IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH …lc.org/PDFs/Attachments2PRsLAs/2018/040518Third Brief... · 2018-04-05 · No. 17-6120/6226 IN THE UNITED STATES COURT OF APPEALS

No. 17-6120/6226

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES YATES; WILL SMITH,

Plaintiffs-Appellees Cross-Appellants,

v.

KIM DAVIS, Individually,

Defendant-Appellant Cross-Appellee.

On Appeal from the United States District Court

for the Eastern District of Kentucky

In Case No. 15-cv-00062 before The Honorable David L. Bunning

THIRD BRIEF

OF

DEFENDANT-APPELLANT CROSS-APPELLEE KIM DAVIS

A.C. Donahue

DONAHUE LAW GROUP, P.S.C.

P.O. Box 659

Somerset, Kentucky 42502

(606) 677-2741

[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: 17-6120 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 .................................................................................... iv

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

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

I. THE COURT NEED NOT TAKE AS TRUE PLAINTIFFS’

IMPLAUSIBLE ALLEGATIONS OR DISREGARD WHAT IT

JUDICIALLY KNOWS ABOUT DAVIS’ SELF-EFFECTED AND

KENTUCKY-RATIFIED RELIGIOUS ACCOMMODATION. ................... 2

A. The Miller Record, Relied on Heavily by Both Plaintiffs and the

District Court, and Which Is Properly before This Court in the

Closely Related Miller Fee Order Appeals, Requires This Court’s

Scrutiny of Plaintiffs’ Allegations against the Miller Record. ............. 2

B. The Miller Record Shows Davis Obtained Her Self-Effected and

Kentucky-Ratified Accommodation Only after the District Court

Refused to Consider Davis’ Preliminary Injunction Motion against

Governor Beshear, Jailed Her, and Then Released Her after

Approving Marriage License Alterations Effected by Her Deputy

Clerks. .................................................................................................... 5

II. DAVIS HAS QUALIFIED IMMUNITY FROM PLAINTIFFS’

CLAIMS BECAUSE DAVIS DID NOT VIOLATE PLAINTIFFS’

CLEARLY ESTABLISHED RIGHTS. ........................................................ 14

A. Davis’ Policy Did Not Violate Plaintiffs’ Constitutional Right to

Marry. .................................................................................................. 14

1. Rational Basis Review Applies to Davis’ Policy Because

Plaintiffs’ Right to Marry Was Not Substantially Burdened. ... 14

2. Davis’ Policy Easily Satisfies Rational Basis Review. ............ 16


iii

3. Davis’ Policy Satisfies Strict Scrutiny, as Davis Also

Argued Below. .......................................................................... 23

4. Davis’ Accommodation Did Not Violate the Establishment

Clause. ....................................................................................... 23

B. Plaintiffs’ Claimed Right to Receive a Marriage License in a

Particular County from a Particular Official Was Not Clearly

Established by Vacated, Interim, or Otherwise Nonbinding

Decisions in the Same Litigation. ....................................................... 27

III. DAVIS ACTED AS A STATE OFFICIAL WITH SOVEREIGN

IMMUNITY UNDER THE ELEVENTH AMENDMENT. ......................... 29

A. Both Davis’ Marriage License Function and Application of

Kentucky RFRA to That Function Clearly Flow from the

Commonwealth. .................................................................................. 29

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

Case, They Indicate Davis Acted for the Commonwealth. ................. 35

1. Marriage Licensing Is Clearly within the Purview of the

Commonwealth. ........................................................................ 35

2. Kentucky Statutes Indicate the Commonwealth Is

Potentially Liable for Davis’ Official Acts. .............................. 36

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

Policy Dictates That Davis Is a State Actor. ............................. 37

CONCLUSION ........................................................................................................ 38

CERTIFICATE OF COMPLIANCE ....................................................................... 39

CERTIFICATE OF SERVICE ................................................................................ 40

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

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


iv

TABLE OF AUTHORITIES

Cases

ACLU v. Mercer County, Ky., 432 F.3d 624 (6th Cir. 2005) .................................. 25

Alvarez v. Smith, 558 U.S. 87 (2009) ....................................................................... 28

Ansley v. Warren, 861 F.3d 512 (4th Cir. 2017) ...................................................... 18

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ................................................................ 28

Barber v. Bryant, 833 F.3d 510 (5th Cir. 2016) ...................................................... 18

Baynes v. Cleland, 799 F.3d 600 (6th Cir. 2015) .................................................... 28

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

512 U.S. 687 (1994) ............................................................................................ 26

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

Cady v. Arenac County, 574 F.3d 334 (6th Cir. 2009) ............................................ 30

Camreta v. Greene, 563 U.S. 692 (2011) ................................................................ 28

Carroll v. Reed, 425 S.W.3d 921 (Ky. Ct. App. 2014) ........................................... 34

Conlon v. InterVarsity Christian Fellowship/USA,

777 F.3d 829 (6th Cir. 2015) .............................................................................. 24

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

483 U.S. 327 (1987) ............................................................................................ 24

Crabbs v. Scott, 786 F.3d 426 (6th Cir. 2015) ............................................... 30,35,36

Cutter v. Wilkinson, 544 U.S. 709 (2005) ................................................. 24,25,26,27

D’Ambrosio v. Marino, 747 F.3d 378 (6th Cir. 2014) ........................................ 29,30

Fed. Maritime Comm’n v. S.C. Ports Auth., 535 U.S. 743 (2002) .......................... 36


v

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

280 F.3d 684 (6th Cir. 2002) ............................................................... 29,32,34,35

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

2015 WL 403156 (N.D. Ohio Jan. 28, 2015) ..................................................... 30

HMS Property Mgmt. Grp., Inc. v. Miller,

69 F.3d 537, 1995 WL 641308 (6th Cir. 1995) .................................................... 2

Hobbie v. Unemployment Appeals Comm’n of Fla.,

480 U.S. 136 (1987) ............................................................................................ 24

Jones v. Perry, 215 F. Supp. 3d 563 (E.D. Ky. 2016) ........................................ 31,34

Kreipke v. Wayne State Univ., 807 F.3d 768 (6th Cir. 2015) .................................. 36

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............................................................... 25

Leslie v. Lacy, 91 F. Supp. 2d 1182 (S.D. Ohio 2000) ............................................ 30

Locke v. Davey, 540 U.S. 712 (2004) ...................................................................... 24

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

610 F.3d 321 (6th Cir. 2010) .............................................................................. 36

Lynch v. Donnelly, 465 U.S. 668 (1984) ................................................................. 25

McMillian v. Monroe County, Ala., 520 U.S. 781 (1997) ....................................... 30

Miller v. Davis, 123 F. Supp. 3d 924 (E.D. Ky. 2015) .....................................passim

Miller v. Davis, No. 15-5880, 2015 WL 10692640 (6th Cir. Aug. 26, 2015) ... 4,5,27

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

Miller v. Davis, 267 F. Supp. 3d 961 (E.D. Ky. 2017) ............................ 4,5,31,34,37

Montgomery v. Carr, 101 F.3d 1117 (6th Cir. 1996) .................................... 14,16,23

Myrick v. Warren, No. 16-EEOC-0001 (Mar. 8, 2017) ........................................... 18

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


vi

Perry v. Se. Boll Weevil Eradication Found.,

154 F. App’x 467 (6th Cir. 2005) ....................................................................... 36

Pinkhasov v. Petocz, 331 S.W.3d 285 (Ky. App. 2011) ..................................... 22,31

Pusey v. City of Youngstown, 11 F.3d 652 (6th Cir. 1993)...................................... 30

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

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

788 F.3d 580 (6th Cir. 2015) .............................................................................. 25

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

987 F.2d 376 (6th Cir. 1993) .............................................................................. 29

Tilton v. Richardson, 403 U.S. 672 (1971) .............................................................. 24

United States v. Munsingwear, Inc., 340 U.S. 36 (1950) ................................... 27,28

