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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: 12240
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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#1. To: Too Conservative, SOSO, redleghunter, Vicomte13, A K A Stone, Pinguinite, Liberator (#0)
Ping. Note: page numbers at bottom start on page 2 with the number 1 and are thus out by one throughout. The page numbers at the top of each page appear correct.
I believe you pointed this out several times and the naysayers were numerous. You have clearance to proclaim: "see I told you so.":) To Him who loved us and washed us from our sins in His own blood, and has made us kings and priests to His God and Father, to Him be glory and dominion forever and ever. Amen.---Revelation 1:5b-6
Meh. Davis is saying the judge has no authority to grant an expansion as a district court judge. This may be true. Davis then asserts that since the original 4 couples have all had their chance to get married in her absence, there are no longer any reasons to allow the expansion of the class of plaintiffs. The Sixth Circuit may find that Bunning did overstep in expanding the class. Or they might not as it is only based on precedent, not legislated law. It can easily be anticipated that even with the 4 original couples married that many other couples will want a Rowan county license in the meantime as this office processes hundreds (or thousands) of marriage licenses per year. So the Sixth Circuit may allow that Bunning overstepped but then uphold his solution because the Sixth Circuit does have the authority to expand the class of plaintiffs which Davis asserts that Bunning lacks. Davis is seeking permission from the Sixth Circuit to stop issuing licenses again as she continues her attempts at appeals in higher courts, something that could take years, given the glacial pace of the court system in the modern era. To grant Davis her wish, the courts will have to agree to let her stop issuing Rowan county licenses for months or years as she works her way through appeals in the courts. I just don't see that happening.
Davis is just a rabble rouser looking for self glory about nothing. She is a officer of the county and must follow the laws not her recent "religious convictions."
The case turns, and fails, on footnote 1. Yes, Davis filed appeals, but the appeals were frivolous. Gay marriage is a constitutional right, and Davis' actions, including the appeal, were (and are) an invidious attempt to prevent people from exercising their constitutional rights. Her lawyers claim that there were substantial arguments in her brief against the injunction, but as a matter of legal fact those arguments are not (or will be found not to be) substantial: she is simply seeking to evade doing her constitutional duty, and to delay doing it as long as possible. The Supreme Court refused to hear her case, and the Sixth Circuit may grant her a hearing, but will then move to rapidly dispose of it. Marriage is within the sphere of privacy that IS a right, and the Supreme Court has found even gay marriage to be a constitutional right. It is stare decisis. Therefore, Davis has no basis whatever on which to continue to resist decided law EITHER by refusing to issue licenses to gays, or by depriving EVERYBODY of their right to marry by refusing to issue any licenses at all. The notion that people can just "go to the next town" is not valid for constitutional rights. Blacks could just "go to the next hotel", or the next restaurant or store, but the whole point of the Court decisions, then and now, is to compel EVERYBODY who faces people in government or in commerce to respect the constitutional rights in question of everybody else. The Sixth Circuit is not going to permit any delay, and is not going to give her a long hearing. They're going to slap her down and uphold the injunctive relief granted by the judge. Nor will the Sixth Circuit permit Davis and her lawyers to play the delaying game. It will be very much as it was with the birthers: the courts are not interested in the argument. And in this case the Supreme Court has decided that gay marriage is a constitutional right. Most of the judiciary agrees. The Sixth Circuit is not going to allow itself to become a vehicle by which individual officials assert what amounts to a right of rebellion against provisions of the Constitution they do not like. And it isn't going to permit things to dissolve into a circus either. The Supreme Court has spoken, twice - first in the gay marriage decision, and second in their refusal to hear Davis' case when she first brought it to them. The District Judge already resorted to jailing for contempt, and a work-around has been found for this rebellious official. She has no case on the merits of her actions: they are unconstitutional, and the Sixth isn't going to let itself be harnessed up so that she can play a delaying game to thwart the Supreme Court. She can file briefs, but the Courts will swiftly dispose of them. In the end, she loses in the American Court system,. You cannot stand against a recent constitutuonal decision and win, especially not a popular one.
So is the free exercise of religion. A first amendment right, not a "right" created out of thin air by the court. Are you saying that gay marriage is a constitutional right which trumps all other rights?
Where rights butt up against rights, the courts decide where the line falls. The Supreme Court has decided that marriage is a right, and that gay marriage falls within that right. Nobody is disputing Ms. Davis' right to be a Christian. However, with all rights there are time place and manner restrictions. Gays cannot come into an elementary school and marry in the kids' lunchroom, and a married couple cannot carry out their right to conjugal relations on a table in the public library. The right to keep and bear arms does not extend so far as to permit concealed carry during a tourist tour of the White House. Where rights confront rights, there is a line drawing exercise, and the courts draw those lines. No right can ever be absolute, because the whole government will go to pieces over that right if it were. Example: free speech is important, but it does not extend so far as to permit generals to publish national weapons secrets. Ms. Davis can practice her religion. But she cannot practice it in a way that acts as a bar to people obtaining a marriage license from the state. People have the right to marry, and the state has to issue them the licenses. if an agent of the state has such misgivings about that because of her religion that she cannot do it, then she has to find another job. She cannot establish her religion as a barrier to people exercising their rights through a government agency. A comparable case: Jains are vegetarians. Meat inspectors are veterinarians. A Jain veterinarian becomes a meat inspector for the USDA, and then uses his authority as a government agency to systematically shut down every slaughterhouse as unsanitary, using his religious definition of unsanitary. He is doing his job, and he is exercising his religion. And in the process he is destroying a major industry. Freedom of religion does not go so far as to permit public officeholders to enforce their religious standards on others through their discretionary powers. If they do, the line needs to be drawn. The Supreme Court drew one line: marriage, including gay marriage, is a right. A local official exercised her right os religious freedom. An a district court drew the line and said that no, as a county clerk charged with issuing licenses to do something that is a constitutional right, your religious freedom does not go so far as to permit you to deny everybody their rights to exercise their rights. The court drew the line, so that's where the line is. She did not accept the line, broke the law by defying the court, and went to jail. Another example: equality before the law is a constitutional right. So is the right to conduct private business. Can private businesses decide to exclude unruly patrons? Yes. Can private businesses decide to exclude unruly patrons who are black? Yes. Can private businesses decide preemptively to exclude ALL blacks, because they might become unruly, or because the owner does not like blacks? No. The blacks have the right to have access to things that are in the stream of commerce. People have loudly and bitterly complained otherwise. They are wrong. The lines where rights rub up against each other are set by the Supreme Court and the federal courts beneath the Supremes. One can dislike it as much as one wishes, but that IS the constitutional law, that IS the system. If people find that intolerable, they should either build up a sufficient political momentum to change it, or they should emigrate. Or, if they have sufficient numbers, I suppose they could stage a revolution. That would be illegal, but if a revolution is successful, the victors write new laws. The problem with revolutions is that they usually fail, because they usually come from angry minorities who then get squashed. Most Americans agree with the Supreme Court on gay marriage - that is what the opinion polls show now. We see with Davis and others where the line is drawn. When people test the line, it will be drawn brighter. People are not going to actually rebel over this, therefore, the hard, firm answer is that until the revolution, the hard, firm line between where religious liberty ends and rights to service begin is where the court draws it, and nowhere else.
You make this distinction. The American system does not make any such distinction. In fact, the Supreme Court would say that it hasn't made anything up. It has, rather, taken a right that is there in the Constitution and made it CLEAR. And where we agree with the outcome, we say that the Supreme Court is right. Where we don't, we grouse of an imperial judiciary.
Would you say that a woman who is sexually harassed at work has to find another job if that bothers her? Don't men have a right to free speech? "But she cannot practice it in a way that acts as a bar to people obtaining a marriage license from the state." Pffft! There are plenty of other marriage license bureaus in the state which will issue a marriage license to perverts. Besides, a number of the perverts who applied were not even from her county, but went there to force her to violate her religious beliefs.
Yep. That "right" has been sitting there in the U.S. Constitution for almost 150 years and no one ever saw it. It took this extraordinary, learned court to find it and merely clarify it, right? And now "gay rights" are federally protected from hate crimes, hate speech and discrimination, and those "rights" also trump all others in the U.S. Constitution. Wow! Those justices
Bullshit you liberal. Tell the slaves to get back to work. Dred Scott sais they were slavew and have to worik. Don't go kiilling no slave masters. The government says jump. Then you support faggots pretending. You are for Sodom and Gomorran and Gonohrea.
Marriage is a religious practice, and our various levels of govts have tried to codify this practice for political reasons. SCOTUS has given us it's opinion. Let them try to enforce it. Under Article VI, every official is bound to honor all laws made in "pursuance thereof". ---- 'Laws' made about marriage are arguably NOT made in pursuance of constitutional principles. ---- Thus, Davis has basis to object, at her own peril.
You agenda posters are a hoot. Hypocritical hoots. In this case, you insist on Davis following the law, even if she disagrees and you want her head if she tries to fulfill her government thug job with personal conviction... but if it's a cop honoring his oath by enforcing DRUG LAWS, you think the cop should buck the laws, his policy and his superiors by not doing his job because YOU would like the officer to enforce with YOUR personal convictions. Each and every one of you agenda posting liberal drug loving libtards absoloutly disgust me with your hypocrisy I'm the infidel... Allah warned you about. كافر المسلح
She's a goddamned government bureaucrat, governed by laws to do her fucked-upped job just as goddamned cops are supposed to do their respective jobs; but government bureaucrats are always making up their rules of enforcement, beyond the law; we call their braind of work: the colour of law. Why? They have a self-centerd GAWD complex to enforce THEIR laws.
Tokyo Rose could not have said that any better. To Him who loved us and washed us from our sins in His own blood, and has made us kings and priests to His God and Father, to Him be glory and dominion forever and ever. Amen.---Revelation 1:5b-6
She just became a "jesus freak." She doesn't even know what a Bible is, just yet. If she did, she would be sacrificing her first born.
What a bozo comment.
To Him who loved us and washed us from our sins in His own blood, and has made us kings and priests to His God and Father, to Him be glory and dominion forever and ever. Amen.---Revelation 1:5b-6
Truth hurts, doesn't it? She just became the "County Clerk" too. So, she has only recently imposed her "RULES OF LAW" on her local applicants.
