IN THE UNITED STATES COURT OF APPEALS FOR …lc.org/PDFs/Attachments2PRsLAs/2018/040518Third...flowed from the Commonwealth, making her a state official for sovereign immunity Case:

No. 17-6119/6233

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAVID ERMOLD; DAVID MOORE,

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-00046 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

[email protected]

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]


Counsel for Defendant-Appellant Cross-Appellee Kim Davis

Case: 17-6119 Document: 43 Filed: 04/04/2018 Page: 1

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.


ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT .......................................................... i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ..................................................................................... v

INTRODUCTION ..................................................................................................... 1

ARGUMENT ............................................................................................................. 2

I. THE COURT NEED NOT TAKE AS TRUE PLAINTIFFS’

IMPLAUSIBLE AND JUDICIALLY KNOWN FALSE

ALLEGATIONS 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

C. Plaintiffs' Allegations and Arguments about Davis' Kentucky-

Ratified Accommodation Are Not in the Amended Complaint, or

Are Contradicted by the Miller Record. .............................................. 13

II. DAVIS HAS QUALIFIED IMMUNITY FROM PLAINTIFFS’

CLAIMS BECAUSE DAVIS DID NOT VIOLATE PLAINTIFFS’

CLEARLY ESTABLISHED RIGHTS. ........................................................ 16

A. Plaintiffs' Admission That Davis' Policy Did Not Impose a Direct

and Substantial Burden on Plaintiffs' Right to Marry Should End

the Case Because Davis' Policy Was Constitutional under Rational

Basis Review. ...................................................................................... 16


iii

1. Rational Basis Review Applies to Davis' Policy Regardless

of Whether Davis Is Deemed a State or County Official,

Because Plaintiffs Admit That the Right to Marry Was Not

Substantially Burdened. ............................................................ 16

2. The Nude Expression and Abortion Precedents Relied on by

Plaintiffs Have No Bearing on Right to Marry Cases

Because Getting a Marriage License Is Obviously Different

from Nude Dancing and Getting an Abortion. ......................... 20

a. This Court Has Held That Free Speech Principles Do

Not Apply to Right to Marry Cases for Level-Of-

Scrutiny Purposes. .......................................................... 20

b. Abortion Cases Are Sui Generis and Have No Bearing

on This Right to Marry Case. ......................................... 23

3. Davis' Policy Easily Satisfies Rational Basis Review, and

Also Satisfies Strict Scrutiny in Any Event. ............................. 27

4. Davis' Accommodation Did Not Violate the Establishment

Clause. ....................................................................................... 33

III. DAVIS ACTED AS A STATE OFFICIAL WITH SOVEREIGN

IMMUNITY UNDER THE ELEVENTH AMENDMENT. ......................... 36

A. Both Davis' Marriage License Function and Application of

Kentucky RFRA to That Function Clearly Flow from the

Commonwealth. .................................................................................. 36

B. Though It Is Unnecessary to Consider the Crabbs Factors in This

Case, They Indicate Davis Acted for the Commonwealth. ................. 42

1. Marriage Licensing Is Clearly within the Purview of the

Commonwealth. ........................................................................ 42

2. Kentucky Statutes Indicate the Commonwealth Is

Potentially Liable for Davis' Official Acts. .............................. 43

3. The Commonwealth's Level of Control over State Marriage

Policy Dictates That Davis Is a State Actor. ............................. 44


iv

CONCLUSION ........................................................................................................ 45

CERTIFICATE OF COMPLIANCE ....................................................................... 46

CERTIFICATE OF SERVICE ................................................................................ 47

ADDENDUM 1 ..................................................................................................... 1-1

ADDENDUM 2 ..................................................................................................... 2-1


v

TABLE OF AUTHORITIES

Cases

ACLU v. Mercer County, Ky., 432 F.3d 624 (6th Cir. 2005) .................................. 34

Ansley v. Warren, 861 F.3d 512 (4th Cir. 2017) ...................................................... 30

Barber v. Bryant, 833 F.3d 510 (5th Cir. 2016) ...................................................... 30

Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet,

512 U.S. 687 (1994) ............................................................................................ 35

Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971) ..................................... 2

Cady v. Arenac County, 574 F.3d 334 (6th Cir. 2009) ............................................ 37

Carroll v. Reed, 425 S.W.3d 921 (Ky. Ct. App. 2014) ........................................... 41

City of Akron v. Akron Ctr. for Reprod. Health, Inc.,

462 U.S. 416 (1983) .................................................................................. 20,24,25

Conlon v. InterVarsity Christian Fellowship/USA,

777 F.3d 829 (6th Cir. 2015) .............................................................................. 33

Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos,

483 U.S. 327 (1987) ............................................................................................ 34

Crabbs v. Scott, 786 F.3d 426 (6th Cir. 2015) .................................................... 37,43

Cutter v. Wilkinson, 544 U.S. 709 (2005) ...................................................... 33,34,35

