Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket

Part Description 1 15 pages 2 Exhibit 1 - Cheves Article 3 Exhibit 2 - Wolfson Article 4 Exhibit 3 - Gov. Letter 5 Civil Cover Sheet 6 Case Assignment 7 Summons Davis 8 Summons Rowan County, KY

Multiple Documents

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 1

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 1 of 15 - Page ID#: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT ASHLAND

APRIL MILLER, KAREN ANN ROBERTS, SHANTEL BURKE, STEPHEN NAPIER, JODY FERNANDEZ, KEVIN HOLLOWAY, L. AARON SKAGGS, and BARRY W. SPARTMAN,
AND
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,
v.
KIM DAVIS, both individually and in her official capacity as Rowan County Clerk, and ROWAN COUNTY, KENTUCKY,
Defendants.

Case No. ________________ Electronically Filed
PROPOSED CLASS ACTION

COMPLAINT Preliminary Statement 1. In this 42 U.S.C. § 1983 class action suit, Plaintiffs assert claims on their own behalves as well as on behalf of the putative class for the constitutional violations resulting from the Rowan County Clerk’s policy of refusing to issue marriage licenses to applicants who are otherwise legally permitted to marry. Specifically, because Rowan County Clerk Kim Davis objects on religious grounds to the Supreme Court’s decision recognizing that states cannot deny the privileges of marriage to same-sex couples, Defendant Davis has adopted a policy and/or practice of refusing to issue marry licenses to any couple, same-sex or different-sex, even though they are otherwise legally entitled to marry.

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 2 of 15 - Page ID#: 2
Plaintiffs are two same-sex couples and two different-sex couples who are in committed relationships. They assert individual and official capacity as-applied claims against Defendant Davis. They seek compensatory and punitive damages for Defendant Davis’ refusal to issue them marriage licenses in violation of their rights under the Fourteenth Amendment’s Due Process Clause, and they request preliminary and permanent injunctive relief compelling Defendant Davis to receive and process their applications and issue them marriage licenses. Plaintiffs also assert a claim pursuant to Monell v. Dept. of Social Services, 436 U.S. 658 (1978), against Defendant Rowan County, Kentucky for damages due the unconstitutional policy or practice adopted by Defendant Davis, a county official with final policymaking authority.
Plaintiffs also assert claims on behalf of the putative class of individuals who are qualified to marry and who intend to seek a marriage license from the Rowan County Clerk. The Class seeks a declaration that the challenged policy or practice of denying marriage licenses entirely violates the Fourteenth Amendment’s Due Process Clause as well as the First Amendment’s Establishment Clause. They seek preliminary and permanent injunctive relief barring Defendants’ unconstitutional actions.
Jurisdiction and Venue 2. The Court has jurisdiction over this case under 28 U.S.C. § 1331 and § 1343. 3. Venue is proper pursuant to 28 U.S.C. § 1391(b), because all parties reside in Rowan County, Kentucky. Defendant Rowan County, Kentucky is a governmental entity organized under Kentucky law, and Defendant Kim Davis (in both her individual
2

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 3 of 15 - Page ID#: 3
and official capacities) resides in Rowan County. Also, a substantial part of the events or omissions giving rise to the claims occurred in the Eastern District of Kentucky.
Parties 4. Plaintiff April Miller, Ph.D., is an adult citizen of Kentucky residing in Rowan County, Kentucky. 5. Plaintiff Karen Ann Roberts is an adult citizen of Kentucky residing in Rowan County, Kentucky. 6. Plaintiff Shantel Burke is an adult citizen of Kentucky residing in Rowan County, Kentucky. 7. Plaintiff Stephen Napier is an adult citizen of Kentucky residing in Rowan County, Kentucky. 8. Plaintiff Jody Fernandez is an adult citizen of Kentucky residing in Rowan County, Kentucky. 9. Plaintiff Kevin Holloway is an adult citizen of Kentucky residing in Rowan County, Kentucky. 10. Plaintiff L. Aaron Skaggs is an adult citizen of Kentucky residing in Rowan County, Kentucky. 11. Plaintiff Barry W. Spartman is an adult citizen of Kentucky residing in Rowan County, Kentucky. 12. Defendant Kim Davis is the duly elected Rowan County Clerk who, in her official capacity, is responsible for receiving applications for, and the issuance of, marriage licenses. Defendant in her official capacity is located in Rowan County,
3

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 4 of 15 - Page ID#: 4
Kentucky. Defendant Davis, in her individual capacity, is an adult citizen of Kentucky residing in Rowan County, Kentucky.
13. Defendant Rowan County, Kentucky is a local governmental entity organized under Kentucky law.
Factual Allegations 14. At all relevant times, Defendant Davis, both in her individual and official capacities, acted under color of state law. 15. On June 26, 2015, the U.S. Supreme Court issued its decision in Obergefell, et al. v. Hodges, et al., 2015 U.S. LEXIS 4250 (U.S. June 26, 2015), declaring, among other things, that same-sex couples have a fundamental right to marry under the Fourteenth Amendment to the United States Constitution. 16. On Monday, June 29, 2015, Defendant Davis adopted an official policy of refusing to issue any marriage licenses. [Plaintiffs’ Exhibit 1: J. CHEVES, Several Kentucky county clerks defy same-sex marriage ruling, refuse to issue marriage licenses (“Pl. Exh. 1”), at 2.] Defendant Davis declared that the policy was adopted because of “deep religious convictions” which would not “allow” her to issue same-sex marriage licenses. [Plaintiffs’ Exhibit 2: ANDREW WOLFSON, Gay marriage ruling defied by some Ky clerks (“Pl. Exh. 2”), at 2.] 17. Plaintiffs April Miller and Karen Ann Roberts are loving partners in a committed same-sex relationship, and they are loving parents to a wonderful daughter. Plaintiffs Miller and Roberts have been in a committed relationship for eleven (11) years. 18. Following the Supreme Court’s decision in Obergefell, Plaintiffs Miller and Robert decided to marry in order to formally solemnize their relationship and gain
4

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 5 of 15 - Page ID#: 5
access to the myriad benefits conferred by doing so. On June 30, 2015, Plaintiffs Miller and Roberts went to the Rowan County Clerk’s office to apply for a marriage license. Because of Defendant Davis’ policy of refusing to issue marriage licenses, Plaintiffs Miller and Roberts were not permitted to submit a marriage license application.
19. Plaintiffs Miller and Roberts wish to obtain a marriage license in Rowan County because that has been their home for nine years: they live, work, play, volunteer, vote, and pay taxes in Rowan County.
20. When Plaintiffs Miller and Roberts sought to apply for a marriage license in the Rowan County Clerk’s office, they were both over the age of eighteen, unrelated by blood, not married to another person, and not otherwise disqualified from marrying one another under the law. Plaintiffs Miller and Robert intend to again request a marriage license from the Rowan County Clerk.
21. Plaintiffs Shantel Burke and Stephen Napier are loving partners in a committed different-sex relationship, and they are parents to a minor child. Plaintiffs Burke and Napier have been in a committed relationship for three years.
22. Plaintiffs Burke and Napier had been planning to marry during 2015. Following the Obergefell decision, however, they decided to accelerate their plans and seek a marriage license. On June 30, 2015, Plaintiff Burke went to the Rowan County Clerk’s office to apply for a marriage license. Because of Defendant Davis’ policy of refusing to issue marriage licenses, however, Plaintiffs Burke and Napier were not permitted to obtain a marriage license.
23. When Plaintiffs Burke and Napier sought to apply for a marriage license in the Rowan County Clerk’s office, they were both over the age of eighteen, unrelated
5

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 6 of 15 - Page ID#: 6
by blood, not married to another person, and not otherwise disqualified from marrying under the law. Plaintiffs Burke and Napier intend to again request a marriage license from the Rowan County Clerk.
24. Plaintiffs Jody Fernandez and Kevin Holloway are loving partners in a committed different-sex relationship. Plaintiffs Burke and Napier have lived together in Rowan County since 2008.
25. Plaintiffs Fernandez and Holloway decided to marry after the Supreme Court’s decision in Obergefell. On July 1, 2015, Plaintiffs Fernandez and Holloway went to the Rowan County Clerk’s office to apply for a marriage license. Because of Defendant Davis’ policy of refusing to issue marriage licenses, however, Plaintiffs Fernandez and Holloway were not permitted to submit a marriage license application or obtain a marriage license.
26. When Plaintiffs Fernandez and Holloway sought to apply for a marriage license in the Rowan County Clerk’s office, they were both over the age of eighteen, unrelated by blood, not married to another person, and not otherwise disqualified from marrying one another under the law. Plaintiffs Fernandez and Holloway intend to again request a marriage license from the Rowan County Clerk.
27. Plaintiffs L. Aaron Skaggs and Barry W. Spartman are loving partners in a committed same-sex relationship. Plaintiffs Skaggs and Spartman have been in a committed relationship for twenty-one (21) years, during which time they have been residents of Rowan County.
28. Plaintiffs Skaggs and Spartman love Rowan County and feel that it is essential for them to obtain a marriage license in the county they have made their home.
6

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 7 of 15 - Page ID#: 7
29. Following the Supreme Court’s decision in Obergefell, Plaintiffs Skaggs and Spartman decided to marry in order to formally solemnize their relationship. On June 30, 2015, Plaintiff Skaggs called the Rowan County Clerk’s office to apply for a marriage license. Because of Defendant Davis’ policy of refusing to issue marriage licenses, however, Plaintiffs Skaggs and Spartman were not permitted to submit a marriage license application. In fact, an employee of the Rowan County Clerk’s office told Plaintiff Skaggs, “Don’t bother coming down here.” Further, Plaintiff Skaggs was advised by the Rowan County Clerk’s office to seek a marriage license in another county because that office was not issuing any marriage licenses.
30. When Plaintiffs Skaggs and Spartman sought to apply for a marriage license with the Rowan County Clerk’s office, they were both over the age of eighteen, unrelated by blood, not married to another person, and not otherwise disqualified from marrying one another under the law. Plaintiffs Skaggs and Spartman intend to again request a marriage license from the Rowan County Clerk.
31. Kentucky Revised Statute (KRS) 402.080 provides that “No marriage shall be solemnized without a license therefor.”
32. On June 26, 2015, Governor Steve Beshear — the sole remaining Defendant in Bourke, et al. v. Beshear, the Kentucky marriage equality cases consolidated with Obergefell — sent a letter to all of Kentucky’s County Clerks following the Supreme Court’s decision in Obergefell. [Plaintiffs’ Exhibit 3: Gov. Beshear Letter.] In that letter, Governor Beshear stated that “[e]ffective today, Kentucky will recognize as valid all same sex marriages performed in other states and in
7

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 8 of 15 - Page ID#: 8
Kentucky.” [Id.] And he further instructed all “executive branch agencies ... to make operational changes that will be necessary to implement the Supreme Court decision.”
33. In spite of this directive from the Chief Executive and the clear pronouncement of the United States Supreme Court, Defendant Davis and Rowan County persist in their deprivation of Fourteenth Amendment rights to residents of Rowan County, including those residents who could have obtained marriage licenses prior to the Obergefell decision.
34. Each and every Plaintiff is a resident of Rowan County, Kentucky. They live, work, vote, and pay taxes in Rowan County. Each and every Plaintiff also wishes to obtain a marriage license from their home county without having to suffer the indignity of securing a marriage license from another county due to Defendants’ unlawful and unconstitutional policy.
35. Each and every Plaintiff has suffered a harm, in that they have been denied a marriage license in their county of residence, along with the associated liberty and property interests enjoyed by married couples, not because they did not qualify for a marriage license, but rather because of an unlawful and unconstitutional policy adopted for the primary purpose of promoting a particular religious belief with which they sincerely and adamantly object.
36. Defendants’ policy of refusing to issue marriage licenses to all qualified applicants constitutes a substantial, direct and continuous infringement upon Plaintiffs’ fundamental right to marry, and on the rights of current and future individuals who are similarly situated, because it precludes them from obtaining a marriage license in Rowan County even though they are otherwise eligible to marry. Moreover, the challenged
8

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 9 of 15 - Page ID#: 9
policy is not rationally related to any legitimate state interest, in that Defendant Davis adopted the policy primarily due to her religious objections to same-sex marriage as opposed to any actual state interest.
37. Plaintiffs are suffering and will continue to suffer irreparable harm to their individual dignity, autonomy and familial security, among other harms, because of Defendants’ infringements upon their fundamental right to marriage for which there is no adequate remedy at law.
CLASS ACTION ALLEGATIONS 38. The named Plaintiffs bring this action on behalf of themselves and the Plaintiff class pursuant to Fed. R. Civ. P. 23(a) and (b)(2). The class consists of all present and future individuals who, though legally eligible to marry in Kentucky, will be denied a marriage license pursuant to the Defendants’ policy. 39. The size of the class is indefinite, in that it includes an indefinite number of future marriage license applicants who will seek a marriage license in Rowan County, Kentucky. 40. The named Plaintiffs will represent fairly and adequately the interests of the class defined above. Plaintiffs’ attorneys are experienced civil rights counsel who have litigated federal class action cases, and whose collective experience includes successfully litigating marriage-related civil rights issues at all levels of the federal court system. 41. The Plaintiff class is only a party to the named Plaintiffs’ claims for declaratory judgment and injunctive relief. All claims for damages against the County
9

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 10 of 15 - Page ID#: 10
Defendant and Defendant Davis, in her individual capacity, are made by the named Plaintiffs on their own behalf.
42. The case involves common questions of law and fact affecting the class, in that the Defendants’ policy of refusing to issue marriage licenses has been applied, or will apply, to deny marriage licenses to all class members.
43. The named Plaintiffs’ claims are typical of the class claims as a whole. The named Plaintiffs are Rowan County residents who are eligible to marry in Kentucky, and have been subjected to and affected by, and will continue to be subjected to and affected by, Defendants’ policy of refusing to issue marriage licenses to all eligible applicants. The named Plaintiffs allege that they and other class members they seek to represent are and will be subject to unlawful violations of their fundamental right to marry and of the Establishment Clause of the First Amendment as a result of the policy or practice complained of in this action.
44. Plaintiffs’ interest in obtaining injunctive relief for the violations of their constitutional rights and privileges are consistent with and not antagonistic to those of any other person within the class.
45. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate preliminary and permanent injunctive relief and corresponding declaratory relief with respect to the class as a whole.
CLAIMS FOR RELIEF (PLAINTIFFS ON THEIR OWN BEHALF)
COUNT I Fourteenth Amendment — Marriage (Davis in her individual and official capacities and Rowan County)
10

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 11 of 15 - Page ID#: 11
46. Defendant Davis is the Rowan County official with final policymaking authority over the issuance of marriage licenses. Her actions challenged here were taken in both her individual and official capacities while acting under color of state law.
47. Defendant Davis exercised her final policymaking authority by adopting the challenged policy of refusing to issue any marriage licenses to individuals who are otherwise qualified to marry.
48. The challenged policy of refusing to issue Plaintiffs marriage licenses substantially burdens and directly infringes upon Plaintiffs’ right to marry by barring them from securing a valid marriage license in Rowan County, Kentucky.
49. The official statement of purpose for adopting the challenged policy — Defendant Davis’ “deep religious convictions” opposing same-sex marriage — is not a compelling, important, or legitimate governmental interest.
50. In her individual capacity, Defendant Davis violated Plaintiffs’ rights to marry by refusing to issue marriage licenses to them pursuant to the challenged policy even though they were otherwise qualified to marry.
51. By adopting a policy to withhold issuing marriage licenses to all individuals otherwise eligible to marry, Defendant Davis, in her individual capacity, acted intentionally, willfully and in disregard of the clearly established rights of the named Plaintiffs, and with deliberate indifference to the clearly rights of the named Plaintiffs.
52. By adopting a policy to withhold issuing marriage licenses to all individuals otherwise eligible to marry, Defendant Davis acted maliciously, with callous
11

