Davis requests the following: 17 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 19 RELIEF REQUESTED Appellant Kim Davis respectfully requests that this Court: (1) grant immediate consideration and (2) enter an order staying the district court's September 3, 2015 Expanded Injunction pending final resolution of the appeal in this Court. DATED: September 10, 2015 A.C. Donahue Respectfully submitted: Horatio G. Mihet, Counsel of Record 18 - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 20 CERTIFICATE OF SERVICE I hereby certify that on this 11th day of September, 2015, I caused the foregoing document to be filed electronically with the Court, where it is available for viewing and downloading from the Court's ECF system, and that such electronic filing automatically generates a Notice of Electronic Filing constituting service of the filed document upon the following: William Ellis Sharp Daniel J. Canon William M. Lear, Jr. Palmer G. Vance II Daniel Mach James D. Esseks - - - - - Case: 15-5880 Document: 43 Filed: 09/11/2015 Page: 21 /s/ Roger K. Gannam Roger K. Gannam
Plaintiffs-Appellees,
v.
KIM DAVIS, Individually, Defendant-Appellant.
DONAHUE LAW GROUP, P.S.C. Roger K. Gannam
P.O. Box 659 Jonathan D. Christman
Somerset, Kentucky 42502 LIBERTY COUNSEL
(606) 677-2741 P.O. Box 540774
ACDonahue@DonahueLawGroup.com
Orlando, Florida 32854
(800) 671-1776
Counsel for Appellant Kim Davis
1 Davis presented substantial arguments against the merits of the Injunction in its motion to stay the Injunction pending appeal filed herein. (Doc. 15-1.) Davis will fully address the merits of the Injunction in her opening brief on the merits, to be filed with this Court at the appropriate time.
2 Expressly to avoid disparate treatment of any couple, Davis discontinued the issuance of all marriage licenses after Obergefell. (R.26, Prelim. Inj. Hr’g Tr. July 20, 2015, PgID 259:6-16.)
3 Because the relief sought by Plaintiffs in their preliminary injunction motion was personal to them, no evidence was presented on their Complaint’s class allegations or request for class-wide relief. Plaintiffs did not file their motion for class certification until August 2, 2015.
5 These pending motions included Plaintiffs’ motion for preliminary injunction (R.2), Davis’ motion to dismiss Plaintiffs’ Complaint (R.32), and Davis’ motion for preliminary injunction (R.39).
6 In her response brief opposing Plaintiffs’ contempt motion, Davis specifically stated that she opposed Plaintiffs’ thinly-veiled motion to “clarify” the Injunction, and intended to file a written opposition in accordance with the Local Rules (21 days after service). (R.72, Contempt Resp., PgID 1542.)
7 The district court memorialized this most severe of contempt sanctions against Davis by a mere “minutes” order (R.75 (the “Contempt Order”)); no formal written order has been entered. (R.78, Contempt Hr’g, PgID 1651:21-24 (“I haven’t decided if I’m going to enter a written order or not. I probably will enter some sort of written order following up the Court’s decision.”).) Davis separately appealed the Contempt Order to this Court (R. 83, Contempt Order Notice of Appeal), which appeal has been docketed as Case No. 15-5978. Davis also filed therein, on September 8, 2015, an emergency motion to stay the Contempt Order pending appeal. As shown in Davis’ emergency motion to stay the Contempt Order, and as will be more fully developed in Davis’ brief on the merits of that order at the appropriate time, the district court failed to provide Davis requisite due process in the contempt proceedings. Among other fundamental errors, the district court provided no notice that it would significantly expand and alter its Injunction at the contempt hearing, while the Injunction was already on appeal, and then confine Davis to prison based upon the ultra vires and expanded preliminary injunction.
8 One deputy clerk, Kristie Plank, has the primary responsibility within the Rowan County Clerk’s Office for servicing automobile dealers, a critical position within the office which does not include the issuance of marriage licenses. (R.78, Contempt Hr’g, PgID 1698:25-1705:5.) She expressed concern with assenting to the issuance of marriage licenses to the extent it would interfere with her legitimate existing responsibilities. (Id.) Another deputy clerk, Melissa Thompson, tearfully agreed to issue licenses under the court’s order, but was clearly under duress, stating, “I don’t really want to, but I will comply with the law. I’m a preacher’s daughter, and this is the hardest thing I’ve ever done in my life . . . . None of us hate anybody. It’s just hard.” (R.78, Contempt Hr’g, 1692:17-1697:8.)
10 See supra, n. 8.
Donahue Law Group, P.S.C.
P.O. Box 659
Somerset, Kentucky 42502
(606) 677-2741
ACDonahue@DonahueLawGroup.com
/s/ Roger K. Gannam
Roger K. Gannam
Jonathan D. Christman
Liberty Counsel, P.O. Box 540774
Orlando, Florida 32854
(800) 671-1776
hmihet@lc.org / rgannam@lc.org / jchristman@lc.org
Counsel for Appellant Kim Davis
ACLU of Kentucky
315 Guthrie Street, Suite 300
Louisville, KY 40202
sharp@aclu-ky.org
Laura E. Landenwich
Leonard Joe Dunman
Clay Daniel Walton Adams, PLC
462 S. Fourth Street, Suite 101
Louisville, KY 40202
dan@justiceky.com
laura@justiceky.com
joe@justiceky.com
Counsel for Appellees
Stoll Keenon Ogden PLLC
300 West Vine Street, Suite 2100
Lexington, KY 40507-1380
william.lear@skofirm.com gene.vance@skofirm.com
Counsel for Third Party Defendants-Appellees
Heather L. Weaver
ACLU Foundation
915 15th Street, NW, Suite 6th Floor
Washington, DC 20005
dmach@aclu.org hweaver@aclu.org
Ria Tabacco Mar
ACLU Foundation
125 Broad Street, 18th Floor
New York, NY 10004
jesseks@aclu.org rmar@aclu.org
Liberty Counsel
P.O. Box 540774
Orlando, Florida 32854
(800) 671-1776
rgannam@lc.org
Post Comment Private Reply Ignore Thread
Top • Page Up • Full Thread • Page Down • Bottom/Latest
Comments (1-56) not displayed.
.
.
.
#57. To: SOSO (#56)
Yes, it does actually explain why Japan's birth rate has declined. In Japan, people had to take out one hundred year mortgages just to have a house. That is incredible pressure. If Japan wants to have babies again, they have to get up close to God's standards - and God's standards were FREE land as a birthright. In Japan, life is hard and grim. There is a lot of wealth, and it is mainly held in vast conglomerates. The people live clustered in small, unaffordable houses. And so they have few children. In Europe, they have a better safety net than we do, but it still is not very good. The notable exceptions are the Scandinavian countries and France, where the social supports are strongest. They have a better white birth rate than we do. However, there is certainly a second piece to all of this besides economics, and that is Christian religion. Europe has lost its, and Japan never had it to begin with. In America, we still do have it. Americans would respond better than Scandinavians, because there are still Americans who want to have babies. Though this is dwindling with Christianity. Why has female participation in the American workforce dwindled? Because people at the margins lost their jobs never to return in the Recession, which is now officially over, but the jobs never came back. Instead, now the Fed is just going to pay banks interest not to lend the money it lent them at no interest. It's a kleptocracy. And the people driving THAT are pretty much all white, and old. Anyway, I can see that the receptivity to the truth here is somewhere around zero. Old white men shake their fist at me and tell me to get off their lawn. I suppose I will, because it's not worth fighting with them over it. And it won't be their lawn very much longer anyway. Rage at the dying of the light. The only way to rekindle the fire is to change. Change is upon us. I would see the white culture save itself. But I can see that isn't going to happen.