United States ex rel. Oberg v. Kentucky Higher Educ. Student Loan Corp.,

681 F.3d 575 (4th Cir. 2012) .............................................................................. 36

Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703 (6th Cir. 2001) ................. 14,15

Zorach v. Clauson, 343 U.S. 306 (1952) ................................................................. 25

Statutes

42 U.S.C. § 1983 ...................................................................................................... 34

Kentucky Religious Freedom Restoration Act,

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

Ky. Rev. Stat. § 62.055 ....................................................................................... 36,37

Ky. Rev. Stat. § 64.5275 .......................................................................................... 31

Ky. Rev. Stat. § 402.080 ..................................................................................... 15,31

Ky. Rev. Stat. § 402.100 ..................................................................................... 19,31

Ky. Rev. Stat. § 402.110 .......................................................................................... 19


vii

Ky. Rev. Stat. § 446.010 ..................................................................................... 32,33

Ky. Rev. Stat. § 446.030 .......................................................................................... 33

Ky. Rev. Stat. § 446.090 .......................................................................................... 33

Ky. Rev. Stat. § 446.140 .......................................................................................... 33

Ky. Rev. Stat. Ch. 402 ............................................................................................. 31

Ky. Rev. Stat. Ch. 446 ........................................................................................ 32,33

Miss. Code Ann. § 11-62-1, et seq........................................................................... 18

N.C. Gen. Stat. § 51-5.5 ........................................................................................... 18

Constitutional Provisions

Ky. Const. Preamble ................................................................................................ 17

Ky. Const. § 5 .......................................................................................................... 17

Ky. Const. § 246 ...................................................................................................... 31

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

U.S. Const. amend XIV ............................................................................................. 6


1

INTRODUCTION

Davis’ First Brief demonstrated that the district court’s order denying Davis’

motion to dismiss Plaintiffs’ amended complaint, in part, should be reversed to the

extent it denied Davis’ qualified immunity defense to Plaintiffs’ individual capacity

claims against her. Davis is entitled to qualified immunity from Plaintiffs’ claims

because Plaintiffs have not established a violation of their constitutional right to

marry, let alone any clearly established constitutional right. Plaintiffs failed to

identify any federal constitutional right, under Obergefell v. Hodges or otherwise, to

receive a marriage license from a particular state official (Davis) at a particular place

(Rowan County), irrespective of Davis’ protected religious liberty rights, when no

state policy was preventing either Plaintiff from marrying whom he wanted to marry,

or obtaining a valid Kentucky marriage license.

Herein, Davis replies to Plaintiffs’ Second Brief on the qualified immunity

issue, and shows the Court that Plaintiffs’ arguments ignore critical facts from the

Miller v. Davis record, which record Plaintiffs and the district court have heavily

relied on, and which record is already before this Court in the companion Miller

litigation. Davis also answers Plaintiffs’ cross-appeal argument that the district

court’s dismissal of Plaintiffs’ official capacity claims against Davis on sovereign

immunity grounds should be reversed. As shown below, both Davis’ marriage

license function and her application of Kentucky RFRA to that function clearly


2

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

purposes, and requiring affirmance of the district court’s dismissal of the official

capacity claims against Davis.

ARGUMENT

I. THE COURT NEED NOT TAKE AS TRUE PLAINTIFFS’

IMPLAUSIBLE ALLEGATIONS OR DISREGARD WHAT IT

JUDICIALLY KNOWS ABOUT DAVIS’ SELF-EFFECTED AND

KENTUCKY-RATIFIED RELIGIOUS ACCOMMODATION.

A. The Miller Record, Relied on Heavily by Both Plaintiffs

and the District Court, and Which Is Properly before

This Court in the Closely Related Miller Fee Order

Appeals, Requires This Court’s Scrutiny of Plaintiffs’

Allegations against the Miller Record.

“Normally [this Court is] bound to accept the allegations of the complaint as

true in deciding whether a motion to dismiss was properly granted.” Blackburn v.

Fisk University, 443 F.2d 121, 123 (6th Cir. 1971) (citations omitted). “However,

[this Court is] not bound by allegations that are clearly unsupported and

unsupportable. [The Court] should not accept as true allegations that are in

conflict with facts judicially known to the Court.” Id. (emphasis added). “Further,

a court may disregard allegations contradicted by facts established in exhibits

attached to the pleading. Moreover, it is not proper to assume facts that a plaintiff

has not plead.” HMS Property Mgmt. Grp., Inc. v. Miller, 69 F.3d 537, 1995 WL

641308, *3 (6th Cir. 1995) (citations omitted); see also Rondigo, L.L.C. v. Twp. of

Richmond, 641 F.3d 673, 680–81 (6th Cir. 2011) (“[A] court may consider exhibits


3

attached to the complaint, public records, items appearing in the record of the case

and exhibits attached to defendant’s motion to dismiss so long as they are referred

to in the complaint and are central to the claims contained therein, without

converting the motion to one for summary judgment.” (internal quotation marks

omitted)). Thus, Plaintiffs’ allegations that are clearly contradicted or made

implausible by the record in the companion Miller v. Davis litigation (6th Cir. Nos.

17-6385, 17-6404), or the public record, should not be taken as true by this Court.

The Miller proceedings loom large over this case (and the other companion

case, Ermold v. Davis, 6th Cir. No. 6119/6226), not only because of the district

court’s recurrent consolidation below of their critical aspects (see 1st Br., Doc. 30,

at 6-7, n.2), but also because the district court’s attorney’s fee order in Miller is

currently the subject of two appeals in this Court, which are on a briefing schedule

somewhat parallel to those of this case and the Ermold appeal (see Case Nos. 17-

6385 (Doc. 33, Br’g Letter), 17-6404 (Doc. 35, Br’g Letter).) The Miller fee order

appeal, which requires this Court to determine whether the Miller Plaintiffs were

prevailing parties, necessarily puts the entire Miller record before this Court.

Furthermore, in the order on appeal in this (Yates) case, the district court expressly

relied on its conclusion in the Miller fee order—based on the Miller evidentiary

record—that Davis is a state official for purposes of marriage licensing. (RE 48,


4

Mem. Op. and Order, Page ID # 228-29.) Plaintiffs, for their part, also rely heavily

on the Miller record, both in this appeal and below.

For example, Plaintiffs’ Statement of the Case in this appeal cites to numerous

Miller orders and motions, which collectively embody the entire Miller record. (See

2d Br., Doc. 36, at 2, 4 (citing Miller v. Davis, 267 F. Supp. 3d 961 (E.D. Ky. 2017)

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

at 3 (citing Miller v. Davis, No. 15-5880, 2015 WL 10692640 (6th Cir. Aug. 26,

2015) (order denying stay pending appeal)), id. at 3 (citing Davis v. Miller, 136 S.

Ct. 23 (2015) (denying stay pending appeal)), id. at 4 (citing Miller v. Davis, 667 F.

App’x 537 (6th Cir. 2016) (dismissing Miller appeals and vacating preliminary

injunction)). Plaintiffs also cite to the Miller proceedings in their Argument in this

appeal, especially the Miller fee order which is featured “passim.” (See 2d Br., Doc.

36, at iv-v (listing three Miller orders in Table of Authorities), id. at 17 (citing Miller

v. Davis, No. 15-5880, 2015 WL 10692640 (6th Cir. Aug. 26, 2015) (order denying

stay pending appeal)).

