DOCSLIB.ORG

United States District Court for the Eastern District of Kentucky Ashland Division

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
United States District Court for the Eastern District of Kentucky Ashland Division Case: 0:15-cv-00044-DLB Doc #: 133 Filed: 10/13/15 Page: 1 of 35 - Page ID#: 2478 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY ASHLAND DIVISION APRIL MILLER, ET AL., : : Plaintiffs, : CIVIL ACTION : v. : 0:15-CV-00044-DLB : KIM DAVIS, ET AL., : DISTRICT JUDGE : DAVID L. BUNNING Defendants. : : KIM DAVIS, : : Third-Party Plaintiff, : : v. : : STEVEN L. BESHEAR, in his official : capacity as Governor of Kentucky, and : WAYNE ONKST, in his official capacity : as State Librarian and Commissioner, : Kentucky Department for Libraries and : Archives, : : Third-Party Defendants. : : DEFENDANT/THIRD-PARTY PLAINTIFF KIM DAVIS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO ENFORCE SEPTEMBER 3 AND SEPTEMBER 8 ORDERS Horatio G. Mihet A.C. Donahue Roger K. Gannam DONAHUE LAW GROUP, P.S.C. Jonathan D. Christman P.O. Box 659 LIBERTY COUNSEL Somerset, Kentucky 42502 P.O. Box 540774 Tel: (606) 677-2741 Orlando, Florida 32854 Fax: (606) 678-2977 Tel: (800) 671-1776 [email protected] Fax: (407) 875-0770 [email protected] / [email protected] / [email protected] Attorneys for Defendant/Third-Party Plaintiff Kim Davis Case: 0:15-cv-00044-DLB Doc #: 133 Filed: 10/13/15 Page: 2 of 35 - Page ID#: 2479 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION .......................................................................................................................... 1 RELEVANT BACKGROUND ...................................................................................................... 3 A. This Court’s September 3, 2015 Order ............................................................................... 3 B. This Court’s September 8, 2015 Order ............................................................................... 3 C. The Status Quo In Rowan County Regarding The Issuance Of Marriage Licenses ........... 4 D. Plaintiffs’ Motion To “Enforce” This Court’s September 3 And September 8 Orders ...... 5 ARGUMENT .................................................................................................................................. 6 A. Plaintiffs’ Motion To Enforce Should Be Denied Because Marriage Licenses Are Being Issued In Rowan County, Which The Kentucky Governor And Kentucky Attorney General Have Approved As Valid, And Which Are Recognized By The Commonwealth Of Kentucky ........................................................................................................................ 6 B. Plaintiffs’ Motion To Enforce Should Be Denied Because This Court Has No Jurisdiction To Enforce The Expanded Injunction Underlying Its September 3 And September 8 Orders ................................................................................................................................ 12 C. Plaintiffs Lack Standing To Bring Their Motion To Enforce ........................................... 13 D. Plaintiffs Have Failed To Demonstrate Any Violation Of This Court’s September 3 And September 8 Orders ................................................................................................... 19 E. Davis Has Taken Reasonable Steps And Good Faith Efforts To Comply With This Court’s September 3 And September 8 Orders................................................................. 24 F. Imposing Civil Monetary Fines And A Receivership Are Extreme, Unnecessary, And Improper Sanctions In This Case ...................................................................................... 25 CONCLUSION ............................................................................................................................. 28 i Case: 0:15-cv-00044-DLB Doc #: 133 Filed: 10/13/15 Page: 3 of 35 - Page ID#: 2480 TABLE OF AUTHORITIES Page Cases Ahmed v. Univ. of Toledo, 822 F.2d 26 (6th Cir. 1987) .....................................................................................................16 Am. Town Ctr. v. Hall 83 Assocs., 912 F.2d 104 (6th Cir. 1990) ...................................................................................................12 Appalachian Reg’l Healthcare, Inc. v. Coventry Health & Life Ins. Co., No. 12-114, 2012 WL 2905525 (E.D. Ky. July 16, 2012).................................................24, 25 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ...................................................................................................................15 Bd. of Sch. Comm’rs v. Jacobs, 420 U.S. 128 (1975) .................................................................................................................16 Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993) .......................................................................................................16 Chafin v. Chafin, 133 S.Ct. 1017 (2013) ..............................................................................................................15 City of Parma, Ohio v. Cingular Wireless, LLC, 278 Fed. App’x 636 (6th Cir. 2008) ........................................................................................16 Cnty. of Riverside v. McLaughlin, 500 U.S. 44 (1991) ...................................................................................................................17 Crosby v. Bowater Inc. Ret. Plan for Salaried Employees of Great N. Paper, Inc., 382 F.3d 587 (6th Cir. 2004) ...................................................................................................18 