D’Ambrosio v. Marino, 747 F.3d 378 (6th Cir. 2014) ............................................. 37

Gottfried v. Med. Planning Servs., Inc.,

280 F.3d 684 (6th Cir. 2002) .......................................................... 36,37,39,41,42

Graves v. Mahoning County, No. 4:10CV2821,

2015 WL 403156 (N.D. Ohio Jan. 28, 2015) ..................................................... 37

Greenville Women’s Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000) ...................... 27


vi

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) ............................................................................................ 34

Jones v. Perry, 215 F. Supp. 3d 563 (E.D. Ky. 2016) ........................................ 38,42

Kreipke v. Wayne State Univ., 807 F.3d 768 (6th Cir. 2015) .................................. 43

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............................................................... 35

Leslie v. Lacy, 91 F. Supp. 2d 1182 (S.D. Ohio 2000) ............................................ 37

Locke v. Davey, 540 U.S. 712 (2004) ...................................................................... 34

Lowe v. Hamilton Cnty. Dep’t of Jobs & Family Serv.,

610 F.3d 321 (6th Cir. 2010) .............................................................................. 43

Lynch v. Donnelly, 465 U.S. 668 (1984) ................................................................. 34

Mahoning Women’s Ctr. v. Hunter, 610 F.2d 456 (6th Cir. 1979) .......... 20,21,25,26

McMillian v. Monroe County, Ala., 520 U.S. 781 (1997) .................................. 37,38

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

Miller v. Davis, 667 F. App’x 537 (6th Cir. 2016) .................................................... 4

Miller v. Davis, 267 F. Supp. 3d 961 (E.D. Ky. 2017) ............................ 4,5,38,42,44

Montgomery v. Carr, 101 F.3d 1117 (6th Cir. 1996) .....................17,21,22,27,28,32

Myrick v. Warren, No. 16-EEOC-0001 (Mar. 8, 2017) ........................................... 29

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ..................................................passim

Perry v. Se. Boll Weevil Eradication Found.,

154 F. App’x 467 (6th Cir. 2005) ....................................................................... 43


vii

Pinkhasov v. Petocz, 331 S.W.3d 285 (Ky. App. 2011) ..................................... 19,38

Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott,

748 F.3d 583 (5th Cir. 2014) ......................................................................... 26,27

Planned Parenthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833 (1992) .................................................................................. 23,24,27

Pusey v. City of Youngstown, 11 F.3d 652 (6th Cir. 1993)...................................... 37

Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673 (6th Cir. 2011) ....................... 2,3

Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) ...................... 20,21,22,23

Smith v. Jefferson County Bd. of School Comm’rs,

788 F.3d 580 (6th Cir. 2015) .............................................................................. 35

Thiokol Corp. v. Dep’t of Treasury, State of Mich. Revenue Div.,

987 F.2d 376 (6th Cir. 1993) .............................................................................. 36

Tilton v. Richardson, 403 U.S. 672 (1971) .............................................................. 33

Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703 (6th Cir. 2001) ...................... 18

Women’s Medical Professional Corp. v. Baird, 438 F.3d 595 (6th Cir. 2006) ....... 26

Zorach v. Clauson, 343 U.S. 306 (1952) ................................................................. 34

Statutes

42 U.S.C. § 1983 ...................................................................................................... 41

Kentucky Religious Freedom Restoration Act,

Ky. Rev. Stat. § 446.350 (2013) ..................................................................passim

Ky. Rev. Stat. § 62.055 ....................................................................................... 43,44

Ky. Rev. Stat. § 64.5275 .......................................................................................... 38

Ky. Rev. Stat. § 402.080 ................................................................................ 18,21,38

Ky. Rev. Stat. § 402.100 ..................................................................................... 31,38


viii

Ky. Rev. Stat. § 402.110 .......................................................................................... 31

Ky. Rev. Stat. § 446.010 ..................................................................................... 39,40

Ky. Rev. Stat. § 446.030 .......................................................................................... 40

Ky. Rev. Stat. § 446.090 .......................................................................................... 40

Ky. Rev. Stat. § 446.140 .......................................................................................... 40

Ky. Rev. Stat. Ch. 402 ............................................................................................. 38

Ky. Rev. Stat. Ch. 446 ............................................................................................. 40

Miss. Code Ann. § 11-62-1, et seq........................................................................... 30

N.C. Gen. Stat. § 51-5.5 ........................................................................................... 30

Constitutional Provisions

Ky. Const. Preamble ................................................................................................ 29

Ky. Const. § 5 .......................................................................................................... 29

Ky. Const. § 246 ...................................................................................................... 38

U.S. Const. amend. I .........................................................................................passim


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 depend on a false narrative that

is refuted by the record already before this Court in the companion Miller v. Davis

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

flowed from the Commonwealth, making her a state official for sovereign immunity


2

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 AND JUDICIALLY KNOWN FALSE

ALLEGATIONS 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) (emphasis added); see also Rondigo,

L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680–81 (6th Cir. 2011) (“[A] court may

consider exhibits attached to the complaint, public records, items appearing in the


3

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, Yates v Davis, 6th Cir. No. 6120/6226), not only because of the district court’s

recurrent consolidation below of their critical aspects (see Davis’ Br., Doc. 33, at 6-

7, n.3.), 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 Yates 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 (Ermold) 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 49, Mem. Op. and Order, Page ID #

299-300.) Plaintiffs, for their part, also rely heavily on the Miller record, both in this

appeal and below.