Kind of like the monorities in the U.S. that are having babies like crazy. Have you noted the fallacy in your thinking yet? потому что Бог хочет это тот путь
Wow, I never realized how much of a closed minded, bitter person you are. Truth? You wouldn't recognize the truth if it bit you in the ass. Old White male? What is that, your new derangement syndrome? I guess it is not in your make-up to understand that expressed exceptions to the substance of your postings are on the basis of recognizing the false premises of your analysis and thus erroneous conclusion - which always seem to be based on your political biases and social liberalism. You simply cannot admit that. So be it. For the last time on this I will point out the totally fallacy and incongruity of you analysis and conclusion. Do with it what you may. You say that whites are not reproducing because life is too hard for them, that the economic and financial decks are stacked against them. That they have to work too hard to keep their heads above water and thus are discouraged from having children. Then you happily point out that those that are of less economic and financial means are reproducing like crazy and claim that this is because their outlook for the future is so much more brighter than the more (temporarily) well off white population. For this to be true the minorities would have to be working less hard than their white peers. If that is true then the monorities are either (1) satisfied with less in both immediate economic comforts or in their outlook for improving their economic lot in life, or, (2) the minorities are living off government largess, or, (3) a combination of both. There is no no doubt that government largess plays large in their present existence and expectation for the future for blacks and hsipanics and just about every other minority group immigrating to the U.S. But who pays for that largess? Yep, you guessed.....the more well off white folks. Question: What would you do when you have the fruits of your hard work and your wealth taking away from you by the government and given to less hard working folks who expect you to continually finance their style off of your hard work and on your nickle? I quess you don't remember how you argued that the laborers in field are the hardest working people in America, and certainly more so than professional people such as doctors? So according to you the hardest working people (the minority laborers) are the ones that are having the most children. But that is exactly the opposite of what you argue for why whites are having less children and why Japanese are having less children, i.e. - they are not because they are working too hard. No you can again blame your contradiction and faulty thinking on me being an old white man - and you probably will. Good luck to you. The reason why the white culture is on the decline and why it will not be saved is exactly due to white liberalism and socilaist policies of any ever more oppressive Big Brother government. And the minorities are gladly cheering that on. Yes, you are a useful idiot that believes the socialist policies of the DRats will save the village. Good luck yo you. потому что Бог хочет это тот путь
Davis is a little pissing contest. The issue is Federal Government v. State of Kentucky and some other states. It is not an issue of law, but of power. This is not a matter of law when the new definition of marriage did not exist at the time any relevant provision of the Constitution was adopted. This is a matter of activist imposition of moral values, bypassing the political process. The Court is trying to get the STATES, plural, to comply with the SCOTUS opinion. Judge Bunning has to do a kabuki dance to maintain he is seeking compliance with his order but the Court is not authorizing the licenses. He said he does not know if the licenses to be issued by the deputies would be valid and he had not looked into that matter. And the issuing deputy has fully complied with his order by issuing a purported license which states that it is issued pursuant to a federal court order by the city of Morehead, Kentucky. http://www.wsj.com/articles/other-state-officials-say-no-to-same-sex-marriage-1442161531 As Kentucky county clerk Kim Davis gets ready to return to work, other officials are drawing scrutiny from gay-marriage supporters 32 magistrates in North Carolina have recused themselves from all marriage ceremonies, including all 4 from McDowell county. by Alastair Jamieson Casey Davis is not a relation of Kim Davis and is the Clerk of a different county. http://www.theguardian.com/us-news/2015/sep/03/kentucky-clerks-refusing-marriage-licenses [...] But she’s not the only defecting clerk in Kentucky. Two other clerks, Casey Davis of Casey County and Kay Schwartz of Whitley County, are also still refusing to perform same-sex marriages. http://www.theguardian.com/us-news/2015/sep/14/kentucky-clerk-kim-davis-to-allow-marriage-licenses Pursuant to federal court order, a piece of paper was issued upon the claimed authority of the city of Morehead. At page 153-154: If the Judge -- if this Court decides that it's going to find somebody else to issue a license, then -- THE COURT: Well, I'm not finding anyone. I'm just asking if they're willing to comply with the order. MR. CHRISTMAN: Then the authority for that marriage license is not Kim Davis. It's -- THE COURT: Well, it very well may not be her. MR. CHRISTMAN: -- it's this Court. And our position would be -- and -- THE COURT: Well, it's not this Court; it's the Rowan County Clerk's office. But go ahead. MR. CHRISTMAN: No, because Rowan County Clerk's office authority is Kim -- is Kim Davis, and Kim Davis is not giving that authority. So if marriage licenses are issued, those marriage licenses -- if Judge Blevins is not willing to exercise the opportunity he now has to issue the marriage licenses that he said he would issue, then this Court becomes the authorizing and issuing agent. And for any of those marriage licenses, the authorization statement should come from this Court, and the authorization agent should be United States District Court Judge David Bunning -- THE COURT: All right. Thank you. MR. CHRISTMAN: -- not Kim Davis. At 166-167 of the Court hearing transcript of 3 Sep 2015: Having heard from neither of the parties then. Okay. Here's what we're going to do. Now, there has been an issue raised about the validity of a marriage license issued that does not have the authorization of Ms. Davis under Rule -- I'm sorry -- KRS 402. Whether or not a license issued by the Rowan County Clerk's office is valid or not, I mean, that's -- that's kind of something that Mr. Sharp and your clients, if they believe it to be valid -- I'm not saying it is or it isn't. I haven't looked into that point. I'm trying to get compliance with my order. By Judge Bunning's own words, he ordering the deputy clerks to issue licenses that may, or may not, be valid and he has purportedly not looked into that point. Court appointed lawyers represented the deputy clerks at the hearing and quoted the law in arguing against the authority of the deputy clerks to issue said licenses. When the elected Clerk is absent, as in incarcerated, Kentucky law provides that the Judge Blevins, the county judge executive could issue licenses, but in the absence of the Clerk makes no provision for the deputy clerks to issue licenses.
The local governments MAY make an accommodation, but they do not HAVE to. Title 7 and State RFRA. If reasonably available, acommodation is not optional.
By Judge Bunning's own words, he ordering the deputy clerks to issue licenses that may, or may not, be valid and he has purportedly not looked into that point. Court appointed lawyers represented the deputy clerks at the hearing and quoted the law in arguing against the authority of the deputy clerks to issue said licenses. When the elected Clerk is absent, as in incarcerated, Kentucky law provides that the Judge Blevins, the county judge executive could issue licenses, but in the absence of the Clerk makes no provision for the deputy clerks to issue licenses. The issuing deputy has fully complied with Judge Bunning's order by issuing a purported license which states that it is issued pursuant to a federal court order by the city of Morehead, Kentucky. DAVIS Hearing Transcript, 3 Sep 2015 At 1-3: For the Plaintiffs: Hon. Daniel J. Canon For the Defendant, Kim Davis: Hon. Anthony Charles Donahue For the Defendant, Rowan County: For the Third-Party Defendants, Beshear and Onkst: Hon. Palmer G. Vance, II For Amicus Curiae, Robert Stivers: Other Parties For Nathaniel Davis: For Kristie Plank: For Brian Mason: For Kim Russell: For Melissa Thompson: For Roberta Earley: - - - - - - - - - - At 105-106: Given that Ms. Davis and her deputies did discuss, and she, in fact, did indicate that she had instructed her deputies not to issue the marriage licenses, the Court has chosen to ask several court-appointed counsel who are members of the Federal Public Defender list here in Ashland to advise the deputies. And I don't know who the deputies are. Up to this point, they've just been deputies of Kim Davis. So what I'm going to need to do is I have — and what we did, I just had the clerk call the six panel attorneys who would otherwise be appointed to represent individuals who may have -- may be subject to being in contempt themselves. - - - - - - - - - - At 110: THE COURT: What -- what's your objection to? MR. CHRISTMAN: That all of these deputies can only issue marriage licenses based upon the authority of Kim Davis, and Kim Davis has not given them that authority. So the one deputy clerk has -- who has said she cannot issue licenses, it's not in her department, that applies to all of the deputy clerks because none of the deputy clerks can issue a marriage license bearing Kim Davis's name and on her authorization because she has not given that authorization. THE COURT: Well, your objection's noted and overruled. I'm going to have them talk to these lawyers. - - - - - - - - - - At 113-117: MR. CHRISTMAN: Well, their authorization under Kentucky statute comes from -- THE COURT: What statute? MR. CHRISTMAN: -- the county clerk. The chapter for marriage laws is 402, and -- THE COURT: What chapter governs what the deputy clerks have to do? MR. CHRISTMAN: Well, the statute that was in place before Obergefell, 402.100, and -- THE COURT: What does that say the deputy clerks have to do? MR. CHRISTMAN: Well, that -- that statute is the one that says the authorization statement is from the county clerk, which hasn't been given, and also -- THE COURT: Well, I'm holding that she's in violation of the Court's order by not authorizing it. MR. CHRISTMAN: That -- that is what you held -- THE COURT: Correct. MR. CHRISTMAN: -- but their authority comes from her, not from you. THE COURT: Well, if they follow her authority and her authority's in contempt, why can't they be held in contempt as agents or employees of hers? MR. CHRISTMAN: Because the only authority they can give is from her. This Court doesn't have authority to rewrite Kentucky marriage statutes. THE COURT: Okay. So I can't -- so taking that to its logical conclusion, though, if someone -an employer tells an employee to do something, and they -- just general agency principals, if they're an agent, why, under Rule 65(d)(2)(B), shouldn't they be bound by the Court's preliminary injunction? MR. CHRISTMAN: Well, because here, the employer has told the employee, "You don't have my authority to issue it." You're -- THE COURT: Are they able to do it without that? Let's say one of them -- MR. CHRISTMAN: The analogy you're creating is you're inserting yourself as the employer and the authorizing agent and issuer of the marriage license. THE COURT: Okay. If I told them they can't do it, but a court says they have to, they still -- you're saying they can't do it because she said they couldn't? MR. CHRISTMAN: Because their authority -- because at that point then, you're raising implications and issues with respect to what the Kentucky marriage law and the marriage licensing scheme, which again, has been completely overwritten, but those aspects that are being -- are trying to be applied, that authority comes exclusively from the county clerk. That's the -- that's the core issue here. THE COURT: All right. Mr. Sharp, what's your response to this? They're arguing, in essence -and correct me if I'm wrong, because I want to make sure that we get it right -- because the clerk is not authorizing them to issue the licenses, and she testified this morning that she's very plainly, candidly, and I certainly appreciate that, that she told them that, "We are not issuing licenses pending appeal," I think is what she said. MR. SHARP: We think the Court's absolutely correct as far as there is a valid court order preliminarily enjoining Ms. Davis in her official capacity from enforcing the "no marriage license" policy. To the extent her employees continue to adhere to enforcement of what this Court has enjoined, then we think 65(d)(2)(B) would in fact be implicated, and, you know, their ability to be held in contempt, even as a non-party, would be at play. THE COURT: Okay. Let me ask you, Ms. Parsons, Mr. Watkins. What the Court does -- I recognize that what the Court does here potentially impacts the services, et cetera, provided by the clerk's office of Rowan County. Do you all take a position on the applicability of Rule 65(d)(2)(B) as it relates to the deputies? MR. WATKINS: Judge, I -- I think they can issue them in her absence at that point because they're -- they're acting in concert as -- as the clerk. If -- if what they say is