Kim Davis Freed

Having seen that marriage licenses issued on Friday from the Rowan County (Kentucky)’s Clerk’s office, Judge David Bunning has authorized contemnor Kim Davis’ release from custody, for so long as her office issues marriage licenses according to the law and she does not interfere with its doing so.

And the debate over the appropriateness of her confinement will likely not reach any kind of popular consensus, and then be utterly forgotten by the culture warriors who enjoyed a Disposable Weekend of Outrage, in 5… 4… 3…

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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76 thoughts on “Kim Davis Freed

  1. Option B: her attorneys seek to invalidate the licenses that don’t bear her name, she goes back to jail.

    If that happens, I assume we can then agree she’s grandstanding.

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  2. I’m not clear on what happened here. If I’m reading the news snippets correctly, her subordinates just started issuing licenses without her and now the blockage is cleared. Is that right? What made it impossible to issue licenses before, and how has it changed?

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    • Yes, by state law they have to, because she’s the county clerk.

      And she’s taken the position that they are null and void. But that doesn’t mean they are, only that she has an opinion that they are void.

      I can recall that after the Marriage Cases were handed down in May of ’08, a certain species of SSM opponent took the position that “The California Supreme Court handed down a long opinion but didn’t order anything, so there is no such thing as a same-sex marriage in California.” Davis’ position that the marriage licenses her office is handing out as in substantial harmony with that same sort of “SSM denialism.”

      So if Ms. Davis wants to stick her head in the sand and pretend that those licenses are nullities, then maybe they’re something that her conscience can live with — since, to her, they are legally void, they don’t reflect anything of religious significance. Meanwhile, those of us who reside in the real world can recognize them as being what they actually are, with the consequences for pooling of financial interests in things like community property, insurance benefits, and so on, going on while Ms. Davis blindfolds and deafens herself to a reality to which she can’t even.

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      • Oh. I take it back. That was a nice theory. But it’s not going to become a reality.

        Instead, she’s going to dig her heels in. I still think my solution, of having the Governor just take over given that the state constitution is ambiguous about whether he has the authority to do so, is a good way to go between now and the time the Legislature re-convenes to solve this pressing, important issue.

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        • Who cares what her opinion is. ARE they legal without her signature. Because i’d be damn pissed if I got what I thought was a legal document and it turned out not to be. I can see all kinds of mess this could cause down the road with two allegedly married folks who actually weren’t. You want to speculate on the legalness, as is, of these docs Burt?

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          • I say they’re valid. Absent some facts of which I’m unaware. The facts I assume to be true are that a) Davis instructed her subordinates not to issue the licenses, b) the Court overruled her instruction as void, c) the clerk possesses the legal power to sign the license in her absence (which we’ve read elsewhere is the case).

            I further say that Kim Davis lacks standing to contest their validity. In fact, the only people I can think of who would have standing to challenge these licenses would be the new putative spouses themselves in the event of a divorce proceeding, and their intestate heirs, in the event that they eventually die intestate and have estates that are worth probating.

            (As with so many other things, good estate planning will avoid having to confront expensive, inconvenient, and unnecessary legal questions. Consult a qualified estate planning attorney today; certainty of intent and legal effect is the best gift you could possibly leave your loved ones during their time of grief and bereavement after they lose you.)

            Of greater interest will be whether Davis puts a stop to further licenses issuing tomorrow, when she returns to work, as she has vowed to do.

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            • According to Malor, the most immediate issue might be that Davis’s office might not record the marriages that the licenses were granted, which is the next step in the process. Technically, the marriages would be valid, but the couples might have difficulty proving it. He cites KRS 402.220 and 230.

              Also, he (I think he was he) said the validity of the licenses has been verified by the attorney general and county attorney, which means that they’ll be treated as legal and once they are treated as legal they would be hard to revoke. (Seems to me that getting them recorded matters, though…)

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              • You may find the maxims of equity to be of interest here. Since we’re discussing the effects of a court order, equity is in play.

                Equity sees that as done what ought to be done. The recording of the license is a purely ministerial act, which follows automatically and without discretion upon the license’s issuance.