Below, Plaintiffs also cited heavily to the Miller proceedings. (See RE 31,

Pls.’ Resp. to Davis’ Mot. Dismiss, Page ID # 149 (citing Miller RE 1, Compl., Page

ID # 4), id. at Page ID # 150 (citing Miller RE 67, Pls.’ Contempt Mot., Page ID #

1477-1484), id. at Page ID # 150 (citing Miller RE 78, contempt hr’g tr. (Sept. 3,

2015), Page ID # 1580), id. at 150 (citing Miller RE 79-2 [74], Order (Sep. 3, 2015)


5

(expanding preliminary injunction)), id. at Page ID # 153 (citing Miller v. Davis, 267

F. Supp. 3d 961, 2017 WL 3122657 (E.D. Ky. 2017) (Miller RE 206, Mem. Op. and

Order (July 21, 2017) (granting attorney’s fees))), id. at Page ID # 155, 157 (citing

Miller v. Davis, 123 F. Supp. 3d 924 (E.D. Ky. 2015) (Miller RE 43, Mem. Op. and

Order (Aug. 12, 2015) (granting preliminary injunction))), id. at Page ID # 158

(citing Miller v. Davis, No. 15-5880, 2015 WL 10692640 (6th Cir. Aug. 26, 2015)

(order denying stay pending appeal)).

Thus, the district court’s and Plaintiffs’ own heavy reliance on the Miller

record, combined with this Court’s unavoidable judicial knowledge of the Miller

proceedings, requires this Court to scrutinize Plaintiffs’ allegations and arguments

against the Miller record.

B. The Miller Record Shows Davis Obtained Her Self-

Effected and Kentucky-Ratified Accommodation Only

after the District Court Refused to Consider Davis’

Preliminary Injunction Motion against Governor

Beshear, Jailed Her, and Then Released Her after

Approving Marriage License Alterations Effected by

Her Deputy Clerks.

The following facts are omitted from consideration in Plaintiffs’ brief, but

they squarely and conclusively refute the premises of Plaintiffs’ arguments against

Davis’ qualified immunity.1

1 The facts in this section are all before the Court on the Miller record, and

specifically in Davis’ Principal Brief in this Court’s Case No. 17-6404.


6

Shortly after the Miller Plaintiffs sued Davis (see 1st Br., Doc. 30, at 6-7),

Davis filed a verified third-party complaint on August 4, 2015 against Governor

Beshear, the issuer of the SSM Mandate,2 and Wayne Onkst, the State Librarian and

Commissioner of the Kentucky Department for Libraries and Archives (KDLA)

(collectively, the “Beshear Defendants”). (Miller RE 34, Verified Third-Party

Complaint, Page ID # 745-776.) Davis’ Third-Party Complaint, sought, inter alia,

declaratory and injunctive relief under Kentucky RFRA, the First and Fourteenth

Amendments, and various provisions of the Kentucky Constitution. (Id. at Page ID

# 774.) Specifically, Davis sought from the Beshear Defendants a simple

accommodation of her religious conscience rights, requiring them to provide for the

issuance of marriage licenses to the Miller Plaintiffs through any of numerous

available alternatives which would not coerce Davis to violate her conscience. (Id.

at Page ID # 760-774.) Davis additionally sought to impose or transfer to the Beshear

Defendants any relief obtained against her by the Miller Plaintiffs. (Id.)

2 On June 26, 2015, moments after the Supreme Court announced its decision

in Obergefell, former Kentucky Governor Steven Beshear issued a directive to all

Kentucky county clerks (the “SSM Mandate”) to “recognize as valid all same sex

marriages performed in other states and in Kentucky.” (Miller RE 1-3, SSM

Mandate, Page ID # 26 (see also Miller, 123 F. Supp. 3d at 932).) In this SSM

Mandate, Governor Beshear further commanded, “Kentucky . . . must license and

recognize the marriages of same-sex couples,” and ordered the creation and

distribution of new marriage license forms to accommodate same-sex couples. (Id.)

However, the new form retained the requirement to issue the license under the name

and authority of the county clerk. (See Miller, 123 F. Supp. 3d at 931-32, 931 n.3.)

(See also 1st Br., Doc. 30, at 5.)


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).)

Davis’ counsel appealed to this Court the district court’s effective denial of

Davis’ preliminary injunction motion against the Beshear Defendants on September

7, 2015. (Miller RE 66, Not. Appeal, Page ID # 1471-74; 6th Cir. Case No. 15-5961.)

Davis also requested an emergency injunction pending appeal against the Beshear

Defendants, to obtain the accommodation she had been seeking, first in the district


9

court (Miller RE 70, Emer. Mot. Page ID # 1498-1500), and then in this Court (Case

No. 15-5961, Doc. 26-1).

On September 8, 2015, the sixth day of Davis’ incarceration, the Miller

Plaintiffs filed a status report showing the Court that six of eight Miller Plaintiffs

had received marriage licenses from the deputy clerks. (Miller RE 84, Status

Report, Page ID # 1798-1800.) With Davis in jail, not having given her authorization

to issue licenses, the deputy clerks altered the marriage licenses to replace the name

“KIM DAVIS” with “ROWAN COUNTY.” (Miller RE 84-1, Miller Plaintiffs’

Marriage Licenses, Page ID # 1801-1804.)

Following the status report, the district court lifted its prior contempt sanction

and ordered Davis released, stating that the Court was “satisfied that the Rowan

County Clerk’s Office is fulfilling its obligation to issue marriage licenses” under

the preliminary injunction, and that the deputy clerks “have complied with the

Court’s Order,” despite the “alterations” to the marriage licenses. (Miller RE 89,

Order (Sept. 8, 2015), Page ID # 1827-1828.) The release order further commanded

that “Davis shall not interfere in any way, directly or indirectly, with the efforts of

her deputy clerks to issue marriage licenses” to “all legally eligible couples” on pain

of new sanctions. (Id. at Page ID # 1828.) The order also required the deputy clerks

to file status reports with the district court every fourteen days. (Id. at Page ID #


10

1828; see also Miller RE 130, Order (Oct. 6, 2015), Page ID # 2446 (extending

deputy clerk status reports to every thirty days).)

On September 14, 2015, Davis returned to work at the Rowan County clerk’s

office. (Miller RE 133, Resp. Opp’n to Pls.’ Mot. Enforce Orders, Page ID # 2478,

2487.) On that day, she provided a public statement regarding the issuance of

marriage licenses in Rowan County. (Id. at Page ID # 2490 n.4 (citing news webpage

with linked video of public statement), 2491 n.5 (same).) Davis explained that she

would not interfere with her deputy clerks’ issuance of marriage licenses, but that

the licenses would be further modified to accommodate her sincerely-held religious

beliefs by clarifying the omission of her name and authority. (Id.) The further

alterations to the marriage license form effected by Davis included “eliminating any

mention of the County, and changing the forms to state instead that they are

issued ‘Pursuant to Federal Court Order #15-CV-44 DLB.’” (Miller RE 120,

Pls.’ Mot. Enforce, Page ID # 2317 (emphasis added), Miller RE 120-1, Pls.’ Mot.

Enforce Ex. 1, Page ID # 2326.)

Immediately that same day, the Kentucky Governor and Kentucky Attorney

General both inspected the new licenses and publicly stated that they were valid and

will be recognized as valid by Kentucky. (Miller RE 132, Resp. Pls.’ Mot. Reopen

Class Cert. Br’g, Page ID # 2456, 2458-2465; Miller RE 133, Resp. Pls.’ Mot.

Enforce, Page ID # 2484, 2487-2495.)


11

The Miller Plaintiffs, however, were not satisfied and filed a motion to

“enforce” the preliminary injunction on September 21, 2015. (Miller RE 120, Pls.’

Mot. Enforce, Page ID # 2312-2328.) In their motion, the Miller Plaintiffs insisted

the Rowan County Clerk’s Office was not in compliance with the Preliminary

Injunction. (Id. at Page ID # 2313.) The Miller Plaintiffs alleged that Davis had

“obstruct[ed]” and “significantly interfere[d]” with the process for issuing marriage

licenses in Rowan County upon her return to the office on September 14, 2015. (Id.

at Page ID # 2316-2317, 2319.) The Miller Plaintiffs still further alleged that Davis

has “so materially altered” marriage licenses that “they create a two-tier system of

marriage licenses throughout the state,” and these so-called “adulterated marriage

licenses received by Rowan County couples will effectively feature a stamp of

animus against the LGBT community,” absent intervention by the Court. (Id. at Page

ID # 2319.)

