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No. 17-6120/6226
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES YATES; WILL SMITH,
Plaintiffs-Appellees Cross-Appellants,
v.
KIM DAVIS, Individually,
Defendant-Appellant Cross-Appellee.
On Appeal from the United States District Court
for the Eastern District of Kentucky
In Case No. 15-cv-00062 before The Honorable David L. Bunning
THIRD BRIEF
OF
DEFENDANT-APPELLANT CROSS-APPELLEE KIM DAVIS
A.C. Donahue
DONAHUE LAW GROUP, P.S.C.
P.O. Box 659
Somerset, Kentucky 42502
(606) 677-2741
Mathew D. Staver, Counsel of Record
Horatio G. Mihet
Roger K. Gannam
Kristina J. Wenberg
LIBERTY COUNSEL
P.O. Box 540774
Orlando, Florida 32854
(407) 875-1776
[email protected] | [email protected]
[email protected] | [email protected]
Counsel for Defendant-Appellant Cross-Appellee Kim Davis
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i
CORPORATE DISCLOSURE STATEMENT
In accordance with Fed. R. App. P. 26.1 and Rule 26.1 of this Court,
Defendant-Appellant Cross-Appellee Kim Davis (“Davis”) states that she is an
individual person. Thus, Davis is not a subsidiary or affiliate of a publicly owned
corporation, nor is there any publicly owned corporation, not a party to the appeal,
that has a financial interest in its outcome.
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ii
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .......................................................... i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES .................................................................................... iv
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 2
I. THE COURT NEED NOT TAKE AS TRUE PLAINTIFFS’
IMPLAUSIBLE ALLEGATIONS OR DISREGARD WHAT IT
JUDICIALLY KNOWS ABOUT DAVIS’ SELF-EFFECTED AND
KENTUCKY-RATIFIED RELIGIOUS ACCOMMODATION. ................... 2
A. The Miller Record, Relied on Heavily by Both Plaintiffs and the
District Court, and Which Is Properly before This Court in the
Closely Related Miller Fee Order Appeals, Requires This Court’s
Scrutiny of Plaintiffs’ Allegations against the Miller Record. ............. 2
B. The Miller Record Shows Davis Obtained Her Self-Effected and
Kentucky-Ratified Accommodation Only after the District Court
Refused to Consider Davis’ Preliminary Injunction Motion against
Governor Beshear, Jailed Her, and Then Released Her after
Approving Marriage License Alterations Effected by Her Deputy
Clerks. .................................................................................................... 5
II. DAVIS HAS QUALIFIED IMMUNITY FROM PLAINTIFFS’
CLAIMS BECAUSE DAVIS DID NOT VIOLATE PLAINTIFFS’
CLEARLY ESTABLISHED RIGHTS. ........................................................ 14
A. Davis’ Policy Did Not Violate Plaintiffs’ Constitutional Right to
Marry. .................................................................................................. 14
1. Rational Basis Review Applies to Davis’ Policy Because
Plaintiffs’ Right to Marry Was Not Substantially Burdened. ... 14
2. Davis’ Policy Easily Satisfies Rational Basis Review. ............ 16
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iii
3. Davis’ Policy Satisfies Strict Scrutiny, as Davis Also
Argued Below. .......................................................................... 23
4. Davis’ Accommodation Did Not Violate the Establishment
Clause. ....................................................................................... 23
B. Plaintiffs’ Claimed Right to Receive a Marriage License in a
Particular County from a Particular Official Was Not Clearly
Established by Vacated, Interim, or Otherwise Nonbinding
Decisions in the Same Litigation. ....................................................... 27
III. DAVIS ACTED AS A STATE OFFICIAL WITH SOVEREIGN
IMMUNITY UNDER THE ELEVENTH AMENDMENT. ......................... 29
A. Both Davis’ Marriage License Function and Application of
Kentucky RFRA to That Function Clearly Flow from the
Commonwealth. .................................................................................. 29
B. Though It Is Unnecessary to Consider the Crabbs Factors in This
Case, They Indicate Davis Acted for the Commonwealth. ................. 35
1. Marriage Licensing Is Clearly within the Purview of the
Commonwealth. ........................................................................ 35
2. Kentucky Statutes Indicate the Commonwealth Is
Potentially Liable for Davis’ Official Acts. .............................. 36
3. The Commonwealth’s Level of Control over State Marriage
Policy Dictates That Davis Is a State Actor. ............................. 37
CONCLUSION ........................................................................................................ 38
CERTIFICATE OF COMPLIANCE ....................................................................... 39
CERTIFICATE OF SERVICE ................................................................................ 40
ADDENDUM 1 ..................................................................................................... 1-1
ADDENDUM 2 ..................................................................................................... 2-1
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iv
TABLE OF AUTHORITIES
Cases
ACLU v. Mercer County, Ky., 432 F.3d 624 (6th Cir. 2005) .................................. 25
Alvarez v. Smith, 558 U.S. 87 (2009) ....................................................................... 28
Ansley v. Warren, 861 F.3d 512 (4th Cir. 2017) ...................................................... 18
Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ................................................................ 28
Barber v. Bryant, 833 F.3d 510 (5th Cir. 2016) ...................................................... 18
Baynes v. Cleland, 799 F.3d 600 (6th Cir. 2015) .................................................... 28
Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet,
512 U.S. 687 (1994) ............................................................................................ 26
Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971) ..................................... 2
Cady v. Arenac County, 574 F.3d 334 (6th Cir. 2009) ............................................ 30
Camreta v. Greene, 563 U.S. 692 (2011) ................................................................ 28
Carroll v. Reed, 425 S.W.3d 921 (Ky. Ct. App. 2014) ........................................... 34
Conlon v. InterVarsity Christian Fellowship/USA,
777 F.3d 829 (6th Cir. 2015) .............................................................................. 24
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos,
483 U.S. 327 (1987) ............................................................................................ 24
Crabbs v. Scott, 786 F.3d 426 (6th Cir. 2015) ............................................... 30,35,36
Cutter v. Wilkinson, 544 U.S. 709 (2005) ................................................. 24,25,26,27
D’Ambrosio v. Marino, 747 F.3d 378 (6th Cir. 2014) ........................................ 29,30
Fed. Maritime Comm’n v. S.C. Ports Auth., 535 U.S. 743 (2002) .......................... 36
Case: 17-6120 Document: 43 Filed: 04/04/2018 Page: 5
v
Gottfried v. Med. Planning Servs., Inc.,
280 F.3d 684 (6th Cir. 2002) ............................................................... 29,32,34,35
Graves v. Mahoning County, No. 4:10CV2821,
2015 WL 403156 (N.D. Ohio Jan. 28, 2015) ..................................................... 30
HMS Property Mgmt. Grp., Inc. v. Miller,
69 F.3d 537, 1995 WL 641308 (6th Cir. 1995) .................................................... 2
Hobbie v. Unemployment Appeals Comm’n of Fla.,
480 U.S. 136 (1987) ............................................................................................ 24
Jones v. Perry, 215 F. Supp. 3d 563 (E.D. Ky. 2016) ........................................ 31,34
Kreipke v. Wayne State Univ., 807 F.3d 768 (6th Cir. 2015) .................................. 36
Lemon v. Kurtzman, 403 U.S. 602 (1971) ............................................................... 25
Leslie v. Lacy, 91 F. Supp. 2d 1182 (S.D. Ohio 2000) ............................................ 30
Locke v. Davey, 540 U.S. 712 (2004) ...................................................................... 24
Lowe v. Hamilton Cnty. Dep’t of Jobs & Family Serv.,
610 F.3d 321 (6th Cir. 2010) .............................................................................. 36
Lynch v. Donnelly, 465 U.S. 668 (1984) ................................................................. 25
McMillian v. Monroe County, Ala., 520 U.S. 781 (1997) ....................................... 30
Miller v. Davis, 123 F. Supp. 3d 924 (E.D. Ky. 2015) .....................................passim
Miller v. Davis, No. 15-5880, 2015 WL 10692640 (6th Cir. Aug. 26, 2015) ... 4,5,27
Miller v. Davis, 667 F. App’x 537 (6th Cir. 2016) .................................................... 4
Miller v. Davis, 267 F. Supp. 3d 961 (E.D. Ky. 2017) ............................ 4,5,31,34,37
Montgomery v. Carr, 101 F.3d 1117 (6th Cir. 1996) .................................... 14,16,23
Myrick v. Warren, No. 16-EEOC-0001 (Mar. 8, 2017) ........................................... 18
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ..................................................passim
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vi
Perry v. Se. Boll Weevil Eradication Found.,
154 F. App’x 467 (6th Cir. 2005) ....................................................................... 36
Pinkhasov v. Petocz, 331 S.W.3d 285 (Ky. App. 2011) ..................................... 22,31
Pusey v. City of Youngstown, 11 F.3d 652 (6th Cir. 1993)...................................... 30
Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673 (6th Cir. 2011) .......................... 2
Smith v. Jefferson County Bd. of School Comm’rs,
788 F.3d 580 (6th Cir. 2015) .............................................................................. 25
Thiokol Corp. v. Dep’t of Treasury, State of Mich. Revenue Div.,