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 12 of 15 - Page ID#: 12
disregard for, or with reckless indifference to the clearly established rights of the named Plaintiffs.
53. Defendant Rowan County acted under color of state law when Defendant Davis, Rowan County’s official with final policymaking authority over the issuance of marriage licenses, exercised that final policymaking authority to adopt a policy that resulted in the denial of marriage licenses to Plaintiffs even though they are otherwise qualified to marry.
54. As a result of Defendants’ infringement, Plaintiffs have suffered and continue to suffer irreparable harms, including harms to their dignity and autonomy, family security, and access to the full spectrum of benefits conferred by the state upon others.
CLAIMS FOR RELIEF (PLAINTIFFS ON BEHALF OF THE CLASS)
COUNT II Fourteenth Amendment — Marriage
(Davis in her official capacity) 55. The challenged policy constitutes a present and ongoing denial or burden upon the rights of Plaintiffs and Plaintiff Class to marry which subjects them to serious, immediate and ongoing harms warranting the issuance of declaratory and injunctive relief. 56. By denying Plaintiffs and Plaintiff Class access to legal marriage, the policy deprives them of numerous legal protections, dignity, and autonomy. 57. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause them irreparable harm.
12

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 13 of 15 - Page ID#: 13
58. The challenged policy of refusing to issue marriage licenses substantially burdens and directly infringes upon the rights of Plaintiffs and the Plaintiff Class by barring them from securing a valid marriage license in Rowan County, Kentucky.
COUNT III First Amendment — Establishment Clause
(Davis in her official capacity) 59. The First Amendment to the United States Constitution states, “Congress shall make no law respecting an establishment of religion . . .” 60. This prohibition is extended to the states through the Fourteenth Amendment. 61. The official statements of purpose given by Defendant Davis for adopting the challenged policy were her “deep religious convictions” opposing same-sex marriage and her religiously-motivated unwillingness to issue marriage licenses to same-sex couples. 62. The primary or principal purpose for the adoption of Defendants’ policy was to promote one particular religious viewpoint about marriage. 63. An objective observer would conclude, based upon the available information regarding official statements of purpose, that the Defendants’ policy was adopted primarily for religious reasons. 64. By adopting a policy to withhold issuing marriage licenses to all individuals otherwise eligible to marry primarily for religious reasons, Davis acted intentionally, willfully and in disregard of the rights of the named Plaintiffs and the Plaintiff Class, and with deliberate indifference to their rights.
13

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 14 of 15 - Page ID#: 14
65. As a result of Defendants’ infringement, Plaintiffs and Plaintiff Class have suffered and continue to suffer irreparable harms, including harms to their dignity and autonomy, family security, and access to the full spectrum of benefits conferred by the state upon others.
REQUEST FOR RELIEF WHEREFORE, the Plaintiffs request that this Court grant the following relief: 1) Certify this case as a class action under Fed. R. Civ. P. 23(a) and (b)(2); 2) Preliminarily and permanently enjoin Defendants from refusing to issue marriage licenses to applicants who are otherwise eligible to marry in Kentucky; 3) Issue a declaratory judgment finding that Defendants’ policy is facially unconstitutional under the First and Fourteenth Amendments; 4) Judgment finding the Defendants violated Plaintiffs’ rights under the United States Constitution; 5) Judgment for damages, including punitive damages, in an amount to be proven by the evidence against Defendant Davis for violating the named Plaintiffs’ rights under the United States Constitution; 6) Costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988; 7) A trial by jury on all issues so triable; and 8) Grant any additional relief to which Plaintiffs may be entitled.
14

Case: 0:15-cv-00044-DLB Doc #: 1 Filed: 07/02/15 Page: 15 of 15 - Page ID#: 15
Respectfully submitted, /s William E. Sharp William E. Sharp Legal Director ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, Kentucky 40202 (502) 581-9746 sharp@aclu-ky.org - and Daniel J. Canon Laura E. Landenwich L. Joe Dunman CLAY DANIEL WALTON ADAMS, PLC 462 South Fourth Street Suite 101 Louisville, Kentucky 40202 (502) 561-2005 dan@justiceky.com laura@justiceky.com joe@justiceky.com ACLU OF KENTUCKY Coop. Attorneys Attorney for Plaintiffs; on behalf of themselves and all others similarly situated
15

Case: 0:15-cv-00044-DLB Doc #: 1-1 Filed: 07/02/15 Page: 1 of 5 - Page ID#: 16

Case: 0:15-cv-00044-DLB Doc #: 1-1 Filed: 07/02/15 Page: 2 of 5 - Page ID#: 17

Case: 0:15-cv-00044-DLB Doc #: 1-1 Filed: 07/02/15 Page: 3 of 5 - Page ID#: 18

Case: 0:15-cv-00044-DLB Doc #: 1-1 Filed: 07/02/15 Page: 4 of 5 - Page ID#: 19

Case: 0:15-cv-00044-DLB Doc #: 1-1 Filed: 07/02/15 Page: 5 of 5 - Page ID#: 20

Case: 0:15-cv-00044-DLB Doc #: 1-2 Filed: 07/02/15 Page: 1 of 5 - Page ID#: 21

Case: 0:15-cv-00044-DLB Doc #: 1-2 Filed: 07/02/15 Page: 2 of 5 - Page ID#: 22

Case: 0:15-cv-00044-DLB Doc #: 1-2 Filed: 07/02/15 Page: 3 of 5 - Page ID#: 23

Case: 0:15-cv-00044-DLB Doc #: 1-2 Filed: 07/02/15 Page: 4 of 5 - Page ID#: 24

Case: 0:15-cv-00044-DLB Doc #: 1-2 Filed: 07/02/15 Page: 5 of 5 - Page ID#: 25

Case: 0:15-cv-00044-DLB Doc #: 1-3 Filed: 07/02/15 Page: 1 of 1 - Page ID#: 26

Case: 0:15-cv-00044-DLB Doc #: 1-4 Filed: 07/02/15 Page: 1 of 2 - Page ID#: 27

Case: 0:15-cv-00044-DLB Doc #: 1-4 Filed: 07/02/15 Page: 2 of 2 - Page ID#: 28

U.S. District Court Eastern District of Kentucky DCN Site

http://156.125.6.194/cgi-bin/CaseAssign/CVCA.pl

Case: 0:15-cv-00044-DLB Doc #: 1-5 Filed: 07/02/15 Page: 1 of 1 - Page ID#: 29

...

Case number 0:15-CV-44 Assigned : Senior Judge Henry R. Wilhoit Jr. Judge Code : 4309
Assigned on 07/03/2015
.....

1 of 1

7/3/2015 10:50 AM

Case: 0:15-cv-00044-DLB Doc #: 1-6 Filed: 07/02/15 Page: 1 of 2 - Page ID#: 30

Case: 0:15-cv-00044-DLB Doc #: 1-6 Filed: 07/02/15 Page: 2 of 2 - Page ID#: 31

Case: 0:15-cv-00044-DLB Doc #: 1-7 Filed: 07/02/15 Page: 1 of 2 - Page ID#: 32

Case: 0:15-cv-00044-DLB Doc #: 1-7 Filed: 07/02/15 Page: 2 of 2 - Page ID#: 33

Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Eastern District of Kentucky; United States District Court for the Eastern District of Kentucky
Civil Rights - Other[440]
0:15-cv-00044

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 35

 
 Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket

Part Description 1 3 pages 2 Memorandum in Support 3 Proposed Order

Multiple Documents

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 1

Case: 0:15-cv-00044-DLB Doc #: 2 Filed: 07/02/15 Page: 1 of 3 - Page ID#: 34

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT ASHLAND

APRIL MILLER, KAREN ANN ROBERTS, SHANTEL BURKE, STEPHEN NAPIER, JODY FERNANDEZ, KEVIN HOLLOWAY, L. AARON SKAGGS, and BARRY W. SPARTMAN,
AND
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,
v.
KIM DAVIS, both individually and in her official capacity as Rowan County Clerk, and ROWAN COUNTY, KENTUCKY,
Defendants.

Case No. ________________

MOTION FOR PRELIMINARY INJUNCTION Pursuant to Fed. R. Civ. P. 65(a), the Named Plaintiffs move for a preliminary injunction enjoining Defendant Davis, in her official capacity, from enforcing the challenged policy of refusing to issue marriage licenses against them. In support of their motion, and in accordance with LR 7.1(a), Plaintiffs submit the accompanying Memorandum of Law asserting that: there is a substantial likelihood that the challenged policy will be found to violate the Plaintiffs’ fundamental right to marry; absent injunctive relief, Plaintiffs will be irreparably harmed by the continued enforcement of the unconstitutional policy; and that the other equitable factors weigh in favor of issuing the preliminary injunction.

Case: 0:15-cv-00044-DLB Doc #: 2 Filed: 07/02/15 Page: 2 of 3 - Page ID#: 35
Respectfully submitted,
s/ William E. Sharp William E. Sharp Legal Director ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 (502) 581-9746 sharp@aclu-ky.org
- and -
Dan Canon Laura E. Landenwich Joe Dunman Clay Daniel Walton & Adams PLC 462 South Fourth Street Suite 101 Louisville, KY 40202 (502) 561-2005 dan@justiceky.com laura@justiceky.com joe@justiceky.com ACLU OF KENTUCKY Cooperating Attorneys
Counsel for Plaintiffs; on behalf of themselves and all others similarly situated

Case: 0:15-cv-00044-DLB Doc #: 2 Filed: 07/02/15 Page: 3 of 3 - Page ID#: 36
CERTIFICATE OF SERVICE
I certify that I sent this motion and accompanying memorandum via Certified Mail, postage prepaid, along with the Complaint and Summons to the following:
Kim Davis, Rowan County Clerk 600 West Main Street Room 102 Morehead, KY 40351 Walter Blevins, Rowan County Judge Exec. 600 West Main Street Morehead, KY 40351
s/ William E. Sharp Counsel for Plaintiffs

Case: 0:15-cv-00044-DLB Doc #: 2-1 Filed: 07/02/15 Page: 1 of 11 - Page ID#: 37

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT ASHLAND

APRIL MILLER, KAREN ANN ROBERTS, SHANTEL BURKE, STEPHEN NAPIER, JODY FERNANDEZ, KEVIN HOLLOWAY, L. AARON SKAGGS, and BARRY W. SPARTMAN,
AND
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,
v.
KIM DAVIS, both individually and in her official capacity as Rowan County Clerk, and ROWAN COUNTY, KENTUCKY,
Defendants.

Case No. ________________

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION The Named Plaintiffs seek a preliminary injunction barring Kim Davis, in her official capacity, from denying marriage licenses to them as a matter of policy. The challenged policy, as applied, directly and substantially burdens Plaintiffs’ fundamental right to marriage under the Fourteenth Amendment and causes irreparable harm because it completely forecloses them from obtaining a valid marriage license in their county of residence.
STATEMENT OF FACTS The eight Named Plaintiffs comprise four loving and committed couples who reside in Rowan County, Kentucky. Plaintiffs wish to obtain a marriage license in their

1

Case: 0:15-cv-00044-DLB Doc #: 2-1 Filed: 07/02/15 Page: 2 of 11 - Page ID#: 38
county of residence for the purpose of formalizing, through marriage, their respective commitments to each other. [Compl., ¶¶ 4-11; 16-27; 30.] Two of the Plaintiff couples are same-sex couples whose right to marriage was recently affirmed by the United States Supreme Court in the case of Obergefell, et al. v. Hodges, et al., 576 U.S. __ (2015).. [Id. at ¶¶ 16-18; 25-27; 29.] The other Plaintiffs are two different-sex couples whose right to marriage has long been observed. [Id. at ¶¶ 15; 19-24.] As a result of their desire to marry, each of the Plaintiff couples contacted the office of the Rowan County Clerk to apply for a marriage license. [Id. at ¶¶ 16- 24.]
However, on June 29, 2015 — one business day after the Obergefell decision and before the Plaintiffs requested a marriage license — Defendant Davis adopted an official policy of refusing to issue any marriage licenses. [Id. at ¶ 15.] In an official statement to the media, Defendant Davis claimed that her “deep religious convictions” prevented her from issuing marriage licenses to same-sex couples. [Id. at ¶ 15; Compl. Exh. 2.] So, according to Defendant Davis, she adopted the policy of refusing to issue any marriage licenses so that she would not have to issue marriage licenses to same-sex couples but not discriminate against them. [Id.; Compl. Exh. 1, at 2.] Defendant Davis also stated, “Marriage is ordained by God to be a man and a woman.” [Id.]
As a direct result of the challenged policy, each of the Plaintiff couples, despite being otherwise eligible to marry, were denied a marriage license by the Rowan County Clerk’s office. [Id. at ¶¶ 17-18; 20-21; 23-24; 26-27.]
2

Case: 0:15-cv-00044-DLB Doc #: 2-1 Filed: 07/02/15 Page: 3 of 11 - Page ID#: 39
ARGUMENT THIS COURT SHOULD ISSUE A PRELIMINARY INJUNCTION TO PREVENT ABRIDGEMENT OF PLAINTIFFS’ FUNDAMENTAL RIGHTS OF MARRIAGE.
In evaluating requests to issue preliminary injunctive relief under Fed.R.Civ.P. 65(a), “district court[s] must consider: (1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff may suffer irreparable harm absent the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of an injunction upon the public interest.” Abney v. Amgen, Inc., 443 F.3d 540, 546 (6th Cir. 2006) (internal quotations omitted) (quoting Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nasvhille & Davidson Co., 274 F.3d 377, 400 (6th Cir. 2001) cert. denied, 535 U.S. 1073 (2002)). These considerations “are factors to be balanced, not prerequisites that must be met.” Jones v. City of Monroe, MI, 341 F.3d 474, 476 (6th Cir. 2003) (citing In re Delorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985)).
Here, Plaintiffs satisfy all of the criteria for the issuance of a preliminary injunction: 1) they can establish a substantial likelihood of success on the merits; 2) an injunction is necessary to prevent immediate, ongoing and irreparable harm; 3) the issuance of an injunction will not harm the Defendant or others; and 4) the public interest strongly favors issuance of an injunction in this case because “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G&V Lounge, Inc. v. Michigan Liquor Control Com’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979)); Planned Parenthood Association v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987)).
3

Case: 0:15-cv-00044-DLB Doc #: 2-1 Filed: 07/02/15 Page: 4 of 11 - Page ID#: 40
A. PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS OF THEIR FOURTEENTH AMENDMENT CLAIMS. In their Complaint, Plaintiffs assert as-applied claims alleging an immediate and
ongoing violation of their right to marry. [Compl., ¶¶ 32-33; 43; 46.] “It is well established that the right to marry is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Wright v. MetroHealth Medical Center, 58 F.3d 1130, 1134 (6th Cir. 1995) (citations omitted). And the Supreme Court “has long held the right to marry is protected by the Constitution.” Obergefell, 572 U.S. at *11. For the reasons that follow, Plaintiffs have a substantial likelihood of prevailing on the merits of their as-applied claims under the Fourteenth Amendment either because the challenged policy is a direct and substantial burden on their fundamental right that is unsupported by a sufficiently important governmental interest, or because it is not rationally related to any legitimate governmental interest.
In examining whether (or not) a challenged government action violates an individual’s substantive Due Process, the first step is to determine whether the right at issue is a “fundamental” right, i.e., one that is either “deeply rooted in this Nation’s history and tradition, or implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.” Does v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007) (internal quotations and citations omitted). As noted above, there can be no reasonable dispute that the right asserted in this case — Plaintiffs’ right to marry — is a “fundamental” right under the Fourteenth Amendment. Obergfell, et al. v. Hodges, et al., 576 U.S. __ (2015). “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness.” Loving, 388 U.S. at 12;
4

