Re: What's happening in the Kim Davis case

[Marty Lederman]

They are one and the same.  The authorization "statement" is at the top of
the form, and does not mention an official.  The official is only mentioned
in the "issued by" line, which refers to Brian Mason, not Kim Davis (as the
statute permits):

https://www.justsecurity.org/wp-content/uploads/2015/09/davis.mason_.licenses.pdf

On Sat, Sep 12, 2015 at 4:54 PM, Walsh, Kevin  wrote:

> The point about validity and authorization is not about the signature
> required by Ky. Rev. Stat. 402.100(1)(c) but "the authorization statement
> of the county clerk issuing the license" required by Ky. Rev. Stat.
> 402.100(1)(a). What is the authorization statement of the county clerk
> issuing the license on the licenses issued by Mason to plaintiffs?
>
> Read Davis's PI testimony (below) for her interpretation.
> 
> From: religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [
> lederman.ma...@gmail.com]
> Sent: Saturday, September 12, 2015 4:34 PM
> To: Law & Religion issues for Law Academics
> Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman; Samuel Bagenstos
> Subject: Re: What's happening in the Kim Davis case
>
> The license is valid even if Mason rather than Davis signs and issues it:
> As I posted earlier, KY law provides that the license must contain “[t]he
> date and place the license is issued, and the signature of the county clerk
> or deputy clerk issuing the license.”  Moreover, KRS § 61.035 states that
> “[a]ny duty enjoined by law . . . upon a ministerial officer, and any act
> permitted to be done by him, may be performed by his lawful deputy.”   What
> Davis and Kevin call "county clerk authority" is no more needed here than
> in the case where the SG recuses from a case and the brief is signed, on
> behalf of the U.S., by the Deputy SG (as John Roberts did in, e.g., Metro
> Broadcasting).
>
> Indeed, Davis agrees that the license could be valid without her name,
> since that's ostensibly the remedy she's seeking--she insists that RFRA
> requires the Governor to issue a new license form that would omit her name
> and title.
>
> If Davis had genuinely been interested in making sure the marriages could
> go forward without her "imprimatur," she could have done in the first
> instance what the Deputy has done now--namely, left her name (and even her
> title!) off the licenses issued.  (Kentucky marriage law would not prohibit
> that.  But even if it did, Davis thinks RFRA requires an exemption, and
> she's the chief state official in the office; presumably Davis herself
> could implement RFRA.)  Or she could have brought a state-court RFRA case
> seeking such a remedy from the Governor when she received the standard
> license form.  Instead, she instructed the Deputies to deny licenses
> altogether, unless and until the legislature changes the law.
>
> But of course she didn't do any such thing, presumably because she has a
> quite different objective:  She genuinely and sincerely and passionately
> believes that the Supreme Court got it wrong in Obergefell, and wishes not
> only to distance herself from that decision -- in the same way I wouldn't
> want to work on or to sign a government brief urging the death penalty --
> but also to register a very vocal and public objection, based upon what she
> understands to be a biblical dictate about marriage.  I think that
> registering such dissent from the Court's judgments is perfectly
> appropriate--honorable, even--even for a public official, as long as she
> does so in a way (such as by publicly announcing that Mason, rather than
> she, will henceforth be issuing licenses, or by resigning) that does not
> undermine the constitutional rights of the people who she was elected to
> serve.
>
> What I don't find plausible is her argument that her religious exercise is
> substantially burdened if the Clerk's Office, without her involvement,
> issues licenses that read either:  "Issued this 9/_/2015 in the office of
> Kim Davis, Rowan County County Clerk, Morehead, Kentucky by Brian Mason,
> Deputy Clerk,” or "Issued this 9/_/2015 in the office of the Rowan County
> County Clerk, Morehead, Kentucky by Brian Mason, Deputy Clerk.”
>
>
>
> On Sat, Sep 12, 2015 at 11:30 AM, Walsh, Kevin  > wrote:
> If I were a plaintiff and the validity of my marriage depended on the
> validity of my license, I would argue that the deputy clerk issued the
> license under Davis's authority. Otherwise, I would have to point to some
> other county clerk, and there is no other candidate. Now maybe that would
> be a losing argument. If so, then I would end up having to argue that my
> marriage was valid (or should be regarded as valid for whatever purpose I
> find myself arguing about) even though the license was not. I am not an
> expert in family law, but I understand there are some pretty good arguments
> one could make to 

Re: What's happening in the Kim Davis case

[Marty Lederman]

The license is valid even if Mason rather than Davis signs and issues it:
 As I posted earlier, KY law provides that the license must contain “[t]he
date and place the license is issued, and the signature of the county clerk *or
deputy clerk* issuing the license.”  Moreover, KRS § 61.035 states that
“[a]ny duty enjoined by law . . . upon a ministerial officer, and any act
permitted to be done by him, *may be performed by his lawful deputy*.”
What Davis and Kevin call "county clerk authority" is no more needed here
than in the case where the SG recuses from a case and the brief is signed,
on behalf of the U.S., by the Deputy SG (as John Roberts did in, e.g., *Metro
Broadcasting*).

Indeed, *Davis agrees* that the license could be valid without her name,
since that's ostensibly the remedy she's seeking--she insists that RFRA
requires the Governor to issue a new license form that would omit her name
and title.

If Davis had genuinely been interested in making sure the marriages could
go forward without her "imprimatur," she could have done in the first
instance what the Deputy has done now--namely, left her name (and even her
title!) off the licenses issued.  (Kentucky marriage law would not prohibit
that.  But even if it did, Davis thinks RFRA requires an exemption, and
she's the chief state official in the office; presumably Davis herself
could implement RFRA.)  Or she could have brought a state-court RFRA case
seeking such a remedy from the Governor when she received the standard
license form.  Instead, she instructed the Deputies to deny licenses
altogether, unless and until the legislature changes the law.

But of course she didn't do any such thing, presumably because she has a
quite different objective:  She genuinely and sincerely and passionately
believes that the Supreme Court got it wrong in *Obergefell*, and wishes
not only to distance herself from that decision -- in the same way I
wouldn't want to work on or to sign a government brief urging the death
penalty -- but also to register a very vocal and public objection, based
upon what she understands to be a biblical dictate about marriage.  I think
that registering such dissent from the Court's judgments is perfectly
appropriate--honorable, even--even for a public official, as long as she
does so in a way (such as by publicly announcing that Mason, rather than
she, will henceforth be issuing licenses, or by resigning) that does not
undermine the constitutional rights of the people who she was elected to
serve.