I did not know you lived in her county and required a marriage certificate.
To Him who loved us and washed us from our sins in His own blood, and has made us kings and priests to His God and Father, to Him be glory and dominion forever and ever. Amen.---Revelation 1:5b-6
Good. Because I do not live in "her" county and do not require a marrige certificate. But, she is duty bound to uphold the laws of the county (not "her" county) and state and the federal government. She is NOT to impose "her" laws, rules or regulations or religious beliefs. She should QUIT her job if she finds conflict about receiving a paycheck from the county and the laws she is sworn to uphold.
When Bucky and Pete wanna marry, they want the pathway cleared prior to travel. Meguro would be really pissed at this lady too. Even tho Meguro was banished to pickle smooching Hell, there are still quite a few liberal Commie Sanders fag lovers here. I'm the infidel... Allah warned you about. كافر المسلح
Oh for God's sake Stone, take a Stresstab. I AM NOT THE SUPREME COURT. I AM NOT THE SIXTH CIRCUIT. MY will does not run this country. I AM a very experienced lawyer. I am telling you all how it IS, not how I wish it to be. You guys remind me of the French general staff before World War II. They HAD an officer, heavily decorated in World War I, who preached combined arms, air and armor, don't build forts, build maneuvering elements, massed tanks to breakthrough and exploit into the enemy's rear, supported by tactical airpower - what would come to be called the "blitzkrieg". He wrote the book on it. The Germans BOUGHT the book, thousands of copies. Hitler read the book, and he gave it to his generals, and THEY read the book, and trained to it. The "blitzkrieg" was not developed by the Germans, it was conceived and mapped out by a French war hero named Charles de Gaulle. The French didn't just ignore de Gaulle, the Army went after him to scotch his career. He had two Medals of Honor equivalents from World War I - a real hero, a real genius, but he was telling things they didn't want to hear, so they kept him a Colonel until the last minute, then made him a General and ignored him. and vilified him even as their country went to pieces. I'm de Gaulle here, TELLING YOU GUYS how it IS. It ISN'T how ANY of us would like it to be. The situation is absolutely shitty. But it IS what it is, and pretending it isn't, or that some voodoo right wing read of the Constitution is going to rise like an angel from the 25% and win the day is ridiculous. Davis has appealed. She is not going to WIN the appeal, and she is not going to successfully delay anything. This gay movement is not going to be stopped by casting constitutional spells - the Constitution does not EXIST, except as ideas in people's minds, and the majority of people ARE NOT strict constructionists. The majority of the judges MOST CERTAINLY are not. It's one thing to wish that things weren't as they are, but it's another thing to try to catch a falling knife. Davis has lost. She cannot possibly win in this America with these judges believing as they do, and with the whole apparatus of police, marshals, Army, Congress and President arrayed in a certain belief set. She is the French Army and it is 1940. No amount of twisting and turning and screaming at the staff is going to un-lose the battle. And I'm your General de Gaulle TELLING YOU HOW IT IS, and I've BEEN telling people how it is for a long time. The French kept him out of power, and the British kept Churchill out of power, and they lost or damn near lost their country for doing it. Screaming at me is stupid. I am not advocating for homosexuality. I am TELLING YOU how the game is going to play out. If you want to write fairy tales about how some mystery Constitution is going to rise up with legions of angels wearing tricorn hats and SAVE America, write away. In the real world, Davis is toast and her argument will be a complete rout. She will win nothing, and she will either comply, step aside and let others do it, or she will go to jail. If I could raise my hand and make lots of people I disagree with disappear, I would probably do it,. But I can't. And neither can anybody else on the right. And the REASON is that we have allied ourselves with schmucks and compromised with people who were greedy and had their own self-interest at heart, and who were NEVER on our side. That has been visible for a long time. And people like you have been shooting messengers like me for a long time. YOU and your ilk have bought us this disaster. I've been screaming the truth for a long time, and getting shot at by guys like you. Well, I'm STILL telling you the truth. I'm telling you WHY you are losing, and WHY you are going to keep losing. The Constitution doesn't HAVE a guardian angel, and God is not going to rescue it. Only men have angels, and shooting at your own allies, like you just did, is what has already lost you your country. There is actually a path to VICTORY. But it never leads through the valley of self-deceit. If you're screaming at me as a sodomite, then you have lost your mind. You are wrong in every sense. You should be silent, sit down, and listen to the truth. As it is, you're like a Taliban dead- ender charging the guns. You don't like sodomite marriage (and neither do I), but NOBODY THE FUCK CARES what we don't like. And the CONSTITUTION DOES NOT EXIST as a force in our arsenal. We are very much the weaker side. The other aide has the government, the army, the court, the media and the money. All we've got is GOD, and that IS enough, but ONLY if we actually OBEY HIS COMMANDMENTS. And going off on a hotheaded rant against you own allies, who are telling you the TRUTH is just about as far from God as you can get. It's why you lose. Attacking me is why you lose. Attacking people like me is why you lose. I am on your side, but I am smart, and I don't go berserk and charge the guns. Remember that "be as subtle as serpents" part? Jesus said that. That is me, the subtle serpent ion your side. If you squash me, the Devil squashes you. You need to stop screaming in anger at your own allies and listen. You're the French General staff. I'm de Gaulle. It's 1i936. I can tell you what to do to win, but you have to LISTEN, and stop screaming your head off.
Finally, a realist @LF presents an accurate picture of reality.
If the argument in the instant appeal is accurate: Davis' argument is, in part: 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. If the argument is valid, the Expanded Injunction was a nullity, issued without jurisdiction. Every action taken pursuant to the nullity lacked jurisdiction and was a nullity. Below is the transcript of the hearing debate of this issue in relevant part, transcript pp 8-19, PDF pp 71-82. [8] [...] Okay. We have several motions that are pending. The motion that we're here to decide is Docket 67, the motion to hold Ms. Davis in contempt. There was a response filed yesterday. There was also a motion filed on Tuesday. - - - - - [9] Today's the 3rd, right, Madam Clerk? Is that right? DEPUTY CLERK: Yes, Your Honor. THE COURT: Okay. Tuesday of this week, a motion pursuant to Rule 62(c) of the Federal Rules of Civil Procedure to clarify the preliminary injunction pending appeal. And then just yesterday there was a motion filed by defendant, Davis for an injunction pending appeal, as well as a motion by Senate President Robert Stivers, which I've mentioned earlier, for leave to file a brief as an amicus. Mr. Gannam, Mr. Christman, I know you had indicated in your response in a footnote -- I think it's footnote 2 to Docket 72, that you want to file a written response to the motion filed by plaintiffs on Tuesday. We're here today. The case wasn't noticed for that hearing. However, I think it makes sense to take that motion up today. So whatever you would file in a written response, I'm going to go ahead and let you be heard on that today. One other thing I want to mention, there was a footnote -- I think it's also in that same response -- where you objected to the page limitation. - - - - - [10] I'm not going to hold you to the page limitation. I'm not just going to consider the first five pages. You filed seven pages in your response. They filed seven pages in their motion. I'm considering the seven pages of the motion, as well as the seven pages of your response. So your objection as it relates to the length of the pages is sustained. So I know you had objected formally to that, but I read through that, and I just want to make sure that you appreciate I'm going to consider your entire response. And I have read your response. And it was just filed yesterday. There's been a lot of paperwork filed in a very short amount of time, and we have been meeting, I don't want to say around the clerk, as some of us have to have a little bit of sleep, but we have been trying to prepare for this hearing as best we can. So I want to go ahead and hear you from now on Docket 6 I think it's 68, which, in essence, for everyone in attendance, as you know, procedurally, the Court granted the plaintiffs' motion for the preliminary injunction back on August 12th, enjoining Ms. Davis from applying her "no marriage licenses" policy to future marriage licenses requested by the - - - - - [11] plaintiffs in this case. The motion itself seeks to clarify pursuant to Rule 62(c) of the Federal Rules of Civil Procedure, to have that injunction include any future marriage license requests submitted by plaintiffs or any other individuals who are legally eligible to marry. That was filed on the 1st. There are a couple of companion cases, 46 and I think 4 9? 51? I can't remember the numbers, but there are three cases now pending with various plaintiffs. You represent the defendant on all those other cases; do you not, Mr. Gannam? MR GANNAM: We do, Your Honor. THE COURT: Okay. So I want to just let you -- I want to give you a chance to be heard, and then I'll give you a chance, Mr. Sharp. Because I want to take up this issue, and then we'll move on to the contempt issue. MR. GANNAM: Thank you, Your Honor. We object to proceeding on the motion to clarify or modify the injunction that's already been issued. First of all, just because of the timing. This hearing was called quickly. That motion was filed, and we simply haven't had adequate time to prepare - - - - - [12] to -- to argue against that motion. THE COURT: Well, I've had very little time to prepare myself, so I'm -- the issues are the same. All the issues you've raised in 1544, the defenses that your client has raised, the responses, I'm sure, would all be the same. It's the same issue for each case. If I were to -- for instance, if the order only applies to the four plaintiffs -- I guess eight plaintiffs in this case -- it would be -- it would not be a violation perhaps of the Court's order dated 8-12-2015, if your client, or any of the deputies, did not issue a marriage license to anyone eligible to marry who aren't these plaintiffs because that's not covered under the order. Would you agree with that? MR. GANNAM: I agree that would not be a violation of the order, yes, Your Honor. THE COURT: Okay. So why would there be -- why should I parse this out? And I realize from the very beginning, and you have in your written pleadings, seemed to take issue with the Court's attempt to try to expeditiously take up its docket in this case. Why doesn't it make sense to consider all of the cases together, at least as it relates to the other plaintiffs who would be eligible to marry? - - - - - [13] MR. GANNAM: Your Honor, first of all, the -- THE COURT: Well, your objection to not taking it up today will be overruled because I really want to hear you on this. MR. GANNAM: The plaintiffs moved for preliminary injunctive relief against -- with respect to themselves only. They have -- THE COURT: I understand that. MR. GANNAM: And the -- THE COURT: At that time, I think they were the only plaintiffs that had been