The Miller Plaintiffs asked the Court to “expressly direct Defendant Davis to

refrain from interfering with the Deputy Clerk’s issuance of marriage licenses in the

same form or manner as those that were issued on or before September 8, 2015”

(while Davis was in jail) and to provide notice to Davis that “any violation of this

Order will result in civil sanctions, including but not limited to (a) the placement of

the Rowan County Clerk’s Office into a receivership for the limited purposes of

issuing marriage licenses, and (b) the imposition of civil monetary fines as


12

appropriate and necessary to coerce Davis’ compliance with this Court’s Order.” (Id.

at Page ID # 2313, 2321.)

With respect to the deputy clerks, the Miller Plaintiffs asked the court to direct

them to “issue marriage licenses in the same form and manner as those that were

issued on or before September 8, 2015” (while Davis was in jail), to “disregard any

instruction or order from Defendant Kim Davis that would require them to issue any

marriage license in a form or manner other than the form and manner of licenses that

were issued on or before September 8, 2015,” to continue to file status reports, and

to “re-issue, nunc pro tunc, any marriage licenses that have been issued since

September 14, 2015, in the same form or manner as those that were issued on or

before September 8, 2015” (while Davis was in jail). (Id. at Page ID # 2312-2313;

see also id. at Page ID # 2320.)

The district court denied Miller Plaintiffs’ motion to “enforce” the

Preliminary Injunction in an Order dated February 9, 2016, without ordering Davis

to reissue licenses in the form demanded by Miller Plaintiffs (as altered by the deputy

clerks while Davis was in jail), leaving in place the accommodation for Davis’

religious beliefs effected by Davis upon her return to the office, which had been

ratified by the Governor and Attorney General. (Miller RE 161, Order (Feb. 9, 2016),

Page ID # 2657-59.)


13

The Davis-altered licenses, deemed valid by the highest elected officials in

Kentucky, and which accommodated Davis’ sincerely-held religious beliefs, were

issued in Rowan County by deputy clerks for just over three months—from Davis’

return to work on September 14, 2015, until incoming Governor Matt Bevin issued

his Executive Order 2015-048 Relating to the Commonwealth’s Marriage License

(the “Executive Order”) on December 22, 2015 (see Doc. 33, 1st Br., Stmt. of the

Case, § D). (Deputy Clerk Status Reports, Miller RE 114, 116-19, 122, 125-29, 131;

Miller RE 132, Resp. Pls.’ Mot. Reopen Class Cert. Br’g, Page ID # 2456, 2458,

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

2494-2495.)

Plaintiffs make a spurious argument that Davis could have effected her own

accommodation from day one, by altering the licenses, and avoided turning away

Plaintiffs. (2d Br., Doc. 36, at 14-15.) As shown above, however, Davis did not effect

her alterations of the marriage license form until after the district court (1) refused

to consider her preliminary injunction motion against Governor Beshear to obtain

an accommodation, (2) entered a preliminary injunction ordering her to issue

marriage licenses, (3) jailed her for not issuing marriage licenses, and then (4)

released her after approving the license alterations effected by her deputy clerks.

(See supra, Arg. § I.B.) As explained below (see infra, Arg. § II.B), Davis’ initial,

short, temporary suspension of issuing marriage licenses, followed by her post-


14

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

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

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

II. DAVIS HAS QUALIFIED IMMUNITY FROM PLAINTIFFS’

CLAIMS BECAUSE DAVIS DID NOT VIOLATE PLAINTIFFS’

CLEARLY ESTABLISHED RIGHTS.

A. Davis’ Policy Did Not Violate Plaintiffs’ Constitutional

Right to Marry.

1. Rational Basis Review Applies to Davis’ Policy

Because Plaintiffs’ Right to Marry Was Not

Substantially Burdened.

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

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

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

established right. (1st Br., Doc. 30, at 18-29.) And because Davis’ temporary

suspension of marriage licenses in Rowan County did not impose any direct and

substantial burden on Plaintiffs’ right to marry, the constitutionality of her conduct

is subjected only to rational basis review. (Id. at 20-25.)

Strict scrutiny only applies to restrictions on the right to marry that are “direct

and substantial.” Montgomery v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996). Absent

a “direct and substantial” burden, rational basis scrutiny applies. Id. A “direct and

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

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


15

“absolutely or largely prevented from marrying a large portion of the otherwise

eligible population of spouses.” Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703,

710 (6th Cir. 2001) (emphasis added). The test contemplates no federal right to

receive a marriage license in a particular county, or from a particular official.

(1st Br., Doc. 30, at 17-25.) In other words, no person has a constitutional right to

receive a marriage license in the person’s home county when the same license can

be obtained elsewhere without substantial burden, as was always the case for

Plaintiffs.

The realities Kentucky’s geographically permissive, statewide marriage

licensing scheme lay bare Plaintiffs’ false, overly exaggerated claims of Davis’

“denying every citizen in Rowan County a marriage license,” or worse, “Yates and

Smith could not obtain a marriage license.” (2d Br., Doc.36, at 15, 17.) In Kentucky,

a person can obtain a marriage license in any county, which is good for a marriage

in any county, and no legal benefit is conferred by a license issued in any particular

county. See KY. REV. STAT. § 402.080. Thus, the unavailability of a marriage license

in any one county cannot, as a matter of law, prohibit marriage in any county

(including a county in which licenses are not available), or prohibit any person from


16

marrying any other.3 Accordingly, the mere unavailability of a marriage license in

Rowan County for any couple, due to Davis’ temporary policy, could not rise to the

level of a “direct and substantial” burden.4

2. Davis’ Policy Easily Satisfies Rational Basis

Review.

Because Davis’ temporary suspension of marriage licenses imposed no direct

and substantial burden on Plaintiffs’ right to marry, the constitutionality of Davis’

policy is determined by rational basis review. Montgomery, 101 F.3d at 1124.

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

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

must only advance a legitimate governmental interest, and must only employ

reasonable means of advancing that interest. Id. at 1130. As shown in Davis’ First

Brief, she easily satisfies this test. (1st Br., Doc. 30, at 25-27.)

Plaintiffs’ assertion in their brief that Davis’ temporary suspension of

marriage licenses does not satisfy rational basis review (2d Br., Doc. 36, at 12-15)

3 There is no allegation, or record evidence, that any person otherwise able to

travel to the Rowan County Clerk’s office for a marriage license faced any “direct

and substantial” barrier to travelling to a different clerk’s office for a license. 4 The Ermold Plaintiffs concede this point. (See Ermold v. Davis, 6th Cir. No.

17-6119/6233, 2d Br., Doc. 36, at 40 (“For it could not plausibly be maintained that

a policy of making residents of one county travel to others nearby to get a marriage

license largely prevented them from marrying; it would ‘impose only a “non-

oppressive burden on the decision to marry”’ and therefore be subject only to

rational-basis review.”).)


17

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

interest in accommodating Davis’ religious beliefs (2d Br., Doc. 36, at 13-14), and

that Davis’ initial accommodation—temporarily suspending marriage licenses—

was not a reasonable means of advancing any legitimate interest (id. at 14-15).

Plaintiffs are wrong about both.

First, while conceding that “the Kentucky Religious Freedom Restoration Act

. . . more than likely allows her [to] provide herself an accommodation” (2d Br., Doc.