Cruz v. Farquharson, 252 F.3d 530 (1st Cir. 2001) ..............................................................................................16, 18 Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (1980) .................................................................................................................17 Dixon v. Barry, 967 F. Supp. 535 (D.D.C. 1997) ........................................................................................26, 27 Egan v. Davis, 118 F.3d 1148 (7th Cir. 1997) .................................................................................................16 ii Case: 0:15-cv-00044-DLB Doc #: 133 Filed: 10/13/15 Page: 4 of 35 - Page ID#: 2481 Elec. Workers Pension Trust Fund of Local Union #58 v. Gary’s Elec. Serv. Co., 340 F.3d 373 (6th Cir. 2003) .......................................................................................19, 24, 25 Fortune Hi-Tech Mktg., Inc. v. Isaacs, No. 10-123, 2010 WL 5391533 (E.D. Ky. Dec. 21, 2010) ......................................................25 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) .................................................................................................................13 Garrison v. Cassens Transport. Co., 334 F.3d 528 (6th Cir. 2003) ...................................................................................................12 Gawry v. Countrywide Home Loans, Inc., 395 Fed. App’x 152 (6th Cir. 2010) ........................................................................................16 Gerstein v. Pugh, 420 U.S. 103 (1975) .................................................................................................................17 Glover v. Johnson, 855 F.2d 277 (6th Cir. 1988) ...................................................................................................26 Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991) ...................................................................................................27 Glover v. Johnson, 199 F.3d 310 (6th Cir. 1999) ...................................................................................................25 Grace v. Ctr. for Auto Safety, 72 F.3d 1236 (6th Cir. 1996) ...................................................................................................19 Inmates of the Lincoln Intake & Detention Facility v. Boosalis, 705 F.2d 1021 (8th Cir. 1983) .................................................................................................16 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) .................................................................................................................12 Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990) .................................................................................................................15 Liberte Capital Group, LLC v. Capwill, 462 F.3d 543 (6th Cir. 2006) ...................................................................................................19 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...........................................................................................................13, 14 Newman v. Alabama, 466 F. Supp. 628 (M.D. Ala. 1979) .........................................................................................27 iii Case: 0:15-cv-00044-DLB Doc #: 133 Filed: 10/13/15 Page: 5 of 35 - Page ID#: 2482 N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585 (6th Cir. 1987) .............................................................................................12, 19 Obergefell v. Hodges, 135 S.Ct. 2584 (2015) ................................................................................................................8 O’Shea v. Littleton, 414 U.S. 488 (1974) .................................................................................................................18
Load more

Recommended publications
  • Going to the Clerk's Office and We're Not Going to Get Married
    University of Massachusetts Law Review Volume 13 | Issue 1 Article 3 Going to the Clerk’s Officend a We’re Not Going to Get Married Alicia F. Blanchard Follow this and additional works at: https://scholarship.law.umassd.edu/umlr Part of the Constitutional Law Commons, First Amendment Commons, Fourteenth Amendment Commons, and the Sexuality and the Law Commons Recommended Citation Blanchard, Alicia F. () "Going to the Clerk’s Office and We’re Not Going to Get Married," University of Massachusetts aL w Review: Vol. 13 : Iss. 1 , Article 3. Available at: https://scholarship.law.umassd.edu/umlr/vol13/iss1/3 This Note is brought to you for free and open access by Scholarship Repository @ University of Massachusetts chooS l of Law. It has been accepted for inclusion in University of Massachusetts Law Review by an authorized editor of Scholarship Repository @ University of Massachusetts chooS l of Law. Going to the Clerk’s Office and We’re Not Going to Get Married Alicia F. Blanchard 13 U. MASS. L. REV. 100 ABSTRACT Same-sex marriage is a controversial topic subject to great debate. The Supreme Court in 2015 federally recognized the legality of same-sex marriages in Obergefell v. Hodges. Despite this ruling, some people looked for any reason to denounce the holding. Perhaps none were more vocal than those who rejected same-sex marriage on the basis of their religious tenets. Miller v. Davis provided people who were morally opposed to same-sex marriage a platform to support their concerns grounded in a First Amendment right to freedom of religion.