potentially identified. MR. GANNAM: They have a -- a pending motion for class certification -- THE COURT: That I stayed. MR. GANNAM: -- which has been stayed. They're essentially seeking a class-wide -- THE COURT: I don't think -- I'm not going to certify a statewide class. I'm -- I'm interested in the Rowan County Clerk because she's a defendant in all three of the cases that have been filed on my docket here in Ashland. MR. GANNAM: Well, their class that they've alleged is the class consisting of Rowan County residents. And so to grant the injunction, it would - - - - - [14] apply to all Rowan County residents would essentially be granting a class-wide injunction based on the facts that they've alleged here. THE COURT: Well, why shouldn't -- wouldn't it seem rather odd to only have an injunction that applies to four couples versus -- if you had John Doe and someone other than John Doe who would be eligible to marry Jane Roe, or what have you, same-sex, opposite-sex, why wouldn't they -- doesn't it seem a little bit unusual to have an order that would apply to some, but not others? MR. GANNAM: Your Honor, that's the motion that the plaintiffs filed. THE COURT: I understand, but they're not seeking to amend that. MR. GANNAM: And, Your Honor, our objection is not only on the timing, but also as to the fact that the prior order is on appeal. And what they're essentially seeking to do is to change that order and to do something else, to expand it. And this Court does not have jurisdiction to -- to do anything with respect to that prior injunction while it's on appeal, so this would have been treated as a new injunction. THE COURT: Would you prefer that I order that my 8-12-2015 order, change the caption and just - - - - - [15] enter a preliminary injunction as it relates to those plaintiffs without -- it's not my intention to do that, but the issues are exactly -- well, seem to be fairly consistent throughout the three cases, this one and the two companion cases. MR. GANNAM: Well, the difference, Your Honor, is in the plaintiffs' case, they could each allege and put on evidence as to their eligibility to marry, for example. THE COURT: And I think they have done that. MR. GANNAM: Whereas they're now seeking to expand an injunction to cover unnamed members of the putative class-- THE COURT: Who would otherwise be eligible to marry. MR. GANNAM: But we have -- unless it's a class-wide injunction, they're essentially asserting rights that haven't been established yet in this court. THE COURT: Okay. All right. What's your response? MR. SHARP: Your Honor, 62(c) specifically contemplates and authorizes this Court to modify the injunction while an interlocutory appeal from the preliminary injunction ruling is pending. - - - - - [16] The Court is correct that it does retain jurisdiction to actually grant plaintiffs' motion. The Court is also correct insofar as the legal issues and the relevant facts regarding the disposition of plaintiffs' motion to modify or amend that preliminary injunction ruling are identical, not only as to the plaintiffs in this case, but to any other individuals who would otherwise be qualified to marry. We're not asking the Court to compel the Rowan County Clerk's office to issue marriage licenses on request, but rather upon certification that other legal requirements are met. As the Court's aware, prior to Obergefell, the Rowan County Clerk's office issued 99 marriage licenses this year, 214 last year. Obviously, we're talking about hundreds of people who are affected and are continuing to be denied marriage licenses because of the "no marriage license" policy. THE COURT: All right. A brief reply. MR. GANNAM: Your Honor, essentially, they're seeking to get relief that they didn't request in the original motion and -- THE COURT: I know. They're requesting it now. I recognize they did not request it in the original motion. - - - - - [17] GANNAM: And so it can't be a clarification or a modification of that prior order because it would be -- it would be an expansion of that prior order, which is -- which is improper while it's on appeal, so this must be treated as a new motion for preliminary injunction. And we would maintain our objection that it would be improper to proceed on that today with the -- the little notice that we've had and without the opportunity to -- to again, put on evidence as we deem necessary to establish our defense to it. THE COURT: All right. And I want to give you all an opportunity to be heard, to the extent you wish to be heard on this. Ms. Parsons? MS. PARSONS: The County has no position on this, Judge. THE COURT: All right. Mr. Watkins? MR. WATKINS: No, Judge. THE COURT: Mr. Vance? MR. VANCE: No, Your Honor. THE COURT: All right. I must apologize -- I'm -- you've cited Rule 62(c) in your motion. I may have an older version, and I have to apologize; I have a cataract, so my right eye is not as good as it could be. - - - - - [18] All right. Thank you. I did have an older version. All right. Over the plaintiffs' objection -- defendant's objection, I'm going to grant the motion, finding that the prior injunction be modified to reflect that it preliminarily enjoins Ms. Davis in her official capacity from applying her "no marriage license" policy to any future marriage license requests submitted by the named plaintiffs in this case, or -- and this is the modification -- or by any other individuals who are legally eligible to marry in the Commonwealth of Kentucky. And here's the order. We'll go ahead and enter the order. I have signed it dated today. Madam Clerk. Thank you. DEPUTY CLERK: Thank you, Your Honor. THE COURT: And I'll rely upon on Rule 62(c). MR. GANNAM: Your Honor, may I make a --- THE COURT: And your objection's overruled. MR. GANNAM: May I make a request for a certification for immediate appeal of this order? THE COURT: You can appeal that, yes. That's part of the appeal. We'll just include that as part of the appeal. Any objection to that? - - - - - [19] MR. SHARP: No objection, Your Honor. THE COURT: Okay. Very well. So you can include that. And I'm sure someone has already requested the transcript of this proceeding. And the Sixth Circuit can certainly decide if that's appropriate. I do find, in granting that relief that's requested at Docket 68, the Court finds that given the fact that it does have two companion cases that involve, in essence, the very same allegations with the same lawyers, it just makes judicial sense to have the Circuit review the decision for all three of them. I'm not granting a class certification motion. But I do believe that allowing the injunction as it currently exists to apply to some, but not others, simply doesn't make practical sense, so that's the Court's ruling. All right. Let me now turn to the actual merits of the matter that's before the Court. [...] Here is the cited Rule 62: (a) Automatic Stay; Exceptions for Injunctions, Receiverships, and Patent Accountings. Except as stated in this rule, no execution may issue on a judgment, nor may proceedings be taken to enforce it, until 14 days have passed after its entry. But unless the court orders otherwise, the following are not stayed after being entered, even if an appeal is taken: (1) an interlocutory or final judgment in an action for an injunction or a receivership; or (2) a judgment or order that directs an accounting in an action for patent infringement. (b) Stay Pending the Disposition of a Motion. On appropriate terms for the opposing party’s security, the court may stay the execution of a judgment—or any proceedings to enforce it—pending disposition of any of the following motions: (1) under Rule 50, for judgment as a matter of law; (2) under Rule 52(b), to amend the findings or for additional findings; (3) under Rule 59, for a new trial or to alter or amend a judgment; or (4) under Rule 60, for relief from a judgment or order. (c) Injunction Pending an Appeal. While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights. If the judgment appealed from is rendered by a statutory three-judge district court, the order must be made either: (1) by that court sitting in open session; or (2) by the assent of all its judges, as evidenced by their signatures. (d) Stay with Bond on Appeal. If an appeal is taken, the appellant may obtain a stay by supersedeas bond, except in an action described in Rule 62(a)(1) or (2). The bond may be given upon or after filing the notice of appeal or after obtaining the order allowing the appeal. The stay takes effect when the court approves the bond. (e) Stay Without Bond on an Appeal by the United States, Its Officers, or Its Agencies. The court must not require a bond, obligation, or other security from the appellant when granting a stay on an appeal by the United States, its officers, or its agencies or on an appeal directed by a department of the federal government. (f) Stay in Favor of a Judgment Debtor Under State Law. If a judgment is a lien on the judgment debtor’s property under the law of the state where the court is located, the judgment debtor is entitled to the same stay of execution the state court would give. (g) Appellate Court’s Power Not Limited. This rule does not limit the power of the appellate court or one of its judges or justices: (1) to stay proceedings—or suspend, modify, restore, or grant an injunction—while an appeal is pending; or (2) to issue an order to preserve the status quo or the effectiveness of the judgment to be entered. (h) Stay with Multiple Claims or Parties. A court may stay the enforcement of a final judgment entered under Rule 54(b) until it enters a later judgment or judgments, and may prescribe terms necessary to secure the benefit of the stayed judgment for the party in whose favor it was entered. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) In relevant part, "the court may... modify... an injunction on terms for bond or other terms that secure the opposing party’s rights. Modifying and expanding the injunction to cover the entire population of Rowan County does appear to secure any rights of any opposing party to the litigation. Does Rule 62(a) confer the authority claimed by Judge Bunning? Does the modification of the Injunction on appeal clarify its terms, or does the modification simply add the entire population of Rowan county, clarifying only the desire of Judge Bunning to add relief not previously sought. Due process is a right. If not followed, the offending Court may not get to sustain a ruling on the merits of a case. Strictly upon procedure, this may be like the case of Tom Brady's deflated balls. Upon Roger Goodell's violation of due process, the deflated balls belonged to Goodell. At the season opener, he was home playing with his deflated balls as the crowd chanted, "Where's Roger?"
Kim Davis has no "right" as an officer of the county government to impose her religious beliefs on anyone seeking lawful considerations within the duties she is bound to administer; the laws are not even in a contested situation so there is no ambiguity at all. She is going to lose her appeal with a BIG_SLAPDOWN; just watch and see. The county government can and will rescind any and all her authority as an officer for the county. In effect, she will be impeached or kicked out of office.
From Kim Davis' website, paid by the Rowan County taxpayers: Our office is here to serve the public in a friendly, professional and efficient manner. We are constantly striving to upgrade our services in order to better serve you. This website is our most recent attempt to better serve the people of Rowan county. Here you will find contact information, important forms and documents, land and legal records, and much more. Feel free to contact us via phone or fax during business hours, or use our convenient contact form and someone will get back to you as soon as possible. Thanks, So, she is a liar, a cheat and a thief. Moreover, she owes an apoligy to all citizens for her misconduct towards the People.