What I don't find plausible is her argument that her religious exercise is
substantially burdened if the Clerk's Office, without her involvement,
issues licenses that read either:  "Issued this 9/_/2015 in the office of
Kim Davis, Rowan County County Clerk, Morehead, Kentucky by Brian Mason,
Deputy Clerk,” or "Issued this 9/_/2015 in the office of the Rowan County
County Clerk, Morehead, Kentucky by Brian Mason, Deputy Clerk.”



On Sat, Sep 12, 2015 at 11:30 AM, Walsh, Kevin  wrote:

> If I were a plaintiff and the validity of my marriage depended on the
> validity of my license, I would argue that the deputy clerk issued the
> license under Davis's authority. Otherwise, I would have to point to some
> other county clerk, and there is no other candidate. Now maybe that would
> be a losing argument. If so, then I would end up having to argue that my
> marriage was valid (or should be regarded as valid for whatever purpose I
> find myself arguing about) even though the license was not. I am not an
> expert in family law, but I understand there are some pretty good arguments
> one could make to that effect. So maybe I don't care that I have an invalid
> license.
>
> I have been assuming, though, that one of the plaintiffs' objectives is to
> receive _valid_ licenses through in-person application at the Rowan County
> Clerk's office. And county clerk authority is needed to make that happen.
>
> Marty is charitable to say an assumption about Davis endeavoring to work
> out a reasonable accommodation is generous; others might call it naive. In
> any event, I'm happy to extend the same assumption to the plaintiffs as
> well. I don't know whether they would have accepted a proposal like the one
> I have proposed if somehow the judge had been able to bring the parties to
> see it. But I hope so.
>
> At least some people I've expressed this hope to disagree, usually with
> reference to a race analogy. But the particulars matter. One frustrating
> aspect of this episode is that the transition in marriage licensing is not
> remotely as complicated as desegregating schools. There are not that many
> moving parts and what has to happen in the world is really quite simple to
> accomplish without conscripting or coercing those who refuse to cooperate
> on grounds of conscience. Some argue that the undermining of other
> interests involved in a workaround is unacceptable. With respect to the
> particular proposal I've put on the 

RE: What's happening in the Kim Davis case

[Walsh, Kevin]

What is the name of the county clerk under whose authority these licenses are 
issued? 

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Saturday, September 12, 2015 6:23 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in the Kim Davis case

They are one and the same.  The authorization "statement" is at the top of the 
form, and does not mention an official.  The official is only mentioned in the 
"issued by" line, which refers to Brian Mason, not Kim Davis (as the statute 
permits):

https://www.justsecurity.org/wp-content/uploads/2015/09/davis.mason_.licenses.pdf

On Sat, Sep 12, 2015 at 4:54 PM, Walsh, Kevin 
> wrote:
The point about validity and authorization is not about the signature required 
by Ky. Rev. Stat. 402.100(1)(c) but "the authorization statement of the county 
clerk issuing the license" required by Ky. Rev. Stat. 402.100(1)(a). What is 
the authorization statement of the county clerk issuing the license on the 
licenses issued by Mason to plaintiffs?

Read Davis's PI testimony (below) for her interpretation.

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman 
[lederman.ma...@gmail.com]
Sent: Saturday, September 12, 2015 4:34 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman; Samuel Bagenstos
Subject: Re: What's happening in the Kim Davis case

The license is valid even if Mason rather than Davis signs and issues it:  As I 
posted earlier, KY law provides that the license must contain “[t]he date and 
place the license is issued, and the signature of the county clerk or deputy 
clerk issuing the license.”  Moreover, KRS § 61.035 states that “[a]ny duty 
enjoined by law . . . upon a ministerial officer, and any act permitted to be 
done by him, may be performed by his lawful deputy.”   What Davis and Kevin 
call "county clerk authority" is no more needed here than in the case where the 
SG recuses from a case and the brief is signed, on behalf of the U.S., by the 
Deputy SG (as John Roberts did in, e.g., Metro Broadcasting).

Indeed, Davis agrees that the license could be valid without her name, since 
that's ostensibly the remedy she's seeking--she insists that RFRA requires the 
Governor to issue a new license form that would omit her name and title.

If Davis had genuinely been interested in making sure the marriages could go 
forward without her "imprimatur," she could have done in the first instance 
what the Deputy has done now--namely, left her name (and even her title!) off 
the licenses issued.  (Kentucky marriage law would not prohibit that.  But even 
if it did, Davis thinks RFRA requires an exemption, and she's the chief state 
official in the office; presumably Davis herself could implement RFRA.)  Or she 
could have brought a state-court RFRA case seeking such a remedy from the 
Governor when she received the standard license form.  Instead, she instructed 
the Deputies to deny licenses altogether, unless and until the legislature 
changes the law.

But of course she didn't do any such thing, presumably because she has a quite 
different objective:  She genuinely and sincerely and passionately believes 
that the Supreme Court got it wrong in Obergefell, and wishes not only to 
distance herself from that decision -- in the same way I wouldn't want to work 
on or to sign a government brief urging the death penalty -- but also to 
register a very vocal and public objection, based upon what she understands to 
be a biblical dictate about marriage.  I think that registering such dissent 
from the Court's judgments is perfectly appropriate--honorable, even--even for 
a public official, as long as she does so in a way (such as by publicly 
announcing that Mason, rather than she, will henceforth be issuing licenses, or 
by resigning) that does not undermine the constitutional rights of the people 
who she was elected to serve.

What I don't find plausible is her argument that her religious exercise is 
substantially burdened if the Clerk's Office, without her involvement, issues 
licenses that read either:  "Issued this 9/_/2015 in the office of Kim Davis, 
Rowan County County Clerk, Morehead, Kentucky by Brian Mason, Deputy Clerk,” or 
"Issued this 9/_/2015 in the office of the Rowan County County Clerk, Morehead, 
Kentucky by Brian Mason, Deputy Clerk.”



On Sat, Sep 12, 2015 at 11:30 AM, Walsh, Kevin 
>>
 wrote:
If I were a plaintiff and the validity of my marriage depended on the validity 
of my license, I 

Re: What's happening in the Kim Davis case

[Marty Lederman]

Kevin Mason -- it is the Deputy County Clerk.