Case: 0:15-cv-00044-DLB Doc #: 2-1 Filed: 07/02/15 Page: 5 of 11 - Page ID#: 41
Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
Because the policy of refusing to issue marriage licenses implicates Plaintiffs’ fundamental right to marry, the next analytical step is to determine whether the burden it places on that right is “direct and substantial.” Montgomery, 101 F.3d at 1124. If so, then it is constitutionally valid only if it is supported by “sufficiently important state interests and is closely tailored to effectuate only those interests.” Id. (quoting Zablocki, 434 U.S. at 388). If it is not a direct and substantial burden, then it is subject to mere rational basis review because “not every state action which relates in any way to the incidents of or the prerequisites for marriage must be subjected to rigorous scrutiny.” Wright, 58 F.3d at 1134.
Here, the challenged policy is a “direct and substantial interference” with the right to marry because it completely bars Plaintiffs (and all those who are similarly situated) from obtaining a marriage license in Rowan County. As the Sixth Circuit has held, a government-imposed burden upon the right to marry will be “direct and substantial” where “a large portion of those affected by the rule are absolutely or largely prevented from marrying, or where those affected by the rule are absolutely or largely prevented from marrying a large portion of the otherwise eligible population of spouses.” Vaughn v. Lawrenceburg Power System, 269 F.3d 703, 710 (6th Cir. 2001) (emphasis added). And there can be no genuine dispute that the in-person requirement, as-applied, satisfies this standard because a valid marriage license is a prerequisite for marriage in Kentucky. KRS 402.080.
5

Case: 0:15-cv-00044-DLB Doc #: 2-1 Filed: 07/02/15 Page: 6 of 11 - Page ID#: 42

Defendant, however, will likely argue that the policy does not rise to the level of a direct and substantial burden because Plaintiffs may obtain marriage licenses so long as they are willing to travel to another Kentucky county to do so. While it is true that Plaintiffs may obtain marriage licenses outside Rowan County, that fact does not undermine the conclusion that the challenged policy is nonetheless a direct and substantial burden upon their right to marry. Traveling to a county other than one’s county of residence is not a legal prerequisite for obtaining a marriage license in Kentucky, but it is for those who, like Plaintiffs, live in Rowan County unless the challenged policy is enjoined.1
Here, because the challenged policy, as-applied, “absolutely” prevents Plaintiffs from obtaining a valid marriage license in their county of residence, it constitutes a direct and substantial interference with their fundamental right to marry. Thus, it is subject to heightened scrutiny, i.e., it must be “supported by sufficiently important state interests and [be] closely tailored to effectuate only those interests.” Montgomery, 101 F.3d at 1124 (internal quotations and citation omitted). For the reasons outlined below, the challenged policy satisfies neither prong of this analysis.
No state interests are served by the policy at issue here, legitimate, compelling, or otherwise. It is contrary to the direct admonition of the Governor to comply with the Obergefell decision, and it also denies marriage licenses to different-sex couples. The only identifiable interests articulated by Defendant Davis are that the policy serves her personal religious views, in that the policy enables her to avoid issuing marriage licenses

1

This argument also permits the absurd conclusion that as long as one out of

Kentucky’s one hundred twenty counties issues marriage licenses, the other one hundred

nineteen can freely deny them.

6

Case: 0:15-cv-00044-DLB Doc #: 2-1 Filed: 07/02/15 Page: 7 of 11 - Page ID#: 43
to same-sex couples. But not only is that purported rationale constitutionally inadequate to justify the policy, it also blatantly and unapologetically disregards the rights of others. Moreover, even if there was some conceivable state interest served by the policy of refusing to issue marriage licenses to otherwise qualified applicants (which there is not), a policy that bars all individuals from obtaining a marriage license, such as the one here, cannot be considered closely tailored to achieve any such interest.
Further, Plaintiffs maintain that heightened scrutiny is appropriate in this case. See Montgomery, 101 F.3d at 1124 (direct and substantial interference with fundamental right to marry valid only if supported by “sufficiently important state interests and is closely tailored to effectuate only those interests.”) (internal quotations and citation omitted). However, even if the policy is not subject to heightened scrutiny because it is not a direct and substantial interference with the right to marry, it nonetheless fails rational basis review because it is “an unreasonable means of achieving any legitimate governmental interest.” Wright, 58 F.3d at 1136 (internal quotations and citation omitted). Specifically, the policy, as-applied, completely denies Plaintiffs the right to obtain a marriage license despite the fact that they are otherwise eligible to marry. Because Plaintiffs cannot, under any circumstances short of an injunction, obtain a valid marriage license in their county of residence, the policy has the effect of barring them from marrying. Only by securing a marriage license elsewhere may Plaintiffs marry. When viewed properly, this policy is at least as defective as the prison marriage regulation that failed rational basis review in Turner v. Safley, 482 U.S. 78 (1987).
In Turner, the Supreme Court considered the validity of a prison regulation that barred inmates from marrying absent prior approval from the prison superintendent who
7

Case: 0:15-cv-00044-DLB Doc #: 2-1 Filed: 07/02/15 Page: 8 of 11 - Page ID#: 44
granted such approval only for “compelling reasons.” 482 U.S. at 82. The Court first concluded that prison regulations that burdened inmates’ constitutional rights, including the right to marry, need only satisfy rational basis review, i.e., be reasonably related to legitimate penological interests. Id. at 89. But even under that deferential standard, the Court nonetheless concluded that the prison marriage regulation violated inmates’ right to marry because it represented “an exaggerated response” to the prison’s legitimate security concerns. Id. a 97-98. As in Turner, the governmental regulation here imposes a dramatic, irrational, and unreasonable, restriction on the right of those seeking to marry.
In sum, the challenged policy barring any individual from obtaining a marriage license from the Rowan County Clerk constitutes a direct and substantial interference upon Plaintiffs’ fundamental right to marry that is neither supported by a sufficiently important state interest nor is closely tailored to effectuate any such interest. Moreover, the policy is an unreasonable restriction unrelated to any legitimate state interests in the issuance of marriage licenses. Thus, there is a substantial likelihood that Plaintiffs will prevail on the merits of their Fourteenth Amendment claims seeking prospective injunctive relief. B. AN INJUNCTION IS NECESSARY TO SAVE THE PLAINTIFFS
FROM IRREPARABLE HARM. As explained more fully above, the policy deprives Plaintiffs of their fundamental rights under the Fourteenth Amendment. Both the Supreme Court and the Sixth Circuit have held that the violation of protected freedoms constitute an irreparable injury sufficient to justify the grant of a preliminary injunction. Connection Distributing, 154 F.3d at 288 (citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
8

Case: 0:15-cv-00044-DLB Doc #: 2-1 Filed: 07/02/15 Page: 9 of 11 - Page ID#: 45
irreparably injury”)); Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566, 578 (6th Cir. 2002). Simply put, the violation of an individual’s constitutional rights alone is sufficient to establish irreparable harm.
Moreover, the harm in this case is not merely speculative. The challenged policy is a blanket ban on the issuance of marriage licenses foreclosing Plaintiffs from obtaining a marriage license in Rowan County, their county of residence. Plaintiffs have already sought marriage licenses and were denied. Thus, failure to grant Plaintiffs the preliminary injunctive relief they seek will cause further irreparable harm, in that they will continue to be denied their fundamental right to marry. C. AN INJUNCTION WILL DO NO HARM AND WILL SERVE THE
PUBLIC INTEREST. In contrast to the Plaintiffs’ immediate and irreparable injury, neither Davis nor the public would suffer any injury from the issuance of a preliminary injunction. In fact, there are no governmental interests being served by Defendant’s continued enforcement of the policy. Issuance of the injunction would actually serve the public interest because “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, 23 F.3d at 1079; Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (public “as a whole” has interest in protecting constitutional liberties).
CONCLUSION Plaintiffs’ request for preliminary injunctive relief should be granted because there is a substantial likelihood that they will prevail on the merits of their claims. The policy at issue: 1) constitutes a direct and substantial interference with their fundamental rights of marriage that is not closely tailored to promote a sufficiently important state
9

Case: 0:15-cv-00044-DLB Doc #: 2-1 Filed: 07/02/15 Page: 10 of 11 - Page ID#: 46
interest; and 2) is an unreasonable restriction on the right to marry that is not rationally related to any legitimate government interest. Thus, Plaintiffs’ Motion for a Preliminary Injunction should be granted.
Respectfully submitted, s/ William E. Sharp William E. Sharp Legal Director ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 (502) 581-9746 sharp@aclu-ky.org - and Dan Canon Laura E. Landenwich Joe Dunman Clay Daniel Walton & Adams PLC 462 South Fourth Street Suite 101 Louisville, KY 40202 (502) 561-2005 dan@justiceky.com laura@justiceky.com joe@justiceky.com ACLU OF KENTUCKY Cooperating Attorneys Counsel for Plaintiffs; on behalf of themselves and all others similarly situated
10

Case: 0:15-cv-00044-DLB Doc #: 2-1 Filed: 07/02/15 Page: 11 of 11 - Page ID#: 47
CERTIFICATE OF SERVICE I certify that I sent this motion and accompanying memorandum via Certified Mail, postage prepaid, along with the Complaint and Summons to the following: Kim Davis, Rowan County Clerk 600 West Main Street Room 102 Morehead, KY 40351 Walter Blevins, Rowan County Judge Exec. 600 West Main Street Morehead, KY 40351
s/ William E. Sharp Counsel for Plaintiffs
11

Case: 0:15-cv-00044-DLB Doc #: 2-2 Filed: 07/02/15 Page: 1 of 1 - Page ID#: 48

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT ASHLAND

APRIL MILLER, KAREN ANN ROBERTS, SHANTEL BURKE, STEPHEN NAPIER, JODY FERNANDEZ, KEVIN HOLLOWAY, L. AARON SKAGGS, and BARRY W. SPARTMAN,
AND
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,
v.
KIM DAVIS, both individually and in her official capacity as Rowan County Clerk, and ROWAN COUNTY, KENTUCKY,
Defendants.

Case No. ________________

ORDER The Court having considered the arguments of counsel, and being otherwise sufficiently advised, IT IS HEREBY ORDERED that the Named Plaintiffs’ Motion for a Preliminary Injunction is GRANTED. Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby preliminarily enjoined from enforcing the policy of refusing to issue marriage licenses to any future marriage license applications submitted by the Named Plaintiffs.

Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Eastern District of Kentucky; United States District Court for the Eastern District of Kentucky
Civil Rights - Other[440]
0:15-cv-00044

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 17

 
 Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket

Part Description 1 3 pages 2 Memorandum in Support 3 Proposed Order

Multiple Documents

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 1

Case: 0:15-cv-00044-DLB Doc #: 31 Filed: 08/02/15 Page: 1 of 3 - Page ID#: 648

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT ASHLAND

APRIL MILLER, KAREN ANN ROBERTS, SHANTEL BURKE, STEPHEN NAPIER, JODY FERNANDEZ, KEVIN HOLLOWAY, L. AARON SKAGGS, and BARRY W. SPARTMAN,
AND
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,
v.
KIM DAVIS, both individually and in her official capacity as Rowan County Clerk, and ROWAN COUNTY, KENTUCKY,
Defendants.

Case No. 0:15cv00044-DLB Electronically filed

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
PURSUANT TO FED. R. CIV. P. 23 Plaintiffs move the Court, pursuant to Fed. R. Civ. P. 23, to certify the abovestyled case as a class action. Specifically, the Plaintiffs seek class certification of the group of potential plaintiffs that is comprised of all present and future individuals who, though legally eligible to marry in Kentucky, will be denied a marriage license pursuant to the Defendants’ policy of refusing to issue marriage licenses. The Plaintiffs have detailed the reasons supporting class certification in their accompanying Memorandum of Law in Support of Motion for Class Certification.

1

Case: 0:15-cv-00044-DLB Doc #: 31 Filed: 08/02/15 Page: 2 of 3 - Page ID#: 649
Respectfully submitted, s/ William E. Sharp William E. Sharp Legal Director ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 (502) 581-9746 sharp@aclu-ky.org - and Dan Canon Laura E. Landenwich Clay Daniel Walton & Adams PLC 462 South Fourth Street Suite 101 Louisville, KY 40202 (502) 561-2005 dan@justiceky.com laura@justiceky.com ACLU OF KENTUCKY Cooperating Attorneys Counsel for Plaintiffs; on behalf of themselves and all others similarly situated
2

Case: 0:15-cv-00044-DLB Doc #: 31 Filed: 08/02/15 Page: 3 of 3 - Page ID#: 650
CERTIFICATE OF SERVICE I certify that on August 2, 2015, I filed this motion and accompanying memorandum with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to the following:
Jeffrey C. Mando Claire E. Parsons Cecil Watkins jmando@aswdlaw.com cparsons@aswdlaw.com cwatkins@prosecutors.ky.gov Counsel for Rowan County
Anthony C. Donahue Roger Gannam Jonathan Christman acdonahue@donahuelawgroup.com rgannam@lc.org jchristman@lc.org Counsel for Kim Davis
s/ William E. Sharp Counsel for Plaintiffs
3

Case: 0:15-cv-00044-DLB Doc #: 31-1 Filed: 08/02/15 Page: 1 of 11 - Page ID#: 651

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT ASHLAND

APRIL MILLER, KAREN ANN ROBERTS, SHANTEL BURKE, STEPHEN NAPIER, JODY FERNANDEZ, KEVIN HOLLOWAY, L. AARON SKAGGS, and BARRY W. SPARTMAN,
AND
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,
v.
KIM DAVIS, both individually and in her official capacity as Rowan County Clerk, and ROWAN COUNTY, KENTUCKY,
Defendants.

Case No. 0:15cv00044-DLB Electronically filed

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION PURSUANT TO FED. R. CIV. P. 23 INTRODUCTION
This is an action under 42 U.S.C. § 1983 challenging the unlawful municipal policy adopted by Defendant Kim Davis, Rowan County Clerk, refusing to issue marriage licenses to individuals otherwise lawfully eligible to marry. The Named Plaintiffs – a group that includes both same-sex and opposite-sex couples who were denied marriage licenses by Davis and her agents – allege that the challenged policy violates the Due Process Clause of the Fourteenth Amendment as well as the First Amendment’s Establishment Clause, in that the policy is a direct and substantial burden

1

Case: 0:15-cv-00044-DLB Doc #: 31-1 Filed: 08/02/15 Page: 2 of 11 - Page ID#: 652

upon individuals’ fundamental right to marry and was adopted for the primary or principal purpose of promoting religious belief.
The proposed class includes “all present and future individuals who, though legally eligible to marry in Kentucky, will be denied a marriage license pursuant to the Defendants’ policy.” [Compl., ¶ 38.] The Plaintiffs seek the following class-wide relief: (1) a declaration that the County Clerk’s announced policy of refusing to issue marriage licenses violates federal law and is facially invalid; and (2) injunctive relief to bar Defendant Davis, in her official capacity, from refusing to issue marriage licenses to applicants who are otherwise eligible to marry in Kentucky.1 [Id. at ¶ 41.]
The issue before the court on a motion for class certification is “whether plaintiff is asserting a claim, which, assuming its merit, will satisfy the requirements of Rule 23.” Little Ceasar Enter., Inc. v. Smith, 172 F.R.D. 236, 241 (E.D. Mich. 1997) (citation omitted). In reviewing requests for class certification, the district court does not evaluate the merits of the plaintiffs’ claims, Beattie v. CenturyTel, Inc., 511 F.3d 554, 560 (6th Cir. 2007) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974); Daffin v. Ford Motor Co., 458 F.3d 549, 553 (6th Cir. 2006)), but must conduct a “rigorous analysis [to confirm] that the prerequisites of Rule 23(a) have been satisfied.” Bacon v. Honda of America Manufacturing, Inc., 370 F.3d 565, 570-71 (6th Cir. 2004) (quoting Gen. Tel. Co. v. Falcon, 457 U.S. 147 (1982)).