                Equity does not require an idle gesture. To order that licenses issue but then to permit the licenses to go unrecorded would render the original court order an effective nullity. See also, Equity delights to do justice and not by halves.

                He who comes into equity must come with clean hands. Having defied the court’s order to issue marriage licenses and to discharge her lawful duty, Kim Davis will not be heard to subsequently complain about the recordation of the completed licenses.

                Equity follows the law. Obergefell is the law of the land and Davis has interposed her personal religious preference to obstruct its realization. The Court’s order already balanced Davis’ claim of a state-level RFRA exemption to issuing the licenses, and so it is not only the law of the land, but upon the Sixth Circuit and SCOTUS’s declining to review it, it is also the law of the case, so its validity need not be revisited.

                To do other than to treat the licenses as valid and complete the further ministerial acts related to their validity seems, well, inequitable.

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                • One of the things that fascinate me about American legal disputes which morph into political disputes (or alternatively political disputes which masquerade as legal disputes) is the way in which the rules of recognition are disagreed upon. Normally, a supreme court decision is sufficient to make something the law. Normally, officials know that this is the case. What we are seeing is what happens when a subordinate official fails to accept the rule of recognition: Political power is used to remove the official.

                  If any jurisdiction could falsify Hart’s account of Law, it would be America, but I have yet to see anything that would. I might be prepared to change my mind if Davis remains as county clerk, insists that those marriages are null, but they continue to be issued and no one else regards them as null. Even then I’m not sure. I would be more inclined to revise my belief that the county clerk is an official position.

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                  • The problem that conservatives are trying to point to – as for instance former OG TIm Kowal was pointing out on Twitter today, as expanded upon here (with par-for-course politapocalyptical flourishes) by JE Dyer – is that, from their perspective, Obergefell would appear to nullify the statute on marriage that Kentucky possesses without providing a substitute. So OSM-only would be invalidated in Kentucky (as everywhere else), but no SSM or any other definition of marriage has replaced it.

                    I would enjoy seeing one of our fierce SSMist lawyers here explain why they are wrong.

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                      • Did Loving vs. Virginia invalidate the only statue defining marriage in Virginia (and other states with anti-miscegenation laws), or did it invalidate statues that were added to such a law? I imagine this is relevant to the legal question.

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                        • Right – and either way the conservative argument here might be taken to suggest that both the Court and Kim Davis might be right, or that anyway even if the Court was acting within its power invalidating OSM-only, Kim Davis might still be right, if on a different basis than most of her supporters and she herself see herself as being right.

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                          • I look forward to the lawyerly folks chiming in. I looked at a few state marriage statutes that look like they’d be fine (e.g., Oregon), but Kentucky’s definitely includes the “one man, one woman” bit in the definition. I imagine there’s some way of dealing with this usually, as this is probably not an uncommon scenario, but I don’t know enough to guess what it might be.

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                    • It is my understanding that the County Clerk’s official job description involves language requiring her (e.g., must, shall) to process valid license applications as opposed to language stating the power to (e.g., may).

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                      • The problem would be that, with the statute nullified, there would be no “valid license applications.” In effect, as I understand it, according to Kowal et al, Obergefell has nullified state-recognized marriage in Kentucky. If so, then the libertarians (at least in Kentucky) ought to rejoice!

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                    • IANAL, merely a former legislative staffer, but here’s what Kentucky statute says about severability:

                      446.090 Severability.

                      It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the General Assembly.

                      The annotation on this says the intent was to obviate the need for a severability clause on each act. Since the marriage statute doesn’t appear to say that it isn’t severable, then it is, and the courts have considerable lattitude.

                      Anyone who’s saying that the whole marriage statute is gone because it doesn’t include a severability clause is wrong, at least about Kentucky.

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                    • Maximum respect and love to OG Tim Kowal.