On Sat, Sep 12, 2015 at 6:34 PM, Walsh, Kevin  wrote:

> What is the name of the county clerk under whose authority these licenses
> are issued?
> 
> From: religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [
> lederman.ma...@gmail.com]
> Sent: Saturday, September 12, 2015 6:23 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: What's happening in the Kim Davis case
>
> They are one and the same.  The authorization "statement" is at the top of
> the form, and does not mention an official.  The official is only mentioned
> in the "issued by" line, which refers to Brian Mason, not Kim Davis (as the
> statute permits):
>
>
> https://www.justsecurity.org/wp-content/uploads/2015/09/davis.mason_.licenses.pdf
>
> On Sat, Sep 12, 2015 at 4:54 PM, Walsh, Kevin > wrote:
> The point about validity and authorization is not about the signature
> required by Ky. Rev. Stat. 402.100(1)(c) but "the authorization statement
> of the county clerk issuing the license" required by Ky. Rev. Stat.
> 402.100(1)(a). What is the authorization statement of the county clerk
> issuing the license on the licenses issued by Mason to plaintiffs?
>
> Read Davis's PI testimony (below) for her interpretation.
> 
> From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu
> ] on behalf of Marty Lederman [
> lederman.ma...@gmail.com]
> Sent: Saturday, September 12, 2015 4:34 PM
> To: Law & Religion issues for Law Academics
> Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman; Samuel Bagenstos
> Subject: Re: What's happening in the Kim Davis case
>
> The license is valid even if Mason rather than Davis signs and issues it:
> As I posted earlier, KY law provides that the license must contain “[t]he
> date and place the license is issued, and the signature of the county clerk
> or deputy clerk issuing the license.”  Moreover, KRS § 61.035 states that
> “[a]ny duty enjoined by law . . . upon a ministerial officer, and any act
> permitted to be done by him, may be performed by his lawful deputy.”   What
> Davis and Kevin call "county clerk authority" is no more needed here than
> in the case where the SG recuses from a case and the brief is signed, on
> behalf of the U.S., by the Deputy SG (as John Roberts did in, e.g., Metro
> Broadcasting).
>
> Indeed, Davis agrees that the license could be valid without her name,
> since that's ostensibly the remedy she's seeking--she insists that RFRA
> requires the Governor to issue a new license form that would omit her name
> and title.
>
> If Davis had genuinely been interested in making sure the marriages could
> go forward without her "imprimatur," she could have done in the first
> instance what the Deputy has done now--namely, left her name (and even her
> title!) off the licenses issued.  (Kentucky marriage law would not prohibit
> that.  But even if it did, Davis thinks RFRA requires an exemption, and
> she's the chief state official in the office; presumably Davis herself
> could implement RFRA.)  Or she could have brought a state-court RFRA case
> seeking such a remedy from the Governor when she received the standard
> license form.  Instead, she instructed the Deputies to deny licenses
> altogether, unless and until the legislature changes the law.
>
> But of course she didn't do any such thing, presumably because she has a
> quite different objective:  She genuinely and sincerely and passionately
> believes that the Supreme Court got it wrong in Obergefell, and wishes not
> only to distance herself from that decision -- in the same way I wouldn't
> want to work on or to sign a government brief urging the death penalty --
> but also to register a very vocal and public objection, based upon what she
> understands to be a biblical dictate about marriage.  I think that
> registering such dissent from the Court's judgments is perfectly
> appropriate--honorable, even--even for a public official, as long as she
> does so in a way (such as by publicly announcing that Mason, rather than
> she, will henceforth be issuing licenses, or by resigning) that does not
> undermine the constitutional rights of the people who she was elected to
> serve.
>
> What I don't find plausible is her argument that her religious exercise is
> substantially burdened if the Clerk's Office, without her involvement,
> issues licenses that read either:  "Issued this 9/_/2015 in the office of
> Kim Davis, Rowan County County Clerk, Morehead, Kentucky by Brian Mason,
> Deputy Clerk,” or "Issued this 9/_/2015 in the office of the Rowan County
> County Clerk, Morehead, Kentucky by Brian Mason, Deputy Clerk.”
>
>
>
> On Sat, Sep 12, 2015 at 11:30 AM, 

Re: What's happening in the Kim Davis case

[Walsh, Kevin]

I asked "Is there a county clerk under whose authority these licenses were 
issued, or not?"

If the answer is "no, but it doesn't matter to the validity of the licenses 
because ...," I am asking because I don't understand what comes after "because."

If the answer is "yes," I am wondering what the name of the county clerk is, if 
not Kim Davis.

David's premise seems to be that the answer is in Ky. Rev. Stat. 61.035, but I 
don't see it.



On Sep 12, 2015, at 7:33 PM, David Cruz 
> wrote:

Why is it relevant, given the Kentucky law already aptly quoted by Marty, 
whether or not there is “a county clerk [as distinguished, I guess Kevin Walsh 
is asking, from a deputy county clerk] under whose authority these licenses 
were issued”?

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: 
> 
on behalf of "Walsh, Kevin" >
Reply-To: Law & Religion issues for Law Academics 
>
Date: Saturday, September 12, 2015 at 4:06 PM
To: Law & Religion issues for Law Academics 
>
Subject: RE: What's happening in the Kim Davis case

Brian Mason is a deputy county clerk. Is there a county clerk under whose 
authority these licenses were issued, or not?

[Note: I originally sent this before ND threw a touchdown pass to pull ahead of 
UVA a few minutes ago, but am resending now after being notified it was too 
long. Go Irish.]
___
To post, send message to 
Religionlaw@lists.ucla.edu
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Anyone can subscribe to the list and read messages that are posted; people can 
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Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: What's happening in the Kim Davis case

[David Cruz]

Kevin, before I attempt any elaboration of your first follow-up question below, 
can you say what provision of Kentucky law you would cite as at least seeming 
to contain a requirement that a marriage license must be issued “under the 
authority of” some county clerk?  I apologize if I’m being obtuse about that, 
but please do walk me through it slowly.  Thank you.

