Monday, September 07, 2015

The Marriage Licenses Issued by the Deputy Clerks Are Valid

by Michael Dorf

As the Kim Davis saga becomes a culture war Rorschach test, it is tempting to spend one's time gagging over the nonsense on the right, beginning with Mike Huckabee's characterization of the jailing of Davis for contempt as the "criminalization of Christianity," and perhaps ending with Davis attorney (and former Liberty Law School Dean) Mathew Staver's comparison of his client to Jews in Nazi Germany. Given the fate of gay and lesbian Germans under Nazi rule, this has to rank as one of the most inappropriate Nazi comparisons ever.

I will leave the cultural aspects of this farce to the cultural critics and continue to focus on the legal questions, which, as I tried to show in my earlier discussions of this odd case (here and here), are not entirely clear-cut. For now I'd like to take a stab at an issue that is clear-cut but that, for reasons I don't understand, has been treated by Federal District Judge Bunning as mysterious.

The question is whether the marriage licenses that Judge Bunning seemed to order* the deputy clerks in Rowan County to issue late last week are valid, notwithstanding the fact that Davis did not authorize them. Apparently, when Judge Bunning issued the order he said "I am not saying" the license issued by the deputy clerk pursuant to the order "is or it isn’t" valid. This statement is perplexing.

It may well be a difficult and/or unresolved question of Kentucky law whether a deputy clerk can issue a valid marriage license over the objection of the elected Clerk. In an excellent treatment of several issues in the Davis case over on Balkinization, Marty Lederman explains how the relevant provisions of Kentucky law might bear on this and related questions. But the right answer to the question whether Kentucky law treats a deputy clerk as having the authority to issue valid licenses despite the objection of the Clerk is "IT DOESN'T MATTER."

Federal district judges have broad authority to order remedies for violations of federal constitutional rights. Sometimes what they order will violate state law. For example, if Kentucky law forbade racially integrated public schools--as it did before and even for a few years after Brown v. Board--a federal district judge could nonetheless order a school board or principal to admit African American students into an otherwise all-white public school. The fact that doing so would violate state law would not deprive the remedy of its force. Federal law--including federal court interpretations of federal constitutional rights--displaces state law pursuant to the Supremacy Clause.

To be sure, there's a difference here. In the segregation case, the very state law in question--mandating segregation--is itself invalid. In the Davis case, assuming that Kentucky law required a county Clerk to authorize her deputy to issue marriage licenses for those deputy-issued licenses to be valid, that law itself--which concerns the allocation of authority between clerks and their deputies--would not be unconstitutional. But again, it doesn't matter, as the Supreme Court made clear in Missouri v. Jenkins.

In Jenkins the Court affirmed that a federal district court supervising constitutionally required desegregation could order a local government unit to collect taxes that were illegal under state law. It's true that four Justices disagreed with this aspect of the opinion, but they did so chiefly on the ground that imposing taxes is a uniquely legislative function, so that a court could not authorize taxation where the legislature had not. And the five Justices in the majority thought that principles of comity and federalism would counsel caution before a court should order a state or local actor to impose a tax without state legislative or state constitutional authorization. But the majority thought that it could be done in an appropriate case. More importantly, in a case like Davis--where the power conferred is to grant licenses rather than to raise taxes--the comity and federalism concerns are much less serious.

Accordingly, once Judge Bunning determined that ordering the deputy clerks to issue the marriage licenses was necessary to effectuate his preliminary injunction in light of Davis's refusal to comply, questions of state law became irrelevant--except with respect to comity. Sure, it would have be an aubsue of discretion for Judge Bunning to order a random state or county official (the highway commissioner, say) to issue marriage licenses. But deputy clerks who can issue marriage licenses with the Clerk's consent are not random actors, and thus it was hardly an abuse of discretion for him to deputize them--regardless of what Kentucky law might say about the matter.

Finally, it's worth noting that if I'm right about this, then Judge Bunning needn't have jailed Davis. He could have fined her for failure to obey his order, but coercing compliance would have been unnecessary to effectuate the plaintiffs' rights once it was recognized that, per the Supremacy Clause, the licenses issued by the deputies would be valid.

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* Postscript (Update): I originally referred in this post to Judge Bunning's "order" to the deputy clerks to issue marriage licenses but I have learned that there doesn't appear to be such an order--even though Judge Bunning did threaten to hold the deputy clerks in contempt if they didn't issue licenses. Because contempt is premised on violation of an order, I had assumed that there was such an order. This (further) oddity provides a possible explanation for why Judge Bunning doesn't know whether the deputy-issued licenses are valid. If there is no order from him, then the validity of such licenses really would be a matter of state law. However, Judge Bunning himself can remove the uncertainty by properly joining the deputy clerks as defendants, issuing a show cause order, and then, after a hearing, officially ordering the deputies to issue (or reissue) licenses. At that point, the foregoing analysis would fully apply.