So if your neighbor would like your local police to kick your front door, with a no-knock search warrant, because your neighbor has noticed the unique smell of METH omitting from your house with hundreds of shady drug dealer like douche bags that stop over for a few minutes and leave... is that the "lawful consideration" the police should do for their communities they swore an oath for? I'm the infidel... Allah warned you about. كافر المسلح
Well, the cops would probably shoot and kill my dead dawg scruffy first. My mutt guards and defends my private property 24 hours a day; moreover, he is a US Presidential candidate.
It's one thing to wish that things weren't as they are, but it's another thing to try to catch a falling knife. Davis has lost. She cannot possibly win in this America with these judges believing as they do, and with the whole apparatus of police, marshals, Army, Congress and President arrayed in a certain belief set. She may win this appeal on due process, much as Tom Brady's win had nothing to do with the merits of the case. Of course, she will not "win" the supposed right to have her office not issue marriage licenses, a right nobody has asked for, and a blatant red herring. The court may be sent back to square one to start over again, but Rowan county will be made to issue marriage licenses. Kim Davis may win an accomodation, if such is reasonably available under Kentucky RFRA. Obergefell only requires that licenses be issued, it does not strike down any existing protection which calls for reasonable accomodation. Just as much of the Constitution is treated as a dead letter, the age of "do it or quit" is a dead letter under Title 7 and various RFRA laws. And RFRA applies to elected officials. The Court said: However, Judge Bunning may run into difficulty with the Kentucky RFRA which covers elected officials and provides, "The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest." The burden explicitly includes "indirect burdens." Quite obviously, Judge Bunning's definition of "being free to practice her Apostolic Christian beliefs" is not one shared by the sincerely held beliefs of Kim Davis. Judge Bunning appears to be skating on very thin ice, see RFRA and Tagore quoted below. Nor can the court rely upon a claim that a reasonable accomodation is not provided for by Kentucky law. Kentucky law has not been revised and does not even provide for same-sex marriage. Nor does the Court seem inclined to motivate the Great State of Kentucky to change its constitution and laws. And the Kentucky RFRA is an applicable Kentucky law. To what extent forcing one to perform any act to condone, or indirectly condone, same-sex marriage substantially burden's one's sincerely held religious beliefs may be gauged by public reaction and that Davis was willing to go to jail rather than to comply. Obviously, some find it very offensive to their religious beliefs. If it is slight enough to invoke RFRA, it is enough to require a showing that no accomodation is reasonably available. And a prima facie case invoking RFRA may invoke strict scrutiny. KENTUCKY RFRA http://www.lrc.ky.gov/record/13rs/HB279/bill.doc AN ACT relating to construction of the law. Be it enacted by the General Assembly of the Commonwealth of Kentucky: SECTION 1. A NEW SECTION OF KRS CHAPTER 446 IS CREATED TO READ AS FOLLOWS: Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A "burden" shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities. - - - - - A Federal example of sincerely held religious belief, RFRA, accomodation, and strict scrutiny. https://scholar.google.com/scholar_case?case=18258632836338775341 Tagore v. US, 735 F. 3d 324, 328-29 (5th Circuit, 2013) 1. Sincerely held religious belief. On appeal, Tagore asserts that her evidence creates a genuine issue of material fact concerning the sincerity of her religious practice of wearing a kirpan with a blade longer than 2.5 inches. The sincerity of a plaintiff's belief in a particular religious practice is an essential part of the plaintiff's prima facie case under either Title VII or RFRA. See Weber v. Roadway Express, Inc., 199 F.3d 270, 273 (5th Cir. 2000) (Title VII); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (RFRA). After reviewing hundreds of pages of deposition testimony and exhibits, the district court concluded that Tagore did not create a triable issue of fact that her sincere religious beliefs require her to wear a kirpan with a 3-inch, rather than the statutorily permitted 2.5-inch, blade. With due respect to the able court, this is slicing too thin. This court recently explored the threshold inquiry into a person's beliefs when discussing a prisoner's claim under the related Religious Land Use and Institutionalized Persons Act ("RLUIPA"). Moussazadeh v. Tex. Dept. of Criminal Justice, 703 F.3d 781, 790-92 (5th Cir. 2012). Briefly, each case turns on its particular facts. Id. at 791. The specific religious practice must be examined rather than the general scope of applicable religious tenets, and the plaintiff's "sincerity" in espousing that practice is largely a matter of individual credibility. Id. at 792. In fact, the sincerity of a plaintiff's engagement in a particular religious practice is rarely challenged. Id. at 791. As Moussazadeh explains, "[t]hough the sincerity inquiry is important, it must be handled with a light touch, or `judicial shyness.'" Id. at 792 (quoting A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 262 (5th Cir.2010)). "[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread." Id. (fn. omitted). Both before and following Moussazadeh, claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff's credible assertions. See, e.g., Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir.2013) (Muslim prisoner's desire to wear a beard not challenged by TDCJ); Betenbaugh, 611 F.3d at 261-62 (Native American schoolboy wearing long hair a sincere religious belief; Texas RFRA parallels RFRA); Mayfield v. Tex. Dept. of Criminal Justice, 529 F.3d 599 (5th Cir.2008) (Odin worshiper's religious need for runestones and rune literature not challenged by TDCJ). There was ample evidence to create a genuine issue of material fact on the sincerity of Tagore's practice of wearing a kirpan with a 3-inch blade. The court's contrary decision focused on close questioning of Tagore in her deposition, which exhibited some ambiguity about whether her sincere beliefs require the kirpan blade, or the entire dagger, to exceed 3 [329] inches. Cf. Moussazadeh, 703 F.3d at 792 ("stray[ing] from the path of perfect adherence" does not eviscerate claim of sincerity). She adduced voluminous evidence from the Sikh community, however, that kirpans are mandated to be worn by the religion's adherents and although there are no detailed regulations for the kirpans' appearance, most Sikhs wear kirpans with blades longer than 2.5 inches. As the government acknowledged during the pendency of this appeal: Federal Protective Service, Policy Directive 15.9.3.1, Prohibited Items Program, Attachment 5 (2012) [hereafter, "Policy Statement"]. Tagore has worn her kirpan 24 hours a day after taking Amrit, with one exception when she travelled in an airplane. Tagore was willing to sacrifice her government employment for the sake of wearing a religiously significant symbolic kirpan. Tagore's actions, the independent evidence of Sikh practices, and the government's acknowledgement create a genuine issue of material fact as to her sincere belief in wearing a 3-inch bladed kirpan. Tagore v. US, 735 F. 3d 324, 330- (5th Circuit, 2013) Assuming, again, that Tagore succeeds in establishing a sincerely held religious belief that mandates her wearing a 3-inch kirpan blade, the remaining predicate to a prima facie RFRA case is whether the FPS's enforcement of Section 930(a) substantially burdened her religious practice. See Gonzales, 546 U.S. at 428, 126 S.Ct. at 1216. This is not a serious hurdle: she gave up her job rather than wear a shorter-bladed kirpan, cf. Sherbert v. Verner, 374 U.S. 398, 403-06, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and she risked violating federal law when she entered the Leland building while wearing it. 18 U.S.C. 930(a)(imposing a fine and up to 1 year imprisonment). Once a prima facie case is established, the government must show a compelling interest in enforcing that provision and that its means are the least restrictive to achieve its objectives. 42 U.S.C. § 2000bb-1(a)-(b)(1) and (2); Gonzales, 546 U.S. at 424, 126 S.Ct. 1211. RFRA thus applies strict scrutiny to government regulations that substantially burden a person's religious exercise. Surely, the government has a compelling interest in protecting federal buildings and the people in and around them, and Congress's choice in defining "dangerous weapons" that cannot be introduced into the buildings to include bladed instruments exceeding 2.5 inches must be given significant deference. The Supreme Court emphasized in Gonzales, however, that RFRA requires the government to explain how applying the statutory burden "to the person" whose sincere exercise of religion is being seriously impaired furthers the [331] compelling governmental interest. 546 U.S. at 430-31, 126 S.Ct. 1211. A "categorical approach" is insufficient, particularly if, as here, the statute includes exceptions to the prohibition,[5] cf. id. at 430-37, 126 S.Ct. 1211, and the government must produce evidence justifying its specific conclusion. The district court held that the government carried its burden as a matter of law with affidavit testimony that building security officers must apply Section 930(a) uniformly, consistently and rigorously; authorizing individualized case-by-case determinations would undermine security. The district court also held that the need for uniformity of application satisfied the least restrictive means test. Although the Supreme Court did not reach the less restrictive means test in Gonzales, it is settled that the government's is to explain "why alternative policies would be unfeasible, or why they would be less effective in maintaining institutional security." Spratt v. R.I. Dept. of Corr., 482 F.3d 33, 41 (1st Cir.2007). The district court rejected Tagore's citations to case law and instances in which Sikhs wearing kirpans have been granted permission to enter federal buildings, including the White House. Such examples, the court held, reflect isolated exceptions rather than the blanket individual exemption for which Tagore contends. The court also rejected Tagore's argument that she is covered by the exception in Section 930(g) that allows the bearing of "dangerous weapons" for "other lawful purposes." In this regard, it accepted the government's argument that this exception only extends to people like construction workers whose job-related duties require tools that might otherwise violate the statute. We recite very briefly the district court's reasoning as preface to the point that it has been practically undermined by FPS's decision to acknowledge kirpans as ceremonial weapons that may be allowed in a federal building either by exception or exemption from the statute. The December 2012 FPS Policy Statement, earlier noted, "establishes FPS policy for applying security force countermeasures to mitigate prohibited item entry at Federal properties." Policy Statement at 1. The statement repeatedly references processes that "include[] allowing exceptions and exemptions to prohibited items for ... religious exercise ... or other purposes as necessary or required by law." Attachment 2 to the statement prescribes "Procedures for Exceptions and Exemptions for Otherwise Prohibited Items," Policy Statement at 5, one of which is for "accommodations" under the Religious Freedom Restoration Act. Attachment 5 describes "Accommodations for Sikh Articles of Faith," and instructs FPS officers that kirpans with blades longer than 2.5 inches require an exception or exemption before being carried into a federal building. One must ask, why refer to "accommodations" and append this attachment to a document describing procedures for obtaining exceptions or exemptions if, as FPS contends against Tagore, case-by-case determinations are impractical or inconsistent with maintaining security? The fact that FPS promulgated this Policy Statement after the case concluded in the district court does not prevent our taking judicial notice [332] of its implication for the difficult and fact-sensitive inquiry that must accompany application of strict scrutiny under RFRA. Because the new policy contradicts the arguments previously advanced by the government for denying Tagore an exception or exemption for the wearing of her kirpan to the Leland building, the district court's application of strict scrutiny must be reversed and remanded for further analysis. In so doing, we emphasize that we express no opinion on the ultimate application of strict scrutiny because the government should be allowed to offer more evidence concerning its asserted need for uniform application of Section 930(a) and the impact of the new Policy Statement on this case. Precisely because kirpans may be dangerous weapons in the wrong hands or may fall into the hands of evildoers who are not Sikhs, there would seem to be support for certain limitations, e.g. on blade length, security clearance status of the bearer of the kirpan, the frequency of the bearer's visits to a particular federal facility, the degree or method of concealment, or degree of attachment to the person's body. All of these considerations, and more, may bear on the fact-intensive nature of the RFRA strict scrutiny test. Despite the importance of deferring to officials charged with maintaining domestic security, conclusional affidavits will be insufficient to overcome the policies and procedures embodied in RFRA. CONCLUSION For the foregoing reasons, the judgment of the district court is reversed in part and remanded in part; further proceedings are necessary to determine as a matter of fact whether Tagore holds a sincere religious belief in wearing a kirpan with a blade exceeding the federally prescribed maximum and, if so, whether the government has proven that application of Section 930(a) to Tagore furthers a compelling government interest with the least restrictive means. AFFIRMED IN PART; REVERSED IN PART; REMANDED IN PART.