    [Show full text]
  • Why Kim Davis Is Being Sued to Pay Gay, Straight Couples' Legal Fees
    Why Kim Davis is being sued to pay gay, straight couples' legal fees Kim Davis, a Kentucky county clerk who refused to issue marriage licenses because of her religious beliefs, is being asked by those couples to pay the legal fees for the court proceedings that followed. By David Iaconangelo, Sta NOVEMBER 4, 2016 For Kim Davis and the couples who sued her, the loftier battles over individual freedom have been settled, at least temporarily. Now someone just has to pick up the check. Ms. Davis, a Kentucky county clerk, first made national headlines in August 2015 for refusing to issue marriage licenses to gay couples based on her religious objections to gay marriage. US District Judge David Bunning eventually ruled her beliefs should have no impact on her official role as a government notary and ordered her to immediately start Kim Davis addresses the media just before the doors are issuing the paperwork. But Davis continued to turn away gay couples, opened to the Rowan County Clerk's Oce in Morehead, Kentucky, Sept. 14, 2015. (Chris Tilley/Reuters) and eventually heterosexual couples, to express her opposition to the Supreme Court ruling that legalized gay marriage. The plaintiffs, who were refused marriage licenses in the original case, are seeking legal fees from Ms. Davis, asking Judge Bunning for an order to recoup some $233,058 in costs. The decision may hinge on which of the two sides could be said to have "won" the original dispute: Davis, who spent five days in jail on contempt of court charges, or the four couples (two same-sex, two heterosexual couples), who saw their case dismissed in August after the Kentucky legislature passed a law on the matter.
    [Show full text]
  • Hail Marriage and Farewell
    Fordham Law Review Volume 84 Issue 1 Article 5 2015 Hail Marriage and Farewell Ethan J. Leib Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Fourteenth Amendment Commons, and the Law and Society Commons Recommended Citation Ethan J. Leib, Hail Marriage and Farewell, 84 Fordham L. Rev. 41 (2015). Available at: https://ir.lawnet.fordham.edu/flr/vol84/iss1/5 This Foreword is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. HAIL MARRIAGE AND FAREWELL Ethan J. Leib* It was elating to see the long-awaited victory for same-sex marriage pop up on my screen at 10:01 a.m. on June 26, 2015. It felt like a victory for rights, for open-mindedness, for love, and for the future. It was gratifying to see something I wasn’t sure I would get to see in my lifetime. I felt for a moment that I was living in a modern liberal state, where the state doesn’t get in the business of making moral judgments about people’s intimate choices in how they choose to organize their romantic and sexual lives. But it didn’t take long reading the opinion to see something many in the LGBT community warned people about along the way to marriage equality: that the price of admission to marriage for same-sex couples was the further reinforcement of a very traditional understanding of marriage and its role in society.1 Justice Kennedy’s decision for the majority in Obergefell v.
    [Show full text]
  • 08. Political Science Northeastern State University
    Southwestern Oklahoma State University SWOSU Digital Commons Oklahoma Research Day Abstracts 2016 Oklahoma Research Day Jan 5th, 12:00 AM 08. Political Science Northeastern State University Follow this and additional works at: https://dc.swosu.edu/ordabstracts Part of the Higher Education Commons, History Commons, and the Modern Languages Commons Northeastern State University, "08. Political Science" (2016). Oklahoma Research Day Abstracts. 5. https://dc.swosu.edu/ordabstracts/2016oklahomaresearchday/liberalarts/5 This Event is brought to you for free and open access by the Oklahoma Research Day at SWOSU Digital Commons. It has been accepted for inclusion in Oklahoma Research Day Abstracts by an authorized administrator of SWOSU Digital Commons. An ADA compliant document is available upon request. For more information, please contact [email protected]. Abstracts from the 2016 Oklahoma Research Day Held at Northeastern State University 04. Liberal Arts 08. Political Science 04.08.01 Arafat to Abbas: Toward a Palestinian State Van Den Handel,Cheryl Northeastern State University The purpose of this research is to determine if changes in leadership in the Palestinian Authority and Israel will bring the two sides closer to a “critical mass” favoring a two-state solution. The principal query asks whether there exists a sufficiently large coalition in Israel and the Palestinian territories that favors the establishment of a Palestinian state in the West Bank and Gaza. A critical assumption underlying this research is that municipal and parliamentary elections in the Palestinian territories would serve as an institutional vehicle for easing many of the Fatah Old Guard leaders out of senior positions within Fatah and the PA.