987 F.2d 376 (6th Cir. 1993) .............................................................................. 29
Tilton v. Richardson, 403 U.S. 672 (1971) .............................................................. 24
United States v. Munsingwear, Inc., 340 U.S. 36 (1950) ................................... 27,28
United States ex rel. Oberg v. Kentucky Higher Educ. Student Loan Corp.,
681 F.3d 575 (4th Cir. 2012) .............................................................................. 36
Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703 (6th Cir. 2001) ................. 14,15
Zorach v. Clauson, 343 U.S. 306 (1952) ................................................................. 25
Statutes
42 U.S.C. § 1983 ...................................................................................................... 34
Kentucky Religious Freedom Restoration Act,
Ky. Rev. Stat. § 446.350 (2013) ..................................................................passim
Ky. Rev. Stat. § 62.055 ....................................................................................... 36,37
Ky. Rev. Stat. § 64.5275 .......................................................................................... 31
Ky. Rev. Stat. § 402.080 ..................................................................................... 15,31
Ky. Rev. Stat. § 402.100 ..................................................................................... 19,31
Ky. Rev. Stat. § 402.110 .......................................................................................... 19
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vii
Ky. Rev. Stat. § 446.010 ..................................................................................... 32,33
Ky. Rev. Stat. § 446.030 .......................................................................................... 33
Ky. Rev. Stat. § 446.090 .......................................................................................... 33
Ky. Rev. Stat. § 446.140 .......................................................................................... 33
Ky. Rev. Stat. Ch. 402 ............................................................................................. 31
Ky. Rev. Stat. Ch. 446 ........................................................................................ 32,33
Miss. Code Ann. § 11-62-1, et seq........................................................................... 18
N.C. Gen. Stat. § 51-5.5 ........................................................................................... 18
Constitutional Provisions
Ky. Const. Preamble ................................................................................................ 17
Ky. Const. § 5 .......................................................................................................... 17
Ky. Const. § 246 ...................................................................................................... 31
U.S. Const. amend. I .........................................................................................passim
U.S. Const. amend XIV ............................................................................................. 6
Case: 17-6120 Document: 43 Filed: 04/04/2018 Page: 8
1
INTRODUCTION
Davis’ First Brief demonstrated that the district court’s order denying Davis’
motion to dismiss Plaintiffs’ amended complaint, in part, should be reversed to the
extent it denied Davis’ qualified immunity defense to Plaintiffs’ individual capacity
claims against her. Davis is entitled to qualified immunity from Plaintiffs’ claims
because Plaintiffs have not established a violation of their constitutional right to
marry, let alone any clearly established constitutional right. Plaintiffs failed to
identify any federal constitutional right, under Obergefell v. Hodges or otherwise, to
receive a marriage license from a particular state official (Davis) at a particular place
(Rowan County), irrespective of Davis’ protected religious liberty rights, when no
state policy was preventing either Plaintiff from marrying whom he wanted to marry,
or obtaining a valid Kentucky marriage license.
Herein, Davis replies to Plaintiffs’ Second Brief on the qualified immunity
issue, and shows the Court that Plaintiffs’ arguments ignore critical facts from the
Miller v. Davis record, which record Plaintiffs and the district court have heavily
relied on, and which record is already before this Court in the companion Miller
litigation. Davis also answers Plaintiffs’ cross-appeal argument that the district
court’s dismissal of Plaintiffs’ official capacity claims against Davis on sovereign
immunity grounds should be reversed. As shown below, both Davis’ marriage
license function and her application of Kentucky RFRA to that function clearly
Case: 17-6120 Document: 43 Filed: 04/04/2018 Page: 9
2
flowed from the Commonwealth, making her a state official for sovereign immunity
purposes, and requiring affirmance of the district court’s dismissal of the official
capacity claims against Davis.
ARGUMENT
I. THE COURT NEED NOT TAKE AS TRUE PLAINTIFFS’
IMPLAUSIBLE ALLEGATIONS OR DISREGARD WHAT IT
JUDICIALLY KNOWS ABOUT DAVIS’ SELF-EFFECTED AND
KENTUCKY-RATIFIED RELIGIOUS ACCOMMODATION.
A. The Miller Record, Relied on Heavily by Both Plaintiffs
and the District Court, and Which Is Properly before
This Court in the Closely Related Miller Fee Order
Appeals, Requires This Court’s Scrutiny of Plaintiffs’
Allegations against the Miller Record.
“Normally [this Court is] bound to accept the allegations of the complaint as
true in deciding whether a motion to dismiss was properly granted.” Blackburn v.
Fisk University, 443 F.2d 121, 123 (6th Cir. 1971) (citations omitted). “However,
[this Court is] not bound by allegations that are clearly unsupported and
unsupportable. [The Court] should not accept as true allegations that are in
conflict with facts judicially known to the Court.” Id. (emphasis added). “Further,
a court may disregard allegations contradicted by facts established in exhibits
attached to the pleading. Moreover, it is not proper to assume facts that a plaintiff
has not plead.” HMS Property Mgmt. Grp., Inc. v. Miller, 69 F.3d 537, 1995 WL
641308, *3 (6th Cir. 1995) (citations omitted); see also Rondigo, L.L.C. v. Twp. of
Richmond, 641 F.3d 673, 680–81 (6th Cir. 2011) (“[A] court may consider exhibits
Case: 17-6120 Document: 43 Filed: 04/04/2018 Page: 10
3
attached to the complaint, public records, items appearing in the record of the case
and exhibits attached to defendant’s motion to dismiss so long as they are referred
to in the complaint and are central to the claims contained therein, without
converting the motion to one for summary judgment.” (internal quotation marks
omitted)). Thus, Plaintiffs’ allegations that are clearly contradicted or made
implausible by the record in the companion Miller v. Davis litigation (6th Cir. Nos.
17-6385, 17-6404), or the public record, should not be taken as true by this Court.
The Miller proceedings loom large over this case (and the other companion
case, Ermold v. Davis, 6th Cir. No. 6119/6226), not only because of the district
court’s recurrent consolidation below of their critical aspects (see 1st Br., Doc. 30,
at 6-7, n.2), but also because the district court’s attorney’s fee order in Miller is
currently the subject of two appeals in this Court, which are on a briefing schedule
somewhat parallel to those of this case and the Ermold appeal (see Case Nos. 17-
6385 (Doc. 33, Br’g Letter), 17-6404 (Doc. 35, Br’g Letter).) The Miller fee order
appeal, which requires this Court to determine whether the Miller Plaintiffs were
prevailing parties, necessarily puts the entire Miller record before this Court.
Furthermore, in the order on appeal in this (Yates) case, the district court expressly
relied on its conclusion in the Miller fee order—based on the Miller evidentiary
record—that Davis is a state official for purposes of marriage licensing. (RE 48,
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4
Mem. Op. and Order, Page ID # 228-29.) Plaintiffs, for their part, also rely heavily
on the Miller record, both in this appeal and below.
For example, Plaintiffs’ Statement of the Case in this appeal cites to numerous
Miller orders and motions, which collectively embody the entire Miller record. (See
2d Br., Doc. 36, at 2, 4 (citing Miller v. Davis, 267 F. Supp. 3d 961 (E.D. Ky. 2017)
(Miller RE 206, Mem. Op. and Order (July 21, 2017) (granting attorney’s fees))), id.
at 3 (citing Miller v. Davis, No. 15-5880, 2015 WL 10692640 (6th Cir. Aug. 26,
2015) (order denying stay pending appeal)), id. at 3 (citing Davis v. Miller, 136 S.
Ct. 23 (2015) (denying stay pending appeal)), id. at 4 (citing Miller v. Davis, 667 F.
App’x 537 (6th Cir. 2016) (dismissing Miller appeals and vacating preliminary
injunction)). Plaintiffs also cite to the Miller proceedings in their Argument in this
appeal, especially the Miller fee order which is featured “passim.” (See 2d Br., Doc.
36, at iv-v (listing three Miller orders in Table of Authorities), id. at 17 (citing Miller
v. Davis, No. 15-5880, 2015 WL 10692640 (6th Cir. Aug. 26, 2015) (order denying
stay pending appeal)).
Below, Plaintiffs also cited heavily to the Miller proceedings. (See RE 31,
Pls.’ Resp. to Davis’ Mot. Dismiss, Page ID # 149 (citing Miller RE 1, Compl., Page
ID # 4), id. at Page ID # 150 (citing Miller RE 67, Pls.’ Contempt Mot., Page ID #
1477-1484), id. at Page ID # 150 (citing Miller RE 78, contempt hr’g tr. (Sept. 3,
2015), Page ID # 1580), id. at 150 (citing Miller RE 79-2 [74], Order (Sep. 3, 2015)
Case: 17-6120 Document: 43 Filed: 04/04/2018 Page: 12
5
(expanding preliminary injunction)), id. at Page ID # 153 (citing Miller v. Davis, 267
F. Supp. 3d 961, 2017 WL 3122657 (E.D. Ky. 2017) (Miller RE 206, Mem. Op. and
Order (July 21, 2017) (granting attorney’s fees))), id. at Page ID # 155, 157 (citing
Miller v. Davis, 123 F. Supp. 3d 924 (E.D. Ky. 2015) (Miller RE 43, Mem. Op. and
Order (Aug. 12, 2015) (granting preliminary injunction))), id. at Page ID # 158
(citing Miller v. Davis, No. 15-5880, 2015 WL 10692640 (6th Cir. Aug. 26, 2015)
(order denying stay pending appeal)).