4

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 3, 4 (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 4 (citing Miller RE 75, Minute Order (Sept. 3, 2015) (contempt

order), id. at 7 (citing 6th Cir. No. 15-5880, Doc. 94 (June 21, 2016) (Davis’ motion

to dismiss 6th Cir. Appeal Nos. 15-5880, 15-5978, and to vacate preliminary

injunction and contempt orders), id. (citing Miller v. Davis, 667 F. App’x 537 (6th

Cir. 2016) (dismissing Miller appeals and vacating preliminary injunction)), id. at 8

(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))). 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 v (listing four Miller orders in

Table of Authorities), id. at 37, 61 (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.’ Mem. Opp’n Davis’ Mot. Dismiss Am. Compl., Page ID # 187, 202, 206-208,

213, 221 (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 # 188-195 (citing Miller v. Davis, 267 F. Supp. 3d 961 (E.D. Ky. 2017)


5

(Miller RE 206, Mem. Op. and Order (July 21, 2017) (granting attorney’s fees))), id.

at Page ID # 202, 204, 206 (citing Miller v. Davis, No. 15-5880, 2015 WL 10692640

(6th Cir. Aug. 26, 2015) (order denying stay pending appeal)), id. at Page ID # 211

(citing Miller RE 78 (contempt hr’g tr., Sept. 3, 2015)).

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. As shown below, Plaintiffs’ allegations and arguments

regarding Davis’ Kentucky-ratified religious accommodation are squarely and

conclusively contradicted by 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.

Plaintiffs’ brief omits undisputed facts from the Miller record that eviscerate

their arguments against Davis’ qualified and sovereign immunity. And because

Plaintiffs’ Amended Complaint was not filed until June 8, 2017—after most of the

Miller proceedings had run their course—the omission was knowing.1

1 The following 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.


6

Shortly after the Miller Plaintiffs sued Davis (see 1st Br., Doc. 33, at 6), 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.” (SSM Mandate, RE 27-1,

Page ID # 127-28 (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. 33, at 5.)


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 #


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).)

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


9

“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 #

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


10

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.)

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


11

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

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


12

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.)

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,


13

2460, 2464-2465; Miller RE 133, Resp. Pls.’ Mot. Enforce, Page ID # 2487, 2490,

2494-2495.)

C. Plaintiffs' Allegations and Arguments about Davis'

Kentucky-Ratified Accommodation Are Not in the

Amended Complaint, or Are Contradicted by the

Miller Record.

Under cover of the hornbook principle that the Court must accept their

allegations as true, Plaintiffs attempt in their brief to foist an alternative universe of

facts upon the Court regarding Davis’ Kentucky-Ratified religious accommodation.

[cite] However, as shown above, Plaintiffs cannot get away with feigned allegations

that are implausible, or contradicted by what the Court judicially knows, or

contradicted by facts established in exhibits attached to the Amended Complaint, or

simply not alleged at all. Plaintiffs’ central arguments against Davis’ qualified and

sovereign immunity depend on facts variously violating all of the above, but their

false construct is deconstructed here.

In the Amended Complaint, Plaintiffs allege they were issued a marriage

license on September 4, 2015, “by Rowan County Deputy Clerk, Brian Mason.” (RE

27, Am. Compl., at Page ID # 121, ¶ 26.) The license “lists the name of the Rowan

County Clerk as ‘Rowan County,’” and Plaintiffs attached a copy of the license

showing both the alteration and Mason’s name as the issuer. (Id. at Page ID # 122,

¶ 27; RE 27-2, Am. Compl. Ex. 2, Page ID # 130.) Plaintiffs then confuse the matter

with a contradictory allegation referring to their license as having been “issued . . .


14

by Davis.” (Id. at ¶ 31.) In their brief, Plaintiffs attempt to remedy the contradiction

with a fabrication, claiming that the September 4, 2015 alteration to the marriage

license issued by Mason (while Davis was in jail) was done “[o]n Davis’s

instruction.” (2d Br., Doc. 36, at 4-5; see also id. at 46.) Plaintiffs, however, did not

allege any such instruction in the Amended Complaint. Rather, as support for

this new allegation in their brief, Plaintiffs cite to an ambiguous generality in their

Amended Complaint, referring to the alteration on the license issued by Mason as

“Davis’ . . . accommodations” which “satisfied Davis’s religious objections.” (Id. at

¶ 30.) But this allegation could refer just as plainly to accommodations received by