    [Show full text]
  • Implementing Marriage Equality in America Carl W
    University of Richmond UR Scholarship Repository Law Faculty Publications School of Law 2015 Implementing Marriage Equality in America Carl W. Tobias University of Richmond, [email protected] Follow this and additional works at: http://scholarship.richmond.edu/law-faculty-publications Part of the Sexuality and the Law Commons, State and Local Government Law Commons, and the Supreme Court of the United States Commons Recommended Citation Carl W. Tobias, Implementing Marriage Equality in America, 65 Duke L.J. Online 25 (2015). This Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. TOBIAS IN PRINTER FINAL FINAL (DO NOT DELETE) 1/9/2016 11:34 AM Duke Law Journal Online VOLUME 65 DECEMBER 2015 IMPLEMENTING MARRIAGE EQUALITY IN AMERICA CARL TOBIAS† INTRODUCTION In June, the Supreme Court held that state proscriptions on same-sex marriage violate the Fourteenth Amendment. Obergefell v. Hodges1 declared that same-sex couples possess a fundamental right to marry but left implementation’s daily particulars to federal, state, and local officials. Because formal recognition of marriage equality is a valuable first step but realizing actual marriage equality will necessitate careful implementation of the Justices’ mandate, this effectuation deserves analysis. Part I principally reviews Obergefell’s rationale for formal marriage equality. Part II assesses implementation of the Court’s mandate. Detecting that a few states and numerous localities have yet to provide comprehensive marriage equality, Part III proffers suggestions for attaining complete equality.
    [Show full text]
  • CI&E Contest Manual
    CURRENT ISSUES AND EVENTS BRADLEY WILSON, PH.D. | CONTEST DIRECTOR CAPITAL CONFERENCE | 2017 Photo by Keith McDuffee Only 45 percent of Americans were able to correctly identify what the initials in GOP stood for. 55 percent of Americans believe that Christianity was written into the Constitution and that the founding fathers wanted One Nation Under Jesus When asked on what year 9/11 took place, 30 percent of Americans were unable to answer the question correctly. When looking at a map of the world, young Americans had a difficult time correctly identifying Iraq (14 percent) and Afghanistan (17 percent). ABOUT THE CONTEST • 40 objective questions • Essay (10 points) • 60 minutes • Top score individual (objective plus essay) • Top score team (objective only; top three individuals constitute team score) WHO MAY ENTER? • School may enter four students at district. • Three individuals advance from district to regional to state. • Four members of winning team advance. WHAT AREAS WILL YOU COVER? • War and conflict • Media • Politics • Crime • Health • Education • Science/technology • Environment • Economics (economy, • Awards /Honors (not deficit, unemployment) entertainment) ELEMENTS OF NEWS • Timeliness — when? • Conflict — political, ideological, cultural • Consequence — what? why is it important? • Prominence — who? • Proximity — where? how? • Oddity — unusual events that make the news • Human Interest — newsmakers in a more human role WHO QUESTION Who is Jorge Mario Bergoglio? A. Cardinal and Archbishop in New York City B. Trump fund-raiser charged with fraud and violating campaign-finance laws C. First Hispanic on the U.S. Supreme Court D. Pope Francis of Assisi WHO QUESTION Who is Jorge Mario Bergoglio? A.
    [Show full text]
  • Marriage Equality.LP
    Social Studies Education Student Teaching Social Studies Education Lesson Plan Template v. 3 Teacher Candidate Name: Thomas Krucek & Marcus Lingrell Lesson Title: It’s Kimpossible to Get Married in Rowan County Grade Level: 12 Lesson Foundations Content Standards Government: OCSS:16. In the United States, people have rights which protect them from undue governmental interference. Rights carry responsibilities which help define how people use their rights and which require respect for the rights of others. OCSS:20. Individuals in Ohio have a responsibility to assist state and local governments as they address relevant and often controversial problems that directly affect their communities. Learning Objective(s) 1) Students will describe the opposing perspectives Assessment(s) 1) Class Discussion- Legal or Not? regarding Kim Davis’s refusal to issue marriage licenses in (LO #1) Rowan County, Kentucky. 2) Dueling Documents (LO #1) 2) Students will identify how aspects of the Kim Davis story 3) Class Discussion (LO’s #1 & #2) intersect with concepts discussed in their American Government and Sociology classes. Materials & Resources Coontz, S. (April 2009). The Real Marriage Revolution. Origins: Current Events in Historical Perspectives, 2(7). Retrieved on September 6, 2015 at http://origins.osu.edu/article/real-marriage-revolution Editorial Board. (2015, September 8). Jailed clerk Kim Davis is no religious martyr. Retrieved on September 10, 2015 at http://www.sacbee.com/opinion/editorials/article34406685.html Gerth, J. (2015, September 6). ‘Free Kim Davis’: This is just what gay rights groups wanted to avoid. Retrieved on September 6, 2015 at http://www.usatoday.com/story/news/nation/2015/09/05/kim-davis-christian-gay- rights/71772980/ Jackson, H.