1

The Plaintiffs also seek: “expenses, costs and reasonable attorneys’ fees” and

“other equitable and monetary relief as the Court deems just and proper” that would be

applicable to the class. [Compl., at 14.] Plaintiffs’ claims for damages (compensatory

against the County and comepensatory and punitive against Kim Davis, in her individual

capacity, are not class-claims. [Id.]

2

Case: 0:15-cv-00044-DLB Doc #: 31-1 Filed: 08/02/15 Page: 3 of 11 - Page ID#: 653
ARGUMENT I. THE CLASS OF POTENTIAL PLAINTIFFS IS SO NUMEROUS THAT
JOINDER OF ALL MEMBERS IS IMPRACTICABLE. Federal Rule of Civil Procedure 23(a)’s first requirement is that the putative class be “so numerous that joinder of all members is impracticable.” Fed .R. Civ. P. 23(a)(1). “There is no strict numerical test for determining impracticability of joinder.” In re American Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (citing Senter v. Gen. Motors Corp., 532 F.2d 511, 523 n.24 (6th Cir. 1976)). Rather, “[t]he numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330 (1980). However, the “sheer number of potential litigants in a class, especially if it is more than several hundred, can be the only factor needed to satisfy Rule 23(a)(1).” Bacon, 370 F.3d at 570 (citing 1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 3:5, at 243-45 (4th ed. 2002)). Here, the potential class members include “all present and future individuals who, though legally eligible to marry in Kentucky, will be denied a marriage license pursuant to the Defendants’ policy.” [Compl. ¶ 38.] Despite being legally responsible for the issuance of marriage licenses in Rowan County, Defendant Davis’ policy completely forecloses any couple, same-sex or opposite-sex, from obtaining a marriage license which, of course, is a prerequisite to marrying. KRS 402.080. There can be no dispute, therefore, that the Named Plaintiffs as well as the class members will be “subjected to and affected by” the challenged policy in at least one or more of the following ways: (1) all couples who wish to apply or which have applied since the institution of this policy, whether same-sex or opposite-sex, will be denied the right to seek and receive a marriage
3

Case: 0:15-cv-00044-DLB Doc #: 31-1 Filed: 08/02/15 Page: 4 of 11 - Page ID#: 654
license in Rowan County; (2) all couples who wish to apply or which have applied since the institution of this policy, whether same-sex or opposite-sex, will be injured by the retaliatory decision to cease issuing marriage licenses that serves no legitimate state interest but was adopted, instead, exclusively to promote the County Clerk’s personal religious beliefs in violation of federal law. Thus, the Defendants’ policy to cease issuing marriage licenses affects all current and future marriage license applicants who are otherwise eligible to marry and who intend to seek a marriage license from the Rowan County Clerk.
Rule 23(a)(1)’s numerosity requirement is also satisfied with respect to those future applicants who will be affected by the challenged policy. See Bethesda Lutheran Homes and Services, Inc. v. Leean, 165 F.R.D. 87, 88-89 (W.D. Wis. 1996) (“While potential future members of a class may be considered in the numerosity analysis, this is only true to the extent that the Court can reasonably approximate their number”) (citing Valentino v. Howlett, 528 F.2d 975, 978-79 (7th Cir. 1976); Dudo v. Schaffer, 82 F.R.D. 695, 699 (E.D. Pa. 1979)). Here, the Court can reasonably approximate the number of individuals that will be affected by the challenged policy, in that the Rowan County Clerk’s office, in recent years, issued approximately two hundred marriage licenses annually. In 2014, for example, Defendant Davis testified that the Rowan County Clerk’s Office issued two hundred and twelve (212) marriage licenses. [RE #29-2: July 20 Hrg. Tr., 26-27.] And, in the first half of 2015, her office issued ninety-nine (99) marriage licenses prior to the adoption of the challenged policy on June 27th. [Id.] Of course, following the Supreme Court decision in Obergefell v. Hodges, the total number of expected marriages per year is likely to increase as same-sex couples begin to exercise
4

Case: 0:15-cv-00044-DLB Doc #: 31-1 Filed: 08/02/15 Page: 5 of 11 - Page ID#: 655
this right. Thus, based largely on available numbers regarding issue of opposite-sex marriage licenses, each year that the Rowan County Clerk continues to implement the new marriage license policy at least two hundred (200) couples, or four hundred (400) individuals, will be affected.
The named Plaintiffs have sufficiently identified the future class members with quantifiable data rather than mere speculation and established the linkage between the future class members and the constitutional harm at issue in this case. See Golden v. City of Columbus, 404 F.3d 950, 966 (6th Cir. 2005) (Plaintiff’s “bare speculation” regarding class numerosity is insufficient, plaintiff must offer information linking the putative class members to the “gravamen” of the plaintiff’s claim for liability). Because the present and future class members’ size renders joinder impracticable, Rule 23(a)(1)’s numerosity requirement is satisfied. II. THERE ARE QUESTIONS OF LAW AND FACT COMMON TO THE
CLASS. Fed. R. Civ. P. 23(a)(2) requires that the class have common “questions of law or fact.” Despite Rule 23(a)(2)’s reference to common questions of law or fact “in the plural, there need only be one question common to the class – though that question must be a ‘common issue the resolution of which will advance the litigation.’” Alkire v. Irving, 330 F.3d 802 , 820 (6th Cir. 2003) (quoting Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998)); Powers v. Hamilton County Public Defender Com’n, 501 F.3d 592, 619 (6th Cir. 2007) (“The commonality requirement is satisfied if there is a single factual or legal question common to the entire class”). “A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). Factual variations in the claims of individual
5

Case: 0:15-cv-00044-DLB Doc #: 31-1 Filed: 08/02/15 Page: 6 of 11 - Page ID#: 656
class members will not preclude a finding of commonality. Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th Cir. 1980).
Here, there are common questions of law and fact that apply to the entire class because the Rowan County Clerk has applied, or will apply, the policy to all class members. Specifically, the past implementation of the policy to suspend the issuance of all marriage licenses, combined with Defendant Davis’ stated commitment to the policy going forward, involve common factual issues regarding the Defendant’s knowledge of, and compliance with, clearly established federal and state law. And common factual questions also involve Davis’ adoption of, and purposes for, adopting the challenged policy and identification of the governmental interests, if any, purportedly served by the policy.
Moreover, common questions of law apply equally to the entire class. Specifically, these legal questions include, though are not limited to: (1) whether suspending the issuance of all marriage licenses impermissibly burdens members’ fundamental right to marry under the Fourteenth Amendment; and (2) whether the policy, adopted primarily because of Defendant Davis’ religious opposition to same-sex marriages, violates the Establishment Clause of the First Amendment. Thus, Rule 23(a)(2)’s “commonality” requirement is likewise satisfied. III. THE CLAIMS OF THE REPRESENTATIVE PLAINTIFFS ARE
TYPICAL OF THE CLAIMS OF THE CLASS. Fed. R. Civ. P. 23(a)’s third prerequisite for class certification is that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “To satisfy the typicality requirement, the representative plaintiff’s interests must be aligned with those of the class.” Powers v. Hamilton County
6

Case: 0:15-cv-00044-DLB Doc #: 31-1 Filed: 08/02/15 Page: 7 of 11 - Page ID#: 657
Public Defender Com’n, 501 F.3d 592, 618 (6th Cir. 2007) (citing Sprague v. GMC, 133 F.3d 388, 399 (6th Cir. 1998) (en banc) (citation omitted)). Moreover, “a plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” In re Am. Med. Sys., 75 F.3d 1069, 1082 (6th Cir. 1996).
The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflict of interest. Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir. 1998) (quoting General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157 n.3 (1982)). Here, the named Plaintiffs’ claims are typical of the class claims because they arise as a result of the Rowan County Clerk’s policy suspending the issuance of all marriage licenses. The same event, practice, or course of conduct thus gives rise to both the Plaintiffs’ claims and the claims of all the other class members, and the claims of the named Plaintiffs and the class are based on the same legal theory. Like all members of the proposed class, the named Plaintiffs are and will be affected by the Rowan County Clerk’s marriage license policy. First and most importantly, all of the named Plaintiffs, like each of the putative class members, will encounter a substantial burden to the exercise of their fundamental right to marry. In other words, all those who wish to obtain a marriage license cannot go to the Rowan County Clerk even if they reside in (and pay taxes to) Rowan County.
7

Case: 0:15-cv-00044-DLB Doc #: 31-1 Filed: 08/02/15 Page: 8 of 11 - Page ID#: 658
While Defendant Davis adopted this policy because of her religious opposition to samesex marriage, all couples, both same-sex and opposite-sex, will experience this burden to their fundamental right even though they are otherwise legally entitled to marry. This burden lies at the core of this case. Similarly, the Establishment Clause bars government from taking official action for the primary or predominant purpose to advance religion. Here, the evidence of official purpose animating the challenged policy makes clear that not only is the predominant purpose for the policy to impose Defendant Davis’ particular religious views on those wishing to marry, but that it is the only reason for the policy’s adoption. Nor could there be any legitimate governmental interest in denying marriage licenses to everyone who is otherwise lawfully entitled to marry.
But even if not all class members would object to Davis’ religiously-motivated reason for the challenged policy, they would nonetheless be harmed because they, too, would be unable to obtain a marriage license in Rowan County as result. Thus, class certification is still appropriate because in civil rights actions like this one, the class action analysis depends on the facts giving rise to the claims and the commonality of the legal claims themselves, not the nature of as-yet undetermined future relief or the subjective preferences of the class members. Federal Rule of Civil Procedure 23 asks a court to determine whether “questions of law or fact” are common to the class, and whether “claims or defenses” are shared. Fed. R. Civ. P. 23 (a)(2)-(3). These questions pertain to the factual and legal allegations in the complaint, not the opinions of the class. See Reese v. Miami-Dade County, 209 F.R.D. 231, 233 (S.D.Fla. 2002) (class actions are “not forbidden in every case in which class members disagree”) (citing Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 486 (5th Cir.1982)).
8

Case: 0:15-cv-00044-DLB Doc #: 31-1 Filed: 08/02/15 Page: 9 of 11 - Page ID#: 659
Given the typicality of the Plaintiffs’ claims, it is evident that their interests are aligned with those of the class. See Powers, 501 F.3d at 618. IV. THE REPRESENTATIVE PARTIES WILL FAIRLY AND ADEQUATELY
PROTECT THE INTERESTS OF THE CLASS. The final prerequisite under Rule 23(a) is that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Class representatives are adequate when it appear[s] that [they] will vigorously prosecute the interests of the class through qualified counsel, which usually will be the case if the representatives are part of the class and possess the same interest and suffer the same injury as the class members.” Int’l Union, United Auto., Aerospace, & Agric. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615, 626 (6th Cir. 2007) (internal quotations and citations omitted). This requirement “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 562 (6th Cir. 2007). Here, Plaintiffs’ attorneys include experienced civil rights litigators who have litigated federal class actions and cases involving the rights of same-sex couples to marry. Counsel are associated with, or employed by, the American Civil Liberties Union of Kentucky, an organization dedicated to the protection and advancement of individual civil rights and civil liberties through advocacy, education, and litigation. The organization is committed to providing the necessary resources to vigorously prosecute this action because of the constitutional harms inflicted upon the Plaintiffs and Plaintiff Class, and because of the significance of the civil liberties issues that are implicated by this case. Also, the Plaintiffs all live and wish to obtain a marriage license in Rowan County and be married, thus they will be subjected to the Rowan County Clerk’s new
9

Case: 0:15-cv-00044-DLB Doc #: 31-1 Filed: 08/02/15 Page: 10 of 11 - Page ID#: 660
marriage license policy again and will suffer similar harms. As such, they are class members who share a common interest with all other class members in being free from unnecessary barriers on exercising their fundamental right of marriage and the nonestablishment of religion. Because the named Plaintiffs: (1) are members of the putative class; (2) possess the same interests as the remaining class members; (3) have or will suffer the same injuries as the class members; and (4) are represented by qualified counsel, Rule 23(a)(4) is satisfied. V. THE REQUIREMENTS OF FED. R. CIV. P. 23(b)(2) ARE SATISFIED
FOR THE PROPOSED CLASS. The final requirement for class certification is the satisfaction of at least one subsection under Rule 23(b). Here, Plaintiffs request class certification under Fed. R. Civ. P. 23(b)(2). That subsection requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(2) “was intended primarily to facilitate civil rights class actions, where the class representatives typically sought broad injunctive or declaratory relief against discriminatory practices.” Penson v. Terminal Transport Co., Inc., 634 F.2d 989, 993 (5th Cir. 1981) (citations omitted). The Plaintiffs allege that the Rowan County Clerk has engaged in, and will continue to engage in, dereliction of public duty that unconstitutionally and unlawfully harms and prevents people from exercising their fundamental right to marry. By creating a policy of suspending the issuance of all marriage licenses, the Rowan County Clerk has acted on grounds that apply generally to the class in a way that, Plaintiffs allege, violates the Due Process Clause of the Fourteenth Amendment as well as the First Amendment’s
10

Case: 0:15-cv-00044-DLB Doc #: 31-1 Filed: 08/02/15 Page: 11 of 11 - Page ID#: 661
Establishment Clause. The Rowan County Clerk’s actions in adopting and implementing
the challenged policy are generally applicable to the entire class and make declaratory
and final injunctive relief appropriate. See DL v. District of Columbia, 237 F.R.D. 319,
324 (D.D.C. 2006) (holding in a suit under the Individuals with Disabilities and
Education Act, “[p]laintiffs’ allegations that [District of Columbia Public Schools]
maintain a continuing practice of failing to fulfill their Child Find duty [under the Act] is
sufficient to satisfy the Rule 23(b)(2) requirement”).
CONCLUSION
For the reasons set forth above, the Plaintiffs’ Motion for Class Certification
should be granted, and Plaintiffs’ counsel should be appointed to represent the certified
class pursuant to Fed. R. Civ. P. 23(g).
Respectfully submitted,
s/ William E. Sharp William E. Sharp Legal Director ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 (502) 581-9746 sharp@aclu-ky.org
Dan Canon Laura E. Landenwich Clay Daniel Walton & Adams PLC 462 South Fourth Street Suite 101 Louisville, KY 40202 (502) 561-2005 dan@justiceky.com laura@justiceky.com ACLU OF KENTUCKY Cooperating Attorneys Counsel for Plaintiffs
11

Case: 0:15-cv-00044-DLB Doc #: 31-2 Filed: 08/02/15 Page: 1 of 1 - Page ID#: 662

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT ASHLAND

APRIL MILLER, KAREN ANN ROBERTS, SHANTEL BURKE, STEPHEN NAPIER, JODY FERNANDEZ, KEVIN HOLLOWAY, L. AARON SKAGGS, and BARRY W. SPARTMAN,
AND
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,
v.
KIM DAVIS, both individually and in her official capacity as Rowan County Clerk, and ROWAN COUNTY, KENTUCKY,
Defendants.