Davis as it could to accommodations implemented by Davis, and it certainly does

not support the new allegation that Davis—from jail—instructed the alteration on

the license issued by Mason. Moreover, the article attached to the Amended

Complaint as Exhibit 4 (RE 27-4, Am. Compl. Ex. 4, Page ID # 134-36), contradicts

and negates even the (unalleged) idea that Davis instructed the changes to the

license form. In the article, Davis speaks through counsel to make clear that “the

licenses issued while Davis was in jail do not have the clerk’s authority . . . .” (Id.

at Page ID # 135 (emphasis added).) Given the absence of any trace of the new

“instruction” allegation in the Amended Complaint itself, combined with the

contradictory facts in the Miller record and the contradictory allegations in the


15

Amended Complaint and its exhibits, the new “instruction” allegation cannot be

taken as true.

Plaintiffs compound the error with the additional fabrications that Davis

“procured her freedom from jail by altering those forms” (2d Br., Doc. 36, at 47);

that “she adopted [the deputy clerks’ alterations] immediately after being

incarcerated” (id. at 49); and that “the forms issued while she was in jail were not

coincidentally altered in just the same way” (id. at 5-6, n.1). As shown above, Davis

did not alter or authorize alteration of any licenses until she returned to work after

being released from jail, and the alterations she effected were different from those

effected by her deputy clerks.

These fabricated, unsupportable allegations are critical to Plaintiffs’ false

narrative and resulting (wrong) argument that Davis effected the initial, jail-time

alterations entirely on her own, proving (or, so the argument goes) that she could

have effected the accommodation from day one and avoided turning away Plaintiffs.

(2d Br., Doc. 36, at 44-50.) 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.


16

§ I.B.) As explained below (see infra, Arg. § II.A.2), Davis’ initial, short, temporary

suspension of issuing marriage licenses, followed by her post-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.

Plaintiffs attempt to avoid the public record, the Miller record, and their own

Amended Complaint allegations, feigning not only that Davis “instructed” the jail-

time changes to the license forms issued by Deputy Clerk Mason, but also that this

Court must accept these “allegations” as true. As shown above, however, Plaintiffs’

false new allegations are entitled to no such deference.

II. DAVIS HAS QUALIFIED IMMUNITY FROM PLAINTIFFS’

CLAIMS BECAUSE DAVIS DID NOT VIOLATE PLAINTIFFS’

CLEARLY ESTABLISHED RIGHTS.

A. Plaintiffs' Admission That Davis' Policy Did Not

Impose a Direct and Substantial Burden on Plaintiffs'

Right to Marry Should End the Case Because Davis'

Policy Was Constitutional under Rational Basis

Review.

1. Rational Basis Review Applies to Davis' Policy

Regardless of Whether Davis Is Deemed a State

or County Official, Because Plaintiffs Admit

That the Right to Marry Was Not Substantially

Burdened.

As Davis demonstrated in her First Brief, Davis is entitled to qualified

immunity from Plaintiffs’ claims because there was no violation of their


17

constitutional right to marry in the first instance, let alone a violation of any clearly

established right. (1st Br., Doc. 33, at 17-28.) 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 19-25.) Plaintiffs concede that the

policy did not impose a direct and substantial burden on their right to marry,

and that rational basis scrutiny applies if Davis is a state official. (2d Br., Doc.

36, at 39 (“Plaintiffs agree with Davis that if she acted as a state official in fashioning

her no-marriage licenses policy, only rational-basis review applies to her

conduct.”).) But Plaintiffs also assert that strict scrutiny applies if Davis is a local

official. (Id. at 50-56.) This argument fails because the level of review—rational

basis or strict scrutiny—depends only on the burden imposed on the right to marry,

not the status of the official for sovereign immunity purposes.3

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

3 As shown in Arg. § II.A.2, infra, the locally-focused nude expression and

abortion cases cited by Plaintiffs are readily distinguishable from right-to-marry

cases and do not change the relevant burden analysis requiring rational basis review.

Furthermore, as shown in Arg. § II.A.3, infra, Davis easily satisfies rational basis

scrutiny, and strict scrutiny in any event. Finally, in Arg. § III, infra, Davis refutes

Plaintiffs’ erroneous assertion that Davis is a county, rather than a state official for

purposes of sovereign immunity.


18

substantial” burden requires an “absolute barrier” in which individuals are

“absolutely or largely prevented from marrying” whom they want to marry or

“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). This is the test; not whether the official

responsible for the restriction at issue is state or local.

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 marrying any other.4 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.

Plaintiffs concede this point. (See 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

4 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.


19

only a “non-oppressive burden on the decision to marry”’ and therefore be subject

only to rational-basis review.”).)

Despite their concession, however, Plaintiffs still make the novel argument

that “if Davis acted as a local official, her policy can only be understood as a

prospective ban of legal marriage within her jurisdiction.” (2d Br., Doc. 36, at 50.)