23 comments:

Piers Webman said...

That's a rather provocative claim - that, without limit, equitable powers of Mandamus lie against any public official: state, municipal or national -- irrespective of state law -- when it comes to potential violations of the Federal Constitution.

I'd suggest that a clearer reading of Jenkins would be that municipal tortfeasors can be compelled to fund remedies. After the decision, and after the state has attempted (vel non) to comply. This has nothing to do with forcing specific performance by an individual, something that courts are historically reluctant to do. Additionally, in Jenkins, the Court took great pains to say that, whenever possible, a local remedy should be fashioned. Perhaps, instead, the Circuit should have certified questions of Kentucky law to the top court of the Commonwealth, thereby blocking the end run around state remedies intrinsic to S1983 actions.

David Ricardo said...

I appreciate and understand the prior posts of Mr. Dorf but I fail to understand and accept the fact that the legal issues here are not clear cut and unambiguous. Let’s start with some facts about the issue of Ms Davis’s actions as a governmental official.

1. In her elected position, with respect to marriage licenses she is the government.

2. The Constitution clearly prohibits government, all levels of government, from establishing a religion.

3. The basis for Ms. Davis’s refusal to issue marriage licenses to same sex couples is that her religion forbids such a thing. For her, God is the authority here, not the Constitution.

4. If Ms. Davis’s position stands, then she is clearly causing government to establish her religion (in part) as the religion for Rowan county. That is, same sex marriage would be unavailable in that county for the sole reason that government has established her religion as the religion of Rowan county with respect to marriage.

It is so clear that her actions violate the Constitution that one can only gasp in wonderment that the pious conservatives who say the Constitution is the very basis of their philosophy of government do not rise up in mass in condemnation of her actions. But of course that would require those same conservatives having principles, something we have seen in this situation and others as something that just does not exist.

The second issue is of course Ms. Davis’s refusal to obey the order of a federal judge. Again, there is no ambiguity here. Her case has gone to the Supreme Court, which has not supported her position. Such a failure must result in penalties, and in this case the judge recognized that financial penalties would not work as the money would be paid for by her supporters, leaving incarceration as the only alternative.

Just because there existed a ‘work around’ as delineated by Mr. Dorf does not mean that Ms. Davis should not suffer coercion to move her to obey the lawful order of a court. Assume that as part of a protest I unlawfully block the front entrance of a government building. Just because there is an alternative way for persons to enter the building does not mean I am free to violate the law/court order and not be fined or incarcerated.

Ms. Davis was offered a reasonable accommodation, in fact what was maybe a more than reasonable accommodation. That she failed to accept it is just further evidence that her intentions are not to preserve her religious freedoms, but to use government to impose her religion on her constituents.

At least one Supreme Court justice believes that states have the right to establish a religion. It is obvious from their comments that many supporters and defenders of Ms. Davis believe that government can and should establish a religion, specifically their religion. It is that reason why this otherwise trivial case is so important, as once again the United States must wrestle with the forces that would deny freedom of religion not to the Ms. Davis’s of the world, but to all of those who do not share her fundamentalist Christian faith. The legal issues here are clear cut, the larger issue of whether or not the U. S. will be a constitutional democracy or a partial theocracy is what the debate is all about. I am not sure those of the legal profession recognize this, and that concerns me almost as much as the issue itself.

Michael C. Dorf said...

Piers Webman describes "a rather provocative claim - that, without limit, equitable powers of Mandamus lie against any public official: state, municipal or national -- irrespective of state law -- when it comes to potential violations of the Federal Constitution." Perhaps, but it's not a claim I made. As I said, a district court cannot simply issue an order to an official whose duties have nothing to do with the violation. That would be an abuse of discretion. But where there is no effective remedy for a constitutional violation that complies with state law, yes indeed, a federal district court can order specific performance. Mr. Webman is no doubt thinking that under the common law, legal remedies--that is to say, orders to pay money--were considered a less drastic step than specific performance. However, the desegregation cases quite clearly permit equitable remedies in the form of injunctions running to particular officials, while a remedy that requires taxation is, according to four Justices in Jenkins, much more problematic. My point is that where there are adjudicated constitutional violations--as here (at least for preliminary injunction purposes)--state law does not stand as an obstacle to an otherwise appropriate order. Consistent with the Supremacy Clause, it cannot. Otherwise, a state could easily defeat federal rights. Suppose Kentucky passed a law stating that NO ONE other than Kim Davis has the authority to issue marriage licenses for anyone in the state. By Mr. Webman's logic, only Davis could be the object of a remedial order, and her refusal to comply would leave the federal courts powerless to vindicate the plaintiffs' constitutional rights. That's plainly wrong and thus so is his premise. QED. (Meanwhile, Mr. Webman's reference to "national" officials is a non sequitur, as state law would not provide a limit on the authority of a national, i.e., federal, official in the first place.)