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: 
> 
on behalf of "Walsh, Kevin" >
Reply-To: Law & Religion issues for Law Academics 
>
Date: Saturday, September 12, 2015 at 4:56 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: What's happening in the Kim Davis case

I asked "Is there a county clerk under whose authority these licenses were 
issued, or not?"

If the answer is "no, but it doesn't matter to the validity of the licenses 
because ...," I am asking because I don't understand what comes after "because."

If the answer is "yes," I am wondering what the name of the county clerk is, if 
not Kim Davis.

David's premise seems to be that the answer is in Ky. Rev. Stat. 61.035, but I 
don't see it.



On Sep 12, 2015, at 7:33 PM, David Cruz 
> wrote:

Why is it relevant, given the Kentucky law already aptly quoted by Marty, 
whether or not there is “a county clerk [as distinguished, I guess Kevin Walsh 
is asking, from a deputy county clerk] under whose authority these licenses 
were issued”?

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: 
> 
on behalf of "Walsh, Kevin" >
Reply-To: Law & Religion issues for Law Academics 
>
Date: Saturday, September 12, 2015 at 4:06 PM
To: Law & Religion issues for Law Academics 
>
Subject: RE: What's happening in the Kim Davis case

Brian Mason is a deputy county clerk. Is there a county clerk under whose 
authority these licenses were issued, or not?

[Note: I originally sent this before ND threw a touchdown pass to pull ahead of 
UVA a few minutes ago, but am resending now after being notified it was too 
long. Go Irish.]
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: What's happening in the Kim Davis case

[Marty Lederman]

Yes, but that same statute also says that the *Deputy Clerk* can issue the
license, in addition to the Clerk.  Ky. Rev. Stat. 402.100(1)(c).  In such
cases, obviously, the "authorization statement" in question becomes that of
the Deputy Clerk -- *which the State's official form acknowledges when it
provides in the statement for the prospect that the Deputy Clerk, rather
than the Clerk, might issue the license*.  Another way to look at it:
 Because KRS § 61.035 states that “[a]ny duty enjoined by law . . . upon a
ministerial officer, and any act permitted to be done by him, *may be
performed by his lawful deputy,*” references in the Code to duties imposed
upon the Clerk can all be read to add the implicit "or the Deputy."

I very much doubt that Kevin, or any other reasonable person, believes that
Kim Davis actually authorized the licenses issued on Friday, or that any
member of the public understands her to have done so.  Assuming that's
right, I'm really not sure why we're still debating it.


On Sat, Sep 12, 2015 at 8:44 PM, Walsh, Kevin  wrote:

> David,
>
> Sure. The two most pertinent provisions are Ky. Rev. Stat. 402.100(1)(a)
> (requiring the prescribed form for marriage licenses to include "an
> authorization statement of the county clerk issuing the license") and Ky.
> Rev. Stat. 402.100(3)(a) (requiring the prescribed form to include a
> marriage certificate stating "the name of the county clerk under whose
> authority the license was issued").
>
> Kevin
> 
> From: religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of David Cruz [
> dc...@law.usc.edu]
> Sent: Saturday, September 12, 2015 8:24 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: What's happening in the Kim Davis case
>
> Kevin, before I attempt any elaboration of your first follow-up question
> below, can you say what provision of Kentucky law you would cite as at
> least seeming to contain a requirement that a marriage license must be
> issued “under the authority of” some county clerk?  I apologize if I’m
> being obtuse about that, but please do walk me through it slowly.  Thank
> you.
>
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
>
>
> From: > on behalf of "Walsh, Kevin" <
> kwa...@richmond.edu>
> Reply-To: Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> Date: Saturday, September 12, 2015 at 4:56 PM
> To: Law & Religion issues for Law Academics  >
> Subject: Re: What's happening in the Kim Davis case
>
> I asked "Is there a county clerk under whose authority these licenses were
> issued, or not?"
>
> If the answer is "no, but it doesn't matter to the validity of the
> licenses because ...," I am asking because I don't understand what comes
> after "because."
>
> If the answer is "yes," I am wondering what the name of the county clerk
> is, if not Kim Davis.
>
> David's premise seems to be that the answer is in Ky. Rev. Stat. 61.035,
> but I don't see it.
>
>
>
> On Sep 12, 2015, at 7:33 PM, David Cruz > wrote:
>
> Why is it relevant, given the Kentucky law already aptly quoted by Marty,
> whether or not there is “a county clerk [as distinguished, I guess Kevin
> Walsh is asking, from a deputy county clerk] under whose authority these
> licenses were issued”?
>
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
>
>
> From: > on behalf of "Walsh, Kevin" <
> kwa...@richmond.edu>
> Reply-To: Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> Date: Saturday, September 12, 2015 at 4:06 PM
> To: Law & Religion issues for Law Academics  >
> Subject: RE: What's happening in the Kim Davis case
>
> Brian Mason is a deputy county clerk. Is there a county clerk under whose
> authority these licenses were issued, or not?
>
> [Note: I originally sent this before ND threw a touchdown pass to pull
> ahead of UVA a few minutes ago, but am resending now after being notified
> it was too long. Go Irish.]
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web 

RE: What's happening in the Kim Davis case

[Walsh, Kevin]

David,

Sure. The two most pertinent provisions are Ky. Rev. Stat. 402.100(1)(a) 
(requiring the prescribed form for marriage licenses to include "an 
authorization statement of the county clerk issuing the license") and Ky. Rev. 
Stat. 402.100(3)(a) (requiring the prescribed form to include a marriage 
certificate stating "the name of the county clerk under whose authority the 
license was issued"). 

Kevin  

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of David Cruz [dc...@law.usc.edu]
Sent: Saturday, September 12, 2015 8:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in the Kim Davis case

Kevin, before I attempt any elaboration of your first follow-up question below, 
can you say what provision of Kentucky law you would cite as at least seeming 
to contain a requirement that a marriage license must be issued “under the 
authority of” some county clerk?  I apologize if I’m being obtuse about that, 
but please do walk me through it slowly.  Thank you.

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: 
> 
on behalf of "Walsh, Kevin" >
Reply-To: Law & Religion issues for Law Academics 
>
Date: Saturday, September 12, 2015 at 4:56 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: What's happening in the Kim Davis case

I asked "Is there a county clerk under whose authority these licenses were 
issued, or not?"

If the answer is "no, but it doesn't matter to the validity of the licenses 
because ...," I am asking because I don't understand what comes after "because."