Thus, the district court’s and Plaintiffs’ own heavy reliance on the Miller
record, combined with this Court’s unavoidable judicial knowledge of the Miller
proceedings, requires this Court to scrutinize Plaintiffs’ allegations and arguments
against the Miller record.
B. The Miller Record Shows Davis Obtained Her Self-
Effected and Kentucky-Ratified Accommodation Only
after the District Court Refused to Consider Davis’
Preliminary Injunction Motion against Governor
Beshear, Jailed Her, and Then Released Her after
Approving Marriage License Alterations Effected by
Her Deputy Clerks.
The following facts are omitted from consideration in Plaintiffs’ brief, but
they squarely and conclusively refute the premises of Plaintiffs’ arguments against
Davis’ qualified immunity.1
1 The facts in this section are all before the Court on the Miller record, and
specifically in Davis’ Principal Brief in this Court’s Case No. 17-6404.
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6
Shortly after the Miller Plaintiffs sued Davis (see 1st Br., Doc. 30, at 6-7),
Davis filed a verified third-party complaint on August 4, 2015 against Governor
Beshear, the issuer of the SSM Mandate,2 and Wayne Onkst, the State Librarian and
Commissioner of the Kentucky Department for Libraries and Archives (KDLA)
(collectively, the “Beshear Defendants”). (Miller RE 34, Verified Third-Party
Complaint, Page ID # 745-776.) Davis’ Third-Party Complaint, sought, inter alia,
declaratory and injunctive relief under Kentucky RFRA, the First and Fourteenth
Amendments, and various provisions of the Kentucky Constitution. (Id. at Page ID
# 774.) Specifically, Davis sought from the Beshear Defendants a simple
accommodation of her religious conscience rights, requiring them to provide for the
issuance of marriage licenses to the Miller Plaintiffs through any of numerous
available alternatives which would not coerce Davis to violate her conscience. (Id.
at Page ID # 760-774.) Davis additionally sought to impose or transfer to the Beshear
Defendants any relief obtained against her by the Miller Plaintiffs. (Id.)
2 On June 26, 2015, moments after the Supreme Court announced its decision
in Obergefell, former Kentucky Governor Steven Beshear issued a directive to all
Kentucky county clerks (the “SSM Mandate”) to “recognize as valid all same sex
marriages performed in other states and in Kentucky.” (Miller RE 1-3, SSM
Mandate, Page ID # 26 (see also Miller, 123 F. Supp. 3d at 932).) In this SSM
Mandate, Governor Beshear further commanded, “Kentucky . . . must license and
recognize the marriages of same-sex couples,” and ordered the creation and
distribution of new marriage license forms to accommodate same-sex couples. (Id.)
However, the new form retained the requirement to issue the license under the name
and authority of the county clerk. (See Miller, 123 F. Supp. 3d at 931-32, 931 n.3.)
(See also 1st Br., Doc. 30, at 5.)
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7
Davis also filed a motion for preliminary injunction to enjoin enforcement of
the Beshear SSM Mandate as to her, and obtain an exemption “from having to
authorize the issuance of Kentucky marriage licenses.” (Miller RE 39-7, Proposed
Prelim. Inj. Order, Page ID # 1129-1130.) The grounds on which Davis sought
preliminary injunctive relief against the Beshear Defendants were necessarily
intertwined with the grounds on which she opposed the Miller Plaintiffs’ motion for
preliminary injunction against her. (Miller RE 29, Resp. Pls.’ Mot. Prelim. Inj., Page
ID # 318-366; Miller RE 39-1, Mem. Supp. Mot. Prelim. Inj., Page ID # 828-876.)
Rather than considering Davis’ and Plaintiffs’ respective motions for
preliminary injunctive relief together, and allowing Davis to develop a further
evidentiary record on her own request for individual religious accommodation from
the Beshear SSM Mandate, the district court considered and granted alone the Miller
Plaintiffs’ motion for preliminary injunctive relief against Davis on August 12, 2015.
(Miller RE 43, Mem. Op. and Order (“Preliminary Injunction”), Page ID # 1146-
1173; Miller RE 58, Order (Aug. 25, 2015), Page ID # 1289 (staying briefing on
Davis preliminary injunction motion against Beshear Defendants).)
At a September 3, 2015 hearing on the Miller Plaintiffs’ motion, the district
court held Davis in contempt for violating the Miller preliminary injunction and
committed her to federal custody. (Miller RE 78, Contempt Hr’g (Sept. 3, 2015),
Page ID # 1651-1662; Miller RE 75, Min. Entry Order (Sept. 3, 2015), Page ID #
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8
1558-59.) The condition for Davis’ release was her full compliance with the
Preliminary Injunction. (Miller RE 78, contempt hr’g tr. (Sept. 3, 2015), Page ID #
1661-1662; Miller RE 75, Min. Entry Order (Sept. 3, 2015), Page ID # 1559.)
At the same hearing, after having Davis taken into custody, the district court
questioned Davis’ deputy clerks as to whether they would issue marriage licenses
without Davis’ authorization. (Miller RE 78, contempt hr’g tr. (Sept. 3, 2015),
Page ID # 1667-1736.) The deputy clerks who testified stated that they would issue
the licenses rather than face jail time, notwithstanding the religious objections stated
by some of them. (Id.) The district court did not determine whether the marriage
licenses the deputies agreed to issue without Davis’ authorization were valid under
Kentucky law. (Id. at Page ID # 1724 (explaining licenses “may not be valid under
Kentucky law”), 1728 (“I’m not saying it is or it isn’t. I haven’t looked into the point.
I’m trying to get compliance with my order.”), 1731-32.) Davis appealed the
Contempt Order to this Court. (Miller RE 83, Not. Appeal, Page ID # 1791 (6th Cir.
Case No. 15-5978).)
Davis’ counsel appealed to this Court the district court’s effective denial of
Davis’ preliminary injunction motion against the Beshear Defendants on September
7, 2015. (Miller RE 66, Not. Appeal, Page ID # 1471-74; 6th Cir. Case No. 15-5961.)
Davis also requested an emergency injunction pending appeal against the Beshear
Defendants, to obtain the accommodation she had been seeking, first in the district
Case: 17-6120 Document: 43 Filed: 04/04/2018 Page: 16
9
court (Miller RE 70, Emer. Mot. Page ID # 1498-1500), and then in this Court (Case
No. 15-5961, Doc. 26-1).
On September 8, 2015, the sixth day of Davis’ incarceration, the Miller
Plaintiffs filed a status report showing the Court that six of eight Miller Plaintiffs
had received marriage licenses from the deputy clerks. (Miller RE 84, Status
Report, Page ID # 1798-1800.) With Davis in jail, not having given her authorization
to issue licenses, the deputy clerks altered the marriage licenses to replace the name
“KIM DAVIS” with “ROWAN COUNTY.” (Miller RE 84-1, Miller Plaintiffs’
Marriage Licenses, Page ID # 1801-1804.)
Following the status report, the district court lifted its prior contempt sanction
and ordered Davis released, stating that the Court was “satisfied that the Rowan
County Clerk’s Office is fulfilling its obligation to issue marriage licenses” under
the preliminary injunction, and that the deputy clerks “have complied with the
Court’s Order,” despite the “alterations” to the marriage licenses. (Miller RE 89,
Order (Sept. 8, 2015), Page ID # 1827-1828.) The release order further commanded
that “Davis shall not interfere in any way, directly or indirectly, with the efforts of
her deputy clerks to issue marriage licenses” to “all legally eligible couples” on pain
of new sanctions. (Id. at Page ID # 1828.) The order also required the deputy clerks
to file status reports with the district court every fourteen days. (Id. at Page ID #
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10
1828; see also Miller RE 130, Order (Oct. 6, 2015), Page ID # 2446 (extending
deputy clerk status reports to every thirty days).)
On September 14, 2015, Davis returned to work at the Rowan County clerk’s
office. (Miller RE 133, Resp. Opp’n to Pls.’ Mot. Enforce Orders, Page ID # 2478,
2487.) On that day, she provided a public statement regarding the issuance of
marriage licenses in Rowan County. (Id. at Page ID # 2490 n.4 (citing news webpage
with linked video of public statement), 2491 n.5 (same).) Davis explained that she
would not interfere with her deputy clerks’ issuance of marriage licenses, but that
the licenses would be further modified to accommodate her sincerely-held religious
beliefs by clarifying the omission of her name and authority. (Id.) The further
alterations to the marriage license form effected by Davis included “eliminating any
mention of the County, and changing the forms to state instead that they are
issued ‘Pursuant to Federal Court Order #15-CV-44 DLB.’” (Miller RE 120,
Pls.’ Mot. Enforce, Page ID # 2317 (emphasis added), Miller RE 120-1, Pls.’ Mot.
Enforce Ex. 1, Page ID # 2326.)