But Plaintiffs do not, and cannot, cite any authority for their bare proposition that

the burden analysis in right-to-marry cases depends on the status of the government

official responsible for the burden in question.5 As shown below, Plaintiffs attempt

to import this inapposite concept from speech and abortion cases fails. Moreover,

given Kentucky’s geographically permissive, statewide marriage licensing scheme,

5 Davis argued in her First Brief that, “[g]iven the state’s complete control over

marriage licensing, and Davis’ status as but one state official in the state’s marriage

licensing scheme, the relevant inquiry for purposes of Plaintiffs’ constitutional right

to marry is whether Kentucky violated Plaintiffs’ right.” (1st Br., Doc. 33, at 19.)

This argument did not depend, however, on Davis’ status as a state official. Rather,

Kentucky’s “‘absolute jurisdiction over the regulation of the institution of marriage”

(id. at 18 (quoting Pinkhasov v. Petocz, 331 S.W.3d 285, 291 (Ky. App. 2011)),

dictates both a state-level analysis of the burden on Plaintiffs’ rights, and Davis’

status as a state official for purposes of marriage licensing. (Id. (“In light of this

absolute state control over marriage in Kentucky, the district court correctly

concluded that Davis is a state official for purposes of marriage licensing, and was

acting as the state when she did not issue marriage licenses to Plaintiffs.”).) Logic

dictates that Davis is but one official administering Kentucky’s uniform, statewide,

geographically permissive marriage licensing scheme, and any burden on Plaintiffs’

right to marry resulting from Davis’ conduct is the same, regardless of whether Davis

is deemed a state or local official for purposes of sovereign immunity.


20

no marriage “ban” can result in any county merely from the unavailability of licenses

there.

2. The Nude Expression and Abortion Precedents

Relied on by Plaintiffs Have No Bearing on Right

to Marry Cases Because Getting a Marriage

License Is Obviously Different from Nude

Dancing and Getting an Abortion.

a. This Court Has Held That Free Speech

Principles Do Not Apply to Right to Marry

Cases for Level-Of-Scrutiny Purposes.

Having admitted that they were not unduly burden in obtaining marriage

licenses from other nearby counties, Plaintiffs attempt to manufacture a greater

burden on their right to marry by artificially restricting their marriage license options

to Rowan County. Citing to nude expression and abortion cases, Plaintiffs posit that

the Court should disregard Kentucky’s permissive, statewide marriage licensing

scheme, and pretend that Plaintiffs’ marriage licensing options were limited to the

“island” of Rowan County. (2d Br., Doc. 36, at 51-55.) To get there, Plaintiffs cite

only a nude expression (free speech) case, Schad v. Borough of Mount Ephraim, 452

U.S. 61 (1981), and two pre-Casey abortion cases of questionable value, City of

Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416 (1983), overruled

by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), and Mahoning

Women’s Ctr. v. Hunter, 610 F.2d 456 (6th Cir. 1979), vacated and remanded on


21

other grounds, 447 U.S. 918 (1980). The Court should reject Plaintiffs’ conflation

of the inapposite principles from these readily distinguishable cases. (Id.)

Before showing the (obvious) inapplicability of Plaintiffs’ speech and

abortion cases, however, it should be noted at the outset that Plaintiffs’ conclusion

from their fictional, locally-focused analysis does not hold up on its face. Plaintiffs

conclude that: “Davis’s policy ‘absolutely … prevented [residents of Rowan

County] from marrying’ in Rowan County.” (2d Br., Doc. 36, at 55 (quoting Vaughn,

269 F.3d at 710).) But, if the realities of Kentucky’s actual marriage licensing

scheme are acknowledged in the least, Plaintiffs’ conclusion fails on its face because

a Kentucky marriage license obtained in any Kentucky county is valid for a marriage

in any Kentucky county. See KY. REV. STAT. § 402.080. Even if marriage licenses

were unavailable in Rowan County for a time, the mere unavailability would not

have prohibited a marriage on a license obtained from another county—not even a

marriage in Rowan County would have been prevented. Plaintiffs’ conclusion

survives only in a fictional Kentucky where Rowan County residents can never leave

the county.

Plaintiffs’ nude expression (free speech) case, Schad v. Borough of Mount

Ephraim (2d Br., Doc. 36, at 51-52), does not change anything because the level-of-

scrutiny analysis for speech cases is substantively different. See Montgomery, 101

F.3d at 1128-29. This Court in Montgomery repeatedly rejected attempts to import


22

freedom of speech principles into the right to marry context, particularly with respect

to the level of scrutiny to apply. See id. at 1129 (holding “case involving speech . .

. is not applicable in right to marry cases” (emphasis added)); id. (“[I]n other

words, it was important for level-of-scrutiny purposes that the case involved the

right to free speech.” (emphasis added)); id. at 1131 (“[T]he . . . precedent cited by

the [plaintiffs] comes from the free speech context, not the right to marry

context.” (emphasis added)); id. at 1132 (“But this precedent is from a speech

case, not a right to marry case, and involves a higher level of scrutiny.”