36, at 14), Plaintiffs claim that Davis intended to “discriminate against all.” (Id. at

13.) This proposition does not make sense because Davis intentionally treated

everyone the same. (1st Br., Doc. 30, at 5-6.) Rather, Davis sought to avoid violating

her conscience by issuing marriage licenses for same-sex marriage under her name

and authority. (Id.) Kentucky government, acting through Davis, has not only a

legitimate interest in accommodating Davis conscience rights if possible, but a

compelling interest of the highest degree, which is foundational to the very

establishment of the Commonwealth of Kentucky. See, e.g., Ky. Const., Preamble

(referring to Kentuckians’ “religious liberties”); Ky. Const. § 5 (“No human

authority shall, in any case whatever, control or interfere with the rights of

conscience.”); Ky. Rev. Stat. § 446.350 (“Kentucky RFRA”) (“Government shall

not substantially burden a person’s freedom of religion.”).


18

The government’s interest in such accommodation since Obergefell has

manifested in state statutes expressly accommodating religious beliefs such as

Davis’, and at least one administrative decision by the Equal Employment

Opportunity Commission (EEOC) requiring a state to accommodate a state official

similarly situated to Davis. In the EEOC case Myrick v. Warren, No. 16-EEOC-0001

(Mar. 8, 2017), Administrative Law Judge Michael L. Devine issued an Initial

Decision and Order holding North Carolina committed religious discrimination

against a magistrate, whose duties included performing marriages, for failing to

accommodate the magistrate’s sincerely held religious beliefs in the wake of

Obergefell. (See Initial Dec. and Order, App’x 2, at 24.) Judge Devine held that

North Carolina was “obligated to provide an accommodation to Magistrate Myrick

unless undue burden was demonstrated.” (Id. at 20.) North Carolina also enacted a

statute, N.C. Gen. Stat. § 51-5.5, permitting recusal of officials from “issuing”

marriage licenses “based upon any sincerely held religious objection.” Mississippi

also enacted a statute, Miss. Code Ann. § 11-62-1, et seq., prohibiting governmental

discrimination against persons espousing specific religious beliefs, including that

“[m]arriage is or should be recognized as the union of one man and one woman.”

Legal challenges against both the North Carolina and Mississippi statutes failed. See

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

833 F.3d 510 (5th Cir. 2016) (Mississippi).


19

Second, Plaintiffs truly overplay their hand in arguing that Davis’ temporary

stoppage of marriage licenses was not a reasonable means of advancing Kentucky’s

legitimate interest in accommodating her religious beliefs. (2d Br., Doc. 36, at 14-

15.) Contrary to the realities of the situation immediately following Obergefell and

Governor Beshear’s SSM Mandate, Plaintiffs insist that Davis simply should have

changed Governor Beshear’s new statewide marriage license form to say whatever

Davis wanted it to say, without any concern whatsoever as to the validity of such a

changed form. (Id.) The path Davis chose was far more reasonable under all the

circumstances, and was the only path that appropriately balanced everyone’s rights.

Davis could not have effected the accommodation Plaintiffs suggest

immediately after Obergefell and Governor Beshear’s SSM Mandate without

committing apparent violations of Kentucky law—e.g., Ky. Rev. Stat. § 402.100

(2015) (directing county clerks to issue Kentucky marriage licenses on “the form

proscribed by the Department for Libraries and Archives [KDLA]” (emphasis

added)); Ky. Rev. Stat. § 402.110 (2015) (requiring that “[t]he form of marriage

license prescribed in KRS 402.100 shall be uniform throughout this state”

(emphasis added))—not to mention the SSM Mandate itself. Thus, while it is true

that Kentucky RFRA applied to Davis at that time (1st Br., Doc. 30, at 41-43), and

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


20

licensing statutes (id.), it was not clear from any court or other precedent that Davis

should have self-effected that accommodation in the first instance.

Rather, by temporarily stopping the issuance of marriage licenses to all

couples in one county until appropriately permanent (and very simple)

accommodations could be accomplished, Davis ensured that individuals’

fundamental rights to religious accommodation secured by the First Amendment and

the Kentucky RFRA (including Davis’) were protected, while leaving ample outlets

for marriage licenses open. Issuing no licenses at all was a reasonable policy because

it was the only policy Davis could effect at the time that could (i) treat all couples

the same, and (ii) rightfully accommodate religious conscience under the Kentucky

RFRA and the United States and Kentucky Constitutions, while (iii) leaving

marriage licenses readily available to every couple throughout every region of the

state and not preventing Plaintiffs from marrying whom they want to marry.

As shown above (see supra, Arg. § I.B), Davis did not effect her own

alterations of the marriage license form until after the district court (1) refused to

consider her preliminary injunction motion against Governor Beshear to obtain an

accommodation, (2) entered a preliminary injunction ordering her to issue marriage

licenses, (3) jailed her for not issuing marriage licenses, and then (4) released her

after approving the license alterations effected by her deputy clerks. Davis’

initial, short, temporary suspension of issuing marriage licenses, followed by her


21

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

by Kentucky’s highest officials5—was the most reasonable means of implementing

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

Plaintiffs’ idea that Davis was casually “waiting for legislative or executive

action to accommodate her” is disingenuous, if not offensive. (2d Br., Doc. 36, at

20.) As shown above (see supra, Arg. § I.B), Davis sued the executive, sought a

preliminary injunction against the executive, appealed the effective denial of that

injunction (from jail), and sought an injunction pending appeal from the district court

and this Court—all to accomplish the accommodation that she ultimately received.

And while the effect of Davis’ diligent efforts cannot be precisely measured,

Governor Beshear effectively repealed his SSM Mandate as to Davis on September

14, 2015, by ratifying her self-effected accommodation, which was one week after

Davis moved in this Court for an injunction against Governor Beshear pending

appeal.

Nor can it be seriously argued that Davis’ policy was an unreasonable

religious accommodation for rational basis purposes because she was supposed to

have disregarded statutory requirements and altered the SSM Mandate marriage

licenses immediately after their roll-out, on the basis of court decisoins suggesting a

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

effectively rescinded the SSM Mandate as to Davis.


22

marriage resulting from an altered license would be valid even if the license was not.

(2d Br., Doc. 36, at 15 (citing Pinkhasov v. Petocz, 331 S.W. 3d 285 (Ky. App. Ct.

2011).) As shown above, Davis went to great lengths to secure an accommodation

legally, and did not undertake to alter a marriage license herself until after the

district court had approved the alterations effected by her deputy clerks while

she was in jail. Even then, the Miller Plaintiffs demanded further sanctions against

Davis for the alterations she effected, claiming “they create a two-tier system of

marriage licenses throughout the state” which “effectively feature a stamp of animus

against the LGBT community.” (Miller RE 120, Pls.’ Mot. Enforce, at Page ID #

2319.) Although the district court rejected the Miller Plaintiffs’ over-the-top

rhetoric, their charge in and of itself proves there would have been consequences for

any alteration self-effected by Davis, and belies Plaintiffs’ farcical argument that

Davis should have felt free to alter the licenses as she saw fit. By Plaintiffs’ logic,

no county clerk could ever be held to account for issuing invalid marriage licenses

because everyone knows marriages on invalid licenses still count. Davis cannot be

faulted for seeking to protect the integrity of marriage licenses ultimately issued

from her office, even as she sought an appropriate legal accommodation to protect

her conscience. Davis’ accommodation was reasonably related to the government’s

legitimate religious liberty interests.


23

3. Davis’ Policy Satisfies Strict Scrutiny, as Davis

Also Argued Below.

Given that Davis’ policy was not only reasonable, but also the only policy she

could enact to respect all rights involved, the policy was closely tailored to effectuate

Kentucky’s compelling religious liberty interests. Thus, the policy satisfies strict

scrutiny as well. See Montgomery, 101 F.3d at 1124. Davis said so expressly in her

First Brief, wherein she explained Kentucky’s interest in providing a religious

accommodation to Davis as both legitimate and compelling, and further explained

her temporary marriage license stoppage as both reasonably related and closely

tailored to that interest. (1st Br., Doc. 30, at 26-28.) Thus, as argued below, Davis’

policy satisfies both rational basis and strict scrutiny review, and Davis conceded

neither below as suggested by Plaintiffs. (2d Br., Doc. 36, at 12.)