You mean like I watched Tom Brady play Thursday night with the crown chanting "Where's Roger?" Have you repealed RFRA and due process? Maybe you can succeed where Roger failed. Davis has not imposed her religious beliefs on anyone, nor is she charged with any such thing. She has refused to issue any marriage licenses. No. The County government cannot do a damned thing. She will remain the County Clerk until she is removed. The only way to remove her is by impeachment via the state legislature. Contrary to your imagination, nobody can just rescind her authority as an elected official.
She has not been charged with any of those imaginary misdeeds. The County will definitely issue valid marriage licenses at some time or other, but RFRA may just cause a need to review for the availability of a reasonable acommodation, using a standard of strict scrutiny. And the Governor and the Legislature might have to get off their ass and do something.
Cast spells if you think that will help. Law is politics. Courts are not in fact bound by anything. They decide what they want to do, then they wade around in precedent to find themselves or some other circuit or the Supremes doing what they want to do in the present case. If it's a question of which banner something falls, they decide that it falls into the category that lets them do what they want to do. The only appeal from them is to the Supreme Court, which will not hear the case. Courts will play all sorts of procedural games to get to a result they want, but it never possible to force a circuit court, let alone the Supremes, into a decision they do not want. The American Judiciary supports gay marriage at the top, and down through the ranks. They made their decision, and they refused to hear Davis' appeal before. The Sixth Circuit is not going to let some official make her own law. It is not going to happen. They will not accept her lawyer's argument that the case falls into one cadre, but assert, by main force, that it falls into a second category, and as the deciders they can do that and nobody can reverse them except for the Supremes. Who won't. Legal maneuvering works if the courts want you to win. It's dead in the water when they don't want you to win. In this case, the court is going to enforce gay marriage. This is a Korematsu situation. The written law will mean what the judges say it means, and the outcome is already predetermined. If it helps you make sense of it, write long legal briefs and then look to see how the judges' clerks take apart the arguments. I'm just skipping to the end, because the outcome here is obvious. No, local officials do not have the authority to overrule the Supreme Court, even if the Supreme Court has commended them to break the terms of their religion.
Ceremonial weapons is not gay marriage. What you should be looking at is the following line of cases: Korematsu The various civil rights slap downs concerning segregation. Roe/Casey The Commerce Clause cases of the New Deal era, particularly the grim business of the farmer and his home grown crop. The issue is political, and the tide is very strongly running in a certain direction. No procedural game is going to derail this train. The Sixth Circuit knows that Kennedy, the Four Democrats, and probably Roberts will not hear an appeal of their decision if they decide in a way that compels respect for the constitutional right of gays to marry. And they know the Supremes will hear them and slap them down if they play games. Think of this as a Commerce Clause case, and it's 1938. Davis doesn't have a snowball's chance in Hell.
It is her sworn duty as the County Clerk to perform her duties. She has violated her oath of office and is an embarrassment to the State of Kentucky. She will be kicked out of office by due process.
Imaginary? She withheld issuing licenses on her own accord; she did so based on false beliefs. Her religious beliefs that she intentionally forced on a number of people are not law. She lied to everyone; she stole their time and money. She cheated her way into office by lying to the electorate. Hang the witch! Burn her at the stake! Let the worms devour her lifeless body in the light of day!
Time would be better spend putting a bullet in your head. Since you're an anti American and want to impose a religious test on office holders. She is a real American. You're a USSR type of freak.
Beyond that law. Is that why your company was investigated for defrauding the government?
How? By lying and covering up her intent to waste the same sex couples tyme and money? Why didn't she state what her intent was all about?
You just want special rights for faggots. Two men can't be married no matter how much you want it so.
I don't need or want to be associated with homosexuals. If queers want to screw around I don't care about it as long as it is away from me. We actually see eye to eye on the issue of homos. What we don't see eye to eye on, is a government officer not performing her duties. She has clearly lied to her constituents and lost the publick trust.
Doc 43, pp 43-45; PDF 106-08, Transcript of hearing, 3 Sep 2015 [43] MR. CHRISTMAN: … Her intent is to adhere and follow what her - - - - - [44] conscience is commanding and compelling that she must do. That here I stand, I can do no other. That she cannot do anything but what she is doing, faithfully applying her duties and obligations and understanding of the law, Kentucky Religious Freedom Restoration Act, a Kentucky marriage scheme that's been obliterated. And then Governor Beshear comes over the top and says, "Legislature's not in session. I'm not calling them. Here's what you must do, clerks. Without any exception, you must issue this license on a form I'm going to revise, but I'm not going to revise it in a way that accommodates any religious beliefs or concerns." And so again, that dovetails and goes back to why Ms. Davis -- part -- also part of her defense is that she has not been given due process fully for contempt because any liability that she is claiming, she's saying, "I have a claim against the governor. And the governor has issued this directive." The legislature's ready to act and solve the problems, but the governor says, "No." THE COURT: Are they ready to act? MR. CHRISTMAN: They are, Your Honor. THE COURT: Okay. Well, they haven't acted yet. - - - - - [45] MR. CHRISTMAN: Because they can't because it requires a special session by which Governor Beshear exercises the unilateral authority to call. THE COURT: Well, maybe he's waiting for the new governor. MR. CHRISTMAN: He may very well may be. And both gubernatorial candidates, both Mr. Bevin and Attorney General Conway have indicated an intent to do something to protect the religious liberties and objections. In fact, Attorney General Conway, in response to the Kentucky Clerks Association's proposal to remove the name, said he's fine with that. So there is -- and again, it goes to this idea this is premature to take an action to hold her in contempt when she's filed a motion to dismiss her complaint in its entirety. She's filed preliminary injunctive relief against the governor seeking relief. Her conscience does not allow it. She's entitled to due process to be heard on all of those claims before the Court could reach a conclusion that says, "You're in contempt. You're disobeying my order."
I am sure if you took the time to read my posts you would realize that I have not claimed any of the red herrings you are throwing out there. Rowan County will issue marriage licenses, I have no doubt. Kim Davis may receive an acommodation regarding this 1/10 of 1% of her job via RFRA. Despite the talking heads, Brady played a good game Thursday night with inflated balls. Roger was the one who stayed home.
The various civil rights slap downs concerning segregation. Roe/Casey The Commerce Clause cases of the New Deal era, particularly the grim business of the farmer and his home grown crop. [...] Think of this as a Commerce Clause case, and it's 1938. Davis doesn't have a snowball's chance in Hell. Davis has a snowball's chance in hell of getting an acommodation in Kentucky from a Kentucky court where gay marriage is about as popular as root canals. It is strictly a state matter and they will do what they will do, when they get around to doing it. If they want to invalidate all of the Bunning ordered and approved gay marriage licenses as failing to comply with Kentucky law, they will do that too. Or not. Kentucky state legislators not interested in reelection in Kentucky could remove Davis from office. She would likely reelected. She's likely to be there well after the Obama administration is long gone. Korematsu was a wartime decision about Japanese internment. Roe was about something emanating from a penumbra. Wickard was a significant grope for Federal power, grossly expanding the interstate commerce clause power. Davis is just a little pissing match. Korematsu, of course, is one of the most infamous wrongheaded miscarriages of justice in the history of U.S. Supreme Court holdings. The Court routinely rubber stamps executive crap in wartime. Presumably Davis compares to Korematsu because both are wrongheaded. But Davis does not reach that level of indefensible. Maybe you should have included Buck v. Bell in your list of horribles. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 22. Argued October 11, 12, 1944.-Decided December 18, 1944. 1. Civilian Exclusion Order No. 34 which, during a state of war with Japan and as a protection against espionage and sabotage, was promulgated by the Commanding General of the Western Defense Command under authority of Executive Order No. 9066 and the Act of March 21, 1942, and which directed the exclusion after May 9, 1942 from a described West Coast military area of all persons of Japanese ancestry, held constitutional as of the time it was made and when the petitioner—an American citizen of Japanese descent whose home was in the described area—violated it. P. 219. WW3 has broken out in Rowan County, Kentucky and the Federal government must impose internment to restore order and make the land safe for all.
