Marty Lederman (Georgetown Law) tries to parse out the situation in Kentucky where federal judge David Bunning has thrown County clerk Kim Davis into the brig because she is in contempt of preliminary injunction to cease her "no marriage licenses policy". The judge has spared the Deputy Clerks who have agreed to perform the ministerial act of issuing marriage licenses.
But if you can get married in Rowan County by getting a license from a Deputy clerk, why is Kim Davis in jail? She thinks it is because only she can authorize the Deputies to issue licenses, and she refuses to do it because she does not approve of same sex marriage, and issuance by her office of such a license would make her complicit in something that violates her conscience. Mike Huckabee agrees with her, as presumably, does Catholic Neo-Con Robert George. They say Obergefell v. Hodges is today's Dred Scott - an act of judicial lawlessness (they're wrong about Dred Scott).
Judge Bunning could issue marriage licenses (FRCvP 70 - on my Miller v. Davis resource page), or appoint a master to do it, but doesn't want to take on that function when there is an office in Rowan charged by Kentucky law with the duty. In any event the federal court has power here - as in the school desegregation cases - to override state law, as Cornell's Michael Dorf points out.
Personally I think that Davis is wrong - that there is nothing more personal about her office issuing a marriage license than the signature of Jacob Lew, Secretary of the Treasury on the twenty dollar bill in my pocket. It is the State that acts, not her - she could readily be replaced by an App. And probably should be.
But this is a post to draw attention to Marty Lederman's quite thorough survey, which is well worth reading. He asks four questions:
The Law
So where do things stand now? Let’s break it down into four key questions:
1. If licenses issued in Rowan County included Davis’s name, would she be authorizing or approving the subsequent marriages?
2. Must the licenses include the County Clerk’s name, “Kim Davis,” in order to be valid?
3. Can Deputy Clerk Mason issue licenses if Clerk Davis has directed him not to do so?
4. Was Judge Bunning justified in holding Davis in contempt and remanding her to federal custody?
Does anyone know what is going on with Kim Davis in Rowan County, KY? // Marty Lederman // Balkinization
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