Immediately that same day, the Kentucky Governor and Kentucky Attorney
General both inspected the new licenses and publicly stated that they were valid and
will be recognized as valid by Kentucky. (Miller RE 132, Resp. Pls.’ Mot. Reopen
Class Cert. Br’g, Page ID # 2456, 2458-2465; Miller RE 133, Resp. Pls.’ Mot.
Enforce, Page ID # 2484, 2487-2495.)
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11
The Miller Plaintiffs, however, were not satisfied and filed a motion to
“enforce” the preliminary injunction on September 21, 2015. (Miller RE 120, Pls.’
Mot. Enforce, Page ID # 2312-2328.) In their motion, the Miller Plaintiffs insisted
the Rowan County Clerk’s Office was not in compliance with the Preliminary
Injunction. (Id. at Page ID # 2313.) The Miller Plaintiffs alleged that Davis had
“obstruct[ed]” and “significantly interfere[d]” with the process for issuing marriage
licenses in Rowan County upon her return to the office on September 14, 2015. (Id.
at Page ID # 2316-2317, 2319.) The Miller Plaintiffs still further alleged that Davis
has “so materially altered” marriage licenses that “they create a two-tier system of
marriage licenses throughout the state,” and these so-called “adulterated marriage
licenses received by Rowan County couples will effectively feature a stamp of
animus against the LGBT community,” absent intervention by the Court. (Id. at Page
ID # 2319.)
The Miller Plaintiffs asked the Court to “expressly direct Defendant Davis to
refrain from interfering with the Deputy Clerk’s issuance of marriage licenses in the
same form or manner as those that were issued on or before September 8, 2015”
(while Davis was in jail) and to provide notice to Davis that “any violation of this
Order will result in civil sanctions, including but not limited to (a) the placement of
the Rowan County Clerk’s Office into a receivership for the limited purposes of
issuing marriage licenses, and (b) the imposition of civil monetary fines as
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12
appropriate and necessary to coerce Davis’ compliance with this Court’s Order.” (Id.
at Page ID # 2313, 2321.)
With respect to the deputy clerks, the Miller Plaintiffs asked the court to direct
them to “issue marriage licenses in the same form and manner as those that were
issued on or before September 8, 2015” (while Davis was in jail), to “disregard any
instruction or order from Defendant Kim Davis that would require them to issue any
marriage license in a form or manner other than the form and manner of licenses that
were issued on or before September 8, 2015,” to continue to file status reports, and
to “re-issue, nunc pro tunc, any marriage licenses that have been issued since
September 14, 2015, in the same form or manner as those that were issued on or
before September 8, 2015” (while Davis was in jail). (Id. at Page ID # 2312-2313;
see also id. at Page ID # 2320.)
The district court denied Miller Plaintiffs’ motion to “enforce” the
Preliminary Injunction in an Order dated February 9, 2016, without ordering Davis
to reissue licenses in the form demanded by Miller Plaintiffs (as altered by the deputy
clerks while Davis was in jail), leaving in place the accommodation for Davis’
religious beliefs effected by Davis upon her return to the office, which had been
ratified by the Governor and Attorney General. (Miller RE 161, Order (Feb. 9, 2016),
Page ID # 2657-59.)
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The Davis-altered licenses, deemed valid by the highest elected officials in
Kentucky, and which accommodated Davis’ sincerely-held religious beliefs, were
issued in Rowan County by deputy clerks for just over three months—from Davis’
return to work on September 14, 2015, until incoming Governor Matt Bevin issued
his Executive Order 2015-048 Relating to the Commonwealth’s Marriage License
(the “Executive Order”) on December 22, 2015 (see Doc. 33, 1st Br., Stmt. of the
Case, § D). (Deputy Clerk Status Reports, Miller RE 114, 116-19, 122, 125-29, 131;
Miller RE 132, Resp. Pls.’ Mot. Reopen Class Cert. Br’g, Page ID # 2456, 2458,
2460, 2464-2465; Miller RE 133, Resp. Pls.’ Mot. Enforce, Page ID # 2487, 2490,
2494-2495.)
Plaintiffs make a spurious argument that Davis could have effected her own
accommodation from day one, by altering the licenses, and avoided turning away
Plaintiffs. (2d Br., Doc. 36, at 14-15.) As shown above, however, Davis did not effect
her alterations of the marriage license form until after the district court (1) refused
to consider her preliminary injunction motion against Governor Beshear to obtain
an accommodation, (2) entered a preliminary injunction ordering her to issue
marriage licenses, (3) jailed her for not issuing marriage licenses, and then (4)
released her after approving the license alterations effected by her deputy clerks.
(See supra, Arg. § I.B.) As explained below (see infra, Arg. § II.B), Davis’ initial,
short, temporary suspension of issuing marriage licenses, followed by her post-
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14
incarceration, self-effected accommodation—which was immediately ratified by
Kentucky’s highest officials—was the most reasonable means of implementing the
state’s legitimate interests in religious accommodation under Kentucky RFRA.
II. DAVIS HAS QUALIFIED IMMUNITY FROM PLAINTIFFS’
CLAIMS BECAUSE DAVIS DID NOT VIOLATE PLAINTIFFS’
CLEARLY ESTABLISHED RIGHTS.
A. Davis’ Policy Did Not Violate Plaintiffs’ Constitutional
Right to Marry.
1. Rational Basis Review Applies to Davis’ Policy
Because Plaintiffs’ Right to Marry Was Not
Substantially Burdened.
As Davis already demonstrated in her First Brief, Davis is entitled to qualified
immunity from Plaintiffs’ claims because there was no violation of their
constitutional right to marry in the first instance, let alone a violation of any clearly
established right. (1st Br., Doc. 30, at 18-29.) And because Davis’ temporary
suspension of marriage licenses in Rowan County did not impose any direct and
substantial burden on Plaintiffs’ right to marry, the constitutionality of her conduct
is subjected only to rational basis review. (Id. at 20-25.)
Strict scrutiny only applies to restrictions on the right to marry that are “direct
and substantial.” Montgomery v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996). Absent
a “direct and substantial” burden, rational basis scrutiny applies. Id. A “direct and
substantial” burden requires an “absolute barrier” in which individuals are
“absolutely or largely prevented from marrying” whom they want to marry or
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15
“absolutely or largely prevented from marrying a large portion of the otherwise
eligible population of spouses.” Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703,
710 (6th Cir. 2001) (emphasis added). The test contemplates no federal right to
receive a marriage license in a particular county, or from a particular official.
(1st Br., Doc. 30, at 17-25.) In other words, no person has a constitutional right to
receive a marriage license in the person’s home county when the same license can
be obtained elsewhere without substantial burden, as was always the case for
Plaintiffs.
The realities Kentucky’s geographically permissive, statewide marriage
licensing scheme lay bare Plaintiffs’ false, overly exaggerated claims of Davis’
“denying every citizen in Rowan County a marriage license,” or worse, “Yates and
Smith could not obtain a marriage license.” (2d Br., Doc.36, at 15, 17.) In Kentucky,
a person can obtain a marriage license in any county, which is good for a marriage
in any county, and no legal benefit is conferred by a license issued in any particular
county. See KY. REV. STAT. § 402.080. Thus, the unavailability of a marriage license
in any one county cannot, as a matter of law, prohibit marriage in any county
(including a county in which licenses are not available), or prohibit any person from
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marrying any other.3 Accordingly, the mere unavailability of a marriage license in
Rowan County for any couple, due to Davis’ temporary policy, could not rise to the
level of a “direct and substantial” burden.4
2. Davis’ Policy Easily Satisfies Rational Basis
Review.
Because Davis’ temporary suspension of marriage licenses imposed no direct
and substantial burden on Plaintiffs’ right to marry, the constitutionality of Davis’
policy is determined by rational basis review. Montgomery, 101 F.3d at 1124.
Rational basis scrutiny confers “significant deference to governmental action.” Id.
at 1121 (emphasis added). To satisfy this deferential review, a government policy
must only advance a legitimate governmental interest, and must only employ
reasonable means of advancing that interest. Id. at 1130. As shown in Davis’ First
Brief, she easily satisfies this test. (1st Br., Doc. 30, at 25-27.)
Plaintiffs’ assertion in their brief that Davis’ temporary suspension of
marriage licenses does not satisfy rational basis review (2d Br., Doc. 36, at 12-15)
3 There is no allegation, or record evidence, that any person otherwise able to
travel to the Rowan County Clerk’s office for a marriage license faced any “direct
and substantial” barrier to travelling to a different clerk’s office for a license. 4 The Ermold Plaintiffs concede this point. (See Ermold v. Davis, 6th Cir. No.
17-6119/6233, 2d Br., Doc. 36, at 40 (“For it could not plausibly be maintained that
a policy of making residents of one county travel to others nearby to get a marriage
license largely prevented them from marrying; it would ‘impose only a “non-
oppressive burden on the decision to marry”’ and therefore be subject only to
rational-basis review.”).)
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should be rejected. Plaintiffs argue, essentially, that Kentucky has no legitimate
interest in accommodating Davis’ religious beliefs (2d Br., Doc. 36, at 13-14), and
that Davis’ initial accommodation—temporarily suspending marriage licenses—
was not a reasonable means of advancing any legitimate interest (id. at 14-15).