(emphasis added)); id. (“[C]ommercial speech cases are speech cases nonetheless

and not right to marry cases.” (emphasis added)). This Court should likewise reject

Plaintiffs’ attempt to exchange the right to marry burden analysis made clear in

Montgomery and Vaughn with inapposite free speech principles.

Schad is also factually distinguishable from the instant case on two critical

points. First, the locality in Schad prohibited an entire category of protected speech

in the locality—live performances. 452 U.S. at 66. In the instant case, no Plaintiff

(and no person) was categorically prevented from marrying in Rowan County or any

other place, or categorically prevented from marrying a particular person or class of

persons in Rowan County or any other place. The only burden on Plaintiffs was the

undoubtedly constitutional requirement that a state-issued marriage license be

obtained first, from any of numerous available locations. Second, in Schad there was


23

no “countywide zoning” for the county in which the locality was situated, so the

locality could not avail itself of the argument that “it would be quite legal to allow

live entertainment in only selected areas of the county . . . .” Id. at 76. In the instant

case, there is a statewide marriage licensing scheme, which necessarily prevents the

unavailability of marriage licenses in any one county from prohibiting marriage in

any county, including the county in which licenses are not available. Those desiring

to engage in live performance in the Schad locality were absolutely prohibited from

doing so; they could not secure that right through a minimally burdensome

transaction at a government office in a nearby locality. Thus, Schad is not only

inapplicable because it is a speech case, but also because it is distinguishable on

critical points.

b. Abortion Cases Are Sui Generis and Have

No Bearing on This Right to Marry Case.

There is a self-evident difference between any abortion procedure a woman

may seek and a five-minute marriage license transaction at the counter of a county

clerk’s office. (Miller RE 26, prelim. inj. hr’g tr. (July 20, 2015), Page ID # 244-45

(“It only takes about five to seven minutes to issue a marriage license, to get the

information, populate it in the computer system, print it out, have them proof it, sign

it, collect their money, and they're gone.”).) Not surprisingly then, Plaintiffs’

abortion cases are incompatible with the right to marry analysis (and most others).

“[O]ne could classify Roe [v. Wade] as sui generis.” Planned Parenthood of


24

Southeastern Pennsylvania v. Casey, 505 U.S. 833, 857 (1992); see also id. at 951-

52 (“The abortion decision must therefore ‘be recognized as sui

generis, different in kind from the others that the Court has protected under

the rubric of personal or family privacy and autonomy.’” (emphasis added)

(Rehnquist, C.J., concurring in the judgment in part and dissenting in part)). Given

the clear and binding standards for right to marry cases provided by this Court in

Montgomery and Vaughn, there is neither need nor prudence in conflating those

standards with the sui generis principles of abortion cases.

Furthermore, as was also true with Plaintiffs’ speech case, Plaintiffs’ abortion

cases are distinguishable in any event. For example, in City of Akron, the “primary

burden” the Court was concerned with was the “additional cost to the woman”

imposed by the challenged second-trimester hospitalization requirement—“more

than twice as much in a hospital as in a clinic” (“in-hospital abortion costs $850–

$900” compared to “clinic costs $350–$400”). 462 U.S. at 434-35. After also noting

the lack of available hospitals in Akron, the Court speculated that travel to find

available facilities “may force women to travel to find available facilities, resulting

in both financial expense and additional health risk.” Id. at 435. Thus, the Court

did consider the availability of abortions elsewhere, but only as a secondary matter,

and specifically as to the “health risk” posed by travel. The Court did not indicate


25

whether or not there was record evidence on the availability of facilities outside

Akron.

In the instant case, there was no policy by Davis that forced anyone to choose

a more expensive marriage license over a less expensive alternative, so it is not like

the challenged hospitalization requirement in City of Akron. And while Plaintiffs

were temporarily unable to obtain a marriage license in Rowan County, there is no

question they nonetheless could have legally married in Rowan County at any time

after Obergefell by incurring the admittedly “‘non-oppressive burden’” of obtaining

a marriage license in one of the seven surrounding counties. (See 2d Br., Doc. 36, at

40.) And it goes without saying that the otherwise non-oppressive burden of brief

travel posed no risk to Plaintiffs’ health, as the City of Akron Court speculated travel

may for pregnant women seeking abortions.