true, she's allowed to pick the religious beliefs of her deputy clerks, and everybody knows that's -- that's illegal. THE COURT: Ms. Parsons? So -- so it's the position of the county attorney, sir, that they can issue the licenses in her absence? MR. WATKINS: Absolutely. THE COURT: All right. Ms. Parsons? MS. PARSONS: I have the same position. THE COURT: All right. All right. - - - - - - - - - At 121-122: MR. HUGHES: Judge, if I may -- THE COURT: Yes. MR. HUGHES: -- save that trouble. Mr. Mason was the one that had discussed that with Ms. Davis, and he'd already indicated to her that he would issue those licenses, if he were allowed to do so. He has indicated to me that he will comply with this Court's order to do that. But there are some practical problems. One, he doesn't even have a key to get in the offices. That can probably be overcome. The second is the concern that was raised by honorable counsel here involving the state statutes and what authority they have if in fact Ms. Davis is still saying that she does not give them the authority. So he -- that may be an issue that has to be addressed somewhere outside this Court. Perhaps this Court can answer his question, but he wants you to know that he intends to comply with this Court's ruling and issue the licenses. - - - - - - - - - - At 125-127: MR. JOY: Your Honor, may I? THE COURT: Yes, sir. Mr. Joy? MR. JOY: Your Honor, I think you addressed an issue earlier, but I think you kind of glanced over that. I think I feel the need to -- to bring that back up. You addressed agency principal earlier. THE COURT: Right. MR. JOY: Under an agency principal, an agent is able to -- well, consent can be withdrawn at a certain time. And I think we have an issue here, I think, if you -- and you also spoke of a ping-pong match next week coming right back to you. I think if you -- you are entering a valid order -- you are -- THE COURT: I -- I believe it to be a valid order. MR. JOY: Right. THE COURT: The Circuit may disagree. But the language the Circuit used in their stay order kind of tells me that they very well may not disagree. MR. JOY: Correct. And in looking at all of that, I still don't think the statute under 402.100 necessarily gives, under agency theory, the permission for either Mr. Mason, or my client, Ms. Russell, to issue a valid marriage license. They could issue you a license. Now, is that valid? I think that's the million dollar question that needs to be answered at some point. I don't think that question's being asked of us here today, but I just wanted to bring that to the Court's attention. THE COURT: So you believe that if he issued the license without her authority, it would be an invalid license? MR. JOY: Absolutely. THE COURT: All right. Mr. Sharp -- usually the -- the only time that would come up perhaps would be if there was a divorce, we were never married, or some contention later. Mr. Sharp, what's your position on the validity of the license, if it's issued without her authority? Do you take a position on that? MR. SHARP: Well, I mean, we think that she cannot condition her authority on an unlawful act, and -- which is what she has -- what counsel seems to be alluding to the fact that if she is withholding or may withhold her permission to issue licenses based on illegal conduct as far as -- THE COURT: Well, I didn't find it to be illegal. I found that it was in violation of the Court's order. MR. SHARP: Contemptuous conduct, correct. We don't think her authority extends that far, insofar as the office, apart from Kim Davis, exists to perform certain public functions. Kim Davis does not have to personally touch every marriage license. She employs people for the purpose of carrying out the duties of that office. To the extent Kim Davis has an erroneous instruction of her ability to block them from doing that, that, nonetheless, does not mean that they cannot perform those functions. THE COURT: Well, the form says the clerk or deputy clerk. It does bear her name. And we're not going to plow that ground again. I previously found that really the clerk is performing a ministerial task verifying that the person is otherwise legally eligible to marry, and I'm not going to rehash that. The prior Court's order speaks for itself. - - - - - - - - - - At 138-140: MR. FOX: So our discussion primarily for the half-hour that we met was about those convictions and the balancing, and ultimately a choice of lesser of evils. And I think but for some of the these other obligations and responsibilities that she has, her response to you today would be different. But these are real world issues. And there are two things that she wanted me to talk about. One, she wanted it to be clear that she had personal opinions and beliefs that are contrary to what is expected of her in her job. But she respects the Court, and she recognizes that she's under an obligation under Rule 65 that you discussed, that the orders that apply to Ms. Davis also would apply to her as an employee of Ms. Davis, and I believe she will tell you that she will comply with your order. She was quite articulate in explaining to me and us discussing this issue of whether she has the authority to do that. And while I was back there -- and fortunately, recent court orders allow us to bring these devices into the courthouse and 402.080, KRS 402.080 says that, "No marriage shall be solemnized without a license therefor. The license shall be issued by the clerk of the county." She believes, and I don't know that she's wrong, that the authority is with the clerk. And if the clerk hasn't given her authority, then she probably doesn't have authority. However, our discussion wasn't about whether she has authority to issue a license. Our discussion was about whether she was obligated to follow your order to do so. And she recognizes that she does have that -- or that she is under your authority to issue a license. THE COURT: She appreciates the authority of the Court? MR. FOX: That's right. That's right. And whether -- as Mr. Joy and I've discussed -- whether that license, when issued by her or Mr. Mason, or anyone else, which is done without being given authority by Ms. Davis, whether that's valid or not, that's, I guess, going to be up to the plaintiffs to find out. - - - - - - - - - At 142-143: THE COURT: Okay. Thank you. So setting aside for the moment the discussion of whether or not, without the authority of the clerk, you have the ability to issue those marriage licenses, I mean, would you or are you willing to comply with the Court's order requiring you to issue marriage licenses to the plaintiffs in this case or any other individuals who are legally eligible to marry in Kentucky? MS. PLANK: Yes. - - - - - - - - - - At 144-152: MR. HUGHES: Well, I say that, Judge, and just coincidentally, the clerk in Boyd County is retiring. In fact, she retired Monday. She resigned her office. The office is open and it can't be filled until a person that's going to be appointed has to take the test during the vacancy. You can't take it just in advance, believe it or not. You have to take it during -- so the office then does not have a clerk. So what they've done is they simply bring a clerk from another county over. I mean, that's the position that they've always done when clerks resign or they're incapacitated. I don't know that applies to this case, but — THE COURT: Well, and I don't know if they brought another clerk over from another county to do that here, I mean, whose authority would that be issued under? MR. HUGHES: I mean, I don't know the answer. I just know that -- I just to want to make the point that Mr. Mason is in -- is in the same -- the same glass globe that everybody is that's going to be looking at it. He wants to comply with your orders. Now, how they work this out in Rowan County or Franklin County, or wherever it has to go, will be their -- their issue. But -- but his consensus is that he's going to comply with your orders, unless someone stops him otherwise from doing it. The second thing is, is it's long standing law in divorce cases, that that's what they're worried about, is that even if there's a mistake made somewhere along the line, if the parties thought they were getting married, they're considered married. THE COURT: Like common law -- common law marriage. MR. HUGHES: And I don't know about the other issues that may arise, but -- but at least for that purpose they are. THE COURT: Well, most people when they get married don't expect to get divorced. MR. CHRISTMAN: Your Honor, I'd -- I'd just like to make two remarks in response to the comments. THE COURT: Sure, just two. Go ahead. MR. CHRISTMAN: Thank you, Your Honor. The first would be this gentleman has referred to another county — THE COURT: Mr. Hughes? MR. CHRISTMAN: Mr. Hughes. I'm sorry. I didn't remember your name -- THE COURT: Thank you, sir. I just wanted to make sure you were ref -- MR. CHRISTMAN: -- immediately. But the -- he just suggested that other county clerks can come in and issue licenses. THE COURT: I don't know if that's true or not. That would be a least alternative. MR. HUGHES: I'm just saying that they do it real commonly when they transfer authority. THE COURT: When authority's transferred? MR. HUGHES: Yes. And I don't know -- you know, there's not that many clerks that probably this issue comes up on a regular basis or to challenge. I just know that it has been policy in the past, and I've been at this 40 years now, that whenever clerks leave their offices, for whatever, there is a gap there and that is -- that's commonly how it's taken care of so that the public offices continue. THE COURT: All right. MR. CHRISTMAN: And I would just raise that that's exactly one of the least restrictive alternatives that we've proposed. That if somebody wanted to get a license in Rowan County issued by the county clerk, they could get it from another county authorizing that. THE COURT: Recognizing -- sure. MR. CHRISTMAN: And there's been testimony being raised previously that 402.240 is a statute discussing absence of a county clerk. And there's been discussions now, you know, with Ms. Davis incapacitated and incarcerated, Kentucky marriage law provides, as we argued before, that her conscience provides the absence. And certainly in the Kentucky THE COURT: Well, I found previously that the -- hold on -- I found previously that the conscience doesn't provide the absence for purposes of absence in the prior ruling. MR. CHRISTMAN: But Kentucky marriage law provides the outlet for -- the answer for when the county clerk is absent and unable to authorize a license isn't to change Kentucky marriage law and make the deputy county clerk the authorizing agent. What that does is turn Judge Blevins into the authority under that section when the clerk is absent to -- THE COURT: But it would still be issued under her authorization. MR. CHRISTMAN: No. THE COURT: The form would be under her name, though. MR. CHRISTMAN: No. The statute provides that when the clerk is absent, that the marriage licenses be issued by the county judge/executive on a memorandum. As Judge Blevins testified, he'd -- he had never done it before, but under the facts and circumstances here, Kim Davis is currently now rendered absent. The authority -- there is no authority for the deputy clerks. Kentucky marriage law then says that authority vests into the county judge/executive to issue a marriage memorandum. THE COURT: All right. Mr. Watkins? MR. WATKINS: Judge, I think he just said an inaccurate statement. It -- it allows him. It says "may issue a license." There's no requirement there for a judge/executive to ever issue a license. THE COURT: All right. Well, ultimately here, if I were to follow your argument, Mr. Christman, to its logical conclusion by -- it would enable her to be found in contempt, but then get what she wants, doesn't it strike you as a little disingenuous? MR. CHRISTMAN: In terms of get what she wants? THE COURT: Well, she wants the -- you argued initially that she wants the judge/executive to do it as a least restrictive alternative. He can issue it. I previously found that her religious objection doesn't allow her to be absent. You're saying now she's been locked up for violating my order. "She's now absent, actually absent, Judge. They can go to the county judge." That's what you argued before. It seems like I would be rewarding her for her contemptuous behavior by allowing the judge to do it. Clear those up for me. MR. CHRISTMAN: No. The Court -- the Court would simply be -- the Court made its determination on what the word "absent" meant in the statute under the facts and circumstances that were presented before the Court then. THE COURT: Correct. MR. CHRISTMAN: The facts and circumstances are different now, so the Court makes an interpretation of what the word "absent" means. Is Kim Davis currently absent from issuing marriage licenses? THE COURT: Okay. Okay. Then when is she then purged of her contempt? MR. CHRISTMAN: Well, she's purged of her contempt when, at this point, we're left to file certain writs in order to have her released from the custody that she is in, and the merits of her claims are challenged and taken up on appeal, and she prevails on the merits of her appeal, which have not been addressed. THE COURT: No, the merits have not. The likelihood of success has been addressed. MR. CHRISTMAN: And that was likelihood of success in her capacity -- in her official capacity to which the appeal was taken, she has raised those individual claims against the governor and for any liability that she may have -- THE COURT: Those are not on appeal right now. MR. CHRISTMAN: -- and they have not been taken