Plaintiffs are wrong about both.
First, while conceding that “the Kentucky Religious Freedom Restoration Act
. . . more than likely allows her [to] provide herself an accommodation” (2d Br., Doc.
36, at 14), Plaintiffs claim that Davis intended to “discriminate against all.” (Id. at
13.) This proposition does not make sense because Davis intentionally treated
everyone the same. (1st Br., Doc. 30, at 5-6.) Rather, Davis sought to avoid violating
her conscience by issuing marriage licenses for same-sex marriage under her name
and authority. (Id.) Kentucky government, acting through Davis, has not only a
legitimate interest in accommodating Davis conscience rights if possible, but a
compelling interest of the highest degree, which is foundational to the very
establishment of the Commonwealth of Kentucky. See, e.g., Ky. Const., Preamble
(referring to Kentuckians’ “religious liberties”); Ky. Const. § 5 (“No human
authority shall, in any case whatever, control or interfere with the rights of
conscience.”); Ky. Rev. Stat. § 446.350 (“Kentucky RFRA”) (“Government shall
not substantially burden a person’s freedom of religion.”).
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The government’s interest in such accommodation since Obergefell has
manifested in state statutes expressly accommodating religious beliefs such as
Davis’, and at least one administrative decision by the Equal Employment
Opportunity Commission (EEOC) requiring a state to accommodate a state official
similarly situated to Davis. In the EEOC case Myrick v. Warren, No. 16-EEOC-0001
(Mar. 8, 2017), Administrative Law Judge Michael L. Devine issued an Initial
Decision and Order holding North Carolina committed religious discrimination
against a magistrate, whose duties included performing marriages, for failing to
accommodate the magistrate’s sincerely held religious beliefs in the wake of
Obergefell. (See Initial Dec. and Order, App’x 2, at 24.) Judge Devine held that
North Carolina was “obligated to provide an accommodation to Magistrate Myrick
unless undue burden was demonstrated.” (Id. at 20.) North Carolina also enacted a
statute, N.C. Gen. Stat. § 51-5.5, permitting recusal of officials from “issuing”
marriage licenses “based upon any sincerely held religious objection.” Mississippi
also enacted a statute, Miss. Code Ann. § 11-62-1, et seq., prohibiting governmental
discrimination against persons espousing specific religious beliefs, including that
“[m]arriage is or should be recognized as the union of one man and one woman.”
Legal challenges against both the North Carolina and Mississippi statutes failed. See
Ansley v. Warren, 861 F.3d 512 (4th Cir. 2017) (North Carolina); Barber v. Bryant,
833 F.3d 510 (5th Cir. 2016) (Mississippi).
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Second, Plaintiffs truly overplay their hand in arguing that Davis’ temporary
stoppage of marriage licenses was not a reasonable means of advancing Kentucky’s
legitimate interest in accommodating her religious beliefs. (2d Br., Doc. 36, at 14-
15.) Contrary to the realities of the situation immediately following Obergefell and
Governor Beshear’s SSM Mandate, Plaintiffs insist that Davis simply should have
changed Governor Beshear’s new statewide marriage license form to say whatever
Davis wanted it to say, without any concern whatsoever as to the validity of such a
changed form. (Id.) The path Davis chose was far more reasonable under all the
circumstances, and was the only path that appropriately balanced everyone’s rights.
Davis could not have effected the accommodation Plaintiffs suggest
immediately after Obergefell and Governor Beshear’s SSM Mandate without
committing apparent violations of Kentucky law—e.g., Ky. Rev. Stat. § 402.100
(2015) (directing county clerks to issue Kentucky marriage licenses on “the form
proscribed by the Department for Libraries and Archives [KDLA]” (emphasis
added)); Ky. Rev. Stat. § 402.110 (2015) (requiring that “[t]he form of marriage
license prescribed in KRS 402.100 shall be uniform throughout this state”
(emphasis added))—not to mention the SSM Mandate itself. Thus, while it is true
that Kentucky RFRA applied to Davis at that time (1st Br., Doc. 30, at 41-43), and
operated to require Kentucky to provide Davis an accommodation from the marriage
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licensing statutes (id.), it was not clear from any court or other precedent that Davis
should have self-effected that accommodation in the first instance.
Rather, by temporarily stopping the issuance of marriage licenses to all
couples in one county until appropriately permanent (and very simple)
accommodations could be accomplished, Davis ensured that individuals’
fundamental rights to religious accommodation secured by the First Amendment and
the Kentucky RFRA (including Davis’) were protected, while leaving ample outlets
for marriage licenses open. Issuing no licenses at all was a reasonable policy because
it was the only policy Davis could effect at the time that could (i) treat all couples
the same, and (ii) rightfully accommodate religious conscience under the Kentucky
RFRA and the United States and Kentucky Constitutions, while (iii) leaving
marriage licenses readily available to every couple throughout every region of the
state and not preventing Plaintiffs from marrying whom they want to marry.
As shown above (see supra, Arg. § I.B), Davis did not effect her own
alterations of the marriage license form until after the district court (1) refused to
consider her preliminary injunction motion against Governor Beshear to obtain an
accommodation, (2) entered a preliminary injunction ordering her to issue marriage
licenses, (3) jailed her for not issuing marriage licenses, and then (4) released her
after approving the license alterations effected by her deputy clerks. Davis’
initial, short, temporary suspension of issuing marriage licenses, followed by her
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post-incarceration, self-effected accommodation—which was immediately ratified
by Kentucky’s highest officials5—was the most reasonable means of implementing
the state’s legitimate interests in religious accommodation under Kentucky RFRA.
Plaintiffs’ idea that Davis was casually “waiting for legislative or executive
action to accommodate her” is disingenuous, if not offensive. (2d Br., Doc. 36, at
20.) As shown above (see supra, Arg. § I.B), Davis sued the executive, sought a
preliminary injunction against the executive, appealed the effective denial of that
injunction (from jail), and sought an injunction pending appeal from the district court
and this Court—all to accomplish the accommodation that she ultimately received.
And while the effect of Davis’ diligent efforts cannot be precisely measured,
Governor Beshear effectively repealed his SSM Mandate as to Davis on September
14, 2015, by ratifying her self-effected accommodation, which was one week after
Davis moved in this Court for an injunction against Governor Beshear pending
appeal.
Nor can it be seriously argued that Davis’ policy was an unreasonable
religious accommodation for rational basis purposes because she was supposed to
have disregarded statutory requirements and altered the SSM Mandate marriage
licenses immediately after their roll-out, on the basis of court decisoins suggesting a
5 Governor Beshear’s ratification of Davis’ alterations to the license form
effectively rescinded the SSM Mandate as to Davis.
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marriage resulting from an altered license would be valid even if the license was not.
(2d Br., Doc. 36, at 15 (citing Pinkhasov v. Petocz, 331 S.W. 3d 285 (Ky. App. Ct.
2011).) As shown above, Davis went to great lengths to secure an accommodation
legally, and did not undertake to alter a marriage license herself until after the
district court had approved the alterations effected by her deputy clerks while
she was in jail. Even then, the Miller Plaintiffs demanded further sanctions against
Davis for the alterations she effected, claiming “they create a two-tier system of
marriage licenses throughout the state” which “effectively feature a stamp of animus
against the LGBT community.” (Miller RE 120, Pls.’ Mot. Enforce, at Page ID #
2319.) Although the district court rejected the Miller Plaintiffs’ over-the-top
rhetoric, their charge in and of itself proves there would have been consequences for
any alteration self-effected by Davis, and belies Plaintiffs’ farcical argument that
Davis should have felt free to alter the licenses as she saw fit. By Plaintiffs’ logic,
no county clerk could ever be held to account for issuing invalid marriage licenses
because everyone knows marriages on invalid licenses still count. Davis cannot be
faulted for seeking to protect the integrity of marriage licenses ultimately issued
from her office, even as she sought an appropriate legal accommodation to protect
her conscience. Davis’ accommodation was reasonably related to the government’s
legitimate religious liberty interests.
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3. Davis’ Policy Satisfies Strict Scrutiny, as Davis
Also Argued Below.
Given that Davis’ policy was not only reasonable, but also the only policy she
could enact to respect all rights involved, the policy was closely tailored to effectuate
Kentucky’s compelling religious liberty interests. Thus, the policy satisfies strict
scrutiny as well. See Montgomery, 101 F.3d at 1124. Davis said so expressly in her
First Brief, wherein she explained Kentucky’s interest in providing a religious
accommodation to Davis as both legitimate and compelling, and further explained
her temporary marriage license stoppage as both reasonably related and closely
tailored to that interest. (1st Br., Doc. 30, at 26-28.) Thus, as argued below, Davis’
policy satisfies both rational basis and strict scrutiny review, and Davis conceded
neither below as suggested by Plaintiffs. (2d Br., Doc. 36, at 12.)
4. Davis’ Accommodation Did Not Violate the
Establishment Clause.