If the answer is "yes," I am wondering what the name of the county clerk is, if 
not Kim Davis.

David's premise seems to be that the answer is in Ky. Rev. Stat. 61.035, but I 
don't see it.



On Sep 12, 2015, at 7:33 PM, David Cruz 
> wrote:

Why is it relevant, given the Kentucky law already aptly quoted by Marty, 
whether or not there is “a county clerk [as distinguished, I guess Kevin Walsh 
is asking, from a deputy county clerk] under whose authority these licenses 
were issued”?

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: 
> 
on behalf of "Walsh, Kevin" >
Reply-To: Law & Religion issues for Law Academics 
>
Date: Saturday, September 12, 2015 at 4:06 PM
To: Law & Religion issues for Law Academics 
>
Subject: RE: What's happening in the Kim Davis case

Brian Mason is a deputy county clerk. Is there a county clerk under whose 
authority these licenses were issued, or not?

[Note: I originally sent this before ND threw a touchdown pass to pull ahead of 
UVA a few minutes ago, but am resending now after being notified it was too 
long. Go Irish.]
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RE: What's happening in the Kim Davis case

[Finkelman, Paul]

The legal analysis in all of our posts have been mostly based on “good faith” 
legal arguments.  But we try to figure it out as Ms. Davis’s arguments and 
claims seem to evolve.  Most of the people on this list assume that a 
reasonable accommodation is possible to protect her “religious freedom.”

Does anyone want to entertain the possibility of the following?

There is no good faith here.  Ms. Davis is taking steps to enhance her 
political career and her ability earn money speaking around the country.  In 
addition, some people in Morehead (where I was this week) suggest that she is 
trying to compensate for her less than “Christian” lifestyle in the past, 
including two or three divorces, multiple marriages, children born from one 
father while she was married to someone else – all of this I was told by 
multiple people on Morehead, I have not done any independent research to verify 
it).  Thus people suggested  she is taking this position to shore up her 
political strength with evangelicals in eastern Kentucky.

Alternatively, as some have suggested on this list, she simply does not want to 
have people marry who they love unless she approves of their lifestyle and so 
her actions are not about religious values at all but just old fashioned 
homophobia and bigotry,)and she  is doing everything possible to obstruct the 
law.  She can’t close the courts or even any other clerk’s offices  She can’t 
stand in the school house door, but she is following in the steps of Govs.  
Orville Faubus, Ross Barnett,  and George Wallace.  As such, any attempt to 
negotiate or accommodate is rebuffed with new arguments and new claims.

I would add that her supporters are doubtless sending fundraising email blasts 
to everyone on their email lists begging for money to save Kim Davis for the 
Godless heathens (like Judge Bunning???) who are out to get her.  I suspect 
they are hoping she will be back in jail next week so they can raise more money.

My assumption, by the way, is that when she took her oath of office she did it 
on a Bible and said so help me God, that she would enforce the law (and perhaps 
even uphold the Constitution).  I would be interesting to see what oath she 
took.  (see Matthew 22:21 and Mark 12:17).  I have not heard anyone raise this 
issue, and while it is not relevant in constitutional law, perhaps  it is 
significant for the discussion of constitutional politics.

I could be wrong about all this, and overly cynical. Perhaps we will know in a 
few months or a little longer, if and when we know what her speaking fees are 
after this is over.

=

Paul Finkelman
Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, 
and Constitutionalism
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, September 12, 2015 10:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in the Kim Davis case

Yes, but that same statute also says that the Deputy Clerk can issue the 
license, in addition to the Clerk.  Ky. Rev. Stat. 402.100(1)(c).  In such 
cases, obviously, the "authorization statement" in question becomes that of the 
Deputy Clerk -- which the State's official form acknowledges when it provides 
in the statement for the prospect that the Deputy Clerk, rather than the Clerk, 
might issue the license.  Another way to look at it:  Because KRS § 61.035 
states that “[a]ny duty enjoined by law . . . upon a ministerial officer, and 
any act permitted to be done by him, may be performed by his lawful deputy,” 
references in the Code to duties imposed upon the Clerk can all be read to add 
the implicit "or the Deputy."

I very much doubt that Kevin, or any other reasonable person, believes that Kim 
Davis actually authorized the licenses issued on Friday, or that any member of 
the public understands her to have done so.  Assuming that's right, I'm really 
not sure why we're still debating it.


On Sat, Sep 12, 2015 at 8:44 PM, Walsh, Kevin 
> wrote:
David,

Sure. The two most pertinent provisions are Ky. Rev. Stat. 402.100(1)(a) 
(requiring the prescribed form for marriage licenses to include "an 
authorization statement of the county clerk issuing the license") and Ky. Rev. 
Stat. 402.100(3)(a) (requiring the prescribed form to include a marriage 
certificate stating "the name of the county clerk under whose authority the 
license was issued").

Kevin

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of David Cruz [dc...@law.usc.edu]
Sent: Saturday, September 12, 2015 8:24 PM
To: Law & 

Assessing a Proposed Solution to the KY Case

[James Oleske]

Stepping back from the detailed discussion Kevin, Marty, and others have
been having today about the intricacies and proper interpretation of
Kentucky law, I wanted to address more broadly Kevin's suggested solution
to the Davis situation.

Here's the key testimony from Kim Davis that Kevin quotes in his earlier
message to the list and in a blog post at Mirror of Justice:

THE COURT: All right. You just object to your name being on the license?

THE WITNESS: My name and my county, yeah.

THE COURT: Well, your county, you're elected by the county. But if it said
Rowan County and listed a deputy clerk -- let's say the deputy clerk that
would be permitted to, or has agreed that he or she would not be
religiously opposed to issuing the license, if it just was the deputy
clerk's name with Rowan County and not your name, would you object to that?

THE WITNESS: It is still my authority as county clerk that issues it
through my deputy.

THE COURT: All right. Very well. You may step down. Thank you.


To address Davis's concerns, Kevin's proposed solution is to have deputy
clerks working in Rowan County issue marriage licenses on the authority of
clerks from other counties. Thus, the resulting license issued in Rowan
County would say something like "issued by the office of Bobbie Holsclaw,
Jefferson County Clerk, by [insert name of Rowan County deputy clerk]."