Case No. 0:15cv00044-DLB Electronically filed

ORDER Motion having been made, and the Court being sufficiently advised, IT IS HEREBY ORDERED that the Plaintiffs’ Motion for Class Certification Pursuant to Fed.R.Civ.P. 23(b)(2) is hereby GRANTED. IT IS FURTHER ORDERED that counsel for the Plaintiffs shall be appointed to represent the certified class pursuant to Fed. R. Civ. P. 23(g).

Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Eastern District of Kentucky; United States District Court for the Eastern District of Kentucky
Civil Rights - Other[440]
0:15-cv-00044

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 17

 
 Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket
Multiple Documents
Part Description 1 32 pages 2 Exhibit A. Pre-Obergefell KDLA marriage license form (Def. Ex. 2) 3 Exhibit B. 1/23/15 Letter to Senator Robertson from Kim Davis (Def. Ex. 1) 4 Exhibit C. 6/26/15 Letter from Governor Beshear to County Clerks (Def. Ex. 4) 5 Exhibit D. Post-Obergefell KDLA marriage license form (Def. Ex. 3) 6 Exhibit E. 7/8/15 Letter from Kim Davis to Governor Beshear (Def. Ex. 5) 7 Summons Governor Steven L. Beshear 8 Summons State Librarian and Commissioner Wayne Onkst
© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 1

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 1 of 32 - Page ID#: 745

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION

APRIL MILLER, ET AL., Plaintiffs,
v. KIM DAVIS, ET AL.,
Defendants.

: : : CIVIL ACTION : : 0:15-CV-00044-DLB : : DISTRICT JUDGE : DAVID L. BUNNING : :

KIM DAVIS,

:

:

Third-Party Plaintiff,

:

:

v.

:

:

STEVEN L. BESHEAR, in his official

:

capacity as Governor of Kentucky, and

:

WAYNE ONKST, in his official capacity as :

State Librarian and Commissioner,

:

Kentucky Department for Libraries and :

Archives,

:

:

Third-Party Defendants.

:

:

VERIFIED THIRD-PARTY COMPLAINT OF DEFENDANT KIM DAVIS Defendant and Third-Party Plaintiff, KIM DAVIS (“Davis”), for her third-party complaint pursuant to Rule 14, Fed. R. Civ. P., sues Third-Party Defendant STEVEN L. BESHEAR, in his official capacity as Governor of Kentucky (“Governor Beshear”), and ThirdParty Defendant WAYNE ONKST, in his official capacity as State Librarian and Commissioner, Kentucky Department for Libraries and Archives (“Commissioner Onkst”), and alleges:

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 2 of 32 - Page ID#: 746
INTRODUCTION 1. The Commonwealth of Kentucky, acting through Governor Beshear, has deprived Davis of her religious conscience rights guaranteed by the United States and Kentucky Constitutions and laws, by insisting that Davis issue marriage licenses to same-sex couples contrary to her conscience, based on her sincerely held religious beliefs. Because of Governor Beshear’s open declaration that Davis has no such rights, Governor Beshear has exposed Davis to the Plaintiffs’ underlying lawsuit, in which the Plaintiffs claim a constitutional right to a Kentucky marriage license issued specifically by Davis. Governor Beshear is not only liable to Davis for Plaintiffs’ claims, but is also obligated to effect Kentucky marriage licensing policies that uphold Davis’s rights of religious conscience.
JURISDICTION AND VENUE 2. This action arises under Article VI and the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, Sections 1, 3, 5, and 8 of the Constitution of Kentucky, and the Kentucky Religious Freedom Restoration Act, Ky. Rev. Stat. §§ 446.350 (the Kentucky “RFRA”). 3. This Court has subject matter jurisdiction over Davis’s federal law claims pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has subject matter jurisdiction over Davis’s state law claims pursuant 28 U.S.C. § 1367. 4. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202.
PARTIES 5. Davis is the County Clerk for Rowan County, Kentucky. She was elected to the office of County Clerk in November 2014, and officially took office January 1, 2015, for a four-
2

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 3 of 32 - Page ID#: 747
year term. Prior to taking office, Davis was a deputy clerk for her predecessor in office for nearly thirty years.
6. Governor Beshear is the Governor of the Commonwealth of Kentucky. As the highest executive officer of the Commonwealth, Governor Beshear has responsibility for effecting Kentucky marriage law, and has final policymaking authority over the enforcement of Kentucky marriage laws.
7. Commissioner Onkst is the State Librarian and Commissioner of the Kentucky Department for Libraries and Archives. The Kentucky Department for Libraries and Archives (“KDLA”) is an executive branch department of Kentucky government “headed by a commissioner whose title shall be state librarian who shall be appointed by and serve at the pleasure of the Governor.” Ky. Rev. Stat. § 171.130. Commissioner Onkst has responsibility for the design and provision of the official Kentucky marriage license form to be used by all county clerks in the issuance of marriage licenses, and has final policymaking authority over the design of the official Kentucky marriage license form to be used by all county clerks in the issuance of marriage licenses.
GENERAL ALLEGATIONS Administration of Kentucky Marriage Policy before Obergefell 8. The Commonwealth of Kentucky has a body of democratically-enacted law memorializing the millennia-old, natural definition of marriage as the union of one man and one woman. In 1998, the Kentucky legislature codified at Ky. Rev. Stat. § 402.005 the natural definition of marriage, previously entrenched in Kentucky common law, that “‘marriage’ refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon
3

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 4 of 32 - Page ID#: 748
those whose association is founded on the distinction of sex.” In 2004, the Kentucky legislature proposed a constitutional amendment, which was subsequently enacted on the approval of seventy-four percent (74%) of the voters, memorializing that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky” KY. CONST. § 233A.
9. The Commonwealth also has a body of legislation governing the issuance of marriage licenses in Kentucky. Under these Kentucky marriage laws, individuals may obtain a Kentucky marriage license in any of Kentucky’s 120 counties, Ky. Rev. Stat. § 402.080, some of which have multiple branch offices. Thus, in total, there are approximately 137 marriage licensing locations in Kentucky.
10. Pursuant to Kentucky’s marriage licensing scheme, “[e]ach county clerk shall use the form proscribed by the Department for Libraries and Archives when issuing a marriage license” which “shall be uniform throughout this state, and every license blank shall contain the identical words and figures provided in the form.” Ky. Rev. Stat. §§ 402.100, 402.110. County clerks have no local discretion under Kentucky law to alter the composition or requirements of the KDLA-prescribed form.
11. The KDLA form must include both a “marriage license” and a “marriage certificate.” Ky. Rev. Stat. § 402.100. The marriage license section must include an “authorization statement of the county clerk issuing the license” and “[t]he date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license.” Ky. Rev. Stat. § 402.100(1). The marriage certificate section must include “the name of the county clerk under whose authority the license was issued, and the county in which the license was issued” and “[a] signed statement by the county clerk or a deputy county clerk of the county in
4

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 5 of 32 - Page ID#: 749
which the marriage license was issued that the marriage license was recorded.” Ky. Rev. Stat. § 402.100(2), (3). The KDLA-prescribed form specifically uses the word “marriage” at six different places on the form (and one reference to “join[ing] together in the state of matrimony”). (A true and correct copy of a completed, KDLA-prescribed form of marriage license used in Rowan County prior to June 30, 2015, with personal information redacted, is attached hereto as Exhibit A.1)
12. Thus, every marriage license must be issued and signed in the county clerk’s name and by the county clerk’s authority. In other words, no marriage license can be issued by a county clerk without her authorization and without her imprimatur.
13. As an alternative to a marriage license issued by a county clerk, Kentucky marriage law provides for the issuance of a marriage license by a county judge/executive, the highest elected officer in a county, upon the absence of the clerk or vacancy in the clerk’s office. See Ky. Rev. Stat. § 402.240. This alternative procedure does not require the use of the KDLA marriage license form; rather, it authorizes the county judge/executive to issue a marriage license by “a memorandum thereof,” which is recorded by the clerk in the same manner as a KDLA form. See id.
14. In February 2014, the Western District of Kentucky issued a decision holding Kentucky’s definition of marriage unconstitutional.2 In March 2014, Kentucky Attorney General Jack Conway, whose office had represented Kentucky in the case, tearfully proclaimed that after

1

The document attached as Exhibit A was admitted into evidence at the hearing on

Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) as Defendant’s Exhibit 2 (“Old version of

marriage license from KDLA”). (Ex. and Witness List (Doc. 25).)

2

See Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 2014) (decided February 12,

2014).

5

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 6 of 32 - Page ID#: 750

prayer and consultation with his wife he could not continue defending Kentucky’s marriage laws
as an “inescapable” matter of conscience.3 Conway said,
There are those who believe it’s my mandatory duty, regardless of my personal opinion, to continue to defend this case through the appellate process, and I have heard from many of them. However, I came to the inescapable conclusion that, if I did so, I would be defending discrimination. . . .
That I will not do. . . .
. . . .
. . . . I can only say that I am doing what I think is right. In the final analysis, I had to make a decision that I could be proud of – for me now, and my daughters’ judgment in the future.4
15. Within minutes of Conway’s announcement, Governor Beshear announced the
Commonwealth would hire private attorneys to pursue the appeal of the Western District’s
ruling, and to represent Kentucky in a companion Western District case.5 Governor Beshear
directed no adverse statements or actions towards Conway as a result of Conway’s refusal to
perform official duties due to his conscience, though Conway’s refusal caused additional cost to
the Commonwealth upwards of $200,000.00 for outside counsel. 6

3

Beshear to hire $125-an-hour lawyer for gay marriage appeal after Conway bows out,

Wave3 News, available at http://www.wave3.com/story/24886884/beshear-to-hire-125-an-hour-

lawyer-for-gay-marriage-appeal-after-conway-bows-out (last accessed July 30, 2015) (quoting

Plaintiffs’ Counsel, Dan Canon, that Conway’s conscientious objection to performing his duty to

defend Kentucky’s marriage laws gave him “hope.”).

4

Read and watch Jack Conway’s statement on same-sex marriage, WKYT.com, dated

Mar. 4, 2014, available at http://www.wkyt.com/home/headlines/Read--watch-Attorney-

General-Conways-same-sex-statement-248381361.html (last accessed July 30, 2015) (emphasis

added).

5

See supra, n. 3. The Western District ruled against Kentucky in the second case, see Love

v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. 2014). The Sixth Circuit reversed both district court

decisions in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), which was ultimately reversed by

the Supreme Court in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

6

Ky. Pays $195K+ to defend gay-marriage ban, The Courier-Journal, dated May 20, 2015,

available at http://www.courier-journal.com/story/news/local/2015/05/20/cost-gay-marriage-

defense/27404461/ (last accessed July 30, 2015) (stating that Kentucky paid $195,400 to a

6

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 7 of 32 - Page ID#: 751
Davis’s Sincerely Held Religious Beliefs About Marriage 16. Davis is a professing Christian who is heavily involved in her local church, attending weekly Bible study and worship services there, and who leads a weekly Bible study for women at a local jail. 17. As a Christian, Davis possesses a sincerely held religious belief and conviction, based upon the Bible which she believes to be the Word of God, that “marriage” is exclusively a union between one man and one woman. According to her beliefs, there is no arrangement of people other than one man and one woman that is, or can be called, “marriage.” 18. As county clerk, as a matter of Kentucky law, Davis authorizes, and signifies her authorization and approval by affixing her name to, each and every marriage license issued from her office. But Davis can neither authorize nor approve the “marriage” of a same-sex couple according to her conscience, because even calling the relationship of a same-sex couple “marriage” would violate her deeply and sincerely held religious beliefs. Nor can Davis allow her name to appear as the source of authority and approval for any marriage license issued to a same-sex couple because providing such approval would violate her sincere religious beliefs and convictions. 19. Before taking office as County Clerk in January 2015, Davis swore an oath to support the constitutions and laws of the United States and the Commonwealth of Kentucky “so help me God.” Davis understood (and understands) this oath to mean that, in upholding the federal and state constitutions and laws, she would not act in contradiction to the moral law of God, natural law, or her sincerely held religious beliefs and convictions. Davis also understood (and understands) the constitution and laws she swore to uphold to incorporate the constitutional
private firm through March 31, 2015 to defend Kentucky’s marriage law after Conway refused to do so).
7

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 8 of 32 - Page ID#: 752

and other legal protections of all individuals’ rights to live and work according to their consciences, as informed by their sincerely held religious beliefs and convictions, including without limitation such rights she holds in her own individual capacity.
20. Davis’s sincerely held religious belief regarding the definition of “marriage” was perfectly aligned with the prevailing marriage policy in Kentucky at the time she took office, as provided in the Kentucky Constitution, Kentucky statutes, and controlling court decisions, and as effected by the Commonwealth through Governor Beshear and Commissioner Onkst.
21. On January 16, 2015, just two weeks after Davis took office, the United States Supreme Court announced it would review the then-controlling Sixth Circuit decision upholding Kentucky’s natural definition of marriage.
22. On January 23, Davis wrote Kentucky legislators exhorting them to “get a bill on the floor to help protect clerks” who had a religious objection to issuing marriage licenses to same-sex couples. (A true and correct copy of the form of letter sent to legislators is attached hereto as Exhibit B.7)
23. Davis does not have a religious objection to issuing, signing, or otherwise approving a marriage license for any man and woman who otherwise satisfy all of the legal requirements for marriage under Kentucky law, regardless of the identities, orientations, or practices of the applicants, including sexual identities, orientations, and practices. Furthermore, Davis’s religious beliefs do not compel her to inquire of such applicants as to any aspects of their identities, orientations, or practices beyond the information required to complete the prescribed marriage license form.

7

The document attached as Exhibit B was admitted into evidence at the hearing on

Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) as Defendant’s Exhibit 1 (“Letter to

Senator Robertson from Kim Davis”). (Ex. and Witness List (Doc. 25).)

8

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 9 of 32 - Page ID#: 753

Administration of Kentucky Marriage Policy after Obergefell 24. On June 26, 2015, a five-to-four majority of the United States Supreme Court held that democratically-approved laws from Kentucky and three other states, defining marriage as the union of one man and one woman, were “invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Obergefell v. Hodges, 135 S.Ct. 2584, 2605 (2015). According to the majority, the United States Constitution “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Id. at 2607. 25. The same day, Governor Beshear sent a letter to all “Kentucky County Clerks,” including Davis, informing them that “[e]ffective today, Kentucky will recognize as valid all same sex marriages performed in other states and in Kentucky.” The letter stated that “Kentucky . . . must license and recognize the marriages of same-sex couples,” and further instructed that “[n]ow that same-sex couples are entitled to the issuance of a marriage license, the Department of Libraries and Archives will be sending a gender-neutral form to you today, along with instructions for its use.” (A true and correct copy of Governor Beshear’s letter to county clerks is attached hereto as Exhibit C.8) 26. On Governor Beshear’s instructions, the KDLA provided county clerks with a new marriage license form, reflecting changes from the prior approved form to accommodate same-sex couples.9 Critically, however, the new form retained all references to “marriage,” and all references to the name, signature, and authorization requirements of the county clerk. (A true

8

The document attached as Exhibit C was admitted into evidence at the hearing on

Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) as Defendant’s Exhibit 4 (“6/26/15 Letter

from Governor”). (Ex. and Witness List (Doc. 25).).

9

The post-Obergefell marriage form eliminated references to “bride” and “groom” and

replaced them with “first party” and “second party.