Plaintiffs erroneously suggest that, as an accommodation of Davis’ sincerely
held religious beliefs, her temporary suspension of marriage licenses does not pass
rational basis review because it violated the Establishment Clause. (2d Br., Doc. 36,
at 13-14.) The district court also, in cursory fashion, invoked the Establishment
Clause as a straw-man enemy to the legitimacy of the Commonwealth’s interest in
religious accommodation. (RE 48, Mem. Op. and Order, Page ID # 236-37.) But the
Establishment Clause clearly permits Davis’ accommodation.
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The First Amendment provides that “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.,
amend. I. Commonly treated separately in jurisprudence, “[t]he two Religion
Clauses ‘often exert conflicting pressures,’ such that there can often be ‘internal
tension . . . between the Establishment Clause and the Free Exercise Clause.’”
Conlon v. InterVarsity Christian Fellowship/USA, 777 F.3d 829, 833 (6th Cir. 2015)
(internal citations omitted) (citing Cutter v. Wilkinson, 544 U.S. 709, 719 (2005),
and, Tilton v. Richardson, 403 U.S. 672, 677 (1971) (plurality)). But the Supreme
Court has consistently reaffirmed “that ‘there is room for play in the joints between’
the Free Exercise and Establishment Clauses, allowing the government to
accommodate religion beyond free exercise requirements, without offense to the
Establishment Clause.” Cutter, 544 U.S. at 713 (citing Locke v. Davey, 540 U.S.
712, 718 (2004)).
Accordingly, providing accommodations for conscience-based religious
objections does not violate the Establishment Clause. See Hobbie v. Unemployment
Appeals Comm’n of Fla., 480 U.S. 136, 144-45 (1987) (“[G]overnment may (and
sometimes must) accommodate religious practices and . . . it may do so without
violating the Establishment Clause.”); see also Corp. of Presiding Bishop of Church
of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987) (there is
“ample room for accommodation of religion under the Establishment Clause”).
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Moreover, “[r]eligious accommodations…need not ‘come packaged with benefits to
secular entities,’” to survive the Establishment Clause. Cutter, 544 U.S. at 718
(citation omitted). After all, “[w]e are a religious people whose institutions
presuppose a Supreme Being,” Zorach v. Clauson, 343 U.S. 306, 313 (1952), and
“[t]here is an unbroken history of official acknowledgment by all three branches of
government of the role of religion in American life from at least 1789.” Lynch v.
Donnelly, 465 U.S. 668, 674 (1984). As the Sixth Circuit has recognized, “[o]ur
Nation’s history is replete with . . . accommodation of religion.” ACLU v. Mercer
County, Ky., 432 F.3d 624, 639 (6th Cir. 2005).
As is clear from Plaintiffs’ own allegations and briefing, the case at bar
involves permissible accommodation of religion, not unconstitutional establishment
of it. As such, any Establishment Clause issue in this case need not even be resolved
under the much-maligned “Lemon test.”6 See, e.g., Cutter, 544 U.S. at 718, n. 6
6 In many cases, Establishment Clause claims are evaluated under the three-
prong “Lemon test” named after the Supreme Court’s decision in Lemon v.
Kurtzman, 403 U.S. 602 (1971). Under this test, a challenged activity survives the
Establishment Clause if (1) the activity has “a secular legislative purpose,” (2) “its
principal or primary effect must be one that neither advances nor inhibits religion,”
and (3) it “must not foster ‘an excessive government entanglement with religion.’”
Lemon, 403 U.S. at 612-13 (citation omitted). The first two prongs of the Lemon test
have been refined and clarified by the “endorsement test” which considers whether
the act has a predominant secular purpose and whether the act has the purpose or
effect of endorsing, promoting or disapproving religion. See Smith v. Jefferson
County Bd. of School Comm’rs, 788 F.3d 580, 587 (6th Cir. 2015) (citations
omitted).
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(“Lemon stated a three-part test. . . We resolve this case on other grounds.”). Indeed,
“[w]hat makes accommodation permissible, even praiseworthy, is not that the
government is making life easier” for a religious person but rather “it is that the
government is accommodating a deeply held belief.” See Bd. of Educ. of Kiryas Joel
Village Sch. Dist. v. Grumet, 512 U.S. 687, 715 (1994) (O’Connor, concurring).
Davis’ application of Kentucky’s RFRA does not offend the Establishment
Clause because her self-effected accommodation (1) alleviated a government-
created burden (Governor Beshear’s SSM Mandate) on her (and some of her deputy
clerks’) religious beliefs and exercise; (2) did not, in fact, create any substantial
disruption of Kentucky’s state-wide marriage licensing scheme; and (3) did not
differentiate between bona fide faiths or confer any privileged status on any
particular religious sect. Plaintiffs’ right to marry cannot considered in a vacuum
because, as the Supreme Court explained in Cutter, “‘[c]ontext matters.’” 544 U.S.
at 723. Davis’ application of Kentucky’s RFRA simply provided relief from a
substantial burden, and the balance achieved by her self-effected accommodation
was reasonable in light of Kentucky’s state-wide marriage licensing scheme.
Further, Davis’ policy was not applied in a manner that elevated one faith over
another, or even over non-religious beliefs.
Even the district court acknowledged that First Amendment religious rights
of Davis are implicated in this case. (See, e.g., Miller RE 21, hr’g tr. (July 13, 2015),
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Page ID # 183, 184, 197, 198, 202, 203.) If Plaintiffs were able to declare an
Establishment Clause violation here, “all manner of religious accommodations
would fall.” Cutter, 544 U.S. at 725. Because this case involves the mere
accommodation of Davis’ individual religious rights, the Establishment Clause is
not implicated.
B. Plaintiffs’ Claimed Right to Receive a Marriage
License in a Particular County from a Particular
Official Was Not Clearly Established by Vacated,
Interim, or Otherwise Nonbinding Decisions in the
Same Litigation.
As Davis already demonstrated in her First Brief, there is no clearly
established constitutional right to receive a marriage license in a particular county
from a particular official. (1st Br., Doc. 30, at 29-36.) But Plaintiffs’ claim that the
district court’s vacated preliminary injunction order in Miller and an ipse dixit
comment from a Miller motions panel of this Court make it so. (2d Br., Doc. 36, at
17 (citing Miller v. Davis, No. 15-5880, 2015 WL 10692640, at *1 (6th Cir. Aug.
26, 2015)).) The Court should reject Plaintiffs’ argument.
The Miler motions panel decision would not have been binding even on the
Miller merits panel; it is not in and of itself evidence of clearly established law. As
for the Miller preliminary injunction, Davis appealed that order to this Court, and
this Court instructed the district court to vacate it under the vacatur principles of
United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). (Order, Miller v. Davis,
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No. 15-5880, Doc. 101-1 (July 13, 2016).) The equitable remedy of vacatur “ensures
that ‘those who have been prevented from obtaining the review to which they are
entitled [are] not . . . treated as if there had been a review.’” Camreta v. Greene, 563
U.S. 692, 712 (2011). Courts usually vacate lower court judgments, orders, and
injunctions in these situations “because doing so ‘clears the path for future
relitigation of the issues between the parties,’ preserving ‘the rights of all parties,’
while prejudicing none ‘by a decision which . . . was only preliminary.’” Alvarez v.
Smith, 558 U.S. 87, 94 (2009) (citing Munsingwear, 340 U.S. at 40). It would be
entirely inconsistent with this Court’s prior vacatur order, and prejudicial to the
litigants’ rights intended to be protected thereby, to now treat the vacated Miller
preliminary injunction as constituting clearly established law on the very issues the
parties are still litigating.
In short, neither of these nonbinding decisions could clearly establish the right
claimed by Plaintiffs, and certainly not at the level of specificity required to defeat
Davis’ qualified immunity. They certainly do not put the matter “beyond debate,” as
would be required for Plaintiffs to prevail. See Baynes v. Cleland, 799 F.3d 600, 613
(6th Cir. 2015) (“‘[E]xisting precedent must have placed the statutory or
constitutional question beyond debate.’” (emphasis added) (quoting Ashcroft v. al-
Kidd, 563 U.S. 731, 741 (2011)).
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III. DAVIS ACTED AS A STATE OFFICIAL WITH SOVEREIGN
IMMUNITY UNDER THE ELEVENTH AMENDMENT.
A. Both Davis’ Marriage License Function and
Application of Kentucky RFRA to That Function
Clearly Flow from the Commonwealth.
As Davis demonstrated in her First Brief, marriage licensing is an exclusively
state-level function in Kentucky. (1st Br., Doc. 30, at 18-20.) Unlike in Miller, where
the Plaintiffs sought prospective injunctive relief, Plaintiffs in this case seek only
damages. Thus, the question of Eleventh Amendment immunity for state officials is
front and center, and separate from any question decided by Obergefell. The
Eleventh Amendment “bars suits for monetary relief against state officials sued in
their official capacity.” Thiokol Corp. v. Dep’t of Treasury, State of Mich. Revenue
Div., 987 F.2d 376, 381 (6th Cir. 1993); see also Gottfried v. Med. Planning Servs.,
Inc., 280 F.3d 684, 692 (6th Cir. 2002) (“[I]t is well established that states and state
officers acting in their official capacities are immune from suits for damages in
federal court . . . .”). Because Davis acted as a state official for purposes of marriage
licensing, the district court’s dismissal of Plaintiffs’ damages claims against Davis
in her official capacity should be affirmed on sovereign immunity grounds.