In a message to list earlier today, Kevin reports that some of the
resistance he has gotten to this idea has come from people who raise the
race analogy. But arguing that "particulars matter," Kevin notes that "the
transition in marriage licensing is not remotely as complicated as
desegregating schools" and concludes, "I'm unpersuaded that there are
unacceptable harms to the interests of plaintiffs and others similarly
situated."

The reference to school desegregation strikes me as a non-sequitur. In the
wake of Loving, there were clerks and magistrates who refused to issue
marriage licenses to interracial couples. That phenomenon, not resistance
to school desegregation, seems like the relevant race analogy. Which leads
to the following question: If the clerk of Rowan County had religious
objections to interracial marriage, would it be an acceptable solution to
say that the authority of the Rowan County Clerk's Office won't be used to
license interracial marriages? Alternatively, would we allow the
marriage-licensing authority of Rowan County to be put on the shelf because
the clerk religiously opposed the remarriage of divorced people and didn't
want to facilitate what she sincerely believed to be adultery? Can the use
or nonuse of county authority really be determined by the religious beliefs
of county officeholders?

Both from an establishment perspective and an equal protection perspective,
I'm having a hard time seeing how it's acceptable to let Kim Davis's
religious beliefs preclude the Rowan County Clerk's Office's from
authorizing same-sex marriages, regardless of whether there is a way to
deliver Jefferson County licenses to Rowan County residents with no
additional delay.

- Jim
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What's happening in the Kim Davis case

[Marty Lederman]

Davis has now filed a couple of briefs in the Sixth Circuit, and attached
the transcript of the contempt hearing to one of them . . . so now it's
possible to figure out where things are heading, at least to a certain
extent.

*1.*  *Judge Bunning construes his P.I. to cover the Deputy Clerks*

The judge is of the view that the P.I. enjoins the Rowan County Deputy
Clerks, as well, under FRCP 65(d)(2)(B), because they are Davis's
"employees," are on notice of the injunction against her in her official
capacity, and (as I described in my first post) are themselves authorized
by Kentucky law to issue marriage licenses.  Judge Bunning therefore
threatened to hold the Deputies in contempt, too, if they continued to
refuse to issue licenses.  That's why Deputy Clerk Mason is now issuing the
licenses--although he also asserted that he was willing to do so earlier,
and would have issued them prior to the P.I. but for Davis's direction to
him not to do so.

*2.*  *Davis is moving to overturn Judge Bunning's expansion of his
injunction to cover nonparties.  *

She claims that Bunning should not have expanded the P.I. beyond the four
named plaintiff couples, and is asking the Sixth Circuit to reverse that
expansion.  I'm not sure about the procedural questions, but she actually
might have a point on the merits.  It turns out that the judge did *not *(as
I hypothesized earlier) expand the P.I. in anticipation of granting class
certification.  That was the rationale offered by the plaintiffs for why he
should do so, but it's not the reason Judge Bunning gave for expanding the
scope of the P.I.  Instead, his rationale for expanding it was that he has
before him two companion cases, Nos. 15-46 and 15-62, each involving one
other plaintiff couple (David Ermold/David Moore, and James Yates/Will
Smith, respectively), "that involve, in essence, the very same allegations
with the same lawyers."  "[I]t just makes judicial sense," he said at the
hearing, "to have the Circuit review the decision for all three of [the
cases].  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."

If that's his reason for expanding the P.I., however, it's not clear to me
why he wasn't required to limit the expansion to the two couples who had
filed lawsuits in the companion cases or, at most, to all couples who have
filed or do file such cases.  He doesn't really offer a justification for
having expanded the P.I. to cover couples who appear at the Rowan County
Clerk's Office but who do *not *file a suit.  (Perhaps he assumes that any
couple turned away by David *would *promptly file a suit; but I doubt
that's a valid assumption.)

Accordingly, I think there's at least some chance that the court of appeals
will limit the P.I. to the named parties.  Five of the six plaintiff
couples (including both of those in the companion cases) have already
obtained licenses on which Davis's name does not appear.  (Only Shantel
Burke and Stephen Napier have not yet done so.)  Therefore, a reduced P.I.
would cover only one remaining couple (Burke/Napier), at least until such
time as Bunning certifies a class in one or more cases before him.

*3.*  *Davis wishes to instruct the Deputy Clerks not to issue licenses to
nonplaintiff couples*

There appears to be little doubt that if the court of appeals limits the
P.I. to the named plaintiffs--and perhaps even if it does not--Davis will
instruct her Deputies not to issue licenses to any couples other than
(perhaps) Burke and Napier, *even if those licenses do not include her name*.
And the Deputies will likely obey such an order if the P.I. is cut back,
because they are of the view that but for the injunction they'd be subject
to Davis's direction and control.  If the injunction remains in its present
form, and Davis directs the Deputies not to issue licenses, I imagine at
least one of them (Mason) will ignore her order, in order to avoid being
held in contempt.

*4.*  *Davis continues to argue that she is legally entitled to issue such
an order to the Deputy Clerks by virtue of Kentucky's RFRA, even if the
licenses would not bear her name*

As Eugene prophesied, Davis has, indeed, changed her theory of religious
obligation to fit the changed circumstances.  (I realize that's not the way
you would put it, Eugene!)

As I noted earlier, her previous papers indicated that deleting her name
from the form would be an adequate accommodation of her religious
obligations.  Among the alternatives that Davis argued would "accomplish"
the state interest "without substantially burdening Davis’ religious
freedom and conscience" was:

Modifying the prescribed Kentucky marriage license form to remove the
multiple references to Davis’ *name*, and *thus* to remove the *personal
nature *of the authorization that *Davis* must provide on the current form.

Similarly, at the 

RE: What's happening in the Kim Davis case

[Walsh, Kevin]

If I were a plaintiff and the validity of my marriage depended on the validity 
of my license, I would argue that the deputy clerk issued the license under 
Davis's authority. Otherwise, I would have to point to some other county clerk, 
and there is no other candidate. Now maybe that would be a losing argument. If 
so, then I would end up having to argue that my marriage was valid (or should 
be regarded as valid for whatever purpose I find myself arguing about) even 
though the license was not. I am not an expert in family law, but I understand 
there are some pretty good arguments one could make to that effect. So maybe I 
don't care that I have an invalid license.