9

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 10 of 32 - Page ID#: 754
and correct copy of the new KDLA marriage license form is attached hereto as Exhibit D.10)
Thus, Davis cannot issue a marriage license to a same-sex couple on the new form without
violating her conscience, as informed by her sincerely held religious beliefs.
27. Following Governor Beshear’s decree, county clerks across the Commonwealth
began issuing same-sex marriage licenses. Governor Beshear reiterated, “government officials in Kentucky . . . must recognize same-sex marriages as valid and allow them to take place,”11 and
confirmed that “[s]ame-sex couples are now being married in Kentucky and such marriages from other states are now being recognized under Kentucky law.”12 In these same pronouncements,
Governor Beshear stated that the “overwhelming majority of county clerks” are “iss[uing]
marriage licenses regardless of gender” and only “two or three” county clerks (of 120) were
“refusing” to issue such licenses due to their “personal beliefs” and “personal feelings.”
28. In subsequent pronouncements, Governor Beshear has maintained that county
clerks must issue marriage licenses, including to same-sex couples, despite any clerk’s “own personal beliefs.”13 According to Governor Beshear, the only options available to county clerks
who oppose issuing marriage licenses to same-sex couples, even due to conscience or sincerely held religious beliefs, are to either issue the licenses in violation of conscience, or resign.14
10 The document attached as Exhibit D was admitted into evidence at the hearing on Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) as Defendant’s Exhibit 3 (“New version of marriage license from KDLA after S.Ct. 6/26/15 decision”). (Ex. and Witness List (Doc. 25).). 11 Press Release, Gov. Beshear Statement on Today’s Meeting with Casey County Clerk, dated July 9, 2015, available at http://migration.kentucky.gov/Newsroom /governor/20150707 statement.htm (last accessed July 29, 2015). 12 Press Release, Gov. Beshear: No special session needed, dated July 7, 2015, available at http://migration.kentucky.gov/Newsroom/governor/20150707statement.htm (last accessed July 29, 2015); 13 Gov. Beshear Tells County Clerks to Fulfill Their Duties or Resign, WMKY.com, dated July 21, 2015, available at http://wmky.org/post/gov-beshear-tells-county-clerks-fullfill-theirduties-or-resign (last accessed July 29. 2015). 14 See supra, n. 13.
10

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 11 of 32 - Page ID#: 755
29. On June 27, 2015, Davis discontinued issuing marriage licenses in Rowan County. This was not a “spur-of-the-moment decision” reached by Davis. Rather, after exhorting legislators to provide conscience protection for county clerks upon taking office, Davis prayed and fasted during the months leading up to Obergefell over how she would respond to such a Supreme Court decision. Though Davis’s religious objection is limited to issuing licenses to same-sex couples, she suspended the issuance of all licenses to ensure that all individuals and couples in Rowan County were treated the same.
30. On July 8, 2015, Davis sent a letter appealing to Governor Beshear to uphold her religious conscience rights, and to call a special session of the Kentucky General Assembly to legislatively address the conflict between her religious beliefs and Kentucky marriage policy as effected by Governor Beshear. (A true and correct copy of the letter is attached hereto as Exhibit E.15) Davis has received no response to her letter.
31. During Davis’s entire tenure in the Rowan County Clerk’s Office, spanning nearly thirty years, neither Davis, any deputy clerk, nor Davis’s predecessor in office ever asserted a religious objection to performing any other function of the clerk’s office.
32. The County Judge/Executive of Rowan County, Walter Blevins (“Judge Blevins”), would raise no religious objection to issuing marriage licenses to same-sex couples under the authority of Ky. Rev. Stat. § 402.240. However, Judge Blevins has refused to issue a marriage license to any of the Plaintiffs in the underlying action against Davis based on his belief that Davis’s discontinuation of the issuance of all marriage licenses in Rowan County does not
15 The document attached as Exhibit E was admitted into evidence at the hearing on Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) as Defendant’s Exhibit 5 (“7/8/15 Letter from Kim Davis to Governor”). (Ex. and Witness List (Doc. 25).).
11

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 12 of 32 - Page ID#: 756
count as the “absence” of Davis for purposes of the issuance of marriage licenses under Ky. Rev. Stat. § 402.40.
Effect of Governor Beshear’s Administration of Kentucky Marriage Policy and the Need for Immediate Relief
33. Governor Beshear took it upon himself after Obergefell to set and announce new Kentucky marriage license policies, and command county clerks to abide by such policies.
34. Governor Beshear’s policies and directives are specifically targeting clerks like Davis who possess certain religious beliefs about marriage. This targeting is demonstrated by the exemption Governor Beshear granted to Attorney General Conway when he was unwilling to defend Kentucky’s marriage laws—after “pray[ing] over this decision”—pursuant to Conway’s own personal beliefs and feelings about “doing what I think is right” and “mak[ing] a decision that I could be proud of.” (See supra, n.4.)
35. Governor Beshear is unlawfully picking and choosing the conscience-based exemptions to marriage that he deems acceptable. For instance, when Attorney General Conway refused to defend Kentucky’s marriage laws, Beshear did not admonish Conway that “Neither your oath nor the Supreme Court dictates what you must believe. But as elected officials, they do prescribe how we must act,” but Governor Beshear did so direct county clerks like Davis. (Ex. C.) Beshear did not command Conway that “when you accepted this job and took that oath, it puts you on a different level,” and “[y]ou have official duties now that the state law puts on you,” but he did deliver this command to county clerks like Davis. (See supra, n.13.) Beshear did not publicly proclaim that Conway was “refusing to perform [his] duties” and failing to “follow[] the law and carry[] out [his] duty,” and should instead “comply with the law regardless of [his] personal beliefs,” but he did make this proclamation (repeatedly) about county clerks like Davis (See supra, nn. 11, 12.) Beshear did not instruct Conway that “if you are at that point to where
12

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 13 of 32 - Page ID#: 757
your personal convictions tell you that you simply cannot fulfill your duties that you were elected to do, than obviously the honorable course to take is to resign and let someone else stepin who feels that they can fulfill these duties,” but he did issue this instruction to county clerks like Davis. (See supra, n.13.) Beshear did not ominously declare that “[t]he courts will deal appropriately with” Conway, but he did so declare as to the “two or three” county clerks who are not issuing marriage licenses. (See supra, n.12.)
36. In no uncertain terms, Governor Beshear’s policies and directives are intended to suppress religion—even worse, a particular religious belief. Thus, although Attorney General Conway was given a pass for his conscience about marriage without any threats of repercussion, clerks like Davis are being repeatedly told by their Governor to abandon their religiouslyinformed beliefs or resign. In doing so, Governor Beshear is forcing clerks like Davis to choose between following the precepts of her religion and forfeiting her position, on the one hand, and abandoning one of the precepts of her religion in order to keep her position, on the other hand.
37. Citing Governor Beshear’s policies and directives to all county clerks to issue licenses to same-sex couples irrespective of their sincerely held religious beliefs, the Plaintiffs in the underlying action allege that they are entitled to Kentucky marriage licenses issued specifically by Davis, and claim that Davis’s refusal to issue marriage licenses violates their constitutional rights.
38. Governor Beshear’s targeted and discriminatory marriage policy pronouncements constitute government-imposed pressure on Davis to act contrary to her religious beliefs, and expose Davis to potential liability if she refuses to compromise her religious beliefs and violate her conscience.
13

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 14 of 32 - Page ID#: 758
39. Davis needs immediate relief from Governor Beshear’s unlawful policies before this Court can properly adjudicate the Plaintiffs’ claims against Davis in the underlying action.
40. At all relevant times, Governor Beshear and Commissioner Onkst acted under color of state law.
41. All conditions precedent to the commencement and maintenance of this action have been satisfied, have occurred, or have been waived.
COUNT I Third-Party Liability 42. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 43. Plaintiffs’ claims against Davis in the underlying action are based on Governor Beshear’s unlawful policies and directives to Davis with respect to issuing Kentucky marriage licenses, including without limitation the failure of Governor Beshear to uphold and protect Davis’s rights of religious conscience. 44. Governor Beshear is liable to Davis for all of any relief obtained by Plaintiffs against Davis in the underlying action. 45. If the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the religious conscience rights of Davis. WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
14

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 15 of 32 - Page ID#: 759
COUNT II Violation of Kentucky RFRA
Third-Party Liability 46. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 47. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 48. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, create government-imposed coercive pressure on Davis to change or violate her religious beliefs. 49. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, chill Davis’s religious exercise. 50. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, expose Davis to liability to Plaintiffs and others. 51. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, impose a substantial burden on Davis’s religious exercise. 52. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, further no compelling government interest. 53. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not narrowly tailored to any compelling government interest. 54. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not the least restrictive means of furthering any interest of Kentucky. 55. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by the Kentucky RFRA.
15

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 16 of 32 - Page ID#: 760
56. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by the Kentucky RFRA.
57. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Substantial Burden Third-Party Liability 58. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 59. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 60. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not neutral. 61. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not generally applicable. 62. Governor Beshear has targeted and singled out Davis for discriminatory treatment under Kentucky’s marriage policies, in order to suppress the religious exercise of Davis and others.
16

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 17 of 32 - Page ID#: 761
63. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, create government-imposed coercive pressure on Davis to change or violate her religious beliefs.
64. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, chill Davis’s religious exercise.
65. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, expose Davis to liability to Plaintiffs and others.
66. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, impose a substantial burden on Davis’s religious exercise.
67. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, further no compelling government interest.
68. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not narrowly tailored to any compelling government interest.
69. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not the least restrictive means of furthering any interest of Kentucky.
70. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by the Free Exercise Clause of the First Amendment to the United States Constitution and the Fourteenth Amendment to the United States Constitution.
71. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by the Free Exercise Clause of
17

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 18 of 32 - Page ID#: 762
the First Amendment to the United States Constitution and the Fourteenth Amendment to the United States Constitution.
72. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination
Third-Party Liability 73. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 74. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 75. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, make it impossible for Davis to comply with both her religious beliefs and Kentucky’s marriage policies. 76. Governor Beshear has targeted and singled out Davis for discriminatory treatment under Kentucky’s marriage policies, in order to suppress the religious exercise of Davis and others. 77. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by the Free Exercise Clause of the
18

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 19 of 32 - Page ID#: 763
First Amendment to the United States Constitution and the Fourteenth Amendment to the United States Constitution.
78. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by the Free Exercise Clause of the First Amendment to the United States Constitution and the Fourteenth Amendment to the United States Constitution.
79. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT V Religious Discrimination— Violation of the First and Fourteenth Amendments to the United States Constitution Free Exercise and Establishment Clauses; Due Process and Equal Protection
Third-Party Liability 80. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 81. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 82. By design, Governor Beshear allows some religious and conscientious objections to compliance with Kentucky marriage laws but not others, resulting in discrimination among religious objectors.
19

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 20 of 32 - Page ID#: 764
83. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, vest Governor Beshear with unbridled discretion in deciding whether to allow exemptions from compliance with Kentucky marriage law to some persons.
84. Religious liberty is a fundamental right. 85. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, protect some religious objectors, but not Davis. 86. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution and by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. 87. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution and by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. 88. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed. WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
20

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 21 of 32 - Page ID#: 765
COUNT VI Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech Third-Party Liability 89. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 90. Davis believes and professes that issuing marriage licenses to same-sex couples violates her religious beliefs. 91. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, would compel Davis to cooperate in activities, through the issuance of marriage licenses under her name and approval, that are violations of Davis’s religious beliefs. 92. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, would compel Davis to state her identification, authorization, and approval as “marriage” of same-sex relationships which cannot be “marriage” according to her religious beliefs. 93. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not narrowly tailored to a compelling governmental interest. 94. Kentucky’s actions, as effected by Governor Beshear and Commissioner Onkst, thus violate Davis’s right to be free from compelled speech as secured to her by the First Amendment to the United States Constitution. 95. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by the First Amendment to the United States Constitution.
21

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 22 of 32 - Page ID#: 766
96. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT VII Violation of Article VI of the United States Constitution
Religious Test Third-Party Liability 97. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 98. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 99. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, require persons with religious beliefs like those of Davis to renounce such beliefs as a condition to holding the office of county clerk, and thereby impose a religious test as a qualification to hold the office of county clerk. 100. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by Article VI of the United States Constitution and the Fourteenth Amendment to the United States Constitution. 101. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by Article VI of the United States Constitution and the Fourteenth Amendment to the United States Constitution.
22

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 23 of 32 - Page ID#: 767
102. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT VIII Violation of Sections 1 and 5 of the Kentucky Constitution
Religious Freedom and Rights of Conscience Third-Party Liability
103. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above.
104. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise.
105. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not neutral.
106. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not generally applicable.
107. Governor Beshear has targeted and singled out Davis for discriminatory treatment under Kentucky’s marriage policies, in order to suppress the religious exercise of Davis and others.
108. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, create government-imposed coercive pressure on Davis to change or violate her religious beliefs.
109. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, chill Davis’s religious exercise.
23

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 24 of 32 - Page ID#: 768
110. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, expose Davis to liability to Plaintiffs and others.
111. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, impose a substantial burden on Davis’s religious exercise.
112. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, further no compelling government interest.
113. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not narrowly tailored to any compelling government interest.
114. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not the least restrictive means of furthering any interest of Kentucky.
115. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights of religious freedom and conscience secured to her by Sections 1 and 5 of the Kentucky Constitution.
116. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by Sections 1 and 5 of the Kentucky Constitution.
117. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
24

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 25 of 32 - Page ID#: 769
COUNT IX Violation of Sections 1 and 5 of the Kentucky Constitution
Religious Discrimination Third-Party Liability
118. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above.
119. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise.
120. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, make it impossible for Davis to comply with both her religious beliefs and Kentucky’s marriage policies.
121. Governor Beshear has targeted and singled out Davis for discriminatory treatment under Kentucky’s marriage policies, in order to suppress the religious exercise of Davis and others.
122. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights against religious discrimination secured to her by Sections 1 and 5 of the Kentucky Constitution.
123. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by Sections 1 and 5 of the Kentucky Constitution.
124. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
25

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 26 of 32 - Page ID#: 770
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT X Religious Discrimination— Violation of Sections 1, 3, and 5 of the Kentucky Constitution Religious Preference; Equality
Third-Party Liability 125. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 126. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 127. By design, Governor Beshear allows some religious and conscientious objections to compliance with Kentucky marriage laws but not others, resulting in discrimination among religious objectors. 128. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, vest Governor Beshear with unbridled discretion in deciding whether to allow exemptions from compliance with Kentucky marriage law to some persons. 129. Religious liberty is a fundamental right. 130. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, protect some religious objectors, but not Davis. 131. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights to equality and against religious discrimination and religious preferences secured to her by Sections 1, 3, and 5 of the Kentucky Constitution. 132. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to
26

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 27 of 32 - Page ID#: 771
Plaintiffs which does not violate the rights of Davis secured to her by Sections 1, 3, and 5 of the Kentucky Constitution.
133. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief
COUNT XI Violation of the Sections 1 and 8 of the Kentucky Constitution
Freedom of Speech Compelled Speech Third-Party Liability 134. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 135. Davis believes and professes that issuing marriage licenses to same-sex couples violates her religious beliefs. 136. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, would compel Davis to cooperate in activities, through the issuance of marriage licenses under her name and approval, that are violations of Davis’s religious beliefs. 137. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, would compel Davis to state her identification, authorization, and approval as “marriage” of same-sex relationships which cannot be “marriage” according to her religious beliefs. 138. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not narrowly tailored to a compelling governmental interest.
27