Where a county officer’s duties “clearly flow from the State,” the officer
is a state official for purposes of Eleventh Amendment immunity. Gottfried, 280
F.3d at 693 (holding county sheriff state official when enforcing state court
injunction); cf. D’Ambrosio v. Marino, 747 F.3d 378, 387 (6th Cir. 2014) (holding
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county prosecutor state official when prosecuting state crimes); Cady v. Arenac
County, 574 F.3d 334, 342 (6th Cir. 2009) (same); Pusey v. City of Youngstown, 11
F.3d 652, 657 (6th Cir. 1993) (“[A] city official pursues her duties as a state agent
when enforcing state law or policy.”); Graves v. Mahoning County, No.
4:10CV2821, 2015 WL 403156, *6 (N.D. Ohio Jan. 28, 2015) (holding township
clerks acted as state officials when issuing arrest warrants pursuant to state statute),
aff’d, 821 F.3d 772 (6th Cir. 2016); Leslie v. Lacy, 91 F. Supp. 2d 1182, 1194 (S.D.
Ohio 2000) (holding county clerk acted as agent of state, not county, where relevant
job duties specified by state law and subject to control of state).
Officials such as Davis “sometimes wear multiple hats, acting on behalf of the
county and the State.” Crabbs v. Scott, 786 F.3d 426, 429 (6th Cir. 2015). Thus, “the
question is not whether [Davis] acts for [Kentucky] or [Rowan] County in some
categorical, ‘all or nothing’ manner.” McMillian v. Monroe County, Ala., 520 U.S.
781, 785 (1997) (emphasis added). “Immunity hinges on whether the officer
represents the State in the ‘particular area’ or on the ‘particular issue’ in
question.” Crabbs, 786 F.3d at 429 (emphasis added) (quoting McMillian, 520 U.S.
at 785). The inquiry does not seek “to make a characterization of [Davis] that will
hold true for every type of official action they engage in. We simply ask whether
[Davis] represents the state or the county” in marriage license issues. McMillian, 520
U.S. at 785-86. It is beyond cavil that Davis represents the Commonwealth when
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dealing with marriage licenses. Miller, 267 F. Supp. 3d at 993; Jones v. Perry, 215
F. Supp. 3d 563, 568 n.3 (E.D. Ky. 2016).
Kentucky law leaves no doubt that, in issuing and declining to issue marriage
licenses, Davis is a state official. County clerks, such as Davis, are statutorily
conferred duties and jurisdiction “coextensive with that of the Commonwealth.” See
Ky. Rev. Stat. § 64.5275(1); see also Ky. Const. § 246. In Kentucky, the
Commonwealth has “absolute jurisdiction over the regulation of the institution
of marriage.” Pinkhasov, 331 S.W.3d 291 (emphasis added). All matters relating to
marriage in Kentucky, including its definition and the procedures for licensing,
solemnizing, and dissolving marriages are governed by Chapter 402 of the Kentucky
Revised Statutes. In particular, the duty of county clerks to issue marriage licenses
is governed by section 402.080, and the license form that county clerks must use for
marriage licenses by section 420.100. Governor Beshear’s SSM Mandate was a
directive from the state to all county clerks in the state.
In light of this absolute state control over marriage in Kentucky, the district
court concluded, in the related Miller case,
The State not only enacts marriage laws, it prescribes
procedures for county clerks to follow when carrying out
those laws, right down to the form they must use in issuing
marriage licenses. Thus, Davis likely acts for the State of
Kentucky, and not as a final policymaker for Rowan
County, when issuing marriage licenses.
123 F. Supp. 3d at 933 (citations omitted) (emphasis added).
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Davis’ marriage licensing duties and obligations “clearly flow from the state.”
See Gottfried, 280 F.3d at 693. And Davis’ decision not to issue marriage licenses
was no less the act of a state official because that decision was likewise sanctioned
by Kentucky state law. As ultimately acknowledged by Governor Bevin’s Executive
Order, Davis’ right to relief from carrying out Gov. Beshear’s SSM Mandate against
her conscience is protected by and entrenched in Kentucky RFRA which provides,
in pertinent part:
Government shall not substantially burden a person’s[7]
freedom of religion. The right to act or refuse to act in a
manner motivated by a sincerely held religious belief may
not be substantially burdened unless the government
proves by clear and convincing evidence that it has a
compelling governmental interest in infringing the
specific act or refusal to act and has used the least
restrictive means to further that interest.
Ky. Rev. Stat. § 446.350 (emphasis added).
Kentucky RFRA applies to all Kentucky statutes. Kentucky RFRA is housed
under Chapter 446, which is entitled “Construction of Statutes,” and includes such
other generally applicable provisions as “Definitions for Statutes Generally,”
7 While “person” is not defined in the Kentucky RFRA, it is defined in
Kentucky’s general definitions statute to include “bodies-politic and corporate,
societies, communities, the public generally, individuals, partnerships, joint stock
companies, and limited liability companies.” See KY. REV. STAT. § 446.010(33)
(emphasis added). There is no exception from the definition for individuals who are
publicly elected officials.
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“Computation of Time,” “Severability,” and “Titles, Headings, and Notes.” Ky. Rev.
Stat. §§ 446.010, 446.030, 446.090, 446.140. Even more specifically, Kentucky
RFRA is included under a section of Chapter 446 reserved for “Rules of
Codification.” As such, Kentucky’s marriage statutes—much like any other body of
Kentucky law—cannot be interpreted without also considering and applying
Kentucky RFRA.
Thus, the right to refuse to act against religious conscience is expressly
conferred by Kentucky RFRA, which applies to Kentucky marriage licensing
statutes. Moreover, the specific application of this right to county clerks in the
issuance of marriage licenses was expressly established by the Executive Order. Put
differently, Kentucky (i.e., Davis in her official capacity) has a duty under Kentucky
RFRA not to substantially burden “the right of any person” (i.e., Davis in her
individual capacity) “to act or refuse to act in a manner motivated by a sincerely
held religious belief . . . .” Ky. Rev. Stat. § 446.350 (emphasis added). Accordingly,
both in issuing marriage licenses, and in not issuing licenses pursuant to Kentucky
RFRA, in her official capacity, Davis was at all times a state official enforcing and
applying state law.8
8 Even if the Court concludes Davis, in her official capacity, applied the
Kentucky RFRA incorrectly, the Kentucky RFRA is still a state law and not a county
policy.
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Carroll v. Reed, 425 S.W.3d 921 (Ky. Ct. App. 2014), cited by Plaintiffs (see
2d Br., Doc. 36, at 22), does not compel the conclusion that Davis was a county
official for purposes of marriage licensing. The issue in Carroll was the validity
of a county ordinance requiring the county clerk and county sheriff to remit certain
funds to the control of the county fiscal court. 425 S.W.3d at 922-23. The court
rejected the county clerk’s absolute argument that “the Clerk is not a local official
subject to control by the Fiscal Court,” and held that county clerks “are considered
local officials subject to a measure of control by the fiscal court.” Id. at 924
(emphasis added). Thus, the Carroll court did not decide that county clerks are “local
officials” for all purposes, but only for purposes of limited financial controls
exercised by the fiscal court. Id. (“a degree of financial control”). Moreover, the
Carroll court did not consider the nature of a county clerk’s marriage licensing
function, or any other function, in the context of a § 1983 claim. Cf. Gottfried, 280
F.3d at 693 (holding county sheriff to be state official for § 1983 purposes, even
though “Ohio law classifies sheriffs as county officials”).
The district court correctly held, concerning Davis, “county clerks, when
issuing—or refusing to issue—marriage licenses, represent the Commonwealth of
Kentucky, not their counties.” Miller v. Davis, 267 F. Supp. 3d 961, 993 (E.D. Ky.
2017); see also Jones, 215 F. Supp. 3d at 568 n.3 (treating Kentucky county clerk as
state official in applying Ex parte Young exception to sovereign immunity). Indeed,
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the Sixth Circuit dictates treating an official as a state official for purposes of
Eleventh Amendment immunity where the official’s duties “clearly flow from the
State.” Gottfried, 280 F.3d at 693. Davis’ marriage licensing duties clearly flow
from the Commonwealth, which should end the inquiry. Because Plaintiffs’ damages
claims against Davis in her official capacity constitute damages claims against a state
official, the claims are barred by the Eleventh Amendment.
B. Though It Is Unnecessary to Consider the Crabbs
Factors in This Case, They Indicate Davis Acted for the
Commonwealth.
1. Marriage Licensing Is Clearly within the
Purview of the Commonwealth.
In cases where it is not clear that an official’s duties “flow from the state,”
unlike this case, this Court may consider several “[r]elevant factors,” including, inter
alia, the Commonwealth’s potential liability, how state law treats the county officer
for purposes of the requisite activity, the degree of control exercised over the
defendant’s duties in the particular activity, and whether such functions fall within
the purview of state government. See Crabbs, 786 F.3d at 429. There is no dispute
that marriage licensing falls within the purview of the Commonwealth. The
remaining factors likewise uphold sovereign immunity for Davis.