                      The article he points us to, however, is fundamentally flawed. Building upon the severability provision cited by@michael-cain infra, here I quote in full the statute that Obergefell struck down in Kentucky, KRS 402.005:

                      402.005 Definition of marriage. As used and recognized in the law of the Commonwealth, “marriage” refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex. Effective: July 15, 1998. History: Created 1998 Ky. Acts ch. 258, sec. 4, effective July 15, 1998.

                      So I guess that also means that they didn’t have marriage at all in Kentucky before July 15, 1998, because before that date there just wasn’t a definition of “marriage,” and after July 15, 1998, they didn’t have divorce, because the man and the woman who were married were by definition “united for life,” meaning that the only way out of a marriage was for one of the spouses to die.

                      Obviously that’s just not true. And it isn’t some kind of insidious erosion of the rule of law to interpret a statute using a modicum of fishing intelligence and real-world experience instead of deliberately selecting the most boneheaded, obtuse, convoluted, and unlikely interpretation available, simply to arrive at a predetermined and pleasing* result.

                      Sheesh.

                      So after Obergefell, it goes back to the way it was on July 14, 1998, before that statute was enacted and if there is no overt statutory definition of marriage superseding the common law, then you rely on common law. Which tells you what marriage is by virtue of that long-standing tradition that conservatives claim to love so very very much, and since we’re in the world of common law, you have to also take into account Obergefell, which is now part of the common law. Did this guy skip that day of Civil Procedure class? This isn’t particularly difficult stuff.

                      There are presently twenty-four operative sections to the Kentucky state marriage statute. Before Obergefell, there were twenty-five.

                      If there is an erosion to the rule of law going on here, it’s Kim Davis who is eroding it by insisting that her special specialness means the law doesn’t apply to her because she’s a member of the same religion as 70% of the rest of America.

                      * Note that “pleasing” here might mean “pleasingly anxiety-inducing” for those who might wish to manipulate the anxieties of others for, say, fundraising purposes.

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                      • To which “article [Kowal] points to” are you pointing to ?

                        I don’t find the sniping at discussants’ motives, intelligence, or honesty helpful, btw. Quite the opposite. However, I did say I hoped to hear from one of our fierce SSM-ists. I can see how that request might be mistaken for “I hope to hear one of SSM-ists express him- or herself fiercely.” So, if it’s my fault you took it that way, I apologize.

                        Thanks for the rest of your reply. It would be great if Tim had the time to respond in his own words.

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                      • Endorsed in its entirety, with particular endorsement of the critique of what looks to be the next round of conservatives’ legally indefensible motivated reasoning after King v. Burwell.

                        I wonder if one of the worst things about Bush v. Gore will be that conservatives now feel no legal argument is too nutty to take to the supreme court, so we have a never ending flow of stupid litigation crowding out the resolution of actually difficult legal questions.

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                    • When a state law is struck down as unconstitutional, one of two things happens:

                      a. The state legislature adopts a new law consistent with the court’s rulings; or

                      b. The courts that review the state law after the ruling of unconstitutionality apply a saving construction that creates a consistent body of law giving effect both to the original legislation and the ruling of unconstitutionality.

                      What courts try not to do, unless absolutely necessary, is create chaos and confusion by invalidating whole bodies of law. So, any sane court would find that the clerks of the State of Kentucky still have the same powers and obligations as they did prior to the Obergefell ruling, with the twist that they must also marry two people of the same sex who are otherwise qualified.

                      This is not the first time this has happened in the history of the Republic. If there were any examples of subsequent courts finding that an entire legislative scheme, with 150 years of history, was suddenly invalidated because one easily-severable aspect of the legislation was ruled unconstitutional, one would think that the author might point to that example.

                      How many people have gotten ‘married’ in Kentucky since Obergefell? Is anyone — the Governor, the Attorney General, a random Senator, another Clerk, a judge — asserting that all these marriages are invalid, because no statutory authority exists?

                      If the Governor honestly believes that marriage does not exist in Kentucky and isn’t calling an emergency session of the Legislature, then he deserves impeachment. How dare he so grossly interfere with such an important life decision for so many people?

                      Alternatively, his AG has advised him that the legal basis for this article is about as valid as your average 10th Amendment nonsense.