D.E. Frydrychowski said...

(Webman here. I updated the account name/photo after seeing how it rendered on the last post -- one of the seldom-used fields in Google Accounts.)

Quickly as to your last two points: the "only Davis" law could itself be the subject of an EP Young action against the AG, and an order against a single statewide officer is a much clearer conceptual situation than, as here, an EP Young challenge against one of many bureaucrats. And state law does bind federal officials working in the state.

Now. Assuming, arguendo, that there is a violation of the Federal Constitution in a county's not issuing marriage licenses at all (as Kentucky residents can get a license in any county, and there's nothing in the record suggesting an Arlington-like concentration of SSM candidates in Rowan County), the court's equivalent of sending in the 101st Airborne by using its chancery powers to order a specific official to sign a specific document upon the pain of imprisonment is extraordinary. The distinction with Jenkins is not tax v. license, but rather a municipality's noncompliance with final judgment versus an individual's noncompliance before the case is even heard.

The ten-ton feather that tips the scales, though, is enough to overwhelm Jenkins, even if it was on four corners. S1983 By design completely bypasses the state remedy. Allowing the ipse dixit of a federal judge to unilaterally create the legislative basis for marriage within a state not only makes an end run around the powers traditionally reserved to the states, but also stunts and overwhelms the legislative process in the states. The logical thing to do would have been to certify the questions on state RFRA and the state constitution to the top court of the Commonwealth. Not to mention the fact that the suit proceeded as an EP Young action, which presumes that there is no conflict between the state's intent and the Federal constitution. (In contrast to the sometimes paternalistic emphasis of S1983.)

To paraphrase a line from the historical trope your arguments persistently try to summon: The system has enforced its decision. Now let it decide it. Cheers.

/not legal advice

Marty Lederman said...

Thanks, Mike. I added this update to my post in response:

[UPDATE: I agree with Mike Dorf that even if Kentucky law provided that Clerk Davis's name had to be on a license in order for it to be valid, a federal court could--in order to guarantee the constitutional rights of the plaintiffs--either (i) order Deputy Clerk Mason to include Davis's name or (ii) decree that the license shall be valid regardless of whether her name appears. As far as I know, however, Judge Bunning has not yet done either of these things.]

Michael C. Dorf said...

Thanks Marty. I've updated the foregoing with a postscript in light of your comment.

Michael C. Dorf said...

PW/DEF: (1) On the tangential point, federal officers follow state law to the extent that it is consistent with federal law, which is the only point I'm making with respect to state officers as well. Federal law often confers immunity on federal officers against state law. In any event, this was an aside, so I'm content to leave it aside. (2) On the main point, I think your example of an EPY action against the AG proves MY point. In my example, the only person in the state empowered to issue marriage licenses is Kim Davis. Thus an order against the AG is--like an order in the actual case to the deputy clerks--an order to do something for which there is (by hypothesis) no state authority. (3) The suggestion of certification hints of a lack of respect for the underlying right. District courts in the desegregation era did not often certify questions to state courts about the allocation of authority for implementing their education laws.

Howard Wasserman said...

It probably would not be necessary to join the deputies. Bunning could simply extend his injunction to the limits of FRCP 65(d)(2) to bind "the parties’ officers, agents, servants, [and] employees."

Joe said...

I don't think the OP was saying there was "no limit" to what the judge could have done, but it is a concern to determine how much "discretion" is appropriate.

A tax seems to me a fairly neutral act (if powerful) of payment while entry of students that otherwise would be allowed to enter besides race discrimination hits to the core of the concern. Here, we have a somewhat middle ground perhaps. An elected official has a mandated responsibility. Having a deputy to do it is like having an assistant do the boss' work. It's not the same thing, especially given she is an elected official, chosen by the people who entrusted her with certain acts.