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2. Kentucky Statutes Indicate the Commonwealth
Is Potentially Liable for Davis’ Official Acts.
The oft-dubbed “foremost factor” in the optional Crabbs analysis is whether
the state has potential legal liability for the judgment. Lowe v. Hamilton Cnty. Dep’t
of Jobs & Family Serv., 610 F.3d 321, 325 (6th Cir. 2010).9 “In analyzing this factor,
we focus our inquiry on the state treasury’s potential legal liability for the judgment,
not whether the state treasury will pay for the judgment in that case.” Lowe, 610
F.3d at 325; Kreipke v. Wayne State Univ., 807 F.3d 768, 778 (6th Cir. 2015) (noting
that the issue is one of potential legal liability, not actual liability or even whether
the state will actually be forced to pay the judgment); Perry v. Se. Boll Weevil
Eradication Found., 154 F. App’x 467, 472 (6th Cir. 2005) (“we look to the state’s
potential for legal liability for a judgment against the entity, not whether the state
would actually pay the judgment in our particular case.” (emphasis added)).
Although there is no Kentucky statute definitively establishing what entity—
the Commonwealth, the county, or another—is liable for judgments against county
clerks, there is a statute clearly indicating that the Commonwealth is potentially
liable. Kentucky Rev. Stat. § 62.055 requires that “[e]very county clerk, before
entering on the duties of his office, shall execute bond to the Commonwealth, with
9 Cf. U.S. ex rel. Oberg v. Kentucky Higher Educ. Student Loan Corp., 681 F.3d
575, 580 n.3 (4th Cir. 2012) (“[M]ore recent Supreme Court precedent suggests
that the first factor does not deserve such preeminence.” (emphasis added) (citing
Fed. Maritime Comm’n v. S.C. Ports Auth., 535 U.S. 743, 765 (2002))).
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corporate surety authorized and qualified to become surety on bonds in this state.”
Ky. Rev. Stat. § 62.055(1). Thus, by statute, the Commonwealth requires every
county clerk to protect the Commonwealth with a bond. This statutory requirement
plainly contemplates potential liability of the Commonwealth for obligations of the
county clerks.
3. The Commonwealth’s Level of Control over
State Marriage Policy Dictates That Davis Is a
State Actor.
The district court correctly held that the state control factor “weighs heavily
in favor of finding Davis represented the Commonwealth.” Miller, 267 F. Supp. 3d
at 990. This holding was necessitated because, [w]ith respect to the issuance of
marriage licenses, the Commonwealth exercises a substantial degree of control
over county clerks.” Id. (emphasis added). The district court found a number of
things relevant for purposes of the Commonwealth’s control over Davis, including
that the Commonwealth controls marriage as an institution, exercises fiscal control
over Davis, is the only entity with legal recourse against Davis, and can criminally
penalize Davis. Id. at 990-92. Those same factors necessitate a finding that “the
Commonwealth exercises a great deal of control over country clerks in this particular
area.” Id. at 990.
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CONCLUSION
For all of the foregoing reasons, and the reasons in Davis’ First Brief, the
district court’s denial of dismissal on qualified immunity and jurisdictional grounds
should be reversed, and dismissal on sovereign immunity grounds should be
affirmed.
Respectfully submitted:
A.C. Donahue
DONAHUE LAW GROUP, P.S.C.
P.O. Box 659
Somerset, Kentucky 42502
(606) 677-2741
/s/ Roger K. Gannam
Mathew D. Staver, Counsel of Record
Horatio G. Mihet
Roger K. Gannam
Kristina J. Wenberg
LIBERTY COUNSEL
P.O. Box 540774
Orlando, Florida 32854
(407) 875-1776
[email protected] | [email protected]
[email protected] | [email protected]
Counsel for Defendant-Appellant Cross-Appellee Kim Davis
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39
CERTIFICATE OF COMPLIANCE
With Type -Volume Limitation, Typeface Requirements,
and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 8,983 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief
has been prepared in a proportionally spaced typeface using Word 2016 in 14-
point, Times New Roman font.
/s/ Roger K. Gannam
Defendant-Appellant
Cross-Appellee Kim Davis
DATED: April 4, 2018
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was filed via the
Court’s ECF filing system and therefore service will be effectuated by the Court’s
electronic notification system upon all counsel or parties of record:
Rene B. Heinrich, Esq.
Doyle & Hassman
526 York Street
Newport, KY 41071
William Kash Stilz, Jr., Esq.
Roush & Stilz
19 W. Eleventh Street
Covington, KY 41011
Counsel for Plaintiffs-Appellees Cross-Appellants
DATED: April 4, 2018 /s/ Roger K. Gannam
Roger K. Gannam
Counsel for Defendant-Appellant
Cross-Appellee Kim Davis
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1-1
ADDENDUM 1
Designation of Relevant District Court Documents
Pursuant to 6 Cir. R. 28(b)(1)(A)(i) and 6 Cir. R. 30(g)(1)(A)-(C)
Record Entry No. Document Description
Record Entries in Yates v. Davis, No. 15-cv-62-DLB (E.D. Ky.)
RE 1
Page ID # 1 Complaint
RE 16
Page ID # 49 In Re: Ashland Civil Actions, Order
RE 24 Virtual Order
RE 29
Page ID # 97 Defendant Kim Davis’ Motion to Dismiss Complaint
RE 29-1
Page ID # 99
Defendant Kim Davis’ Memorandum of Law in Support of
Motion to Dismiss Complaint
RE 31
Page ID # 147
Plaintiffs’ Response to Defendant Davis’ Motion to
Dismiss
RE 37
Page ID # 173
Defendant Kim Davis’ Reply in Support of Motion to
Dismiss Complaint
RE 48
Page ID # 223 Memorandum Opinion and Order
RE 50
Page ID # 246 Notice of Appeal
Record Entries in Miller v. Davis, No. 0:15-cv-44-DLB (E.D. Ky.)
RE 1
Page ID # 1-15 Complaint
RE 21
Page ID # 183,
184, 197, 198, 202,
203
Preliminary Injunction Hearing Transcript (July 13, 2015)
RE 26
Page ID # 244-45 Preliminary Injunction Hearing Transcript (July 20, 2015)
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1-2
Record Entry No. Document Description
RE 29
Page ID #318-366
Davis’ Response to Plaintiffs’ Motion for Preliminary
Injunction
RE 34
Page ID # 745-776 Verified Third-Party Complaint
RE 39-1
Page ID # 828-876
Davis’ Memorandum in Support of
Motion for Preliminary Injunction
RE 39-7
Page ID # 1129-
1130
Proposed Preliminary Injunction Order
RE 43
Page ID # 1146-
1173
Memorandum Opinion and Order
Granting Preliminary Injunction
RE 58
Page ID # 1289 Order Staying Briefing
RE 73
Page ID # 1547-48
Motion by Kentucky Senate President Stivers for Leave to
File Brief as Amicus Curiae
RE 74
Page ID # 1557
Order Expanding Preliminary Injunction,
September 3, 2015
RE 75
Page ID # 1558-59 Minute Entry Order
RE 78, Page ID #
1571-1582; 1651-
1662; 1658-59;
1667-1736
Hearing Transcript,
September 3, 2015
RE 84
Page ID # 1798-
1800
Status Report
RE 84-1
Page ID # 1801-04 Marriage Licenses
RE 89
Page ID # 1827-28 Order Releasing Davis from Custody
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1-3
Record Entry No. Document Description
RE 114
Page ID # 2293-95 Deputy Clerk Status Report
RE 116
Page ID # 2304-05 Deputy Clerk Status Report
RE 117
Page ID # 2306-07 Deputy Clerk Status Report
RE 118
Page ID # 2308-09 Deputy Clerk Status Report
RE 119
Page ID # 2310-11 Deputy Clerk Status Report
RE 120
Page ID # 2312-
2328
Plaintiffs’ Motion to Enforce
RE 120-1
Page ID # 2326 Marriage License Form
RE 122
Page ID # 2334-35 Deputy Clerk Status Report
RE 125
Page ID # 2439 Deputy Clerk Status Report
RE 126
Page ID # 2440-41 Deputy Clerk Status Report
RE 127
Page ID # 3442-43 Deputy Clerk Status Report
RE 128
Page ID # 2444 Deputy Clerk Status Report
RE 129
Page ID # 2445 Deputy Clerk Status Report
RE 130
Page ID # 2446 Order Extending Deputy Clerk Status Reports
RE 131
Page ID # 2447-48 Deputy Clerk Status Report
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1-4
Record Entry No. Document Description
RE 132
Page ID # 2456-
2465
Davis’ Response to Plaintiffs’ Motion to Reopen Class
Certification Briefing
RE 133
Page ID # 2478-
2512
Davis’ Response in Opposition to
Plaintiffs’ Motion to Enforce Orders
RE 161
Page ID # 2657-59 Order Denying Plaintiffs’ Motion to Enforce Orders
RE 206 Memorandum Opinion and Order
Granting Attorney’s Fees
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2-1
ADDENDUM 2
Myrick v. Warren, No. 16-EEOC-0001 (Mar. 8, 2017)
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