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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: 13121
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
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#66. To: nolu chan (#65)
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.
The plain words of the document are clear. No 'perhaps' about it, -- all three branches, and we the people, are the 'final arbiters'. It was intended that way. Laughable reasoning. This is why I doubt your legal credentials. There you go again, with the assumption that you're a good lawyer. Questionable reasoning. Yep, that's the issue. Opinions by our various levels of courts are NOT decrees. - - They are not the 'law of the land'. You have a very 'liberal law school' view of reality. -- And your weird comment about me as a rapper and poet is just bizarro.
They're valid, and they will be so treated. The Constitution has changed, and KY's structures are not configured to meet the change. So for a time federal equity will supply a procedure, and eventually KY will catch up. In the meantime, those licenses issued under the interim decision are legal...because Constitution.
Tell it to the Supreme Court. "Sola Scriptura" constitutional theory is very interesting as a debating point. It's not the law of the land, it never has been the law of the land, and it never will be the law of this land. The Supreme Court in Loving ruled that states cannot block interracial couples from marrying because marriage is a right. The Supreme Court has done the same thing in the gay marriage case. And in Rowan County, KY, a the federal courts have compelled a clerk to issue marriage licenses (and both the circuit court and the Supreme Court have denied appeals). Marriage is obviously a constitutional right. Playing games with language is fun in moot court. In real court, you burn up money and pay sanctions getting slapped down playing games like that.
I am a pragmatic man. I look at my paycheck. Yeah, I'm a pretty good lawyer.
Look up "Common Law".
Okay, Tee, we cool, we cool. If T. Paine wanna go incognito, he go incognito.
I hesitate to spend more time on a somewhat trivial discussion, but have less to do today, and also found interesting your definitive comment that: So I looked it up and wikipedia has these comments, along with an excerpt from the actual USSC opinion in the case (emphasis added): (en.wikipedia.org/wiki/Loving_v._Virginia) So it seems Warren's comment above affirms my position that marriage is NOT a Constitutional Right, that the Loving case, as with the recent case involving gay marriage, was based not on marriage as a "Constitutional Right" but based instead on the 14th Amendment's requirement of laws applying equally to all. That marriage is a natural right and/or a basic civil right is something I agree with. But it's just not a "Constitutional Right". I would expect that if marriage was indeed a "Constitutional Right" found in the US Constitution, that marriage licenses would be fall within the responsibilities of the US government. (Then again, if it were a "Constitutional Right" per se then a "license" to do it would not be constitutional either, just as a "Free Speech License" would not be constitutional, but I digress). I contend you've not offered any logical or factual basis to support your position, but if you are firmly attached to it, that's fine by me.
Angels dancing on the head of a pin. When the Supreme Court says, in 15 separate opinions spanning nearly 150 years, that marriage is a fundamental right protected by the 14th Amendment to the Constitution, that is a constitutional right. That's what a constitutional right IS, that's what it looks like on paper. You have it in your mind that the "Constitution" is limited to exclusively what is written on the paper. If I were a betting man, I would bet that you're a Protestant Christian in the Calvinist tradition (Baptist, Presbyterian, Congregationalist, et al), and a firm believer in Sola Scriptura, rejecting all extra-Biblical tradition as having no authority whatever. You are applying your religious tradition - (which is the minoritarian view in Christianity - 80% of Christians are Catholics and Orthodox, and they believe that the written word is part of the tradition of the Church, and that the rest of the tradition, the oral tradition, is of equal authority - that it is all inspired by God; Jews also are traditionalists in this sense - TaNaKh PLUS Talmud, not just Torah) - to American law. In American law, what you espouse is a form of strict constructionism, whereby "constitutional" means exclusively what is written on the four corners of the Constitution, as amended. This is a minority view. The majority view is that "constitutional" means the written Constitution itself, as amended, and all authoritative decisions of the federal courts (and specifically the Supreme Court) that delineate what the written words mean, and that apply that meaning to factual situations. Using religious terms, the four-corners strict constitutional constructionist is a strict Sola Scripturalist. The constitutional traditionalist is a Catholic (or a Jew). 6 of the Supreme Court Justices are Catholics. 3 are Jews. I am firmly attached to the business of predicting what the courts will DO, based on what they already HAVE done, so many times. By understanding how the courts think, and knowing what they have done and probably will do, I can safely advise clients as to the course they should take to stay out of trouble. And I know that the courts think that marriage is a constitutional right. You are firmly attached to a minoritarian view that strictly limits what the Constitution is and means. This view probably comes out of your religious tradition, and parallels it, simply substituting "Constitution" in the civic sense for "Holy Bible" in the religious sense. It's fine by me that you believe that, and are firmly attached to it. But what that means in the real world is that in a discussion of what will happen, I will almost always be right about what the courts are going to do, and can therefore plan to deal with that emerging reality, while you will almost always be wrong about what the courts are going to do, because they simply do not think or behave the way you believe they ought to. They do not share your civic or sacred religion, and they don't look at written documents the way you do. And they never will.
Horsepucky. The Court did not supply any procedure. The Deputy Clerk's made up a form that said they were issuing the license pursuant to federal court order, and not mentioning the Rowan County Clerk by name, or her authority by inference. SCOTUS can strike down state law, but it cannot write any law, state or federal. It can rule that a law is null and void, but it cannot replace the law. That is done by the applicable legislature. Because, the Constitution.
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#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 ...
#98. To: Vicomte13 (#94)
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.
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.
#99. To: nolu chan (#96)
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.
#100. To: Pinguinite (#97)
(Edited)
In order to be a Constitutional Right, it needs to be expressed in the Constitution, and it's not.
#101. To: tpaine (#98)
There you go again, with the assumption that you're a good lawyer. Questionable reasoning.
#102. To: tpaine (#98)
Opinions by our various levels of courts are NOT decrees. - - They are not the 'law of the land'.
#103. To: tpaine (#98)
And your weird comment about me as a rapper and poet is just bizarro.
#104. To: Vicomte13 (#100)
(Edited)
The Supreme Court in Loving ruled that states cannot block interracial couples from marrying because marriage is a right.
Chief Justice Earl Warren's opinion for the unanimous court held that:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... 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. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
#105. To: Pinguinite (#104)
(Edited)
I contend you've not offered any logical or factual basis to support your position, but if you are firmly attached to it, that's fine by me.
#106. To: Vicomte13 (#99)
They're valid, and they will be so treated. The Constitution has changed, and KY's structures are not configured to meet the change. So for a time federal equity will supply a procedure, and eventually KY will catch up.
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