up, which is again, further, why our due process concerns as to the judgments and determinations that are being taken here. She's now been sent into confinement -- as Your Honor said, the purpose of contempt is to coerce the contemnor into compliance. THE COURT: Correct. MR. CHRISTMAN: Now, in addition and well beyond that, the Court is now deciding, after putting Kim Davis in imprisonment for civil contempt of an order, the Court is now stepping in, short of the merits being fully decided, and saying, "I'm going to now order others without the authority, without the merits of her appeal being taken up to do an act that she cannot do." It is literally the analogous situation. And physically -- we've now moved to the point where if she's in contempt, as you've found, and now a marriage license that she says she gives no authority to and is challenging on the merits of appeal, you force that license to go out on her authority and on her name, you have forced the nurse to THE COURT: Forced the who? MR. CHRISTMAN: -- perform the abortion. You have forced -- THE COURT: Why do we always use that analogy? There's so many others to use. MR. CHRISTMAN: Because those are the analogies in which religious conscience claims have been raised in cases, Your Honor. - - - - - - - - - - At page 152-154: MR. CHRISTMAN: -- for a conscience claim that you didn't accept, that conscience claim, the merits of which are being challenged on appeal and have not been finally decided by a court of final appeal. And so you told her that she has an opportunity to purge her contempt if she -- if she authorizes and issues the license. So her ability to purge the contempt, her -- again, the purpose of contempt is to coerce the contemnor into compliance. You've told her what that is. If it -- if the hearing is now going to turn into "let's find somebody to issue the license with Kim Davis's name on it and her authority," then what the Court is now doing is turning Kim Davis's sanction into a criminal punishment for what -- THE COURT: No. I'm not doing that. MR. CHRISTMAN: -- she's done. You're taking the extra step of forcing the conscientious objector to actually have the act that they object to performed before the merits of that have been decided. If the Judge -- if this Court decides that it's going to find somebody else to issue a license, then -- THE COURT: Well, I'm not finding anyone. I'm just asking if they're willing to comply with the order. MR. CHRISTMAN: Then the authority for that marriage license is not Kim Davis. It's -- THE COURT: Well, it very well may not be her. MR. CHRISTMAN: -- it's this Court. And our position would be -- and -- THE COURT: Well, it's not this Court; it's the Rowan County Clerk's office. But go ahead. MR. CHRISTMAN: No, because Rowan County Clerk's office authority is Kim -- is Kim Davis, and Kim Davis is not giving that authority. So if marriage licenses are issued, those marriage licenses -- if Judge Blevins is not willing to exercise the opportunity he now has to issue the marriage licenses that he said he would issue, then this Court becomes the authorizing and issuing agent. And for any of those marriage licenses, the authorization statement should come from this Court, and the authorization agent should be United States District Court Judge David Bunning -- THE COURT: All right. Thank you. MR. CHRISTMAN: -- not Kim Davis. - - - - - - - - - - At 157-158: THE COURT: Okay. Now, Ms. Earley, I know your individual situation is a little bit different in that earlier you told me, or someone represented that you are -- you're the chief deputy, though? MS. EARLEY: I am the chief deputy, yes. THE COURT: Okay. But you're not really a -is it true that you're not like one of the front-line folks? MS. EARLEY: I don't work on the front line. I work back in the legal department. - - - - - - - - - - At 161-163: MS. EARLEY: Well, it seems like every step we take, we've got questions, and -- like who's in authority, you know, whose name goes on that. And that's -- things like that, I think, need to be worked out, and definitely, I'm not an attorney. THE COURT: Well, we have lots of attorneys here have been making their arguments here this afternoon and this morning. MS. EARLEY: And I guess one of the questions was, is Kim still the one that's going to be telling us what to do? Do we go by her authority or ... THE COURT: Well, the authority -- the reason for this hearing is because Ms. Davis was not complying with the order of the Court. There's a lot of discussion -MS. EARLEY: Uh-huh. THE COURT: -- but at its very core, the hearing is about compliance with the Court's orders. MS. EARLEY: I understand that. THE COURT: And whether or not a marriage license issued tomorrow by any one of the agents of Ms. Davis is a valid license under the Kentucky statute. These plaintiffs are going to have to decide whether or not they want to perhaps have a license issued, which may not be valid under Kentucky law, but they're willing to take that chance. Or perhaps they're not going to take that chance and hope that maybe in some future date the statute is amended or there's some activity by the elected officials to change it. That's not -- I'm trying to gain compliance with the order, and that's -- so you do -- have raised some interesting questions, as the other attorneys have as well. But what I'm getting at is, if I have individuals who've indicated they're willing to issue the licenses, and I order that to occur, it will be on the form that was used. That's -- if there's a move afoot to amend that, great. I think that would enable all parties to come away with something. Many times in litigation certain parties win and certain parties lose. Oftentimes, though, you have cases where everybody gets something. I've struggled in this case to find middle ground on anything because both sides have been so insistent on digging their heels in at every turn, which is certainly the litigant's right to do. And it's my job to try to keep the decorum even, try to keep everybody on the same page. So I guess getting back to my initial question, do you wish additional time to answer that question, or are you willing to issue those licenses? MS. EARLEY: Well, I'm not set up to issue them, but I won't go against your order. - - - - - - - - - - At 163-164: THE COURT: All right. Ms. Russell, you've had a chance to talk to your lawyer now about the consequences of not complying with the order, correct? MS. RUSSELL: Yes, sir. THE COURT: All right. Mr. Joy. MR. JOY: Your Honor, in speaking with her -- THE COURT: If you'd speak close to the microphone. The air's on. Thank you. MR. JOY: Your Honor, in speaking with her, I think the fundamental issue that she had was that she was rehired by Ms. Davis in March of this year. She's only worked there for a few months at this point. On or about June 30th, after after the decision by the Supreme Court came out, Ms. Davis revoked her authority to issue any marriage licenses to the entire office. I think that's what led to this hearing. And as I previously stated, that's the same issue she has right now, is she does not believe she has authority to go forward and issue, from Ms. Davis, that is, no authority to issue a marriage license. But I believe her position will be that in regards to the Court's order, she will issue a marriage license, she will comply with that going forward. - - - - - - - - - - At 166-167: THE COURT: All right. Thank you, unless one of the parties think it's necessary. Having heard from neither of the parties then. Okay. Here's what we're going to do. Now, there has been an issue raised about the validity of a marriage license issued that does not have the authorization of Ms. Davis under Rule -- I'm sorry -- KRS 402. Whether or not a license issued by the Rowan County Clerk's office is valid or not, I mean, that's -- that's kind of something that Mr. Sharp and your clients, if they believe it to be valid -- I'm not saying it is or it isn't. I haven't looked into that point. I'm trying to get compliance with my order. The impact of compliance with the order is left for you. I mean, if you think that's a legitimate issue, then you can advise your clients accordingly, but that's not really something that I think precludes the Court from gaining compliance with the Court's order. - - - - - - - - - - At 175: THE COURT: All right. We had given Mr. Christman and Mr. Gannam additional time that they've asked, approximately ten minutes. You all wanted to be heard without Ms. Davis being brought into the courtroom; is that right? MR. GANNAM: Yes, Your Honor. You offered to bring Ms. Davis back in at -- based on our request to consider purgation of the contempt based on the representations of the deputy clerks. THE COURT: Correct. MR. GANNAM: At this point, we're prepared to, rather than bring Ms. Davis in, simply communicate to the Court that she does not grant her authority for any licenses to be issued under her authority or by her name. And she -- she also does not make any representations as to whether she would allow any employee of her office to issue those licenses, even without her authorization. - - - - - - - - - -
At battle of jurisdiction? I am betting the Fed will win and that when all is said and done the licenses issued by the Deputies are legal. потому что Бог хочет это тот путь
That's the way to bet.
There is no battle of jurisdiction. The State has jurisdiction over who can issue marriage licenses and what they must contain. In interpreting the State statute, the highest court of the State has the final say. If state law says it must bear the name of the County Clerk, there is no Federal authority to overrule that. If state law says that licenses in Rowan County must be issued under the authority of the Rowan County Clerk, it is not up to the Federal government to authorize the city of Morehead to authorize licenses. Pursuant to the conscience of Kim Davis, the license as it is being issued, does not contain the name of Kim Davis or purport that it is being issued in the name of the Rowan County Clerk. Mr. VANCE for Governor Beshear. Mr. CHRISTMAN for Kim Davis. Davis Hearing of 3 Sep 2015 at 85-86: The governor can change that form, make it a state form with no personal authority, no Kim Davis name on it, available in a Rowan County Clerk's office, and this case would be over, Your Honor. THE COURT: Okay. Thank you. Is Governor Beshear -- can he do this by executive order? MR. VANCE: Your Honor, there is no executive order. In fact, Governor Beshear isn't going to do anything. THE COURT: But is he -- does he have the authority to do that by executive order versus by calling a special session? And I have some familiarity with the requirements of a special session, but I'm just curious. By executive order, I know the president can issue executive orders for a variety of reasons. I'm assuming that the executive of the state would be able to do that on certain things as well. Is this something where he can just change the form by executive order? MR. VANCE: No, Your Honor, because the requirements or the composition of marriage license is dictated by statute, and the governor cannot change the statute. The Governor's attorney states that the Governor lacks the authority to make any change to the form. At 96: I recognize, and I mentioned this when we first came out earlier this morning, that the legislative and executive branches do have the ability to make changes. And those changes may be beneficial to everyone. Hopefully, changes are made. But it's not this Court's job to make those changes. I don't write law. Judge Bunning says the legislative and executive branches do have the ability to make changes. Page 1 of Judge Bunning ORDER of 8 Sep 2015 The latest license states it is issued pursuant to a federal court order by the city of Morehead, Kentucky. I am wondering what sort of fun will ensue when the couple gets married and the marriage documentation is filed. Guess who the documents get submitted to? It is beyond the authority of the governor to make any change because it is controlled and specified by state statute, but a deputy clerk can wing it and the Court explains that the plaintiffs have not alleged that the alterations affect the validity of the licenses. This appears to be a new legal standard. The denial by the attorney for the governor of authority is overruled by plaintiffs who do not complain about what the court has wrought. When Kentucky feels like getting around to it, it will modify the statute solving the problem, Kim Davis will be acommodated, and licenses will be issued pursuant to law once again. Next year.
Seems to me, all the legal wrangling is due to they fact that the court is trying to get someone who has unique elected and discretionary authority to act to do something they do not want to do. The court is waiting to discover that it really is powerless in this matter, and jurisdiction lies with the voters and the KY legislature. Bottom line is that elected officials cannot be compelled to fulfill their duties by the courts.
Which brings us back to the Feds saying homo marriage is now the law of the land even though many states still have laws against that... They don't say that. Similar to "common law" marriages (no religious ceremony required) there shall be no discrimination about gender requirements to receive licensing from any government authenticating bureaucracy. What is important to understand is the government has clearly defined a separation of church and state about marriage. All the government wants to understand is that a "couple" is registered for official state purposes, independent of religious considerations.