WW3 no (although the leftards would like you to believe it is) civil disobedience yes, I have a suspicion this is just the beginning. She isn't the only one telling the regime (so are some judges) "I have no intentions of supporting the USSC mandate on homo marriage"... Where it all ends will be interesting to say the least... You are assuming the public disagrees with her actions. I've seen nothing that substantiates your claim like protests by thousands wanting her fired, only about 10 people seem to be upset and they're only homos... I think the only way any protests happen is if the regime buses them in like they've done in other places. Davis is not a little pissing match. The issue at the heart of it is fundamental to the power of the Supreme Court and the government. On the one hand, there is a law, clearly articulated by the Supreme Court. And on the other hand there is an individual nakedly defying it because of her religion. That religious exception - the thought that an individual can disregard the law because her God tells her too, is not tolerable in a society of law. The principle at stake is the principle of uniformity of law versus religious exception. Reasonable accommodations are imposed on private businesses, but no reasonable accommodations, at all, are imposed upon, or philosophically admissible to, the law. The Supreme Court has spoken. Christianity shall not be permitted to make an exception to the law for itself. The principle is big: who shall be master in America, God or the government. And the government's answer will be the government. The parade of horribles they will invoke write themselves. It isn't about a clerk's job. It's about whether or not somebody can refuse to obey the law because of her religion. And the answer to that will be, and from the government's perspective MUST be: ABSOLUTELY NOT, under ANY circumstances. Only the GOVERNMENT can make those exceptions, and it does it according to IT'S rules. Individuals NEVER nullify the law for their religion and get away with it. Never. Conscientious objectors went to prison, and some died. When the status was finally recognized, it was done on the government's tightly controlled terms, and lots of people who are, in fact, conscientious objectors, have been forced into battle and thence to prison, because they did not punch the government's wickets. And those who really WERE CO's, were placed in medic units unarmed on the front lines, where they were MORE likely to get killed. Davis' principle - that her religion says no, so she's going to disregard a recent Supreme Court decision on a very hot topic - cannot stand. It opens the door to universal lawlessness based on personal conscience. The courts will seize this case and slap her down, hard, because they will feel they have to. It's not a little pissing contest at all. It's a question of the rule of law itself.
What's the point then? Procedure will win the day? 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. The local governments MAY make an accommodation, but they do not HAVE to. I read far enough in your brief to get the impression you actually think this woman can WIN in the end. Procedural too and fro is the game when you're in court, but here, the game is big picture questions, what is at stake. What is at stake is this question: Can a person's deeply held religious convictions be invoked by her to override her obligation to perform a specific duty of her office which has been modified by public policy to include something that she profoundly disagrees with? And the answer to that question is: NO. No, she must either violate her conscience and perform her job as the law mandates, or she must resign. There is no option under our law to hold the job but to refuse to obey the law for reasons of conscience. If we open the door to that, as a formal matter, we have given the American people the moral justification for a tax revolt. The government will never, ever tolerate that principle. She has taken a stance that pits her personal beliefs against the law, and she will be forced before the whole country to violate her personal beliefs, or to leave the job. If she will do neither, then she will be broken by the law and caged, because she must not win. If she wins on that principle, the government goes to pieces. It is not a little thing. Individuals do not ever have the right to nullify the law because of personal conviction. Ever. They can get away with it privately - it's called unpunished lawbreaking. But if they make a public stand on the principle the government MUST destroy them, swiftly and without a circus. Because if it does not, the rule of law evaporates. Quickly. If she doesn't have to issue marriage licenses, then I don't have to pay my taxes, because they are spent on abortion and that is murder, and I no longer want to be an accessory to murder.
Didn't you say earlier that the rule of law was political??? Ahhh, what's good for the goose isn't good for the gander imagine that!! CZ, CZ, CZ ... look around, will ya? To some of them, Kentucky clerk Kim Davis is a hero for her willingness to go to jail rather than issue marriage licenses. But others think Davis' position as a government official makes her exactly the wrong figure to rally around. Prominent Christian commentators have suggested Davis' case could drive away support for religious liberty issues by stirring up anger at a public servant who refuses to do her job. Davis was released from jail Tuesday after a deputy clerk began issuing marriage licenses. Davis says she will return to her office Monday but has not said what she will do. Kim Davis is a loser.
No names mentioned hmmmm... Kinda makes you wonder what side of the bible they're on the political or non-political side?? By Michele Richinick 9/13/15 at 4:00 PM Rowan County Clerk Kim Davis celebrates her release from the Carter County Detention Center in Grayson, Kentucky, on September 8. Chris Tilley/Reuters Kim Davis, the Kentucky clerk who refuses to issue same-sex marriage licenses and was jailed as a result, has not been greeted warmly by all of her neighbors as she returned to her hometown. Since the U.S. Supreme Court in June legalized gay marriage in all 50 states, Davis, 49, has denied issuing licenses to same-sex couples in Rowan County. In her position as county clerk, Davis is required to issue marriage licenses. She says gay marriage is against her religious beliefs. A billboard defending gay marriage has been placed in Rowan County. It reads: "Dear Kim Davis, the fact that you can't sell your daughter for three goats and a cow means we've already redefined marriage." The sign notes it was paid for by Planting Peace, a global nonprofit organization. The message appears to reference a scripture from the Bible that says women can be sold into marriage as slaves. The group wrote in a statement that Davis has become the face of the anti-gay movement. "The intent of the billboard is to expose this narrow interpretation by Davis and others that they use to defend their discrimination against the LGBTQ community," the group wrote in a statement. "It is important and relevant to call this out, because these messages and actions are not simply about a political or religious debate. There are LGBTQ youth across the world who are taking their lives at an alarming rate because of these messages from society that make them feel broken or less than." Earlier this month, a federal judge said Davis was in contempt of court for going against legal orders. As a result, she was jailed, but she was ordered released after five days. On Friday, Davis's lawyer filed an appeal. He argues the judge overstepped his bounds by including all couples in his ruling, instead of just the handful of individuals who previously filed lawsuits against his client. Davis, who said her time in jail was worth it, believes licenses should not be issued in her county until her case is resolved. Davis argues that an accommodation should be made for her religious beliefs. She won't step down from her position, nor violate her conscience, said her attorney, Matt Staver. While Davis was behind bars, her deputy clerks, excluding her son, issued licenses to gay couples. What Davis will do when she returns to work on Monday remains in question. In freeing her, the federal judge wrote that she must not interfere—directly or indirectly—with her deputies in issuing licenses to all legally eligible couples. Two Republican presidential candidates, former Arkansas Governor Mike Huckabee and Senator Ted Cruz of Texas, are among the individuals supporting Davis. "Praise God that Kim Davis is being released. It was an outrage that she was imprisoned for six days for living according to her Christian faith," Cruz said in a statement after her release. Clerks in other states, including Alabama, Mississippi and Texas, also have tried to avoid issuing gay marriage licenses. But Davis's case was the first major challenge to the Supreme Court's landmark decision.
A lie. There is no passage in a Bible that says women can be sold into marriage as slaves. Slaves can indeed be married, in Scripture, but once married they cease to be slaves and become wives, with all of the rights that inhere in wives under the law of God (to wit: food, housing, clothing, sex and children). Nor can a former slave woman who becomes a wife then be sold into slavery again. Nor could a Hebrew woman EVER be a slave. Only captured foreigners could be slaves, and once a foreign slave was married, the marriage coverted her into the people of Israel. That's what the Law in Scripture actually SAYS - which is pretty much the opposite of what the people who made the billboard are trying to get at.
Because the "Rule of Law" is political.
And precisely because the Rule of Law is political, THAT is why it is imperative not to lose control of the demographics of the population. If people are not having babies and you're filling up with immigrants, you have put your country on a death spiral from which there is no possible recovery. To avoid the inevitable defeat, you MUST get your people to have babies again. And the only way to do that is to reshape the economics of your country so that most people feel comfortable having babies. And THAT means, in a modern post-industrial society, a strong set of social supports for people with children: good public schools, child care for working mothers, generous time off for childrearing, universal government subsidized health insurance, public retirement benefits - all of those "socialist" things that conservatives have painted themselves into a corner to hate. They can hate all they like, but they have lost the demographics. They won the fight against social welfare, for awhile. It's threadbare in America. And therefore middle class people don't have enough babies, and therefore the country fills up with immigrants...who vote for social welfare...and THEREFORE the creepy left wins because they support social welfare in addition to crappy things like gay marriage. A complete unrealism, blustering foolishness, has dominated the American right since Reagan. And the result has been the hollowing out and replacement of the population. Gay marriage is the first really visible defeat on a religious policy, but it won't be the last. The whole conservative house is going to come crashing down in flames, because Americans do not have babies, BECAUSE conservatives won the point on social welfare economics for 40 years. So the national wealth went from 50% in the top 20% to 85% in the top 10%, everybody else was beggared and hollowed out, and stopped having babies...and the land filled up with Mexicans. And now everything is lost unless conservatives get realistic fast. The Rule of Law is political. And politics follows demographics. Demographics follows economics. And Reaganite economic conservatism has been rat poison for the white middle class birth rate.
You are so full of sh*t. Your BS conjecture doesn't being to explain why for exampl Japan's birthrate has declined. Some food for thought. As of 2014 46.9% of the U.S. workfove were women. The percentage of women in the U.S. workforce of blacks (11.4%), hispanics (16.1%) and Asians (5.7%) was 33.2%. On balance black, hispanic and Asian women are under represented in the the workforce compared to white women. "This is important because in Japan, Germany, and the UK, these changes in participation within the working-age bracket added at least one percentage point to the country's overall rate of participation from 2005-2014 — and this gain was attributable largely to the trend increase in female labor force participation, according to Gavin." So which women in th U.S. have dropped out of the labor pool? Why? The same soicla sevrices, aka freebies and handouts - your panacea for a thriving middle class, are presumably available to all ethnicities and/or races. SO you would expect that the drop outs would be distributed proportionately to the demographics of the general population. Is it? потому что Бог хочет это тот путь
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.
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.