I have been assuming, though, that one of the plaintiffs' objectives is to 
receive _valid_ licenses through in-person application at the Rowan County 
Clerk's office. And county clerk authority is needed to make that happen. 

Marty is charitable to say an assumption about Davis endeavoring to work out a 
reasonable accommodation is generous; others might call it naive. In any event, 
I'm happy to extend the same assumption to the plaintiffs as well. I don't know 
whether they would have accepted a proposal like the one I have proposed if 
somehow the judge had been able to bring the parties to see it. But I hope so. 

At least some people I've expressed this hope to disagree, usually with 
reference to a race analogy. But the particulars matter. One frustrating aspect 
of this episode is that the transition in marriage licensing is not remotely as 
complicated as desegregating schools. There are not that many moving parts and 
what has to happen in the world is really quite simple to accomplish without 
conscripting or coercing those who refuse to cooperate on grounds of 
conscience. Some argue that the undermining of other interests involved in a 
workaround is unacceptable. With respect to the particular proposal I've put on 
the table for how things could work in Kentucky, at least until a more systemic 
fix can be adopted, I'm unpersuaded that there are unacceptable harms to the 
interests of plaintiffs and others similarly situated.


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Saturday, September 12, 2015 10:01 AM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Samuel Bagenstos; Howard Wasserman
Subject: Re: What's happening in the Kim Davis case

The licenses currently being issued don't say that the Deputy Clerk is acting 
"on Davis's authority," and no one in their right mind would now understand him 
to be doing so--as the whole world knows, he's acting in direct contradiction 
to her attempted, and very public, direction.

Kevin generously assumes that Davis is actually endeavoring to work out a 
reasonable accommodation that could have avoided this public contretemps and 
guaranteed that these couples would receive licenses in Rowan County, 
consistent with her religious obligations . . . but of course that would defeat 
the whole point of the exercise.


On Sat, Sep 12, 2015 at 9:49 AM, Walsh, Kevin 
> wrote:
There's a sense and consistency to Davis's position that, understood together 
with the requirements of Kentucky law and the desire to obtain licenses from 
Davis's office, can guide us to some potential terms of peace that require 
neither surrender nor conquest.

Under Kentucky law, every license must contain "an authorization statement of 
the county clerk issuing the license." Ky Rev. Stat. 402.100(1)(a). Davis's 
understanding of the way that this is implemented on the current license is 
through the "you are hereby authorized" language on the form, together with 
signifiers of which county clerk is doing the authorization. This came through 
in her testimony at the July 20 preliminary injunction hearing. (Available at 
http://mirrorofjustice.blogs.com/files/d29-2-july-20-2015-pi-hearing-transcript-miller-v.-davis.pdf).

BY MR. GANNAM:
Q. Miss Davis, I've handed you an exhibit, which will be Defendant's Exhibit 2. 
Do you recognize this document?
A. I do.
Q. Can you describe what it is?
A. It is the old version of the marriage license that was prescribed by the 
KDLA for us to use for the issuance of marriage applications.
Q. When you say old version, do you mean the version prior to the Supreme Court 
decision?
A. Yes, sir.
Q. So this would be the form of marriage license used by your office up until 
June 26 of this year?
A. Yes.
Q. I wanted to point out for you the very first sentence after the heading that 
says Marriage License, Valid Only in the Commonwealth of Kentucky. It says, To 
any person or religious society qualified to perform marriages per KRS 402.050, 
you are hereby authorized to join together in the state of matrimony, according 
to the laws of the Commonwealth of Kentucky. Do you see 

RE: What's happening in the Kim Davis case

[Walsh, Kevin]

There's a sense and consistency to Davis's position that, understood together 
with the requirements of Kentucky law and the desire to obtain licenses from 
Davis's office, can guide us to some potential terms of peace that require 
neither surrender nor conquest.

Under Kentucky law, every license must contain "an authorization statement of 
the county clerk issuing the license." Ky Rev. Stat. 402.100(1)(a). Davis's 
understanding of the way that this is implemented on the current license is 
through the "you are hereby authorized" language on the form, together with 
signifiers of which county clerk is doing the authorization. This came through 
in her testimony at the July 20 preliminary injunction hearing. (Available at 
http://mirrorofjustice.blogs.com/files/d29-2-july-20-2015-pi-hearing-transcript-miller-v.-davis.pdf).

BY MR. GANNAM: 
Q. Miss Davis, I've handed you an exhibit, which will be Defendant's Exhibit 2. 
Do you recognize this document? 
A. I do. 
Q. Can you describe what it is? 
A. It is the old version of the marriage license that was prescribed by the 
KDLA for us to use for the issuance of marriage applications. 
Q. When you say old version, do you mean the version prior to the Supreme Court 
decision? 
A. Yes, sir. 
Q. So this would be the form of marriage license used by your office up until 
June 26 of this year? 
A. Yes. 
Q. I wanted to point out for you the very first sentence after the heading that 
says Marriage License, Valid Only in the Commonwealth of Kentucky. It says, To 
any person or religious society qualified to perform marriages per KRS 402.050, 
you are hereby authorized to join together in the state of matrimony, according 
to the laws of the Commonwealth of Kentucky. Do you see that language? 
A. I do. 
Q. And when this license says "you are authorized," who do you understand to be 
authorizing the people on this license to be getting married? 
A. That would be me, the clerk. 
Q. And is it your understanding that that is dictated by the law of the 
Commonwealth of Kentucky? 
A. Yes. 
Q. And did you prepare this form yourself? 
A. No. 
Q. Who prepared or created this form? 
A. The Kentucky Department of Library and Archives. 
Q. I want to call your attention down to the middle of the form. And just for 
the record, there are areas blacked out of this form that would contain the 
personal information of whoever these applicants are. The original forms would 
not contain those black boxes, correct? 
A. Correct. 
Q. So in the middle of the form, it says, We hereby certify the above 
information is true to the best of our knowledge. And it has spaces for, on 
this form, the bride and groom to sign. Directly under that, it says, Issued 
this June 16, 2015, and the office of Kim Davis, Rowan County, County Clerk. Do 
you see that language? 
A. I do. 
Q. Who puts that information on the form, your name and your title as Rowan 
County Clerk? 
A. It populates from our software. 
Q. Do you have any control over that? 
A. No. 
Q. So when your software in your office is used to create a marriage license, 
does it automatically put your name and title into every marriage license? 
A. It does. 
Q. According to your understanding, who does this license say is issuing the 
marriage license? 
A. It was issued by my office. 
Q. And underneath, in the next line, it says By, and there's a name here, Brian 
Mason, Deputy Clerk. Is that a deputy clerk in your office? 
A. It is. 
Q. Do deputy clerks have the authority to sign marriage licenses? 
A. They have authority to sign it, yes. 
Q. Whose authority are they exercising when they sign it? 
A. Mine. 
Q. Are you aware of any marriage license currently available in the 
Commonwealth of Kentucky in Rowan County that would not require you to 
authorize it? 
A. No. 
Q. And do you have the discretion to create a different kind of license that 
would not require your authorization for it to be issued? 
A. No. 
MR. GANNAM: Your Honor, I move to admit Defendant's Exhibit 2 into evidence. 
THE COURT: Any objection? 
MR. SHARP: No objection. T
HE COURT: Let it be received without objection. 
MR. GANNAM: May I approach again, Your Honor? 
THE COURT: You may.
BY MR. GANNAM: 
Q. Miss Davis, I've shown you a document that's been marked as Defendant's 
Exhibit 3. Are you familiar with this document? 
A. I am. 
Q. What is this document? 
A. It is the marriage license that KDLA has prescribed that we use after the 
Supreme Court decision on June 26th. 
Q. And I want to draw your attention to the language at the beginning, To any 
person or religious society qualified to perform marriages per KRS 402.050, you 
are hereby authorized to join together in the state of matrimony, according to 
the laws of the Commonwealth of Kentucky -- I'll stop right there. Is this 
language the same as was on the prior form marriage license? 
A. Yes.
Q. And under this new version of the marriage license who, do you understand, 
is authorizing the people named in the license 