4. Davis’ Accommodation Did Not Violate the

Establishment Clause.

Plaintiffs erroneously suggest that, as an accommodation of Davis’ sincerely

held religious beliefs, her temporary suspension of marriage licenses does not pass

rational basis review because it violated the Establishment Clause. (2d Br., Doc. 36,

at 13-14.) The district court also, in cursory fashion, invoked the Establishment

Clause as a straw-man enemy to the legitimacy of the Commonwealth’s interest in

religious accommodation. (RE 48, Mem. Op. and Order, Page ID # 236-37.) But the

Establishment Clause clearly permits Davis’ accommodation.


24

The First Amendment provides that “Congress shall make no law respecting

an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.,

amend. I. Commonly treated separately in jurisprudence, “[t]he two Religion

Clauses ‘often exert conflicting pressures,’ such that there can often be ‘internal

tension . . . between the Establishment Clause and the Free Exercise Clause.’”

Conlon v. InterVarsity Christian Fellowship/USA, 777 F.3d 829, 833 (6th Cir. 2015)

(internal citations omitted) (citing Cutter v. Wilkinson, 544 U.S. 709, 719 (2005),

and, Tilton v. Richardson, 403 U.S. 672, 677 (1971) (plurality)). But the Supreme

Court has consistently reaffirmed “that ‘there is room for play in the joints between’

the Free Exercise and Establishment Clauses, allowing the government to

accommodate religion beyond free exercise requirements, without offense to the

Establishment Clause.” Cutter, 544 U.S. at 713 (citing Locke v. Davey, 540 U.S.

712, 718 (2004)).

Accordingly, providing accommodations for conscience-based religious

objections does not violate the Establishment Clause. See Hobbie v. Unemployment

Appeals Comm’n of Fla., 480 U.S. 136, 144-45 (1987) (“[G]overnment may (and

sometimes must) accommodate religious practices and . . . it may do so without

violating the Establishment Clause.”); see also Corp. of Presiding Bishop of Church

of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987) (there is

“ample room for accommodation of religion under the Establishment Clause”).


25

Moreover, “[r]eligious accommodations…need not ‘come packaged with benefits to

secular entities,’” to survive the Establishment Clause. Cutter, 544 U.S. at 718

(citation omitted). After all, “[w]e are a religious people whose institutions

presuppose a Supreme Being,” Zorach v. Clauson, 343 U.S. 306, 313 (1952), and

“[t]here is an unbroken history of official acknowledgment by all three branches of

government of the role of religion in American life from at least 1789.” Lynch v.

Donnelly, 465 U.S. 668, 674 (1984). As the Sixth Circuit has recognized, “[o]ur

Nation’s history is replete with . . . accommodation of religion.” ACLU v. Mercer

County, Ky., 432 F.3d 624, 639 (6th Cir. 2005).

As is clear from Plaintiffs’ own allegations and briefing, the case at bar

involves permissible accommodation of religion, not unconstitutional establishment

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

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

6 In many cases, Establishment Clause claims are evaluated under the three-

prong “Lemon test” named after the Supreme Court’s decision in Lemon v.

Kurtzman, 403 U.S. 602 (1971). Under this test, a challenged activity survives the

Establishment Clause if (1) the activity has “a secular legislative purpose,” (2) “its

principal or primary effect must be one that neither advances nor inhibits religion,”

and (3) it “must not foster ‘an excessive government entanglement with religion.’”

Lemon, 403 U.S. at 612-13 (citation omitted). The first two prongs of the Lemon test

have been refined and clarified by the “endorsement test” which considers whether

the act has a predominant secular purpose and whether the act has the purpose or

effect of endorsing, promoting or disapproving religion. See Smith v. Jefferson

County Bd. of School Comm’rs, 788 F.3d 580, 587 (6th Cir. 2015) (citations

omitted).


26

(“Lemon stated a three-part test. . . We resolve this case on other grounds.”). Indeed,

“[w]hat makes accommodation permissible, even praiseworthy, is not that the

government is making life easier” for a religious person but rather “it is that the

government is accommodating a deeply held belief.” See Bd. of Educ. of Kiryas Joel

Village Sch. Dist. v. Grumet, 512 U.S. 687, 715 (1994) (O’Connor, concurring).

Davis’ application of Kentucky’s RFRA does not offend the Establishment

Clause because her self-effected accommodation (1) alleviated a government-

created burden (Governor Beshear’s SSM Mandate) on her (and some of her deputy

clerks’) religious beliefs and exercise; (2) did not, in fact, create any substantial

disruption of Kentucky’s state-wide marriage licensing scheme; and (3) did not

differentiate between bona fide faiths or confer any privileged status on any

particular religious sect. Plaintiffs’ right to marry cannot considered in a vacuum

because, as the Supreme Court explained in Cutter, “‘[c]ontext matters.’” 544 U.S.

at 723. Davis’ application of Kentucky’s RFRA simply provided relief from a

substantial burden, and the balance achieved by her self-effected accommodation

was reasonable in light of Kentucky’s state-wide marriage licensing scheme.

Further, Davis’ policy was not applied in a manner that elevated one faith over

another, or even over non-religious beliefs.

Even the district court acknowledged that First Amendment religious rights

of Davis are implicated in this case. (See, e.g., Miller RE 21, hr’g tr. (July 13, 2015),


27

Page ID # 183, 184, 197, 198, 202, 203.) If Plaintiffs were able to declare an

Establishment Clause violation here, “all manner of religious accommodations

would fall.” Cutter, 544 U.S. at 725. Because this case involves the mere

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

not implicated.

B. Plaintiffs’ Claimed Right to Receive a Marriage

License in a Particular County from a Particular

Official Was Not Clearly Established by Vacated,

Interim, or Otherwise Nonbinding Decisions in the

Same Litigation.

As Davis already demonstrated in her First Brief, there is no clearly

established constitutional right to receive a marriage license in a particular county

from a particular official. (1st Br., Doc. 30, at 29-36.) But Plaintiffs’ claim that the

district court’s vacated preliminary injunction order in Miller and an ipse dixit

comment from a Miller motions panel of this Court make it so. (2d Br., Doc. 36, at

17 (citing Miller v. Davis, No. 15-5880, 2015 WL 10692640, at *1 (6th Cir. Aug.

26, 2015)).) The Court should reject Plaintiffs’ argument.

The Miler motions panel decision would not have been binding even on the

Miller merits panel; it is not in and of itself evidence of clearly established law. As

for the Miller preliminary injunction, Davis appealed that order to this Court, and

this Court instructed the district court to vacate it under the vacatur principles of

United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). (Order, Miller v. Davis,


28

No. 15-5880, Doc. 101-1 (July 13, 2016).) The equitable remedy of vacatur “ensures

that ‘those who have been prevented from obtaining the review to which they are

entitled [are] not . . . treated as if there had been a review.’” Camreta v. Greene, 563

U.S. 692, 712 (2011). Courts usually vacate lower court judgments, orders, and

injunctions in these situations “because doing so ‘clears the path for future

relitigation of the issues between the parties,’ preserving ‘the rights of all parties,’

while prejudicing none ‘by a decision which . . . was only preliminary.’” Alvarez v.

Smith, 558 U.S. 87, 94 (2009) (citing Munsingwear, 340 U.S. at 40). It would be

entirely inconsistent with this Court’s prior vacatur order, and prejudicial to the

litigants’ rights intended to be protected thereby, to now treat the vacated Miller

preliminary injunction as constituting clearly established law on the very issues the

parties are still litigating.

In short, neither of these nonbinding decisions could clearly establish the right

claimed by Plaintiffs, and certainly not at the level of specificity required to defeat

Davis’ qualified immunity. They certainly do not put the matter “beyond debate,” as

would be required for Plaintiffs to prevail. See Baynes v. Cleland, 799 F.3d 600, 613

(6th Cir. 2015) (“‘[E]xisting precedent must have placed the statutory or

constitutional question beyond debate.’” (emphasis added) (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)).