    [Show full text]
  • In the United States Court of Appeals for the Sixth Circuit ______
    Case: 15-5880 Document: 80 Filed: 01/28/2016 Page: 1 Nos. 15-5880, 15-5961, 15-5978 __________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT __________________________ APRIL MILLER, Ph.D; KAREN ANN ROBERTS; SHANTEL BURKE; STEPHEN NAPIER; JODY FERNANDEZ; KEVIN HOLLOWAY; L. AARON SKAGGS; and BARRY SPARTMAN, Plaintiffs-Appellees, v. KIM DAVIS, individually, Defendant-Third-Party Plaintiff-Appellant, v. MATTHEW G. BEVIN, in his official capacity as Governor of Kentucky, and WAYNE ONKST, in his official capacity as State Librarian and Commissioner, Kentucky Department for Libraries and Archives, Third-Party Defendants-Appellees. __________________________ On Appeal From The United States District Court For The Eastern District of Kentucky In Case No. 15-cv-00044 Before The Honorable David L. Bunning __________________________ APPELLANT KIM DAVIS’ RESPONSE TO MOTION TO DISMISS CLAIMS ON APPEAL AGAINST STATE APPELLEES AND MOTION FOR EXPEDITED CONSIDERATION __________________________ (continued on next page) Case: 15-5880 Document: 80 Filed: 01/28/2016 Page: 2 (continued from prior page) A.C. Donahue Mathew D. Staver, Counsel of Record DONAHUE LAW GROUP, P.S.C. Horatio G. Mihet P.O. Box 659 Roger K. Gannam Somerset, Kentucky 42502 Jonathan D. Christman (606) 677-2741 LIBERTY COUNSEL [email protected] P.O. Box 540774 Orlando, Florida 32854 (407) 875-1776 [email protected] | [email protected] | [email protected] | [email protected] Counsel for Appellant Kim Davis Case: 15-5880 Document: 80 Filed: 01/28/2016 Page: 3 Appellant, KIM DAVIS (“Davis”), pursuant to Fed. R. App. P. 27(a)(3), responds to the Motion to Dismiss Claims on Appeal Against State Appellees and Motion for Expedited Consideration (the “Motion”) filed by Appellees MATTHEW G.
    [Show full text]
  • The Controversy Over Religious Liberty, Civil Rights, and Same-Sex Marriage, 14 First Amend
    FIRST AMENDMENT LAW REVIEW Volume 14 | Issue 1 Article 2 9-1-2015 A Struggle for Recognition: The onC troversy over Religious Liberty, Civil Rights, and Same-Sex Marriage Steven J. Heyman Follow this and additional works at: http://scholarship.law.unc.edu/falr Part of the First Amendment Commons Recommended Citation Steven J. Heyman, A Struggle for Recognition: The Controversy over Religious Liberty, Civil Rights, and Same-Sex Marriage, 14 First Amend. L. Rev. 1 (2018). Available at: http://scholarship.law.unc.edu/falr/vol14/iss1/2 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in First Amendment Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. A STRUGGLE FOR RECOGNITION: THE CONTROVERSY OVER RELIGIOUS LIBERTY, CIVIL RIGHTS, AND SAME-SEX MARRIAGE STEVEN J. HEYMAN* ABSTRACT In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the principles of liberty, equality, and dignity that are enshrined in the Fourteenth Amendment. In the wake of this decision, the battle over marriage equality has shifted to a new front. Religious traditionalists assert that the legalization of same-sex marriage endangers their religious liberty, and they seek protections for those who object to such unions on religious grounds. For example, they contend that florists, bakers, and others who provide wedding-related goods and services should not be compelled to follow state civil rights laws that would require them to serve same-sex couples in the same way as opposite-sex couples.