Given the radical differences between abortions and marriage license

transactions, Plaintiffs’ other pre-Casey (and vacated) abortion case, Mahoning

Women’s Center v. Hunter, is barely worth mentioning. Suffice it to say that

whatever the nature of the Youngstown, Ohio abortion restriction at issue in

Mahoning Women’s Center, a woman desiring an abortion in Youngstown could not

have traveled to a neighboring locality to obtain a nullification of the restriction by

spending five minutes in a government office. The same holds true for any woman

seeking to avoid the local restriction at issue in City of Akron. But that was precisely


26

the course of action available to Plaintiffs if they sought to avoid Davis’ temporary

marriage license suspension.6

In any event, even if abortion precedents were applicable in the right to marry

context, more recent precedents (post-Casey) point away from the artificial “island”

analysis urged by Plaintiffs. In Women’s Medical Professional Corp. v. Baird, 438

F.3d 595, 605 (6th Cir. 2006), this Court found that a restriction that forced women

to travel 45-55 additional miles to procure an abortion survived Casey. A key issue

was whether the closing of one abortion clinic – which would require approximately

3,000 patients per year to travel to another clinic for abortions – established an

“undue burden” on abortion rights by placing a “substantial obstacle before women

seeking abortions.” Id. at 604. This Court concluded no: “[W]hile closing the Dayton

clinic may be burdensome for some of its potential patients, the fact that these

women may have to travel farther to obtain an abortion does not constitute a

substantial obstacle. Id. at 605 (emphasis added); see also Planned Parenthood of

Greater Texas Surgical Health Servs. v. Abbott, 748 F.3d 583, 598 (5th Cir. 2014)

6 A hypothetical suggested by Plaintiffs, though not developed in argument, is

a county’s only health inspector who stops issuing licenses for abortion facilities in

the county as a religious accommodation to the inspector. (2d Br., Doc. 36, at 43-

44.) If, in Plaintiffs’ example, an abortionist could easily obtain a facility license

from the health inspector of a neighboring county in a five-minute transaction, which

license was good for opening a facility in the county of the accommodated inspector,

then it is doubtful that any unconstitutional burden on the abortion right could be

found.


27

(no substantial obstacle to abortion rights when clinic closure made the next

accessible clinic 150 miles away); Greenville Women’s Clinic v. Bryant, 222 F.3d

157, 165 (4th Cir. 2000) (same within 70 miles). As Casey further instructs, “[t]he

fact that a law . . . has the incidental effect of making it more difficult or more

expensive to procure an abortion cannot be enough to invalidate it.” 505 U.S. at 874.

Plaintiffs argue stale and inapposite abortion cases because Plaintiffs clearly

lose under right to marry cases. Under the correct analysis, Davis’ temporary

suspension of marriage licenses for all couples did not impose any direct and

substantial burden on Plaintiffs’ right to marry. If other county clerks, especially

nearby clerks, had joined Davis in suspending marriage licenses, their “policies”

would be relevant in determining the burden on Plaintiffs’ right to marry, and they

could have been joined as defendants if appropriate. (See 2d Br., Doc. 36, at 54-55.)

But only Plaintiffs’ actual burden is relevant in this case, and they concede it was

insubstantial given the realities of Kentucky’s geographically permissive marriage

licensing scheme.

3. Davis' Policy Easily Satisfies Rational Basis

Review, and Also Satisfies Strict Scrutiny in Any

Event.

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.


28

Rational basis scrutiny confers “significant deference to governmental action.” Id.

at 1121 (emphasis added). To satisfy this deferential review, a government policy

must advance a legitimate governmental interest, and must employ reasonable

means of advancing that interest. Id. at 1130. As shown in Davis’ First Brief, she

easily satisfies this test. (1st Br., Doc. 33, 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 39-50)

should be rejected. Plaintiffs argue, essentially, that Kentucky has no legitimate

interest in accommodating Davis’ religious beliefs (2d Br., Doc. 36, at 41-44), and

that Davis’ initial accommodation—temporarily suspending marriage licenses—

was not a reasonable means of advancing any legitimate interest (id. at 44-50).

Plaintiffs are wrong about both.

First, while Plaintiffs concede Kentucky generally has “a legitimate interest

in accommodating its employees’ or officials’ religious objections to complying

with its laws,” they nonetheless argue—without citing authority for the

proposition—that Kentucky has no legitimate interest in accommodating Davis’

“religious objections to making policy to which [she] object[s].” (Id. at 42 (italics in

original).) This proposition does not make sense because Davis did not seek to avoid

“making policy.” Rather, Davis sought to avoid violating her conscience by issuing

marriage licenses for same-sex marriage under her name and authority. (1st Br, Doc.


29

33, at 5-6.) 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.”).

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


30

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 have been

dismissed. See Ansley v. Warren, 861 F.3d 512 (4th Cir. 2017) (North Carolina);

Barber v. Bryant, 833 F.3d 510 (5th Cir. 2016) (Mississippi).

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 44-

50.) 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. at 46, 49.) 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


31

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. 33, at 41-42), and

operated to require Kentucky to provide Davis an accommodation from the marriage

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


32

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

post-incarceration, self-effected accommodation—which was immediately ratified

by Kentucky’s highest officials7—was the most reasonable means of implementing

the state’s legitimate interests in religious accommodation under Kentucky RFRA.

Furthermore, 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

made this point quite clearly in her First Brief, wherein she explained Kentucky’s

interest in providing a religious accommodation to Davis as both legitimate and

7 Governor Beshear’s ratification of Davis’ alterations to the license form

effectively rescinded the SSM Mandate as to Davis.