Well, that's really it. That's the bottom line. The Supreme Court has made a ruling about the Constitution, and now the federal courts will enforce that ruling. There are local laws and statutes that say what and wherefore, but the Constitution is the Supreme Law of the Land, and the Supreme Court has said that the Constitution mandates non-discrimination in marriage. And therefore all of the state laws, rules, regulations, structures, and constitutions, that stand against that are broken off at the stump, immediately, because the federal Constitution is a superior law to all of those laws. There is no time for some sort of process for gradually undoing the state constitutions, laws, statutes, ordinances and regulations: they are scythed off and disregarded because the superior law rules. Those old laws stay on the books until they are repealed - for example, many states had miscengenation statutes on the books long after the federal courts struck them down as unconstitutional. The statutes still exist in writing, but all authority in them winks out of existence instantly because the supreme law of the land supplants them. There's no competition between laws, just as there's no competition between the captain of a ship and the admiral, when he is on board. The Admiral is senior, and can take command and issue orders if he wants to. Period. Usually he doesn't, but when he does, the seaman recruit who disobeys the Admiral because he will only take orders from the Captain, or disobeys both because he will only take orders from his Chief Petty Officer, ends up in the brig. Superior authority replaces inferior authority, and the Supreme Court writing on a constitutional matter has authority that is a razor that scythes competing authority to the ground. That is why the procedural games being played that say that nobody but the people and legislature of the State of Kentucky have the authority to issue marriage licenses are a dead end. Normally that would be true. However, the Supreme Court has ruled that non-discrimination in marriage is the constitutional law of the land. Therefore, it is. It doesn't matter that many think that decision has no founding in "original intent". The "original intent" of the Constitution is not, in fact, the Supreme Law of the Land. It's a minority ideological position. What the Supreme Court says the Constitution is, is what the Constitution is, in our system. It doesn't matter that that's open to all sorts of abuse, and has been abused (even in the present case), and will be abused again. I never said that our constitutional system is a GOOD one, or a particularly just or uncorrupt one. It is bad, and corrupt. But it IS, and the Supreme Court DOES have that power, and is so recognized. And it has decided the case: non-discrimination in marriage. So, if a state, or county, decides to stop issuing marriage licenses, what are they doing? They are invidiously resisting the Constitution. The existence of marriage was never a question. It only has BECOME a question because petty public officials do not want to issue marriage licenses to gays, and so have stopped issuing ALL licenses. It is a transparent effort to thwart the Constitution (as decided by the Supreme Court), and it will not stand. That is why courts have equitable powers and not just legal powers. With law, you have to slowly grind through the arguments and statutes, have hearings, slowly work your way forward. But with equity, the judge is endowed with tremendous power to simply cut through the legal tangle and "make right" (as right is defined by law). Kentucky constitutional law and state statute and local ordinance say that the clerk has to sign the licenses or they are not valid. But the Constitution says that people have the right to marry, and that there cannot be discrimination. Suddenly refusing to issue marriage certificates in order to prevent gay marriages is invidious, and legal under Kentucky law. But the issue has been decided by the Supreme Court on the basis of the US Constitution. And THEREFORE the Kentucky Consitution, and statutes, and local ordinances, and the will of the people of Kentucky, or of a county in Kentucky, are irrelevant. They are not on the scale. The Federal Constitution is the Supreme Law of the Land. It's authority over every aspect of Kentucky law, including the Kentucky Constitution, is absolute when it comes to a matter of Constitutional law on which the Supreme Court has pronounced. Davis and her attorneys are resorting to law in a rearguard action to try to thwart the Federal judge's application of equity. But behind the Federal Judge is Law, Federal Law, the US Constitution, on a matter of Civil Rights. The Kentucky Constitution, and statutes, and laws and process, are cut off stumps: the US Constitution occupies the field in the matter. Clerks in Kentucky cannot refuse to issue marriage certificates to blacks and whites who want to marry. They cannot refuse to issue marriage certificates to gays or straights who want to marry. And they cannot simply refuse to issue marriage certificates at all to try to prevent mixed race people or gays from marrying. The Supreme Court says that the US Constitution says that people have the right to marry, gays included. That's the Supreme Law of the Land, and everything "Kentucky", including the stubbornness of some local clerk, moves aside for it. If it won't move aside, then Federal power is applied until it does move aside, or is broken all to pieces and now people are in place to obey the Supreme Law of the Land. That's our system. If the Kentucky Constitution were the controlling law, Davis would have a point. But the US Constitution is the controlling law, and to the extent that Kentucky constitutional or other law stands in the way, it will be moved aside by Federal equity. It's that straightforward. It's the same reason why abortion is the law of the land.
That isn't what happened. Kim Davis took it upon her own bias and prejudice to make that judgement call.
The above screed is a 'minority ideological position', made by a self proclaimed lawyer of doubtful veracity. Yes, the Supreme Court has OPINED that non-discrimination in marriage is the constitutional law of the land. Therefore, it will be disputed. It matters that many think that decision has no founding in "original intent". -- As the "original intent" of the Constitution has in fact, bearing on the Supreme Law of the Land. There is a minority ideological position that claims, -- "What the Supreme Court says the Constitution is, is what the Constitution is, in our system." -- This is NOT how our system works. It is a system of checks and balances, and this opinion will be opposed, - until hopefully, govt at all levels will get OUT of the business and taxation of marriage, and return it to the religious sphere.
Regardless, she's going to lose. In this life.
I presented the law of the land as it in fact exists. You wrote a minority screed. Fight on, brave warrior.
In the mean time a Fed judge did exactly say who can issue marriage licenses in that County in KY and the Governor and State AG are on record saying that the licenses are valid. Go figure. Sounds like the Fed won that jurisdictional battle to me. потому что Бог хочет это тот путь
They can say that. They can say the earth is flat too. Everyone is entitled to an opinion but that's all the statements from these people are. The real test of validity is when these documents are presented as proof of marriage to whatever further authority requires them for whatever purpose. They may accept them as valid solely because of all the political/legal attention the Davis case has generated and will be in fear of being jailed for contempt as Davis suffered, or they may not, citing the actual written statutory requirements of a county clerk signature. If they are sued, then another judge will look at them and make a decision, after which a precedent one way or the other will be set. But in the end, if the documents are recognized as valid in spite of not complying with the written, lawful KY statutes, then it will be just one more example of laws being ignored, and how practicality/expediency rules the day.
OR it will be an example of the Rule of Law being FOLLOWED, where the operant rule is: (1) Federal Constitution is the Supreme Law of the Land, and trumps state constitutions and laws and statutes and ordinances and court decisions where they conflict, and (2) The Supreme Court is in fact the final arbiter of what the Constitution IS, it has ruled, and the Federal judge in KY upheld the rule of law by enforcing the intent of the Supreme Court decision over lesser law. That is what the majority will take away from this event.
The issue I'm addressing is not gay marriage validity, but marriage license validity. If the fed gov intends to force KY to issue marriage licenses, then that's fine. If the fed gov wants to issue federal marriage licenses, that's fine too. But if the KY licenses issued as a result of fed power do not meet KY statutory requirements, then that's not fine.
There is a minority ideological position that claims, -- "What the Supreme Court says the Constitution is, is what the Constitution is, in our system." -- This is NOT how our system works. It is a system of checks and balances, and this opinion will be opposed, - until hopefully, govt at all levels will get OUT of the business and taxation of marriage, and return it to the religious sphere. Comtes screed is a 'minority ideological position' No, you presented a SCOTUS opinion as if it were the law of the land. -- You know better, but your socialistic ideology drives you. The Constitution itself, and many prominent lawyers, disagree with your liberal law school take on this issue. -- They will prevail..