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 28 of 32 - Page ID#: 772
139. Kentucky’s actions, as effected by Governor Beshear and Commissioner Onkst, thus violate Davis’s right to be free from compelled speech as secured to her by Sections 1 and 8 of the Kentucky Constitution.
140. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by Sections 1 and 8 of the Kentucky Constitution.
141. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT XII Violation of Section 5 of the Kentucky Constitution
Religious Test Third-Party Liability 142. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 143. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 144. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, require persons with religious beliefs like those of Davis to renounce such beliefs as a condition to holding the office of county clerk, and thereby impose a religious test as a qualification to hold the office of county clerk.
28

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 29 of 32 - Page ID#: 773
145. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by Section 5 of the Kentucky Constitution.
146. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by Section 5 of the Kentucky Constitution.
147. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
PRAYER FOR RELIEF WHEREFORE, Davis respectfully requests that the Court: a. Declare that Kentucky’s marriage policies, as effected by Governor Beshear and
Commissioner Onkst, violate the Kentucky RFRA; b. Declare that Kentucky’s marriage policies, as effected by Governor Beshear and
Commissioner Onkst, violate the First Amendment and Fourteenth Amendment to the United States Constitution, and Article VI of the United States Constitution; c. Declare that Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Sections 1, 3, 5, and 8 of the Kentucky Constitution;
29

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 30 of 32 - Page ID#: 774
d. Issue a preliminary and permanent injunction prohibiting enforcement of Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, against Davis;
e. Impose against or transfer to Governor Beshear and Commissioner Onkst any relief obtained by Plaintiffs against Davis in the underlying action;
f. Award Davis the costs of this action and reasonable attorney’s fees; and g. Award such other and further relief as the Court deems just and proper.
JURY DEMAND Davis requests a trial by jury on all issues so triable.
Respectfully Submitted, /s/ Roger K. Gannam Roger K. Gannam (Fla. 240450)† rgannam@LC.org court@LC.org Jonathan D. Christman (Pa. 306634)† jchristman@LC.org LIBERTY COUNSEL P.O. BOX 540774 Orlando, FL 32854-0774 (800) 671-1776 Telephone (407) 875-0770 Facsimile †Admitted pro hac vice Attorneys for Defendant and Third-Party Plaintiff, Kim Davis
30

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 31 of 32 - Page ID#: 775 31

Case: 0:15-cv-00044-DLB Doc #: 34 Filed: 08/04/15 Page: 32 of 32 - Page ID#: 776

CERTIFICATE OF SERVICE

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

CM/ECF system, which will effectuate service through the Court’s transmission facilities by

notice of electronic filing to all counsel or parties of record:

Daniel J. Canon L. Joe Dunman Laura E. Landenwich CLAY DANIEL WALTON ADAMS, PLC 462 S. Fourth Street, Suite 101 Louisville, KY 40202 dan@justiceky.com joe@justiceky.com laura@justiceky.com
William Ellis Sharp ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 sharp@aclu-ky.org

Jeffrey C. Mando Claire Parsons ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC 40 West Pike Street Covington, KY 41011 jmando@aswdlaw.com cparsons@aswdlaw.com
Attorneys for Rowan County

Attorneys for Plaintiffs

DATED: August 4, 2015

/s/ Roger K. Gannam Roger K. Gannam Attorney for Defendant Kim Davis

32

Case: 0:15-cv-00044-DLB Doc #: 34-1 Filed: 08/04/15 Page: 1 of 2 - Page ID#: 777

Case: 0:15-cv-00044-DLB Doc #: 34-1 Filed: 08/04/15 Page: 2 of 2 - Page ID#: 778

Case: 0:15-cv-00044-DLB Doc #: 34-2 Filed: 08/04/15 Page: 1 of 2 - Page ID#: 779

Case: 0:15-cv-00044-DLB Doc #: 34-2 Filed: 08/04/15 Page: 2 of 2 - Page ID#: 780

Case: 0:15-cv-00044-DLB Doc #: 34-3 Filed: 08/04/15 Page: 1 of 2 - Page ID#: 781

Case: 0:15-cv-00044-DLB Doc #: 34-3 Filed: 08/04/15 Page: 2 of 2 - Page ID#: 782

Case: 0:15-cv-00044-DLB Doc #: 34-4 Filed: 08/04/15 Page: 1 of 4 - Page ID#: 783

Case: 0:15-cv-00044-DLB Doc #: 34-4 Filed: 08/04/15 Page: 2 of 4 - Page ID#: 784

Case: 0:15-cv-00044-DLB Doc #: 34-4 Filed: 08/04/15 Page: 3 of 4 - Page ID#: 785

Case: 0:15-cv-00044-DLB Doc #: 34-4 Filed: 08/04/15 Page: 4 of 4 - Page ID#: 786

Case: 0:15-cv-00044-DLB Doc #: 34-5 Filed: 08/04/15 Page: 1 of 2 - Page ID#: 787

Case: 0:15-cv-00044-DLB Doc #: 34-5 Filed: 08/04/15 Page: 2 of 2 - Page ID#: 788

Case: 0:15-cv-00044-DLB Doc #: 34-6 Filed: 08/04/15 Page: 1 of 2 - Page ID#: 789

AO 441 (Rev. 07/10) Summons on Third-Party Complaint
UNITED STATES DISTRICT COURT
for the
____E_a_s_te_r_n_DDisistrtricicttooffK_e_n_t_u_c_k_y___

April Miller, et al.
Plaintiff
v.
Kim Davis, et al. Defendant, Third-party plaintiff
v.
Steven L. Beshear, Governor of Kentucky, et al. Third-party defendant

) ) ) Civil Action No. ) ) ) )

SUMMONS ON A THIRD-PARTY COMPLAINT

To: (Third-party defendant’s name and address) Steven L. Beshear, Governor of Kentucky 700 Capitol Avenue, Suite 100
Frankfurt, Kentucky 40601

A lawsuit has been filed against defendant Kim Davis

, who as third-party plaintiff is making

this claim against you to pay part or all of what the defendant may owe to the plaintiff April Miller, et al.

.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff and on the defendant an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the defendant or defendant’s attorney, whose name and address are:
Jonathan D. Christman & Roger K. Gannam, Liberty Counsel, P.O. Box 540774, Orlando, Florida 32854 and A.C. Donahue, Donahue Law Group, P.S.C., P.O. Box 659, Somerset, Kentucky 42502

It must also be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dan Canon, Joe Dunman, & Laura Landenwich, Clay Daniel Walton Adams, PLC, 462 S. Fourth Street, Suite 101, Louisville, Kentucky 40202, and William Sharp, ACLU of Kentucky, 315 Guthrie Street, Suite 300, Louisville, Kentucky 40202
If you fail to respond, judgment by default will be entered against you for the relief demanded in the third-party complaint. You also must file the answer or motion with the court and serve it on any other parties.

A copy of the plaintiff’s complaint is also attached. You may – but are not required to – respond to it.

Date:

08/04/2015

CLERK OF COURT

Signature of Clerk or Deputy Clerk

Case: 0:15-cv-00044-DLB Doc #: 34-6 Filed: 08/04/15 Page: 2 of 2 - Page ID#: 790

AO 441 (Rev. 07/10) Summons on Third-Party Complaint (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any) Steven L. Beshear, Governor of Kentucky

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Add Attachment

Reset

Case: 0:15-cv-00044-DLB Doc #: 34-7 Filed: 08/04/15 Page: 1 of 2 - Page ID#: 791

AO 441 (Rev. 07/10) Summons on Third-Party Complaint
UNITED STATES DISTRICT COURT
for the
____E_a_s_te_r_n_DDisistrtricicttooffK_e_n_t_u_c_k_y___

April Miller, et al.
Plaintiff
v.
Kim Davis, et al. Defendant, Third-party plaintiff
v.
Steven L. Beshear, Governor of Kentucky, et al. Third-party defendant

) ) ) Civil Action No. ) ) ) )

SUMMONS ON A THIRD-PARTY COMPLAINT

To: (Third-party defendant’s name and address) Wayne Onkst, Commissioner of Kentucky Dept. for Libraries and Archives 300 Coffee Tree Road
Frankfurt, Kentucky 40601

A lawsuit has been filed against defendant Kim Davis

, who as third-party plaintiff is making

this claim against you to pay part or all of what the defendant may owe to the plaintiff April Miller, et al.

.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff and on the defendant an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the defendant or defendant’s attorney, whose name and address are:
Jonathan D. Christman & Roger K. Gannam, Liberty Counsel, P.O. Box 540774, Orlando, Florida 32854 and A.C. Donahue, Donahue Law Group, P.S.C., P.O. Box 659, Somerset, Kentucky 42502

It must also be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dan Canon, Joe Dunman, & Laura Landenwich, Clay Daniel Walton Adams, PLC, 462 S. Fourth Street, Suite 101, Louisville, Kentucky 40202, and William Sharp, ACLU of Kentucky, 315 Guthrie Street, Suite 300, Louisville, Kentucky 40202
If you fail to respond, judgment by default will be entered against you for the relief demanded in the third-party complaint. You also must file the answer or motion with the court and serve it on any other parties.

A copy of the plaintiff’s complaint is also attached. You may – but are not required to – respond to it.

Date:

08/04/2015

CLERK OF COURT

Signature of Clerk or Deputy Clerk

Case: 0:15-cv-00044-DLB Doc #: 34-7 Filed: 08/04/15 Page: 2 of 2 - Page ID#: 792

AO 441 (Rev. 07/10) Summons on Third-Party Complaint (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any) Wayne Onkst, Comm'r of KY Dept for Libraries and Archives

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Add Attachment

Reset

Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Eastern District of Kentucky; United States District Court for the Eastern District of Kentucky
Civil Rights - Other[440]
0:15-cv-00044

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 50

 
 Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket
Multiple Documents
Part Description 1 4 pages 2 Memorandum in Support of Defendant/Third-Party Plaintiff Kim Davis' Motion 3 Exhibit A: Verified Third-Party Complaint of Defendant Kim Davis 4 Exhibit B: July 13, 2015 Hearing Transcript 5 Exhibit C: July 20, 2015 Hearing Transcript 6 Exhibit D: Kentucky LRC Reports on Kentucky RFRA 7 Exhibit E: Prefiled Kentucky House Bill for January 2016 general session to prot 8 Proposed Order Granting Defendant/Third-Party Plaintiff Kim Davis' Motion
© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 1

Case: 0:15-cv-00044-DLB Doc #: 39 Filed: 08/07/15 Page: 1 of 4 - Page ID#: 824

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION

APRIL MILLER, ET AL.,
Plaintiffs,
v.
KIM DAVIS, ET AL.,
Defendants.
KIM DAVIS,
Third-Party Plaintiff,
v.
STEVEN L. BESHEAR, in his official capacity as Governor of Kentucky, and WAYNE ONKST, in his official capacity as State Librarian and Commissioner, Kentucky Department for Libraries and Archives,
Third-Party Defendants.

: : : CIVIL ACTION : : 0:15-CV-00044-DLB : : DISTRICT JUDGE : DAVID L. BUNNING : :
HEARING REQUESTED : : : : : : : : : : : : : : :

MOTION FOR PRELIMINARY INJUNCTION Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 7.1, Defendant/Third-Party Plaintiff Kim Davis (“Davis”), by and through her undersigned counsel, hereby moves for an order from this Court entering preliminary injunctive relief against Third-Party Defendants Steven L. Beshear, Governor of Kentucky (“Gov. Beshear”) and Wayne Onkst, Commissioner of the Kentucky Department for Libraries and Archives (“Commissioner Onkst”).

Case: 0:15-cv-00044-DLB Doc #: 39 Filed: 08/07/15 Page: 2 of 4 - Page ID#: 825
As more fully described in Davis’ supporting memorandum of law, which is incorporated by reference here, Davis is entitled to preliminary injunctive relief against Gov. Beshear and Commissioner Onkst. Davis is likely to succeed on the merits of her claims because Gov. Beshear’s mandate directing Davis to authorize and approve all Kentucky marriage licenses, including same-sex “marriage” (“SSM”) licenses, violates her religious liberty and conscience rights protected by the Kentucky Religious Freedom Restoration Act and the Constitutions of the United States and Kentucky. Also, granting the preliminary injunctive relief will prevent irreparable harm to Davis but will not irreversibly harm others, including the Third-Party Defendants here or the Plaintiffs in the underlying action. Finally, it is in the public’s interest to grant the injunction to protect Davis’ religious freedom in the ongoing and fluid public debate regarding religious liberty and SSM, in Kentucky and elsewhere.
Davis also specifically requests that this Court grant an evidentiary hearing on her Motion for Preliminary Injunction.
WHEREFORE, Defendant/Third-Party Plaintiff Kim Davis respectfully requests that this Court enter an order for preliminary injunctive relief against Third-Party Defendants Steven L. Beshear, Governor of Kentucky and Wayne Onkst, Commissioner of the Kentucky Department for Libraries and Archives, in the form of the proposed order attached hereto.
2

Case: 0:15-cv-00044-DLB Doc #: 39 Filed: 08/07/15 Page: 3 of 4 - Page ID#: 826

DATED: August 7, 2015
A.C. Donahue Donahue Law Group, P.S.C. P.O. Box 659 Somerset, Kentucky 42502 Tel: (606) 677-2741 Fax: (606) 678-2977 ACDonahue@DonahueLawGroup.com

Respectfully submitted:
/s/ Jonathan D. Christman Roger K. Gannam Jonathan D. Christman Liberty Counsel P.O. Box 540774 Orlando, Florida 32854 Tel: (800) 671-1776 Fax: (407) 875-0770 rgannam@lc.org jchristman@lc.org
Attorneys for Defendant/Third-Party Plaintiff Kim Davis

3

Case: 0:15-cv-00044-DLB Doc #: 39 Filed: 08/07/15 Page: 4 of 4 - Page ID#: 827

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:

Daniel J. Canon L. Joe Dunman Laura E. Landenwich CLAY DANIEL WALTON ADAMS, PLC 462 S. Fourth Street, Suite 101 Louisville, KY 40202 dan@justiceky.com joe@justiceky.com laura@justiceky.com
William Ellis Sharp ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 sharp@aclu-ky.org

Jeffrey C. Mando Claire Parsons ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC 40 West Pike Street Covington, KY 41011 jmando@aswdlaw.com cparsons@aswdlaw.com
Attorneys for Rowan County

Attorneys for Plaintiffs

I also hereby certify that two (2) true and correct copies of the foregoing will be sent via
Fedex and U.S.P.S. first class mail to the Attorney General of Kentucky on behalf of Third-Party
Defendants Steven L. Beshear, Governor of Kentucky, and Wayne Onkst, Commissioner of the
Kentucky Department for Libraries and Archives, at the following location:
Attorney General Jack Conway OFFICE OF THE ATTORNEY GENERAL
700 Capitol Avenue, Suite 118 Frankfort, KY 40601-3449

DATED: August 7, 2015

/s/ Jonathan D. Christman_______ Jonathan D. Christman Attorney for Defendant/Third-Party Plaintiff Kim Davis

4

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 1 of 49 - Page ID#: 828

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION

APRIL MILLER, ET AL.,
Plaintiffs,
v.
KIM DAVIS, ET AL.,
Defendants.
KIM DAVIS,
Third-Party Plaintiff,
v.
STEVEN L. BESHEAR, in his official capacity as Governor of Kentucky, and WAYNE ONKST, in his official capacity as State Librarian and Commissioner, Kentucky Department for Libraries and Archives,
Third-Party Defendants.