33

compelling, and further explained her temporary marriage license stoppage as both

reasonably related and closely tailored to that interest. (1st Br., Doc. 33, at 25-27.)

Thus, Davis did not abandon her strict scrutiny argument as asserted by Plaintiffs.

(2d Br., Doc. 36, at 56.)

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 44.) But the Establishment Clause clearly permits Davis’ accommodation.

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


34

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”).

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


35

of it. As such, any Establishment Clause issue in this case need not even be resolved

under the much-maligned “Lemon test.”8 See, e.g., Cutter, 544 U.S. at 718, n. 6

(“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).

Plaintiffs concede in their Complaint that the basis for Davis’ inability to issue

SSM licenses is her “deep religious convictions.” See D.E. 1, Compl., at ¶ 16. If

Plaintiffs were able to demonstrate an Establishment Clause violation here, “all

manner of religious accommodations would fall.” Cutter, 544 U.S. at 725.

Moreover, 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,

8 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).


36

2015), Page ID # 183, 184, 197, 198, 202, 203.) Because this case involves the mere

accommodation of Davis’ individual religious rights, the Establishment Clause is

not implicated.

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. 33, at 17-19.) 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.


37

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

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.


38

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

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,


39

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).

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[9]

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.

9 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.


40

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,”

“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


41

RFRA, in her official capacity, Davis was at all times a state official enforcing and

applying state law.10

Carroll v. Reed, 425 S.W.3d 921 (Ky. Ct. App. 2014), cited by Plaintiffs (see

2d Br., Doc. 36, at 20; RE 27, Am. Compl., at Page ID # 120), 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”).

10 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.


42

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.

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,

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.

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


43

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.

2. Kentucky Statutes Indicate the Commonwealth

Is Potentially Liable for Davis' Official Acts.

The “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). “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


44

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.


45

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

[email protected]

/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



Counsel for Defendant-Appellant Cross-Appellee Kim Davis


46

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 10,932 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


47

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:

Michael J. Gartland, Esq.

DelCotto Law Group PLLC

200 North Upper Street

Lexington, KY 40507

[email protected]

Thomas Paul Szczygielski, Esq.

Joseph D. Buckles, Esq.

Chaney Buckles Szczygielski PLLC

149 North Limestone

Lexington, KY 40507

[email protected]

[email protected]

DATED: April 4, 2018 /s/ Roger K. Gannam

Attorney for Defendant-Appellant

Cross-Appellee Kim Davis


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 Ermold v. Davis, No. 15-cv-46-DLB (E.D. Ky.)

RE 1

Page ID # 1 Complaint with Jury Demand

RE 11

Page ID # 34 Motion to Dismiss Plaintiff’s Complaint

RE 11-1

Page ID # 37

Defendant Kim Davis’ Memorandum of Law in Support of

Her Motion to Dismiss Plaintiff’s Complaint

RE 12

Page ID # 65

Plaintiff’s Response in Opposition to Defendant’s Motion

to Dismiss

RE 13

Page ID # 74 Order

RE 14

Page ID # 75

Plaintiffs’ Motion for Briefing Schedule Regarding

Defendants’ Motion to Dismiss or In The Alternative

Motion To Clarify Court’s August 26, 2015 Order

RE 19

Page ID # 95 In Re: Ashland Civil Actions, Order

RE 27

Page ID # 119-126 First Amended Complaint with Jury Demand

RE 27-1

Page ID # 128 Beshear Letter (“SSM Mandate”)

RE 27-2

Page ID # 129-130 Marriage License

RE 27-4

Page ID # 134-36

Mariano Castillo and Kevin Conlon, Kim Davis stands

ground, but same-sex couple get marriage license,

CNN.com, Sept. 14, 2015

RE 29

Page ID # 139 Motion to Dismiss Amended Complaint


1-2


RE 31

Page ID # 186

Plaintiffs’ Memorandum in Opposition to Defendant’s

Motion to Dismiss Amended Complaint

RE 37

Page ID # 240

Defendant’s Reply in Support of Motion to Dismiss

Amended Complaint

RE 49

Page ID 294 Memorandum Opinion and Order

RE 51

Page ID 317 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)

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


1-3


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

RE 114

Page ID # 2293-95 Deputy Clerk Status Report

RE 116


RE 117


RE 118


RE 119


RE 120

Page ID # 2312-

2328

Plaintiffs’ Motion to Enforce

RE 120-1

Page ID # 2326 Marriage License Form


1-4


RE 122


RE 125

Page ID # 2439 Deputy Clerk Status Report

RE 126


RE 127


RE 128


RE 129


RE 130

Page ID # 2446 Order Extending Deputy Clerk Status Reports

RE 131


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


2-1

ADDENDUM 2

Myrick v. Warren, No. 16-EEOC-0001 (Mar. 8, 2017)

