If the fed gov intends to force KY to issue marriage licenses, then that's fine. If the fed gov wants to issue federal marriage licenses, that's fine too. But if the KY licenses issued as a result of fed power do not meet KY statutory requirements, then that's not fine. You think that's what you're doing, but it is not. And the Federal Courts need not, and will not, follow your train of logic. To the Federal Courts, the logic is transparent. They have seen all of this before, when segregationists were trying to prevent desegregation, and so reclassified things are being "private property rights" or "rights of private association". The Federal Courts were not fooled. They penetrated right through the fog and said that the PURPOSE of all of the pettifoggery was to maintain segregation by other means, and they became more and more assertive, and finally positively ruthless, about striking ANYTHING down that was "invidious". If the PURPOSE, three steps removed, was segregation, then it was unconstitutional, and even if the EFFECT was segregation, though not provably motivated by segregationist intent, the courts still struck it down. We saw the same thing happen in the New Deal. Initially, the Supreme Court resisted FDR and the Democrat Congress. Then it became clear that Roosevelt was going to propose legislation to change the composition and number of the Supreme Court and pack it with his appointees. The Court then executed the famous (or infamous) "Switch in time that saved 9", and began to give FDR a carte blanche on the New Deal. As various localized elements moved to block the Federal programs, the Courts moved more and more aggressively to batter down ALL resistance. And they did. The crowning case to that end was the case in Wickard v. Filburn, in which the Supreme Court unanimously found that a farmer growing grain on his own farm, for feed to his own livestock, was "Interstate Commerce" for the purposes of the Commerce Clause, and thus subject to Federal regulation. The Supreme Court has a long history of seeing how people cunningly try to resist it, and has a long history of beating down all resistance on their declared principle. That is what is happening here, and what will keep happening. I think Wickard v. Filburn was a terrible decision, just as I think Roe v. Wade and the gay marriage decisions were terrible. Obviously the Supreme Court has a different set of values than I. And that's irrelevant. The Supremes took a case about gay marriage - that specifically. There was never any question banging around out there about state marriage licenses in general. They've been around forever, and routinely issued everywhere. The QUESTION was whether gays could get them, and the Supreme Court's answer, from the perspective of the Constitution, is that yes they can: there can be no discrimination based on sexual orientation. The same sort of decisions were made in the past regarding mixed-race marriages, which were illegal in many states until the Supreme Court said that the Constitution says that states cannot discriminate in marriage based on color. So, that's the Law of the Land, the Constitution. The Supreme Court has spoken, and the lesser federal judges will now enforce that - and most WANT to, because that's the majority political opinion in the country as a whole now too. What happens in Kentucky? A local clerk who doesn't want to issue gays marriage licenses, refuses to issue any. Oh, the legalistic CLAIM is that it is simply about marriage licenses, but that is piffle. Nobody anywhere in America was challenging the issuance of marriage licenses UNTIL the gay marriage issue came up. NOW, only BECAUSE OF the gay marriage decision, people who don't like gay marriage, who have lost, are trying to find a way to go on resisting it. And THAT is invidious, and it enables the Federal courts to unsheath the civil rights and commerce clause precedents of using their legal and equitable powers to cut down ANY obstacle "to the Constitution". For now, from a legal perspective, gay marriage is a right. Marriage was already determined to be a private right. The opponents of gay marriage, or the allies of Davis, may invidiously pretend that the "real" issue about state sovereignty over marriage licenses, but that is a lie, a subterfuge, piffle. It's simply an effort to erect a procedural or legal delay. But the procedures and laws used to effect the delay are all below the level of the Constitution. And therefore the Supreme Court decision enabling gay marriages, puts the sword in the hand of every federal judge to chop down every law, statute, procedure or state constitutional provision that tries to stand in the way of the full, and iMMEDIATE, respect for the Constitutional right of equal protection...which in the case means gay marriage. People have the right to marry. States have no right to prevent that by onerous laws. Gays have the right to marry, and if states now start to invoke their laws or procedures to block that right, it's invidious in itself, obviously so, and every Federal (or State) judge is empowered to strike down WHATEVER stands in the way of the Federal Constitution, including provisions of the State Constitution. The Fed government does not "intend to force KY to issue marriage licenses". It intends to force every local clerk to issue licenses to gays, because that is what "the Constitution says" according to the Supreme Court, and there is nothing between the Constitution and the gays getting married that has any power to stop that, or frustrate it, or delay it. That is precisely what Davis and her allies are trying to do. It's transparently invidious, and the Courts will not entertain their delaying tactics, but will use the sword of equity to simply carve up the state constitutional claims, the lower procedural claims. The states, and the localities, will submit fully to the Constitution, in every respect, and they'll do it FAST, and wherever they throw up a procedural roadblock, it will be cut down swiftly by federal judges, and state judges too in those states with a liberal judiciary. That's the truth. That's the way it is. Yes "the KY licenses issued as a result of fed power do not meet KY statutory requirements" :they don't. And you're right, it is not fine. But what that means is that all of the KY statutory requirements that stand in the way or obstruct the Federal Constitution evaporate like frost in the hot sun. Whether they stay on the books formally or not (like miscegenation statutes and restrictive covenants did for a long time after the Supreme Court decisions), the fact is that they cease to exist as effective law: the Federal Constitution has SUPPLANTED the local law, through the Supremacy Clause of the US Constitution, because the Supreme Court has found an inherent constitutional right to marry, and specifically for gays to be able to marry without being discriminated against. Any KY statutes or laws that obstruct that have ALREADY CEASED TO EXIST as enforceable laws. Kentucky will have to clean up its statute books, eventually, but the Federal law, of gay marriage, no occupies that field to the extent that the local law opposes it. That's what is happening. Our history is rich with analogous situations. That IS our system, and it is the way the game is played. No matter how many spells conservatives try to cast saying the Supreme Court IS NOT thus and so, or CANNOT do thus and so, the Supreme Court in FACT IS just exactly that "so", and DOES in fact do EXACTLY the "thus and so" that the conservatives say it can't. Conservatives can be as angry as they like that their pet legal theory is not reality, but it IS NOT REALITY. The Supreme Court, IN FACT, IS the final arbiter of the Constitution, its decisions ARE, IN FACT, the Supreme Law of the Land, via the Constitution, and they WILL be enforced. Which means the state constitutions and state laws and local laws and state and local court decisions to the opposite are all cancelled out, because the Supreme Court and the Constitution are SUPREME over those lesser authorities. One can hate is as much as one likes - and I do, actually - but one leaves the realm of reality when one asserts that that IS NOT so, because it manifestly IS so, and will remain so until our constitutional system itself is changed. Mark Levin et al can bellow all day that this does not respect the ORIGINAL INTENT of the Constitution, and that may be true, but it's also irrelevant, because the doctrine of Original Intent is not law, and it is not the doctrine of the majority of Supreme Court Justices. That's the way it is. One cannot fight this with LAW. One has to step outside of law and politics to fight it.
The decisions of the US Supreme Court ARE the Constitution, and they are the Supreme Law of the Land. The final arbiter of the Constitution is the Supreme Court, and what it says is the final word. That's the way it really is. Perhaps it was not intended to be that way. But the way that it is "intended to be" is decided by the Supreme Court, and they say it is. So in the real world, it is. This cannot be changed THROUGH the Constitution: IT is an instrument that is firmly in the hands of your enemies. You have to appeal to something OUTSIDE OF the Constitution and the legal system, because you will always lose WITHIN that rigged casino. Some call for a resort to arms. That's a good way to die against this Caesar. I call for a resort to God, because He has the force to win the day. But those calling for arms are never with God, and those calling for the "Constitution" to stand "on its own" are naive.
BULLSHIT. The US Supreme Court may interpret the laws UNDER the US Constution. That is all. If Congress/President had the balls to reverse a ruling that is perfectly acceptable. Also States Convention may be convened. The Constitution is owned by the PEOPLE.
Well now, you are getting the picture clear enough. потому что Бог хочет это тот путь
Comtes screed is a 'minority ideological position' No, you presented a SCOTUS opinion as if it were the law of the land. -- You know better, but your socialistic ideology drives you. The Constitution itself, and many prominent lawyers, disagree with your liberal law school take on this issue. -- They will prevail.. The plain words of the document are clear. IT WAS NOT INTENDED THAT WAY.. Laughable reasoning. This is why I doubt your legal credentials. Nothing needs to be changed in the Constitution. -- The political reasoning of the SCOTUS will be changed, one way or another. Bet on it..
Comtes screed is a 'minority ideological position' No, you presented a SCOTUS opinion as if it were the law of the land. -- You know better, but your socialistic ideology drives you. The Constitution itself, and many prominent lawyers, disagree with your liberal law school take on this issue. -- They will prevail.. The plain words of the document are clear. IT WAS NOT INTENDED THAT WAY.. Laughable reasoning. This is why I doubt your legal credentials. Nothing needs to be changed in the Constitution. -- The political reasoning of the SCOTUS will be changed, on way or another. Bet on it..
It is not a jurisdictional battle. All that has happened in a preliminary injunction has been issued barring Kim Davis from enforcing her "no marriage licenses" policy, and Kim Davis was held in civil contempt for her defiance of the judge's order. An actual case has not been heard yet, much less decided on the merits. As for the Governor and AG stating that the bastardized forms are legal, that is as impressive as Obama and Eric Holder saying the immigration policy of non-enforcement is legal. When in court, the attorney for the governor sang a very different tune. At 85-86: MR. VANCE: No, Your Honor, because the requirements or the composition of marriage license is dictated by statute, and the governor cannot change the statute. The Governor publicly stated, and his attorney stated to the Court, that he lacked the authority to change the information the statute requires to be on the form. And the Speaker of the House said the Governor lacked the authority. The court getting two twits to say the form, as changed by a deputy clerk, is valid is not very persuasive, as the ACLU has come to realize. The Republican leadership said it wants Beshear to "issue a temporary solution" until the General Assembly can "craft a more comprehensive solution in January." "The Senate has been exploring options to address the situation that our countyclerks and religious institutions find themselves in due to the actions of the Supreme Court," the statement said. "Religious liberties are an important part of the basis of our Republic and all statutory options available should be considered." But [House Speaker Greg] Stumbo said that changes can only be made through legislation, not by executive order of the governor. There was no Order to the deputies. THE COURT: Well, I'm not finding anyone. I'm just asking if they're willing to comply with the order. MR. CHRISTMAN: Then the authority for that marriage license is not Kim Davis. It's -- THE COURT: Well, it very well may not be her. MR. CHRISTMAN: -- it's this Court. And our position would be -- and -- THE COURT: Well, it's not this Court; it's the Rowan County Clerk's office. But go ahead. MR. CHRISTMAN: No, because Rowan County Clerk's office authority is Kim -- is Kim Davis, and Kim Davis is not giving that authority. So if marriage licenses are issued, those marriage licenses -- if Judge Blevins is not willing to exercise the opportunity he now has to issue the marriage licenses that he said he would issue, then this Court becomes the authorizing and issuing agent. And for any of those marriage licenses, the authorization statement should come from this Court, and the authorization agent should be United States District Court Judge David Bunning -- THE COURT: All right. Thank you. MR. CHRISTMAN: -- not Kim Davis. Why, good ol' Judge Bunning was only asking if the deputies were willing to to comply with the order to KIM DAVIS and disregard her no licenses policy. If you know of an Order issued to the deputies, please cite and quote it. There is the little issue of the deputy not having authority to issue a valid license without the authorization of the elected Clerk, leading to this question: At 142: So, the deputy, believing she has no authority to legally issue a license, is asked if she would issue one anyway. As Mr. Christman pointed out, the authorization should statement should not come from Kim Davis or the Rowan County Clerk's office. At 166: Whether or not a license issued by the Rowan County Clerk's office is valid or not, I mean, that's -- that's kind of something that Mr. Sharp and your clients, if they believe it to be valid -- I'm not saying it is or it isn't. I haven't looked into that point. I'm trying to get compliance with my order. The validity of altered licenses was denied by several court appointed attorneys for the deputies as well as the attorney for Ms. Davis. It does not have the authorization of Ms. Davis, and the Judge is not saying it is valid. He has not looked into that point, if he is to be believed. As long as they churn out a piece of paper, he is happy. And now the ACLU is now questioning the validity of the licenses.
Negative. tpaine, Deckard, Hondo and a few others are. Just ask them. I'm the infidel... Allah warned you about. كافر المسلح
Repetition of error does not make it true, grasshopper.