Re: What's happening in the Kim Davis case

[Marty Lederman]

The licenses currently being issued don't say that the Deputy Clerk is
acting "on Davis's authority," and no one in their right mind would now
understand him to be doing so--as the whole world knows, he's acting *in
direct contradiction to her attempted, and very public, direction*.

Kevin generously assumes that Davis is actually endeavoring to work out a
reasonable accommodation that could have avoided this public *contretemps*
and guaranteed that these couples would receive licenses in Rowan County,
consistent with her religious obligations . . . but of course that would
defeat the whole point of the exercise.


On Sat, Sep 12, 2015 at 9:49 AM, Walsh, Kevin  wrote:

> There's a sense and consistency to Davis's position that, understood
> together with the requirements of Kentucky law and the desire to obtain
> licenses from Davis's office, can guide us to some potential terms of peace
> that require neither surrender nor conquest.
>
> Under Kentucky law, every license must contain "an authorization statement
> of the county clerk issuing the license." Ky Rev. Stat. 402.100(1)(a).
> Davis's understanding of the way that this is implemented on the current
> license is through the "you are hereby authorized" language on the form,
> together with signifiers of which county clerk is doing the authorization.
> This came through in her testimony at the July 20 preliminary injunction
> hearing. (Available at
> http://mirrorofjustice.blogs.com/files/d29-2-july-20-2015-pi-hearing-transcript-miller-v.-davis.pdf
> ).
>
> BY MR. GANNAM:
> Q. Miss Davis, I've handed you an exhibit, which will be Defendant's
> Exhibit 2. Do you recognize this document?
> A. I do.
> Q. Can you describe what it is?
> A. It is the old version of the marriage license that was prescribed by
> the KDLA for us to use for the issuance of marriage applications.
> Q. When you say old version, do you mean the version prior to the Supreme
> Court decision?
> A. Yes, sir.
> Q. So this would be the form of marriage license used by your office up
> until June 26 of this year?
> A. Yes.
> Q. I wanted to point out for you the very first sentence after the heading
> that says Marriage License, Valid Only in the Commonwealth of Kentucky. It
> says, To any person or religious society qualified to perform marriages per
> KRS 402.050, you are hereby authorized to join together in the state of
> matrimony, according to the laws of the Commonwealth of Kentucky. Do you
> see that language?
> A. I do.
> Q. And when this license says "you are authorized," who do you understand
> to be authorizing the people on this license to be getting married?
> A. That would be me, the clerk.
> Q. And is it your understanding that that is dictated by the law of the
> Commonwealth of Kentucky?
> A. Yes.
> Q. And did you prepare this form yourself?
> A. No.
> Q. Who prepared or created this form?
> A. The Kentucky Department of Library and Archives.
> Q. I want to call your attention down to the middle of the form. And just
> for the record, there are areas blacked out of this form that would contain
> the personal information of whoever these applicants are. The original
> forms would not contain those black boxes, correct?
> A. Correct.
> Q. So in the middle of the form, it says, We hereby certify the above
> information is true to the best of our knowledge. And it has spaces for, on
> this form, the bride and groom to sign. Directly under that, it says,
> Issued this June 16, 2015, and the office of Kim Davis, Rowan County,
> County Clerk. Do you see that language?
> A. I do.
> Q. Who puts that information on the form, your name and your title as
> Rowan County Clerk?
> A. It populates from our software.
> Q. Do you have any control over that?
> A. No.
> Q. So when your software in your office is used to create a marriage
> license, does it automatically put your name and title into every marriage
> license?
> A. It does.
> Q. According to your understanding, who does this license say is issuing
> the marriage license?
> A. It was issued by my office.
> Q. And underneath, in the next line, it says By, and there's a name here,
> Brian Mason, Deputy Clerk. Is that a deputy clerk in your office?
> A. It is.
> Q. Do deputy clerks have the authority to sign marriage licenses?
> A. They have authority to sign it, yes.
> Q. Whose authority are they exercising when they sign it?
> A. Mine.
> Q. Are you aware of any marriage license currently available in the
> Commonwealth of Kentucky in Rowan County that would not require you to
> authorize it?
> A. No.
> Q. And do you have the discretion to create a different kind of license
> that would not require your authorization for it to be issued?
> A. No.
> MR. GANNAM: Your Honor, I move to admit Defendant's Exhibit 2 into
> evidence.
> THE COURT: Any objection?
> MR. SHARP: No objection. T
> HE COURT: Let it be received without objection.
> MR. GANNAM: May I approach again, Your Honor?
> THE COURT: You may.
> BY