    [Show full text]
  • © 2015 Thomson Reuters. No Claim to Original U.S. Government Works. 1
    Tsou, Christina 9/28/2015 For Educational Use Only State and Local Officials Frequently Defy National Laws, 2015 WLNR 28045551 9/18/15 U.S. News & World Rep. (Pg. Unavail. Online) 2015 WLNR 28045551 U.S. News & World Report Copyright © 2015 U.S. News & World Report September 18, 2015 Section: The Report State and Local Officials Frequently Defy National Laws Susan Milligan Kentucky clerk Kim Davis refused to issue marriage licenses to same-sex couples and got thrown in jail for it. But when a bunch of local sheriffs declared in a 2013 letter to the White House that they would not enforce any federal gun laws they personally believed to be unconstitutional, there was no blowback from the government or the courts. A court struck down Arizona’s law requiring people to carry papers proving legal status and the state’s law forbidding people from applying for work without proper documentation. But immigrant-friendly New Haven, Connecticut can continue to be a “sanctuary city” in which immigrants without legal status can interact with police without fear of being targeted for deportation. READ: [ Kim Davis Is Just a Lonely Gay Marriage Warrior ] Local officials and governments often find themselves faced with enforcing or otherwise participating in federal laws and policies the locals don’t like. And the ongoing battles over gay marriage and immigration have only added to the tension, leaving the courts to decide when locals have gone too far in inserting themselves into policies traditionally reserved for Washington, D.C. But when will defying the federal government result in an exasperated shrug from the administration -- and when will it become a federal case, including the possibility of spending time behind bars for contempt of court? That question has come up many times during the Obama years, as state and local officials have pushed back on policies ranging from the Affordable Care Act, gun control, mass transit, gay marriage to, perhaps most often, immigration.
    [Show full text]
  • Community in Conflict: Same-Sex Marriage and Backlash Reva B
    Community in Conflict: Same-Sex Marriage and Backlash EVIEW r Reva B. Siegel ABStract CLA LAW CLA LAW u Did backlash to judicial decisions play a destructive role in debates over same-sex marriage, as was so often claimed? This Article questions assumptions about consensus and constitutionalism that undergird claims about judicial backlash, and explores some constructive functions of conflict in our constitutional order. The debate over same-sex marriage illustrates that conflict, constrained by constitutional culture, can forge meanings and bonds that strengthen the constitutional order. Constitutional culture, on this account, includes the understandings about role that guide interactions among citizens and officials who disagree about the Constitution’s meaning. Analyzing the long-running conflict over same-sex marriage with attention to these role-based understandings leads us differently to evaluate the power and limits of judicial review. In this Article I argue that the backlash narrative and the consensus model of constitutionalism on which it rests simultaneously underestimate and overestimate the power of judicial review. The Court’s decision inObergefell was possible not simply because public opinion changed, but also because struggle over the courts helped change public opinion and forge new constitutional understandings. Even so, Obergefell has not ended debate over marriage, but instead has channeled it into new forms. Conflict of this kind is enabled, and constrained, by the role-based understandings of constitutional culture. A conclusion invokes anxieties attending the election of Donald Trump to illustrate how critical the perpetually contested role constraints of constitutional culture are in sustaining our constitutional order. Author Nicholas deB.
    [Show full text]
  • First Amendment Defense Act Still Provides a License to Discriminate
    First Amendment Defense Act Still Provides a License to Discriminate Kim Davis is returning to work and still refusing to issue marriage licenses to same-sex couples, but her unwillingness to follow the rule of law has national implications. In Congress, some are pushing forward with plans for a “First Amendment Defense Act,” or FADA. The deceptively titled bill codifies discrimination and is remarkably tone-deaf to the public backlash following last spring’s RFRA battle in Indiana and following Davis’ own refusal to marry same-sex couples. The broadly written bill, sponsored by Sen. Mike Lee (R-UT) and Rep. Raul Labrador (R-ID), does not advance existing First Amendment protections; but does give individuals, organizations and even businesses the right to discriminate against LGBT people simply because they exercise their constitutional right to marry. Americans believe everyone needs to follow the law. A new ABC News/Washington Post poll found that 74 percent of Americans say treating everyone equally under the law takes precedence over one’s religious beliefs1. Sixty-five percent of Americans2, for example, believe that Kim Davis should do her job or resign according to a recent Huffington Post/YouGov poll. An even stronger majority, nearly 70 percent3, support protecting LGBT people from discrimination in employment, housing and public accommodations. And two-thirds of small business owners (66 percent) don’t believe businesses should be able to deny LGBT people goods or services based on religious beliefs4. FADA stands in sharp contrast to public opinion. According to the most recent version of the bill: • Any business that is not a publicly traded for-profit entity can discriminate against same-sex couples and their families.
    [Show full text]