Well, this is now getting a bit amusing. It seems we do agree that the basis for the marriage equality rulings regarding gender and race is the 14th Amendment, but that we differ on the idea that just because the USSC rules that some law needs to apply equally to all, that such a law is required to exist. If KY were to pass legislation getting out of the marriage license business entirely, would you claim the USSC ruling would find their doing so a violation of the "Constitution Right of marriage", in spite of the fact that the 14th Amendment would not apply, as no discrimination would be involved? If things are as you say, it seems KY would be subject to federal injunction if they dared to pass such legislation, and be mandated by federal courts to have some marriage laws on the books -- Something I can't possibly fathom. As for my apparent error in concluding that if something does not appear in the Constitution or its Amendments, that it's not there, it seems I am also in error in assuming that citations of key parts of USSC decisions also do not mean what they plainly say, as evidenced with the Loving case cited above, that the ruling in favor of Loving is based on 14th Amendment equality, with no evidence that Warren ever referred to marriage as a "Constitutional Right". I would say that if I am wrong for so naively drawing conclusions based on what is plainly written, then it means the law is well beyond the ability of the common person to understand, and any such legal environment so far removed from the understanding of the common person is evidence that the legal system that has truly run amuck and no longer serves the people it is supposed to be serving. But you are apparently a lawyer, and I suppose lawyers are naturally trained to never concede ground. No lawyer would be in business long otherwise. (I mean that as an honest candid observation, not an insult -- in must come with the territory, yes?) Reminds me of a joke.... "When in court, if the law is in your favor, you pound on the law. If the facts are in your favor, you pound on the facts. If neither the law nor the facts are in your favor, you pound on the table". As for my religion, if you were a betting man, you would have lost. I actually can't say I'm a Christian at all. I subscribe to the model that actually includes reincarnation as one of many elements unorthodox to most major faiths, believe it or not. All those elements put together create a model of existence that makes complete logical sense in theological, philosophical and scientific schools of thought, and also fits my personal observations in life far better than anything else I've ever found does. It does, however, require one be open minded enough to consider and I've found such people *extremely* rare. Even detractors don't care to truly hear me out or show any defects in my position. Too many of us are set in our beliefs instilled by parents or whomever, whatever. That's only natural though, as it's impossible for anyone to be truly open minded about all things at all times. So that's fine. Christianity is correct on many things, but not all. Biblical reverency is, I believe, based on the antiquity of the writings, but beyond that, only faith. The same can be said for other major faiths I can believe that you are successful in your occupation much of the time. If you serve people with good causes, then more power to you. Best....
Where? LOVING et ux. v. VIRGINIA. appeal from the supreme court of appeals of virginia. No. 395. Argued April 10, 1967.—Decided June 12, 1967. Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications held to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Pp. 4-12. 206 Va. 924, 147 S. E. 2d 78, reversed. Bernard S. Cohen and Philip J. Hirschkop argued the cause and filed a brief for appellants. Mr. Hirschkop argued pro hac vice, by special leave of Court. R. D. Mcllwaine III, Assistant Attorney General of Virginia, argued the cause for appellee. With him on the brief were Robert Y. Button, Attorney General, and Kenneth C. Patty, Assistant Attorney General. William M. Marutani, by special leave of Court, argued the cause for the Japanese American Citizens League, as amicus curiae, urging reversal. Briefs of amici curiae, urging reversal, were filed by William M. Lewers and William B. Ball for the National Catholic Conference for Interracial Justice et al.; [2] OCTOBER TERM, 1966. Opinion of the Court. 388 U. S. by Robert L. Carter and Andrew D. Weinberger for the National Association for the Advancement of Colored People, and by Jack Greenberg, James M. Nabrit III and Michael Meltsner for the N. A. A. C. P. Legal Defense & Educational Fund, Inc. T. W. Bruton, Attorney General, and Ralph Moody, Deputy Attorney General, filed a brief for the State of North Carolina, as amicus curiae, urging affirmance. Mr. Chief Justice Warren delivered the opinion of the Court. This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.1 For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment. In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court __________ [3] LOVING v. VIRGINIA. Opinion of the Court. of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that: After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia antimiscegena-tion statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court. The Supreme Court of Appeals upheld the constitutionality of the antimiscegenation statutes and, after [4] OCTOBER TERM, 1966. Opinion of the Court. 388U.S. modifying the sentence, affirmed the convictions.2 The Lovings appealed this decision, and we noted probable jurisdiction on December 12, 1966, 385 U. S. 986. The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages.. The Lovings were convicted of violating § 20-58 of the Virginia Code: Section 20-59, which defines the penalty for miscegenation, provides: __________ 3 Section 20-57 of the Virginia Code provides: [5] LOVING v. VIRGINIA. Opinion of the Court. respectively, define "white persons" and "colored persons and Indians" for purposes of the statutory prohibitions.4 The Lovings have never disputed in the course of this litigation that Mrs. Loving is a "colored person" or that Mr. Loving is a "white person" within the meanings given those terms by the Virginia statutes. __________ "Intermarriage prohibited; meaning of term 'white persons.'—It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term 'white person' shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter." Va. Code Ann. § 20-54 (1960 Repl. Vol.). The exception for persons with less than one-sixteenth "of the blood of the American Indian" is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by "the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocahontas . . . ." Plecker, The New Family and Race Improvement, 17 Va. Health Bull., Extra No. 12, at 25-26 (New Family Series No. 5, 1925), cited in Wadlington, The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 Va. L. Rev. 1189, 1202, n. 93 (1966). Section 1-14 of the Virginia Code provides: [6] OCTOBER TERM, 1966. Opinion of the Court. 388U.S. Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications.5 Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period.6 The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a "white person"7 marrying other than another "white person," a prohibition against issuing marriage licenses until the issuing official is satisfied that __________ Over the past 15 years, 14 States have repealed laws outlawing interracial marriages: Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming. The first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California. Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (1948). 6 For a historical discussion of Virginia's miscegenation statutes, see Wadlington, supra, n. 4. 7 Va. Code Ann. § 20-54 (1960 Repl. Vol.). [7] LOVING v. VIRGINIA. Opinion of the Court. the applicants' statements as to their race are correct,8 certificates of "racial composition" to be kept by both local and state registrars,9 and the carrying forward of earlier prohibitions against racial intermarriage.10 In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Nairn v. Nairn, 197 Va. 80, 87 S. E. 2d 749, as stating the reasons supporting the validity of these laws. In Nairn, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy. Id., at 90, 87 S. E. 2d, at 756. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment. While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, 125 U. S. 190 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska, 262 U. S. 390 (1923), and Skinner v. Oklahoma, 316 U. S. 535 (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element __________ [8] OCTOBER TERM, 1966. Opinion of the Court. 388 U. S. as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages. Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949), or an exemption in Ohio's ad valorem tax for merchandise owned by a nonresident in a storage warehouse, Allied Stores of Ohio, [9] LOVING v. VIRGINIA. Opinion of the Court. Inc. v. Bowers, 358 U. S. 522 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources "cast some light" they are not sufficient to resolve the problem; "[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect." Brown v. Board of Education, 347 U. S. 483, 489 (1954). See also Strauder [10] OCTOBER TERM, 1966. Opinion of the Court. 388U.S. v. West Virginia, 100 U. S. 303, 310 (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. Florida, 379 U. S. 184 (1964). The State finds support for its "equal application" theory in the decision of the Court in Pace v. Alabama, 106 U. S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated "Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court." McLaughlin v. Florida, supra, at 188. As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. Slaughter-House Cases, 16 Wall. 36, 71 (1873); Strauder v. West Virginia, 100 U. S. 303, 307308 (1880); Ex parte Virginia, 100 U. S. 339, 344-345 (1880); Shelley v. Kraemer, 334 U. S. 1 (1948); Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961). [11] LOVING v. VIRGINIA. Opinion of the Court. There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[distinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U. S. 81, 100 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United States, 323 U. S. 214, 216 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense." McLaughlin v. Florida, supra, at 198 (Stewart, J., joined by Douglas, J., concurring). There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.11 We have consistently denied __________ [12] OCTOBER TERM, 1966. Opinion of the Court. 388 U. S. the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U. S. 535, 541 (1942). See also Maynard v. Hill, 125 U. S. 190 (1888). 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 discriminations. 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. These convictions must be reversed. It is so ordered. __________ [13] LOVING v. VIRGINIA. Stewart, J., concurring. Mr. Justice Stewart, concurring. I have previously expressed the belief that "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor." McLaughlin v. Florida, 379 U. S. 184, 198 (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court.
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. There is doubt here about your veracity, seeing you're constantly here, giving away increasing weirdo 'legal' advice.
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 (Vicente13) are firmly attached to it, that's fine by me. ----- pinguinite Seeing marriage is not mentioned in the Constitution, and obviously, it is a natural right, -- under the 9/10th amendments, the power to 'regulate' marriage by the states is arguably unconstitutional. -- As the Mormons found out in their quest for statehood.. Agreed, -- can you continue?
The constitution hasn't changed. That requires an amendment to the constitution. You just support faggots and usurptions of the constitution. And ultimeately the destruction of the constitution. To be replaced by your misintrepretation of the Bible. Ozzy said it best. Would you like to see the pope on the end of a rope, do you think he's a fool. Yes the pope is a fool. The Catholic are fools who pervert scripture and worship false idols.
You Proddys are always a hoot.
#2. To: nolu chan (#1)
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
#3. To: nolu chan (#1)
#4. To: nolu chan (#0)
#5. To: nolu chan (#0)
(Edited)
#6. To: Vicomte13 (#5)
"Gay marriage is a constitutional right"
#7. To: misterwhite (#6)
#8. To: misterwhite (#6)
A first amendment right, not a "right" created out of thin air by the court.
#9. To: Vicomte13 (#7)
"if an agent of the state has such misgivings about that because of her religion that she cannot do it, then she has to find another job."
#10. To: Vicomte13 (#8)
"It has, rather, taken a right that is there in the Constitution and made it CLEAR."
found clarified a whole bunch of things, didn't they?
#11. To: Vicomte13 (#5)
Therefore, Davis has no basis whatever on which to continue to resist decided law EITHER by refusing to issue licenses to gays, or by depriving EVERYBODY of their right to marry by refusing to issue any licenses at all.
#12. To: Vicomte13 (#5)
Gay marriage is a constitutional right, and Davis' actions, including the appeal, were (and are) an invidious attempt to prevent people from exercising their constitutional rights.
Marriage is within the sphere of privacy that IS a right, and the Supreme Court has found even gay marriage to be a constitutional right.