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                        • My pleasure.

                          One reason that bro. Likko might have been as sharp as he was in his response is that the OMG CHAOS! viewpoint is regularly trotted out whenever a law is invalidated (even on statutory grounds), and this viewpoint just doesn’t have any legal merit.

                          Lawyers are (well, at least I am) wrong a lot. (all the damn time, my employer would say.) So just because a law blog disagrees with one of these more strident blogs doesn’t make the lawyer right. So here are a few quick checks to think about whenever someone makes broad statements about the effect of a judicial decision:

                          does the post cite precedent? Especially on a hot-button issue, the precedent can be historical as well as legal. As Mike Schilling pointed out above, what happened after Loving? Did the States take the position that their marriage statutes were invalid root-and-branch? (not that I recall.)

                          Is the post linking through to the precedent or second-hand sources? When you look at the links, is the poster being fair?

                          does the post cite to common-sense authorities in support of its position? I don’t much care what a presidential candidate has to say. What about the relevant Attorney General?

                          does the post ascribe absurd powers to a court? In general, judicial decisions should be given the narrowest possible reading, especially when invalidating legislation. (Even in Brown v. Board of Ed., the states were given time to comply.)

                          Are other state actors acting consistently with the poster’s interpretation of the law?

                          And (easiest) what does Eugene Volokh have to say?

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                          • “One reason that bro. Likko might have been as sharp as he was in his response is that the OMG CHAOS! viewpoint is regularly trotted out whenever a law is invalidated (even on statutory grounds), and this viewpoint just doesn’t have any legal merit.”

                            Unless it’s King V. Burweil and cutting off Federal subsidies would have completely destroyed the ACA and left billions of Americans with no way to ever go to the doctor again.

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            • Kim Davis may very well lack standing, but (for example) Kentucky’s taxation authority wouldn’t as long as any couple pays less in taxes based on their marriage. I suspect there’s more, err…, motivated reasoning, to come on this issue.

              When it does, I hope the happy couples have more to stand on than maxims of equity. They may be enough here, but the general rule is if they’re all you’ve got you probably lose (especially as they usually conflict with each other).

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          • Well, there are certainly circumstances under which they could be legal. KRS 402.100 uses “signature of the county clerk or deputy clerk issuing the license.” 402.240 says that if the clerk is absent or the office of clerk is vacant, the county judge/executive can issue the license instead. Presumably the next dust-up is when Ms. Davis returns to work, announces that no licenses are to be issued, and one of the deputy clerks says, “You can’t order me to violate a federal court order and be in contempt.”

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        • I have this suspicion that Davis is going to turn out, for the anti-gay right, a figure much like George Zimmerman turned out for the gun rights crowd. At first sympathetic, but soon their antics will reveal them to be entirely cray-cray.

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  3. Social conservatives are treated in such an oddly distinct way that they’ll never recognize or appreciate. How many other people get to get out of jail immediately after going in despite insisting that they’ll continue to do exactly what they were doing in the first place?

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    • This is the social conservative claim – that the only true affront to liberty is when social conservatives are not free to impose their vision upon dissenting others. It isn’t simply enough to live your own life by your own moral vision, but rather, to mandate that all others suffer your beliefs too. Kim Davis isn’t free if she can’t punish others. Don’t bother trying to figure out if people with religious beliefs that deviate from a socially conservative vision are afforded the same freedom. They’re not. Quaker clerks would still be expected to issue gun licenses of course. This is a carved out protection that exists only for those holding a stridently intolerant Christian vision for the world.

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  5. DensityDuck:
    “the only true affront to liberty is when social conservatives are not free to impose their vision upon dissenting others.”

    So if you come into MY store and tell ME what to do, and I refuse, that’s ME “imposing my vision” on YOU.

    If by “tell me what to do” you mean “serve me the same type of good your store publicly sells”, then yes, YOU choosing to deny me service while serving someone else and claiming to run a public business is YOU imposing your vision on ME. The location of the transaction doesn’t actually determine the qualities of it, you dig?

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