Good. So here is what I see. The Federal Judge is focused on the question: will my order be complied with, by specific individuals: yes or no. Davis' lawyer wants to go to the merits of the issuance of the licenses, but the judge refuses to open that field of discussion. He is focusing directly and exclusively on the equitable power: WILL MY ORDER BE OBEYED? And the answer to that is: YES. So, the licenses are being issued, and the immediate harm being done by resistance to the issuing of licenses is abated. Now the court, or an appellate court, will turn to the matter of the legality of the licenses. And the reasoning will go like I wrote at length. There are KY statutes regarding marriage licensing and the authority to issue them. These statutes and regulations pre-dated the gay marriage controversy, and were general application laws without an invidious purpose, when passed. However, now that marriage equality has been determined by the Supreme Court to be Constitutional Law, these old general applicability statutes are being wielded in a novel - and invidious - way to frustrate the constitutional rights to marriage of gay citizens of this part of Kentucky. Although putatively aimed at ALL seeking marriage licensing, the cause that has given rise to the precipitous move to cease issuing marriage licenses is, in fact, the unwillingness of public officials to respect the rights of gays to marry, and to frustrate the exercise of constitutional rights. The effect of the clerk's stand, if she were to prevail, is to prevent anybody in her county from exercising their constitutional right to marry. On the one hand, procedural rules of the state of Kentucky establish the normal course for the issuance of marriage licenses, and the District Court has merely ordered the county clerk to perform her duty to issue these licenses so that people may exercise their constitutional rights to marry. The clerk has, herself, chosen to cease issuing licenses to all - depriving the county at large of the right to marry - in order to invidiously discriminate against a small class of people who will also seek licensing. On the other hand, the Constitution of the United States guarantees the right to marriage, and the right to marriage equality. In living memory in America state and local authorities of many states attempted to use local statutes, ordinances, regulations, and even state constitutions, in order to block the free exercise of constitutional rights by some American citizens. The Supreme Court uniformly struck down all such efforts: the US Constitution is the Supreme Law of the land, and NO local law, regulation, procedure, or state constitution can act as a bar to the full and unfettered exercise of constitutional rights in every jurisdiction of the United States. Nor are individuals seeking to exercise their constitutional rights obliged to petition state authorities to exercise those rights, or to move politically to strike down unconstitutional laws through the legislative process. The Supreme Court's decision, by finding a constitutional right, nullifies and invalidates the ENTIRE APPARATUS of federal, state or local law, ordinance or procedure that opposes the free exercise of the Constitutional rights. Citizens are not obliged to wait on the vicissitudes of state and local politics in order to exercise their rights under the US Constitution. Rather, the rights having been determined, specified and upheld by the Supreme Court, ALL opposing law to the free exercise of those rights is nullified at one stroke, and those rights may be uniformly enjoyed by American citizens in every state, county and town of America. When state or local officials assert a law that has been superseded by the Constitution to deny an individual of his constitutional rights, those officials act without legal justification. Kentucky has laws and statutes and procedures in place for the issuance of marriage license. To the extent that those laws, statutes and procedures are used invidiously by any official of the Kentucky to deprive citizens of their right to marry, including the right of two individuals of the same sex to marry, these denials under color of law are in fact violations of the constitutional rights of the individuals, and the full equitable power of the federal (and state, and local) courts is available to strike down all putatively legal impediments that are raised to bar the exercise of the Constitutional rights. The District Court has the full equitable power, under the Constitution, to design a remedy suitable to address and remove the local legal impediment, having been raised, to the exercise of the constitutional right to marry in Davis' district. Kentucky law is irrelevant: the entire apparatus was nullified when Davis sought to deny people their constitutional right to marry. The invidious use of procedure to bar citizens exercise of their rights is an old game in the South. And Federal supremacy to erase all such efforts is the old antidote to it. As we shall all soon see. Davis does not have a snowball's chance in hell of prevailing, and there will be no delay. And people in Kentucky will not have to wait on a local clerk, or a local electorate, or a state legislature, or the people of Kentucky, to vote, or do anything, in order to exercise their rights now. The constitutional right is clear, the federal constitution is supreme. Whatever Kentucky law that would act as an impediment to the full and immediate exercise of those rights has ceased to exist in fact, even if it de jure remains on the books. To the extent that local officials and lawyers chose to assert de jure law, the power of federal equity to erase state law will be clearly demonstrated once more. Bet on it.
And now the ACLU is now questioning the validity of the licenses. And as a federal civil suit he is hearing, his only interest is in resolving the claims of the parties before him. If the plaintiffs in the case are happy with the licenses, and it seems so far they are, then the judges jurisdiction in the matter ends there. Whether the licenses are valid or not are not this judge's legal concern in any way whatsoever.
You have mentioned several times in your post that marriage is a "Constitutional Right". It may be viewed as nit-picking but I don't think it is, to point out that it's not a Constitutional Right. There are several different types of rights. I would consider legal marriage a "statutory right" meaning it's a right founded in statutory law. After all, the issue with the Davis case involves marriage "licenses". By definition, a license is permission to do something that would otherwise be illegal to do -- an action requiring the privileged blessing of a proper authority to exercise. Ergo it is a privilege to possess any license of any sort, not a right. This means it's subject to change or even revocation through legislative action. While very unlikely, if KY were to modify its law to eliminate marriage licenses in the state, the fed judges order would be null and void. The USSC ruled via the 14th amendment's equal protection clause that 2 people of the same gender are entitled to the same rights as couples of different genders, and any elimination of marriage licenses in any state would not violate that ruling.
An actual case has not been heard yet, much less decided on the merits. In the mean time a Fed judge did exactly say who can issue marriage licenses in that County in KY and the Governor and State AG are on record saying that the licenses are valid. Go figure. As for the Governor and AG stating that the bastardized forms are legal, that is as impressive as Obama and Eric Holder saying the immigration policy of non-enforcement is legal. When in court, the attorney for the governor sang a very different tune. We'll see. In the mean time I am still betting that the Deputy issued licenses are vaild and will not be vacated. In case you haven't been keeping score, Obama has been doing quite well with SCOTUS. потому что Бог хочет это тот путь
That's true, because the cause of the invidious discrimination would cease. The real, rock-bottom line is: no state action is going to stand in the way of, or procedurally slow down, gay marriage in all 50. Direct resistance by officials is going to be met with swift federal action, in equity not law. The federal government developed a keen reflex for enforcing its will on discrimination issues in the long desegregation fight. Federal compulsion in the face of invidious discrimination is now a well- oiled machine, and one that the government loves to operate.
Nitpick if you need to: marriage is a Constitutional right, because the Supreme Court has said so. And it said so in the last great challenge to marriage: the racist "anti-miscegenation" statutes that many states of the Old Confederacy had barring interracial marriage. In the 1967 case Loving v. Virginia, the Chief Justice of the United States, in the majority opinion, wrote::" The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men ... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law." Marriage is a constitutional right. And now, gay "marriage" is marriage in all 50 states and the overseas territories, and any state or local constitution, statute, ordinance, regulation, procedure, or court decision that says otherwise is null and void, through the Supremacy Clause of the US Constitution. Gay marriage is a Constitutional right, as is interracial marriage (and every other sort of two person marriage), and there is no ability of the states to slow down the implementation of that right by any state procedure or law: the Constitution trumps and nullifies, immediately, anything lesser that stands in its way. The Kentucky Constitution, statutes and regulations that stand in the way will go unenforced until the Kentucky legislature fixes the discrepancy. Until then, Kentucky law will be broken and ignored, because Federal law has superseded it. And any official who stands in the way of the Constitutional right of gays to be married will be jailed for contempt if they follow Davis' path. The Federal government cannot be fought on this battlefield. They own it, and they write all the rules, and they decide the cases. Match, set, point. There are battles that can be fought. And then there's Appomattox. Once you're at Appomatox Courthouse, there is no prospect of victory, and you get off that battlefield for good. Really, this ought to be a wake up call to Christians to reform everything about their lives to bring them in conformity with the demands of God. Only then can the Christians march as an army again. As it stands, they are divided and lost, and the country has slipped out of their grasp.
Doubt away. A good lawyer can predict how the courts will behave. And I've been saying for days that the Sixth Circuit would slap down Davis' appeal. I've told you why too. So, when they do that, you can conveniently ignore it if you want to and write another long poem on the Constitution according to tpaine, the redoubtable rapper, but I'll be sure to point it out to you. You may not like what I have to say about reality, but I very accurately report it - which makes me valuable to people who value the Truth.
And here's what the 6th Circuit said: "It cannot be defensibly argued that the holder of the Rowan County clerk's office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court, There is thus little or no likelihood that the clerk in her official capacity will prevail on appeal."
I'm betting that the licenses as issued are, without question, invalid. I think that when the Kentucky legislature gets around to changing the statutes (next year), they may enact something to retroactively legitimize the licenses, and provide an accommodation for Kim Davis.
Note this quote is not saying it's a "Constitutional Right", but a "personal right". In order to be a Constitutional Right, it needs to be expressed in the Constitution, and it's not. What is expressed in the 14th is an equal protections under the law, which is a Constitutional Right, and was the basis of the gay marriage ruling. Marriage has been around since the dawn of history. Marriage licenses, not nearly as long. States could retitle "Marriage License" to something like "Civil Union License" or perhaps "certificate" would be a more fitting descriptor, if there's no actual permission involved in it's issuance. While it may be only a word change, it may be a pleasing solution to religious conservative states that feel "marriage" is not an appropriate term to apply to a gay union, leaving application of the term to churches, which is actually where it belongs. All the state needs to be concerned with is the legalities of inheritance, powers of attorney and such, which a "Civil Union Certificate" would be fine in servicing.
Comments (98 - 112) not displayed.
Top • Page Up • Full Thread • Page Down • Bottom/Latest
#58. To: Vicomte13 (#57)
In Japan, life is hard and grim. There is a lot of wealth, and it is mainly held in vast conglomerates. The people live clustered in small, unaffordable houses. And so they have few children.
#59. To: Vicomte13 (#57)
Anyway, I can see that the receptivity to the truth here is somewhere around zero. Old white men shake their fist at me and tell me to get off their lawn.
#60. To: Vicomte13 (#46)
It's not a little pissing contest at all. It's a question of the rule of law itself.
Other State Officials Say No to Same-Sex Marriage
Kentucky Clerk Casey Davis Ordered to Comply With Law on Gay Marriage
Jul 10 2015, 5:58 am ET Kentucky clerk is one of three in state refusing to issue marriage licenses
The licence states that it was issued “pursuant to a federal court order,” she added, in line with a policy Davis enacted Monday morning. Additionally, rather than listing Davis’s name, it says “city of Morehead”, the Rowan County seat.