29

III. DAVIS ACTED AS A STATE OFFICIAL WITH SOVEREIGN

IMMUNITY UNDER THE ELEVENTH AMENDMENT.

A. Both Davis’ Marriage License Function and

Application of Kentucky RFRA to That Function

Clearly Flow from the Commonwealth.

As Davis demonstrated in her First Brief, marriage licensing is an exclusively

state-level function in Kentucky. (1st Br., Doc. 30, at 18-20.) Unlike in Miller, where

the Plaintiffs sought prospective injunctive relief, Plaintiffs in this case seek only

damages. Thus, the question of Eleventh Amendment immunity for state officials is

front and center, and separate from any question decided by Obergefell. The

Eleventh Amendment “bars suits for monetary relief against state officials sued in

their official capacity.” Thiokol Corp. v. Dep’t of Treasury, State of Mich. Revenue

Div., 987 F.2d 376, 381 (6th Cir. 1993); see also Gottfried v. Med. Planning Servs.,

Inc., 280 F.3d 684, 692 (6th Cir. 2002) (“[I]t is well established that states and state

officers acting in their official capacities are immune from suits for damages in

federal court . . . .”). Because Davis acted as a state official for purposes of marriage

licensing, the district court’s dismissal of Plaintiffs’ damages claims against Davis

in her official capacity should be affirmed on sovereign immunity grounds.

Where a county officer’s duties “clearly flow from the State,” the officer

is a state official for purposes of Eleventh Amendment immunity. Gottfried, 280

F.3d at 693 (holding county sheriff state official when enforcing state court

injunction); cf. D’Ambrosio v. Marino, 747 F.3d 378, 387 (6th Cir. 2014) (holding


30

county prosecutor state official when prosecuting state crimes); Cady v. Arenac

County, 574 F.3d 334, 342 (6th Cir. 2009) (same); Pusey v. City of Youngstown, 11

F.3d 652, 657 (6th Cir. 1993) (“[A] city official pursues her duties as a state agent

when enforcing state law or policy.”); Graves v. Mahoning County, No.

4:10CV2821, 2015 WL 403156, *6 (N.D. Ohio Jan. 28, 2015) (holding township

clerks acted as state officials when issuing arrest warrants pursuant to state statute),

aff’d, 821 F.3d 772 (6th Cir. 2016); Leslie v. Lacy, 91 F. Supp. 2d 1182, 1194 (S.D.

Ohio 2000) (holding county clerk acted as agent of state, not county, where relevant

job duties specified by state law and subject to control of state).

Officials such as Davis “sometimes wear multiple hats, acting on behalf of the

county and the State.” Crabbs v. Scott, 786 F.3d 426, 429 (6th Cir. 2015). Thus, “the

question is not whether [Davis] acts for [Kentucky] or [Rowan] County in some

categorical, ‘all or nothing’ manner.” McMillian v. Monroe County, Ala., 520 U.S.

781, 785 (1997) (emphasis added). “Immunity hinges on whether the officer

represents the State in the ‘particular area’ or on the ‘particular issue’ in

question.” Crabbs, 786 F.3d at 429 (emphasis added) (quoting McMillian, 520 U.S.

at 785). The inquiry does not seek “to make a characterization of [Davis] that will

hold true for every type of official action they engage in. We simply ask whether

[Davis] represents the state or the county” in marriage license issues. McMillian, 520

U.S. at 785-86. It is beyond cavil that Davis represents the Commonwealth when


31

dealing with marriage licenses. Miller, 267 F. Supp. 3d at 993; Jones v. Perry, 215

F. Supp. 3d 563, 568 n.3 (E.D. Ky. 2016).

Kentucky law leaves no doubt that, in issuing and declining to issue marriage

licenses, Davis is a state official. County clerks, such as Davis, are statutorily

conferred duties and jurisdiction “coextensive with that of the Commonwealth.” See

Ky. Rev. Stat. § 64.5275(1); see also Ky. Const. § 246. In Kentucky, the

Commonwealth has “absolute jurisdiction over the regulation of the institution

of marriage.” Pinkhasov, 331 S.W.3d 291 (emphasis added). All matters relating to

marriage in Kentucky, including its definition and the procedures for licensing,

solemnizing, and dissolving marriages are governed by Chapter 402 of the Kentucky

Revised Statutes. In particular, the duty of county clerks to issue marriage licenses

is governed by section 402.080, and the license form that county clerks must use for

marriage licenses by section 420.100. Governor Beshear’s SSM Mandate was a

directive from the state to all county clerks in the state.

In light of this absolute state control over marriage in Kentucky, the district

court concluded, in the related Miller case,

The State not only enacts marriage laws, it prescribes

procedures for county clerks to follow when carrying out

those laws, right down to the form they must use in issuing

marriage licenses. Thus, Davis likely acts for the State of

Kentucky, and not as a final policymaker for Rowan

County, when issuing marriage licenses.

123 F. Supp. 3d at 933 (citations omitted) (emphasis added).


32

Davis’ marriage licensing duties and obligations “clearly flow from the state.”

See Gottfried, 280 F.3d at 693. And Davis’ decision not to issue marriage licenses

was no less the act of a state official because that decision was likewise sanctioned

by Kentucky state law. As ultimately acknowledged by Governor Bevin’s Executive

Order, Davis’ right to relief from carrying out Gov. Beshear’s SSM Mandate against

her conscience is protected by and entrenched in Kentucky RFRA which provides,

in pertinent part:

Government shall not substantially burden a person’s[7]

freedom of religion. The right to act or refuse to act in a

manner motivated by a sincerely held religious belief may

not be substantially burdened unless the government

proves by clear and convincing evidence that it has a

compelling governmental interest in infringing the

specific act or refusal to act and has used the least

restrictive means to further that interest.

Ky. Rev. Stat. § 446.350 (emphasis added).

Kentucky RFRA applies to all Kentucky statutes. Kentucky RFRA is housed

under Chapter 446, which is entitled “Construction of Statutes,” and includes such

other generally applicable provisions as “Definitions for Statutes Generally,”

7 While “person” is not defined in the Kentucky RFRA, it is defined in

Kentucky’s general definitions statute to include “bodies-politic and corporate,

societies, communities, the public generally, individuals, partnerships, joint stock

companies, and limited liability companies.” See KY. REV. STAT. § 446.010(33)

(emphasis added). There is no exception from the definition for individuals who are

publicly elected officials.


33

“Computation of Time,” “Severability,” and “Titles, Headings, and Notes.” Ky. Rev.

Stat. §§ 446.010, 446.030, 446.090, 446.140. Even more specifically, Kentucky

RFRA is included under a section of Chapter 446 reserved for “Rules of

Codification.” As such, Kentucky’s marriage statutes—much like any other body of

Kentucky law—cannot be interpreted without also considering and applying

Kentucky RFRA.

Thus, the right to refuse to act against religious conscience is expressly

conferred by Kentucky RFRA, which applies to Kentucky marriage licensing

statutes. Moreover, the specific application of this right to county clerks in the

issuance of marriage licenses was expressly established by the Executive Order. Put

differently, Kentucky (i.e., Davis in her official capacity) has a duty under Kentucky

RFRA not to substantially burden “the right of any person” (i.e., Davis in her

individual capacity) “to act or refuse to act in a manner motivated by a sincerely

held religious belief . . . .” Ky. Rev. Stat. § 446.350 (emphasis added). Accordingly,

both in issuing marriage licenses, and in not issuing licenses pursuant to Kentucky

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

applying state law.8

8 Even if the Court concludes Davis, in her official capacity, applied the

Kentucky RFRA incorrectly, the Kentucky RFRA is still a state law and not a county

policy.