Not joining the last paragraph (or maybe two), I also think Mr. Ricardo has a strong point here. I'm loathe to jail her (just like the couples' lawyers did not wish her to be) in part since it helps make her a martyr, but she is a government official and she is violating a judicial order, that went to the Supreme Court, to carry out her constitutionally mandated (she swore an oath) duties. The handing out of licenses is important but so is that. A license not signed by the government official elected to do just that is a small act of establishment and discrimination against same sex couples.

egarber said...

A general observation:

In the previous post, Joe mentions that “free exercise” is called out so there might be a presumption that it deserves positive attention in law. But “establishment” is also defined in the First Amendment, which is a safeguard against theocracy.

Therefore, I think the two have to be viewed together as a bulwark. As such, to me it’s best to consider the entire space as beyond government reach. RFRA laws are intended to do the opposite: government by necessity becomes entangled in the very definition of what constitutes valid faith. And each time the state approves an exception in the name of “free exercise,” it is instead codifying an establishment of religion in the law itself. That is the crux here as I see it. Unlike with other areas of one-way constitutional liberty (privacy, for example) – where augmenting a right with legislation causes no offense – it is different with the religion clauses. Acting on either side generally invokes the other in the negative.

So here, given the inability to carry out action in one space (free exercise) without negatively affecting the other (establishment), to me the Employment v Smith rule is the best approach; the test is whether the law itself is secular with a valid public purpose. RFRA laws are therefore not necessary at all. Keeping it clean this way avoids the government having to enter the debate around what defines “free exercise.” In only focusing on neutral, secular and generally applicable laws, the government is blind to those complicated questions. In other words, it is limited in the Madisonian sense, leaving religion as something beyond its very cognizance.

(As an aside, I wonder if Huckabee and company would also support a Jewish clerk refusing to issue a license to anybody who eats non-Kosher meat. It seems his supposed general principle would require him to answer affirmatively. But if not, it's arguably even worse, because he would likely make some argument about how Christian beliefs are the more valid ones - i.e., Christian Establishment is the ultimate goal, however couched in various egalitarian postures.)

Joe said...

My rejoinder to a member of the blog was that "religion" itself is singled out, in both directions, just to be clear there.

The Supreme Court spoke over the years of a "play in the joints" where various religious exemptions -- which since ancient times was seen as necessary in some fashion to fairly treat those with a special personal obligation that makes following general laws problematic -- are not establishments. Employment Div. v. Smith does not reject this approach; it in effect takes it out of the courts. But, does egarber want there to be NO exemptions? So, no conscientious objection to fight. No exemption of any kind.

Having exemptions tempers the law in various ways especially given our regulatory state. The Free Exercise Clause at least suggests that religious obligations deserve SOME respect here. Just what exemptions should be included is unclear, but if there are some, at times it would include religion. Thus, tax exemptions can be for a range of things, including religious institutions, which has added value not just to promote charity but help separation of church/state.

Also, there is a blanket rule -- free exercise should not be prohibited. This should protect some sort of basic exercise of religion. For instance, a Footloose dance ban that stopped Native Americans from doing tribal dances, however "neutral," seems glaringly unconstitutional. There is going to be some balancing along the margins here. Anyway, the Supreme Court, even after Smith, provided special protection to the internal decision-making of religious institutions even when applying laws protecting the disabled. Also, things like privacy requires balancing, such as privacy torts v. public exposure of information in the press.


D.E. Frydrychowski said...

Quick Parthian thoughts, as it's a bit of a busy day -

- Certification would derogate the right only if there wasn't a countervailing constitutional right. RFRA is still in the scales.

- Yes, there is a Supremacy clause. Never meant to suggest the contrary.

- My EPY hypo against the AG was against the limiting law, not individual practice. Substantial difference.

- You're cutting right to fiat - ultimately, can the Federal courts compel an action contrary to state law. I say (1) Jenkins was after lengthy noncompliance with a final decision; (2) prudential principles of comity mean that the federal judge should allow the state time to implement the decision; (3) demonstrated willingness by the state makes S1983 an inappropriate vehicle for the challenge, which could easily have been sidestepped by the Circuit certifying the question; and (4) petitioner hasn't shown hardship, let alone unequal burden, as any clerk in the state can issue the license.

Frankly, the most disturbing thing about this is the way that the legal community has been moving in lockstep. There are a lot of legal arguments here that simply aren't being mentioned in the blogospere, let alone MSM. Arguably relatively harmless this time around, but a disturbingly easy phenomenon to replicate, perhaps.

Enjoyable site. Regards.

LawandMorality said...
This comment has been removed by the author.
egarber said...