MR. CHRISTMAN: -- she's done. You're taking the extra step of forcing the conscientious objector to actually have the act that they object to performed before the merits of that have been decided.
THE COURT: All right. Thank you, unless one of the parties think it's necessary.
#61. To: Vicomte13 (#47)
Procedure will result in the courts getting to the position that they must: there is no individual exception from general applicability laws because of religious scruple.
#62. To: CZ82, Vicomte13, Too Conservative, SOSO, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#49)
Hon. William Ellis Sharp
ACLU of Kentucky
315 Guthrie Street
Suite 300
Louisville, Kentucky 40202
(502) 581-9746
Hon. Laura E. Landenwich
Clay Daniel Walton Adams, PLC
462 South Fourth Street Suite 101
Louisville, Kentucky 40202
(502) 561-2005
Hon. Roger K. Gannam
Hon. Jonathan D. Christman
Liberty Counsel
P. O. Box 540774
Orlando, Florida 32854
(407) 875-0770
Donahue Law Group, PSC
410 South Main Street
P. O. Box 659
Somerset, Kentucky 42502-0659
(606) 677-2741
Hon. Cecil R. Watkins
Rowan County Attorney
600 West Main Street
Morehead, Kentucky 40351
(606) 784-4640
Hon. Claire E. Parsons
Adams Stepner Woltermann & Dusing, PLLC
40 West Pike Street
P. O. Box 861
Covington, Kentucky 41012-0861
(859) 394-6200
Stoll Keenon Ogden, PLLC
300 West Vine Street Suite 2100
Lexington, Kentucky 40507
(859) 231-3000
Hon. David Earl Fleenor
Stoll Keenon Ogden, PLLC
300 West Vine Street Suite 2100
Lexington, Kentucky 40507
(859) 231-3087
Hon. Michael R. Campbell Campbell, Rogers & Hill, PLLC
154 Flemingsburg Road
Morehead, Kentucky 40351
(606) 783-1012
Hon. Michael B. Fox
Fox Law Office
185 Tom T. Hall Boulevard
P. O. Box 1450
Olive Hill, Kentucky 41164-1450
(606) 286-5351
Hon. Richard A. Hughes
P. O. Box 1139
Ashland, Kentucky 41105
(606) 325-3399
Hon. Sebastian M. Joy
Joy Law Office
2710 Louisa Street
P. O. Box 411
Catlettsburg, Kentucky 41129
(606) 739-4569
Hon. Andy Markelonis
2706 Louisa Street
P. O. Box 464
Catlettsburg, Kentucky
(606) 739-8616 41129
Hon. Jeremy L. Clark
2706 Louisa Street
P. O. Box 532
Catlettsburg, Kentucky (606) 739-6774 41129
#63. To: nolu chan, CZ82, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#62)
The issuing deputy has fully complied with Judge Bunning's order by issuing a purported license which states that it is issued pursuant to a federal court order by the city of Morehead, Kentucky.
#64. To: SOSO (#63)
At battle of jurisdiction? I am betting the Fed will win and that when all is said and done the licenses issued by the Deputies are legal.
#65. To: SOSO, CZ82, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#63)
At battle of jurisdiction? I am betting the Fed will win and that when all is said and done the licenses issued by the Deputies are legal.
MR. CHRISTMAN: -- and in this case, all of those alternatives being made available and presented with a party in this case, including Governor Beshear and Commissioner Onkst who are ready, equipped, and available to make these alternatives available because it's a license -- it's a Kentucky marriage license that's requiring Kim Davis personally to authorize that license and affix her name on it.
THE COURT: … The defendant argues that it's not a situation to where contempt is warranted because less intrusive alternatives are available.
1 While the Status Report reflects that Plaintiff's marriage licenses have been altered so thai "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.
#66. To: nolu chan (#65)
#67. To: nolu chan, SOSO, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#65)
There is no battle of jurisdiction. The State has jurisdiction over who can issue marriage licenses and what they must contain. In interpreting the State statute, the highest court of the State has the final say. If state law says it must bear the name of the County Clerk, there is no Federal authority to overrule that. If state law says that licenses in Rowan County must be issued under the authority of the Rowan County Clerk, it is not up to the Federal government to authorize the city of Morehead to authorize licenses.
#68. To: CZ82, nolu chan, SOSO, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, GrandIsland (#67)
the Feds saying homo marriage is now the law of the land
#69. To: buckeroo (#68)
(Edited)
#70. To: Vicomte13 (#69)
So, if a state, or county, decides to stop issuing marriage licenses, what are they doing?
#71. To: Vicomte13, Y'ALL (#69)
(Edited)
the Supreme Court has ruled that non-discrimination in marriage is the constitutional law of the land. Therefore, it is. It doesn't matter that many think that decision has no founding in "original intent". The "original intent" of the Constitution is not, in fact, the Supreme Law of the Land. It's a minority ideological position. What the Supreme Court says the Constitution is, is what the Constitution is, in our system.
#72. To: buckeroo (#70)
That isn't what happened. Kim Davis took it upon her own bias and prejudice to make that judgement call.
#73. To: tpaine (#71)
The above screed is a 'minority ideological position'
#74. To: nolu chan, CZ82, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#65)
In interpreting the State statute, the highest court of the State has the final say. If state law says it must bear the name of the County Clerk, there is no Federal authority to overrule that.
#75. To: SOSO (#74)
the Governor and State AG are on record saying that the licenses are valid.
#76. To: Pinguinite (#75)
But in the end, if the documents are recognized as valid in spite of not complying with the written, lawful KY statutes, then it will be just one more example of laws being ignored, and how practicality/expediency rules the day.
#77. To: Vicomte13 (#76)
#78. To: Vicomte13 (#73)
I presented the law of the land as it in fact exists.
You wrote a minority screed. Fight on, brave warrior.
#79. To: Pinguinite (#77)
The issue I'm addressing is not gay marriage validity, but marriage license validity.
#80. To: tpaine (#78)
No, you presented a SCOTUS opinion as if it were the law of the land.
#81. To: Vicomte13 (#80)
The decisions of the US Supreme Court ARE the Constitution, and they are the Supreme Law of the Land. The final arbiter of the Constitution is the Supreme Court, and what it says is the final word.
#82. To: Pinguinite (#75)
But in the end, if the documents are recognized as valid in spite of not complying with the written, lawful KY statutes, then it will be just one more example of laws being ignored, and how practicality/expediency rules the day.
#83. To: Vicomte13 (#80)
I presented the law of the land as it in fact exists.
You wrote a minority screed. Fight on, brave warrior.
The decisions of the US Supreme Court ARE the Constitution, and they are the Supreme Law of the Land. The final arbiter of the Constitution is the Supreme Court, and what it says is the final word. --- That's the way it really is. Perhaps it was not intended to be that way.
But the way that it is "intended to be" is decided by the Supreme Court, and they say it is. So in the real world, it is.
This cannot be changed THROUGH the Constitution.
#84. To: Vicomte13 (#80)
I presented the law of the land as it in fact exists.
You wrote a minority screed. Fight on, brave warrior.
The decisions of the US Supreme Court ARE the Constitution, and they are the Supreme Law of the Land. The final arbiter of the Constitution is the Supreme Court, and what it says is the final word. --- That's the way it really is. Perhaps it was not intended to be that way.
But the way that it is "intended to be" is decided by the Supreme Court, and they say it is. So in the real world, it is.
This cannot be changed THROUGH the Constitution.
#85. To: SOSO, CZ82, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#74)
Sounds like the Fed won that jurisdictional battle to me.
In the mean time a Fed judge did exactly say who can issue marriage licenses in that County in KY and the Governor and State AG are on record saying that the licenses are valid. Go figure.
THE COURT:... Is Governor Beshear -- can he do this by executive order?
"If there are any minor changes needed to clarify the language of statutes, any such changes can be made in the 2016 legislative session in January," he [Governor Beshear] said.
MR. CHRISTMAN: ... If the Judge -- if this Court decides that it's going to find somebody else to issue a license, then --
THE COURT: Okay. Thank you. So setting aside for the moment the discussion of whether or not, without the authority of the clerk, you have the ability to issue those marriage licenses, I mean, would you or are you willing to comply with the Court's order requiring you to issue marriage licenses to the plaintiffs in this case or any other individuals who are legally eligible to marry in Kentucky?
Okay. Here's what we're going to do. Now, there has been an issue raised about the validity of a marriage license issued that does not have the authorization of Ms. Davis under Rule -- I'm sorry -- KRS 402.
#86. To: Vicomte13 (#76)
The Supreme Court is in fact the final arbiter of what the Constitution IS
#87. To: tpaine (#84)
#88. To: nolu chan (#85)
(Edited)
It does not have the authorization of Ms. Davis, and the Judge is not saying it is valid. He has not looked into that point, if he is to be believed. As long as they churn out a piece of paper, he is happy.
#89. To: nolu chan (#85)
It does not have the authorization of Ms. Davis, and the Judge is not saying it is valid. He has not looked into that point, if he is to be believed. As long as they churn out a piece of paper, he is happy.
#90. To: Vicomte13 (#88)
#91. To: nolu chan, CZ82, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#85)
It is not a jurisdictional battle. All that has happened in a preliminary injunction has been issued barring Kim Davis from enforcing her "no marriage licenses" policy, and Kim Davis was held in civil contempt for her defiance of the judge's order.
#92. To: Pinguinite (#90)
While very unlikely, if KY were to modify its law to eliminate marriage licenses in the state, the fed judges order would be null and void.
#93. To: Pinguinite (#90)
(Edited)
You have mentioned several times in your post that marriage is a "Constitutional Right". It may be viewed as nit-picking but I don't think it is, to point out that it's not a Constitutional Right.
#94. To: tpaine (#84)
This is why I doubt your legal credentials.
#95. To: tpaine (#84)
#96. To: SOSO, CZ82, Vicomte13, Too Conservative, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#91)
We'll see. In the mean time I am still betting that the Deputy issued licenses are vaild and will not be vacated.
#97. To: Vicomte13 (#93)
In the 1967 case Loving v. Virginia, the Chief Justice of the United States, in the majority opinion, wrote::" The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men ...
.
.
.
[Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Mail] [Sign-in] [Setup] [Help] [Register]