It is stare decisis. --- Therefore, Davis has no basis whatever on which to continue to resist decided law EITHER by refusing to issue licenses to gays, or by depriving EVERYBODY of their right to marry by refusing to issue any licenses at all.
#13. To: buckeroo (#4)
Davis is just a rabble rouser looking for self glory about nothing. She is a officer of the county and must follow the laws not her recent "religious convictions."
#14. To: GrandIsland (#13)
(Edited)
#15. To: buckeroo (#4)
Davis is just a rabble rouser looking for self glory about nothing. She is a officer of the county and must follow the laws not her recent "religious convictions."
#16. To: redleghunter (#15)
#17. To: buckeroo (#16)
#18. To: redleghunter (#17)
#19. To: buckeroo (#18)
#20. To: redleghunter (#19)
#21. To: redleghunter (#19)
(Edited)
I did not know you lived in her county and required a marriage certificate.
#22. To: A K A Stone (#11)
Bullshit you liberal.
#23. To: Vicomte13 (#22)
the Constitution does not EXIST
#24. To: Vicomte13, Too Conservative, SOSO, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#5)
They're going to slap her down and uphold the injunctive relief granted by the judge.
I. Davis has a sufficient likelihood of success on the merits of her appeal to warrant an immediate stay of the Expanded Injunction.
- - - - -
Rule 62 – Stay of Proceedings to Enforce a Judgment
#25. To: nolu chan (#24)
(Edited)
#26. To: nolu chan (#24)
As county clerk I am responsible for providing many services to the people of Rowan county. These duties include general categories of clerical duties of the fiscal court: issuing and registering, recording and keeping various legal records, registering and purging voter rolls, and conducting election duties and tax duties.
Kim Davis
Rowan County Clerk
#27. To: buckeroo (#25)
(Edited)
seeking lawful considerations within the duties
#28. To: GrandIsland (#27)
#29. To: Vicomte13, Too Conservative, SOSO, redleghunter, A K A Stone, Pinguinite, Liberator, buckeroo, GrandIsland (#22)
Davis has appealed. She is not going to WIN the appeal, and she is not going to successfully delay anything. This gay movement is not going to be stopped by casting constitutional spells - the Constitution does not EXIST, except as ideas in people's minds, and the majority of people ARE NOT strict constructionists. The majority of the judges MOST CERTAINLY are not.
The record in this case suggests that the burden [on Davis] is more slight. As the Court has already pointed out, Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk. The Court therefore concludes that Davis is unlikely to suffer a violation of her free exercise rights under Kentucky Constitution § 5.
UNOFFICIAL COPY AS OF 09/08/15 -- 13 REG. SESS. -- 13 RS HB 279/VO
DISCUSSION
There is no prescribed blade length for the Kirpan; its size varies based on personal choice. The majority of Kirpan blades range in size from 3 to 6 inches, but blades may be as small as 2 inches.... Kirpan are always sheathed.... [S]ome Sikhs ... believe a Kirpan must be worn at all times....
3. RFRA.
#30. To: buckeroo (#25)
Kim Davis has no "right" as an officer of the county government to impose her religious beliefs on anyone seeking lawful considerations within the duties she is bound to administer; the laws are not even in a contested situation so there is no ambiguity at all. She is going to lose her appeal with a BIG_SLAPDOWN; just watch and see.
The county government can and will rescind any and all her authority as an officer for the county. In effect, she will be impeached or kicked out of office.
#31. To: buckeroo (#26)
So, she is a liar, a cheat and a thief. Moreover, she owes an apoligy to all citizens for her misconduct towards the People.
#32. To: nolu chan (#24)
#33. To: nolu chan (#29)
#34. To: nolu chan (#30)
Davis has not imposed her religious beliefs on anyone, nor is she charged with any such thing. She has refused to issue any marriage licenses.
#35. To: nolu chan (#31)
She has not been charged with any of those imaginary misdeeds.
#36. To: buckeroo (#35)
She lied to everyone; she stole their time and money. She cheated her way into office by lying to the electorate. Hang the witch! Burn her at the stake! Let the worms devour her lifeless body in the light of day!
#37. To: buckeroo (#14)
are always making up their rules of enforcement, beyond the law
#38. To: A K A Stone (#36)
She is a real American.
#39. To: buckeroo (#38)
#40. To: A K A Stone (#39)
#41. To: redleghunter (#2)
- - - - -
#42. To: Vicomte13 (#32)
I'm just skipping to the end, because the outcome here is obvious. No, local officials do not have the authority to overrule the Supreme Court, even if the Supreme Court has commended them to break the terms of their religion.
#43. To: Vicomte13 (#33)
Korematsu
KOREMATSU v. UNITED STATES.
#44. To: nolu chan, Vicomte13 (#43)
WW3 has broken out in Rowan County, Kentucky and the Federal government must impose internment to restore order and make the land safe for all.
#45. To: buckeroo, All (#40)
and lost the publick trust.
#46. To: nolu chan (#43)
#47. To: nolu chan (#42)
am sure if you took the time to read my posts you would realize that I
#48. To: Vicomte13 (#46)
It's not a little pissing contest at all. It's a question of the rule of law itself.
#49. To: Vicomte13 (#46)
Davis' principle - that her religion says no, so she's going to disregard a recent Supreme Court decision on a very hot topic - cannot stand. It opens the door to universal lawlessness based on personal conscience.
#50. To: CZ82 (#45)
You are assuming the public disagrees with her actions. I've seen nothing that substantiates your claim like protests by thousands wanting her fired, only about 10 people seem to be upset and they're only homos...
NASHVILLE, Tenn. (AP) — Having failed to ban same-sex marriage, many religious conservatives are now working to carve out protections for business owners and others who object to it on religious grounds.
#51. To: buckeroo, redleghunter, Liberator (#50)
Prominent Christian commentators have suggested Davis' case could drive away support for religious liberty issues by stirring up anger at a public servant who refuses to do her job.
#52. To: CZ82 (#51)
(Edited)
Kentucky Clerk Kim Davis Mocked on Billboard in Hometown
She is going to have a tough tyme staying in office.
#53. To: buckeroo (#52)
The message appears to reference a scripture from the Bible that says women can be sold into marriage as slaves.
#54. To: CZ82 (#49)
Ahhh, what's good for the goose isn't good for the gander imagine that!!
#55. To: All (#54)
#56. To: Vicomte13, All (#55)
The Rule of Law is political. And politics follows demographics. Demographics follows economics. And Reaganite economic conservatism has been rat poison for the white middle class birth rate.
#57. To: SOSO (#56)
#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 ...
#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.
#107. To: Vicomte13 (#105)
#108. To: Vicomte13, Pinguinite (#100)
The Supreme Court in Loving ruled that states cannot block interracial couples from marrying because marriage is a right.
CASES ADJUDGED
in the
SUPREME COURT OF THE UNITED STATES
at
OCTOBER TERM, 1966.
1 Section 1 of the Fourteenth Amendment provides:
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."
"Leaving State to evade law.—If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage."
"Punishment for marriage.—If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years." Other central provisions in the Virginia statutory scheme are § 20-57, which automatically voids all marriages between "a white person and a colored person" without any judicial proceeding,3 and §§ 20-54 and 1-14 which,
2 2206 Va. 924, 147 S. E. 2d 78 (1966).
"Marriages void without decree.-All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process." Va. Code Ann. § 20-57 (1960 Repl. Vol.).
4 Section 20-54 of the Virginia Code provides:
"Colored persons and Indians defined.—Every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians." Va. Code Ann. § 1-14 (1960 Repl. Vol.).
5 After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md. Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala. Const., Art. 4, § 102, Ala. Code, Tit. 14, § 360 (1958); Arkansas, Ark. Stat. Ann. § 55-104 (1947); Delaware, Del. Code Ann., Tit. 13, § 101 (1953); Florida, Fla. Const., Art. 16, § 24, Fla. Stat. § 741.11 (1965); Georgia, Ga. Code Ann. § 53-106 (1961); Kentucky, Ky. Rev. Stat. Ann. § 402.020 (Supp. 1966); Louisiana, La. Rev. Stat. § 14:79 (1950); Mississippi, Miss. Const., Art. 14, § 263, Miss. Code Ann. g 459 (1956); Missouri, Mo. Rev. Stat. § 451.020 (Supp. 1966); North Carolina, N. C. Const., Art. XIV, § 8, N. C. Gen. Stat. § 14-181 (1953); Oklahoma, Okla. Stat., Tit. 43, § 12 (Supp. 1965); South Carolina, S. C. Const., Art. 3, § 33, S. C. Code Ann. § 20-7 (1962); Tennessee, Tenn. Const., Art. 11, § 14, Tenn. Code Ann. § 36-402 (1955)'; Texas, Tex. Pen. Code, Art. 492 (1952); West Virginia, W. Va. Code Ann. § 4697 (1961).
8 Va. Code Ann. § 20-53 (1960 Repl. Vol.).
9 Va. Code Ann. § 20-50 (1960 Repl. Vol.).
10 Va. Code Ann. § 20-54 (1960 Repl. Vol.).
11 Appellants point out that the State's concern in these statutes, as expressed in the words of the 1924 Act's title, "An Act to Preserve Racial Integrity," extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry with-
out statutory interference. Appellants contend that this distinction renders Virginia's miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve "racial integrity." We need not reach this contention because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the "integrity" of all races.
#109. To: Vicomte13 (#103)
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.
I am a pragmatic man. I look at my paycheck. Yeah, I'm a pretty good lawyer.
Okay, Tee, we cool, we cool. If T. Paine wanna go incognito, he go incognito.
I'm 'incognito'? What in hell do you mean by that? I'm just a retired building contractor, and a conservative/libertarian student of our Constitution.
#110. To: Pinguinite, Vicomte, nolu chan, Y'ALL (#104)
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".
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. --- nolu chan posted
#111. To: Vicomte13 (#99)
They're valid, and they will be so treated. The Constitution has changed,
#112. To: A K A Stone (#111)
Would you like to see the pope on the end of a rope, do you think he's a fool. Yes the pope is a fool. The Catholic are fools who pervert scripture and worship false idols.
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