Joe, all points taken. Thanks for the reply.

>> For instance, a Footloose dance ban that stopped Native Americans from doing tribal dances, however "neutral," seems glaringly unconstitutional.

I think what I’m getting at is that such a law should fail a doctrine test on a facial level; if a law truly offends free exercise, then it invaded a walled-off space in the first place. I’m therefore much more comfortable with application of general doctrine to determine whether a law is truly neutral and secular – vs. one where a given law means something different case-by-case depending on an individual’s prism.

I do readily acknowledge that even my approach requires the courts (government) to ask questions about the contours of faith. But I’m more comfortable with it at a doctrine level as opposed to the entanglement that comes with an as-applied approach.

Good point about conscientious objection, etc. I'm no lawyer, but I'm guessing there is a way to meaningfully distinguish that from a wide-open carve out party. In other words, I don't think my approach necessarily requires going all the way back up the slippery slope.

LawandMorality said...

I dictated the LawandMorality post, and it has misunderstandings of my words. So here is again. I am Mae Kuykendall, MSU Law.

"Marriage law provides the easy answer. There is no need to dive so deeply into Federal Courts issues. The strong convention in marriage law is that marriages are presumed valid. I could provide further explanation, but the long and short of it is that attempts to invalidate a marriage are often an opportunistic maneuver either by a spouse, an heir, or perhaps a government agency that does not want to pay benefits. The good faith of the couple who made every effort to comply with the procedural requirements but may have failed in some particular is the critical factor. No rational judge knowledgeable about these basic marriage conventions would have the occasion to declare these marriages invalid. Indeed, in the absence of a dispute that goes to court, free floating questions of validity belong in a theology course less than a legal course. Perhaps some law feels like theology to its enthusiasts. If Judge Bunning had ordered the the reincarnation of the Wizard of Oz to issue the licenses, and someone had set up shop and issued license as the Wizard, there might be a case that the couples were not in good faith. Short of that, this is not an issue.

12:16 PM Delete

LawandMorality said...
This comment has been removed by the author.
LawandMorality said...

I meant to say questions of validity belong in a theology course MORE a legal course.

LawandMorality--Mae Kuykendall, Professor of Law,MSU College of Law

egarber said...

One further point:

As part of a general doctrine approach, it seems appropriate to me that the courts should define what "free exercise" means as a legal matter. After all, the Supreme Court has to give meaning to the words in the constitution. So by defining "exercise of religion" at this level, the court can build tests around that - vs. letting the LEGAL definition float based on what an evangelical somewhere thinks. I'm trying to remember where, but I think Mike has made similar points before - i.e., (my paraphrase) if every attenuated instance is 'free exercise', then everything and anything under the sun is a religious practice. That simply can't be right.

egarber said...

I mean "attenuated" instance of behavior.

David Ricardo said...

Per the previous post and my assertion that the Establishment Clause is relevant here, in reading Judge Bunning's decision (which I did after my post) the plaintiffs did indeed raise the Establishment Clause issue, footnote 8 at page 15 of the opinion,

"8) Although it is not the focus of this opinion, Plaintiff's have already asserted such an Establishment Clause claim against Kim Davis in her official capacity (Doc #1 at 13)."

That the Court chose not to address that issue may be the result of the fact that the other issues in the case were so strong against Ms. Davis that the judge felt no need to introduce that can of worms into the proceedings.

FoxFire said...

Whether holding Davis in custody was necessary or not, it's perfectly legal to hold her in jail for Contempt of Court. People have been remanded to jail for Contempt of Court for a lot less than her egregious actions of directly violating a court order. You can be thrown in jail for Contempt of Court just for telling off the judge in court.

Her being thrown in jail isn't simply a matter of forcing her to comply, it's also a punishment for violating a court order.



Joe said...

Thanks egarber. It's a complicated issue obviously & I personally sometimes fine "clean" rules are a bit messy in practice.

One thing used is "substantial burden" on religion, since some trivial burden can be imagined for most anything. This is an important check & one some argue the Hobby Lobby majority applied too loosely.

Don Smith said...

Mrs. Davis' conduct has made it necessary to keep her in custody. Not only has she defied the court's lawful order (to do her job without violating the equal protection clause), but she refused the court's offer for a reasonable accommodation by insisting that she considers it her duty to prevent her subordinates from complying with the court's order. Judge Bunning has a responsibility to ensure that the plaintiff class is able to vindicate their rights under the law, and it appears that physically restraining Mrs. Davis is the only way to accomplish that objective short of literal martyrdom.