34

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

2d Br., Doc. 36, at 22), does not compel the conclusion that Davis was a county

official for purposes of marriage licensing. The issue in Carroll was the validity

of a county ordinance requiring the county clerk and county sheriff to remit certain

funds to the control of the county fiscal court. 425 S.W.3d at 922-23. The court

rejected the county clerk’s absolute argument that “the Clerk is not a local official

subject to control by the Fiscal Court,” and held that county clerks “are considered

local officials subject to a measure of control by the fiscal court.” Id. at 924

(emphasis added). Thus, the Carroll court did not decide that county clerks are “local

officials” for all purposes, but only for purposes of limited financial controls

exercised by the fiscal court. Id. (“a degree of financial control”). Moreover, the

Carroll court did not consider the nature of a county clerk’s marriage licensing

function, or any other function, in the context of a § 1983 claim. Cf. Gottfried, 280

F.3d at 693 (holding county sheriff to be state official for § 1983 purposes, even

though “Ohio law classifies sheriffs as county officials”).

The district court correctly held, concerning Davis, “county clerks, when

issuing—or refusing to issue—marriage licenses, represent the Commonwealth of

Kentucky, not their counties.” Miller v. Davis, 267 F. Supp. 3d 961, 993 (E.D. Ky.

2017); see also Jones, 215 F. Supp. 3d at 568 n.3 (treating Kentucky county clerk as

state official in applying Ex parte Young exception to sovereign immunity). Indeed,


35

the Sixth Circuit dictates treating an official as a state official for purposes of

Eleventh Amendment immunity where the official’s duties “clearly flow from the

State.” Gottfried, 280 F.3d at 693. Davis’ marriage licensing duties clearly flow

from the Commonwealth, which should end the inquiry. Because Plaintiffs’ damages

claims against Davis in her official capacity constitute damages claims against a state

official, the claims are barred by the Eleventh Amendment.

B. Though It Is Unnecessary to Consider the Crabbs

Factors in This Case, They Indicate Davis Acted for the

Commonwealth.

1. Marriage Licensing Is Clearly within the

Purview of the Commonwealth.

In cases where it is not clear that an official’s duties “flow from the state,”

unlike this case, this Court may consider several “[r]elevant factors,” including, inter

alia, the Commonwealth’s potential liability, how state law treats the county officer

for purposes of the requisite activity, the degree of control exercised over the

defendant’s duties in the particular activity, and whether such functions fall within

the purview of state government. See Crabbs, 786 F.3d at 429. There is no dispute

that marriage licensing falls within the purview of the Commonwealth. The

remaining factors likewise uphold sovereign immunity for Davis.


36

2. Kentucky Statutes Indicate the Commonwealth

Is Potentially Liable for Davis’ Official Acts.

The oft-dubbed “foremost factor” in the optional Crabbs analysis is whether

the state has potential legal liability for the judgment. Lowe v. Hamilton Cnty. Dep’t

of Jobs & Family Serv., 610 F.3d 321, 325 (6th Cir. 2010).9 “In analyzing this factor,

we focus our inquiry on the state treasury’s potential legal liability for the judgment,

not whether the state treasury will pay for the judgment in that case.” Lowe, 610

F.3d at 325; Kreipke v. Wayne State Univ., 807 F.3d 768, 778 (6th Cir. 2015) (noting

that the issue is one of potential legal liability, not actual liability or even whether

the state will actually be forced to pay the judgment); Perry v. Se. Boll Weevil

Eradication Found., 154 F. App’x 467, 472 (6th Cir. 2005) (“we look to the state’s

potential for legal liability for a judgment against the entity, not whether the state

would actually pay the judgment in our particular case.” (emphasis added)).

Although there is no Kentucky statute definitively establishing what entity—

the Commonwealth, the county, or another—is liable for judgments against county

clerks, there is a statute clearly indicating that the Commonwealth is potentially

liable. Kentucky Rev. Stat. § 62.055 requires that “[e]very county clerk, before

entering on the duties of his office, shall execute bond to the Commonwealth, with

9 Cf. U.S. ex rel. Oberg v. Kentucky Higher Educ. Student Loan Corp., 681 F.3d

575, 580 n.3 (4th Cir. 2012) (“[M]ore recent Supreme Court precedent suggests

that the first factor does not deserve such preeminence.” (emphasis added) (citing

Fed. Maritime Comm’n v. S.C. Ports Auth., 535 U.S. 743, 765 (2002))).


37

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.


38

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


39

CERTIFICATE OF COMPLIANCE

With Type -Volume Limitation, Typeface Requirements,

and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 8,983 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App P. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief

has been prepared in a proportionally spaced typeface using Word 2016 in 14-

point, Times New Roman font.

/s/ Roger K. Gannam

Defendant-Appellant

Cross-Appellee Kim Davis

DATED: April 4, 2018


40

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was filed via the

Court’s ECF filing system and therefore service will be effectuated by the Court’s

electronic notification system upon all counsel or parties of record:

Rene B. Heinrich, Esq.

Doyle & Hassman

526 York Street

Newport, KY 41071

[email protected]

William Kash Stilz, Jr., Esq.

Roush & Stilz

19 W. Eleventh Street

Covington, KY 41011

[email protected]

Counsel for Plaintiffs-Appellees Cross-Appellants

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

Roger K. Gannam

Counsel for Defendant-Appellant

Cross-Appellee Kim Davis


1-1

ADDENDUM 1

Designation of Relevant District Court Documents

Pursuant to 6 Cir. R. 28(b)(1)(A)(i) and 6 Cir. R. 30(g)(1)(A)-(C)

Record Entry No. Document Description

Record Entries in Yates v. Davis, No. 15-cv-62-DLB (E.D. Ky.)

RE 1

Page ID # 1 Complaint

RE 16

Page ID # 49 In Re: Ashland Civil Actions, Order

RE 24 Virtual Order

RE 29

Page ID # 97 Defendant Kim Davis’ Motion to Dismiss Complaint

RE 29-1

Page ID # 99

Defendant Kim Davis’ Memorandum of Law in Support of

Motion to Dismiss Complaint

RE 31

Page ID # 147

Plaintiffs’ Response to Defendant Davis’ Motion to

Dismiss

RE 37

Page ID # 173

Defendant Kim Davis’ Reply in Support of Motion to

Dismiss Complaint

RE 48

Page ID # 223 Memorandum Opinion and Order

RE 50

Page ID # 246 Notice of Appeal

Record Entries in Miller v. Davis, No. 0:15-cv-44-DLB (E.D. Ky.)

RE 1

Page ID # 1-15 Complaint

RE 21

Page ID # 183,

184, 197, 198, 202,

203

Preliminary Injunction Hearing Transcript (July 13, 2015)

RE 26

Page ID # 244-45 Preliminary Injunction Hearing Transcript (July 20, 2015)


1-2


RE 29

Page ID #318-366

Davis’ Response to Plaintiffs’ Motion for Preliminary

Injunction

RE 34

Page ID # 745-776 Verified Third-Party Complaint

RE 39-1

Page ID # 828-876

Davis’ Memorandum in Support of

Motion for Preliminary Injunction

RE 39-7

Page ID # 1129-

1130

Proposed Preliminary Injunction Order

RE 43

Page ID # 1146-

1173

Memorandum Opinion and Order

Granting Preliminary Injunction

RE 58

Page ID # 1289 Order Staying Briefing

RE 73

Page ID # 1547-48

Motion by Kentucky Senate President Stivers for Leave to

File Brief as Amicus Curiae

RE 74

Page ID # 1557

Order Expanding Preliminary Injunction,

September 3, 2015

RE 75

Page ID # 1558-59 Minute Entry Order

RE 78, Page ID #

1571-1582; 1651-

1662; 1658-59;

1667-1736

Hearing Transcript,

September 3, 2015

RE 84

Page ID # 1798-

1800

Status Report

RE 84-1

Page ID # 1801-04 Marriage Licenses

RE 89

Page ID # 1827-28 Order Releasing Davis from Custody


1-3


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

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



1-4


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)

