: : : CIVIL ACTION : : 0:15-CV-00044-DLB : : DISTRICT JUDGE : DAVID L. BUNNING : :
HEARING REQUESTED : : : : : : : : : : : : : : :

DEFENDANT/THIRD-PARTY PLAINTIFF KIM DAVIS’ MEMORANDUM OF LAW IN SUPPORT OF HER MOTION FOR PRELIMINARY INJUNCTION

Roger K. Gannam Jonathan D. Christman LIBERTY COUNSEL P.O. Box 540774 Orlando, Florida 32854 Tel: (800) 671-1776 Fax: (407) 875-0770 rgannam@lc.org jchristman@lc.org

A.C. Donahue DONAHUE LAW GROUP, P.S.C. P.O. Box 659 Somerset, Kentucky 42502 Tel: (606) 677-2741 Fax: (606) 678-2977 ACDonahue@DonahueLawGroup.com

Attorneys for Defendant/Third-Party Plaintiff Kim Davis

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 2 of 49 - Page ID#: 829
TABLE OF CONTENTS TABLE OF CONTENTS................................................................................................................. i TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION .......................................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................................... 3
A. Kentucky Marriage Licensing Scheme ............................................................................... 3 B. Gov. Beshear’s SSM Mandate ............................................................................................ 5 C. Davis’ Sincerely Held Religious Beliefs About Marriage.................................................. 7 D. Procedural History ............................................................................................................ 10 STANDARD OF REVIEW .......................................................................................................... 10 ARGUMENT ................................................................................................................................ 11 A. Davis Has A Strong Likelihood Of Succeeding On The Merits........................................11
1. The Mandate Ordering Davis To Authorize SSM Violates The Kentucky Religious Freedom Restoration Act ............................................................................................ 11 a. Davis’ inability to authorize SSM licenses is motivated by her sincerely-held religious beliefs about marriage............................................................................ 13 b. Forcing Davis to authorize SSM licenses substantially burdens her religious freedom ................................................................................................................. 14 c. The SSM Mandate does not survive strict scrutiny .............................................. 17 i. The SSM Mandate furthers no compelling governmental interest in infringing upon Davis’ religious freedom........................................................................ 18 ii. Many less restrictive alternatives are available for furthering Gov. Beshear’s purported interests........................................................................................... 24
2. The Mandate Directing Davis To Authorize SSM Licenses Violates Her Fundamental Rights Of Religious Freedom And Conscience Protected By The United States And Kentucky Constitutions............................................................................................... 28
i

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 3 of 49 - Page ID#: 830 3. The Mandate Commanding Davis To Affix Her Name And Approval To SSM Licenses Violates Her Fundamental Free Speech Rights Protected By The United States And Kentucky Constitutions ............................................................................ 32 4. The Mandate Requiring Davis To Affirm A Definition Of Marriage Contrary To Her Religious Belief Violates The Religious Test Clause................................................. 34
B. Preliminary Relief Protects Davis From Irreparable Harm .............................................. 36 C. Granting Preliminary Relief Will Not Cause Irreversible Harm To Others ..................... 37 D. An Injunction To Protect Davis Is In The Public Interest .................................................40 CONCLUSION............................................................................................................................. 40
ii

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 4 of 49 - Page ID#: 831
TABLE OF AUTHORITIES
Cases
State
Hardin v. Savageau, 906 S.W.2d 356 (Ky. 1995) .....................................................................................................12
Jones v. Hallahan, 501 S.W.2d 588 (Ky. App. 1973) ........................................................................................5, 20
Federal
ACLU v. Mercer County, Ky., 432 F.3d 624 (6th Cir. 2005) ...................................................................................................21
Borough of Duryea, Pa. v. Guarnieri, 131 S.Ct. 2488 (2011) ..............................................................................................................20
Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ. of Boyd County, Ky., 258 F. Supp. 2d 667 (E.D. Ky. 2003) ......................................................................................10
Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014) ...................................................................................................... passim
Cal. Democratic Party v. Jones, 530 U.S. 567 (2000).................................................................................................................18
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)...............................................................................................17, 29, 30, 31
City of Boerne v. Flores, 521 U.S. 507 (1997).................................................................................................................18
Connection Distributing Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) ...................................................................................................36
Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474 (6th Cir. 1995) ...................................................................................................40
DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) ...............................................................................................5, 20
Elrod v. Burns, 427 U.S. 347 (1976).................................................................................................................36
iii

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 5 of 49 - Page ID#: 832
Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).................................................................................................................29
Garcetti v. Ceballos, 547 U.S. 410 (2006).................................................................................................................20
Girouard v. United States, 328 U.S. 61 (1946).................................................................................................22, 34, 35, 36
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)...........................................................................................................18, 19
Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (1987).................................................................................................................21
In re: Backer, 51 Fed. App’x 522 (6th Cir. 2002) ..........................................................................................12
Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005).................................................................................................................32
Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) .................................................................................................36
Lane v. Franks, 134 S.Ct. 2369 (2014) ..............................................................................................................20
Loving v. Virginia, 388 U.S. 1 (1968).....................................................................................................................38
Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372 (6th Cir. 2014), judgment vacated on other grounds, 135 S.Ct. 1914 (2015) ...13
Newsom v. Norris, 888 F.2d 371 (6th Cir. 1989) .............................................................................................36, 37
O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) .................................................................................................40
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ..................................................................................................... passim
Prater v. City of Burnside, Ky., 289 F.3d 417 (6th Cir. 2002) .............................................................................................28, 29
Riley v. Nat’l Federation of Blind of N.C., Inc., 487 U.S. 781 (1988).................................................................................................................32
iv

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 6 of 49 - Page ID#: 833
Sch. Dist. Of Abington, Twp., Pa. v. Schempp, 374 U.S. 203 (1963).................................................................................................................34
Sherbert v. Verner, 374 U.S. 398 (1963).....................................................................................................16, 29, 31
Slater v. Douglas County, 743 F. Supp. 2d 1188 (D. Or. 2010) ........................................................................................21
Stormans, Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. 2012)...............................................................................22
Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998) ...................................................................................................10
Thomas v. Collins, 323 U.S. 516 (1945).................................................................................................................19
Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981)...........................................................................................................13, 14
Torcaso v. Watkins, 367 U.S. 488 (1961).................................................................................................................36
Turner v. Safley, 482 U.S. 78 (1987)...................................................................................................................38
United States v. Edward Rose & Sons, 384 F.3d 258 (6th Cir. 2004) ...................................................................................................37
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000).................................................................................................................18
Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703 (6th Cir. 2001) ...................................................................................................38
Wallace v. Jaffree, 472 U.S. 38 (1985)...................................................................................................................28
West Va. State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)...........................................................................................................32, 33
Wisconsin v. Yoder, 406 U.S. 205 (1972).................................................................................................................29
Wooley v. Maynard, 430 U.S. 705 (1976)...........................................................................................................32, 33
v

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 7 of 49 - Page ID#: 834
Zablocki v. Redhail, 434 U.S. 374 (1978).................................................................................................................38
Zorach v. Clauson, 343 U.S. 306 (1952).................................................................................................................21
Constitutional Provisions State
KY. CONST. Preamble ....................................................................................................................20 KY. CONST. § 1 ..................................................................................................................20, 29, 32 KY. CONST. § 5 ........................................................................................................................20, 29 KY. CONST. § 8 ........................................................................................................................20, 32 KY. CONST. § 26 ............................................................................................................................20 KY. CONST. § 99 ............................................................................................................................34 KY. CONST. § 100 ..........................................................................................................................34 KY. CONST. § 228 ......................................................................................................................8, 21 KY. CONST. § 233A....................................................................................................................5, 20
Federal U.S. CONST. amend. I ............................................................................................................ passim U.S. CONST. art. VI ..................................................................................................................20, 34 Statutes
State Kentucky Religious Freedom Restoration Act, 2013 Kentucky Laws Ch. 111 (HB 279) ............11 KY. REV. STAT. § 150.195 .............................................................................................................25 KY. REV. STAT. § 171.130 ...............................................................................................................3 KY. REV. STAT. § 402.005 .........................................................................................................5, 20 KY. REV. STAT. § 402.080 .........................................................................................................3, 39
vi

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 8 of 49 - Page ID#: 835
KY. REV. STAT. § 402.100 ..................................................................................................... passim KY. REV. STAT. § 402.110 ...................................................................................................3, 14, 28 KY. REV. STAT. § 402.240 .....................................................................................................4, 5, 28 KY. REV. STAT. § 446.010 .............................................................................................................11 KY. REV. STAT. § 446.030 .............................................................................................................11 KY. REV. STAT. § 446.090 .............................................................................................................11 KY. REV. STAT. § 446.140 .............................................................................................................11 KY. REV. STAT. § 446.350 ..................................................................................................... passim N.C. GEN. STAT. § 51-5.5...............................................................................................................25
Federal 8 U.S.C. § 1182(g) .........................................................................................................................22 18 U.S.C. § 3597............................................................................................................................22 42 U.S.C. § 2000bb-1 ..............................................................................................................12, 18 42 U.S.C. § 2000bb-2(4) (1994 ed.) ..............................................................................................12 42 U.S.C. § 2000cc-3(g) ................................................................................................................12 42 U.S.C. § 2000cc-5(7)(A)...........................................................................................................12
vii

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 9 of 49 - Page ID#: 836
Defendant/Third-Party Plaintiff Kim Davis (“Davis”), by and through her undersigned counsel, respectfully submits this Memorandum of Law in Support of her Motion for Preliminary Injunction against Third-Party Defendants Steven L. Beshear, Governor of Kentucky (“Gov. Beshear”) and Wayne Onkst, Commissioner of the Kentucky Department for Libraries and Archives (“Commr. Onkst”). I. INTRODUCTION
Davis, a devout Christian, has faithfully and devotedly served the public in the Rowan County clerk’s office for nearly thirty years. She is one of 120 Kentucky County Clerks, and oversees one of approximately 137 marriage licensing locations spread throughout Kentucky. No marriage license can be issued from her office without her authorization and without her personally affixing thereto her name and endorsement. She has never once raised a religious conscience objection to performing a function in the county clerk’s office, until now.
On June 26, 2015, Gov. Beshear issued a directive (the “SSM Mandate”) ordering all Kentucky County Clerks to issue same sex “marriage” (“SSM”) licenses, without exception. But Davis’ conscience forbids her from approving a SSM license based upon her authority and bearing her imprimatur. She holds a sincerely-held religious belief and conviction that marriage is a union between a man and a woman, only. Thus, in her view, SSM is not, in fact, marriage. If a SSM license is issued with Davis’ name, authorization, and approval, no one can unring that bell. That searing act of validation would forever echo in her conscience. And yet, Gov. Beshear’s SSM Mandate demands that she either fall in line (her conscience be damned) or leave office (her livelihood, qualifications for office, and commitment to public service be damned).
Irrespective of what “five lawyers” opined in Obergefell v. Hodges, 135 S.Ct. 2584, 2612, 2624 (2015) (Roberts, C.J., dissenting) about States’ recognition of SSM—that decision neither
1

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 10 of 49 - Page ID#: 837
overwrote the First Amendment or other critical religious liberty protections for persons nor compelled States to accomplish recognition of SSM by invading and trampling upon the conscience of individual county clerks. Coercing an individual county clerk (Davis) to authorize and personally approve SSM in violation of her fundamental religious liberty and speech rights, especially when that individual took office when Kentucky marriage law perfectly aligned with her deep religious convictions, is wrong. That is especially true here, where there are numerous less restrictive alternatives available by which individuals can obtain SSM licenses, without eradicating Davis from public service or rendering her conscience null and void.
The intolerance of the SSM Mandate is further shown by Gov. Beshear’s stated reason for it—i.e., each county clerk’s “duty” as an elected official. But, just 16 months ago, when another publicly elected official in Kentucky refused to defend the Kentucky Constitution and natural marriage laws based upon that official’s purported conscience, Gov. Beshear issued no similar call to duty to that state-wide official, at great financial cost to the Commonwealth. The United States and Kentucky Constitutions, along with the Kentucky Religious Freedom Restoration Act (which overwhelmingly passed over his veto), prohibit Gov. Beshear from substantially burdening Davis’ religious freedom and discriminating among conscience claims based upon his own predilections.
If Davis’ religious objection cannot be accommodated under the circumstances of this case, then elected officials have no real religious freedom when they take public office. But contrary to Gov. Beshear’s SSM Mandate, such individual rights and freedoms so fundamental to liberty are neither absolutely surrendered at the entry door of public service nor waived upon taking an oath of office. To suggest otherwise creates a religious (or anti-religious) test for holding office – which the United States and Kentucky Constitutions expressly forbid.
2

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 11 of 49 - Page ID#: 838
II. FACTUAL BACKGROUND A. Kentucky Marriage Licensing Scheme. Kentucky has a body of legislation that governs the issuance of marriage licenses. Under
Kentucky marriage law, individuals may obtain a marriage license from the county clerk in any of Kentucky’s 120 counties, irrespective of their county of residence. KY. REV. STAT. § 402.080; see also D.E. 34, Verified Third-Party Complaint (hereinafter, “VTC”) (a copy of which is attached hereto, with its five accompanying exhibits, as Exhibit “A”), at ¶ 9. In fact, because some counties have multiple branch offices, there are a total of approximately 137 marriage licensing locations throughout Kentucky. See VTC, ¶ 9. Pursuant to Kentucky’s marriage licensing scheme, “[e]ach county clerk shall use the form proscribed by the Department for Libraries and Archives [KDLA] when issuing a marriage license.” KY. REV. STAT. § 402.100; see also VTC, ¶ 10. Kentucky marriage law further requires that “[t]he form of marriage licensed prescribed in KRS 402.100 shall be uniform throughout this state.” KY. REV. STAT. § 402.110; see also VTC, ¶ 10. The designer of the mandatory license form (KDLA) is an executive branch department “headed by a commissioner whose title shall be state librarian who shall be appointed by and serve at the pleasure of the Governor.” KY. REV. STAT. § 171.130; see also VTC, ¶ 7. County clerks have no discretion in the composition of this prescribed form. See VTC, at ¶¶ 7, 10; see also Hr’g Tr. (7/20/15), Davis Direct, at 37:17-20, 38:9-17, 39:9-12, 75:18-19; id., Davis Cross, 57:8-23.1
Under Kentucky marriage law, the specific form required by the KDLA “shall consist of” a “marriage license” that includes an “authorization statement of the county clerk issuing the license” and “[t]he date and place the license is issued, and the signature of the county clerk or

1

The July 13, 2015 and July 20, 2015 hearing transcripts, see D.E. 21 and 26, are attached hereto as Exhibits

“B” and “C,” respectively.

3

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 12 of 49 - Page ID#: 839
deputy clerk issuing the license.” KY. REV. STAT. § 402.100(1); see also VTC, ¶ 11. This form “shall” also include a “marriage certificate” that includes “[a] signed statement by the county clerk or a deputy county clerk of the county in which the marriage license was issued that the marriage license was recorded.” KY. REV. STAT. § 402.100(2); see also VTC, ¶ 11. Upon solemnization, the form is to be returned to the county clerk’s office and “shall provide” certain “information as recorded on the license authorizing the marriage,” including the “the name of the county clerk under whose authority the license was issued, and the county in which the license was issued.” KY. REV. STAT. § 402.100(3) (emphasis added); see also VTC, ¶ 11. Thus, any county clerk must include their name and signature four times on any marriage licenses the clerk signs. See VTC, Ex. A, KDLA-Approved Marriage Form Pre-Obergefell, and Ex. D, KDLA-Approved Marriage Form Post-Obergefell. But even on licenses that the county clerk does not sign, the form requires the clerk to place their name no less than two times on each and every marriage license issued in the clerk’s county. See VTC, Exs. A, D. In other words, no marriage license is issued by a county clerk without their authorization and without their imprimatur. See VTC, ¶ 12; see also Hr’g Tr. (7/20/15), Davis Direct, at 37:10-16, 38:9-17, 40:11-41:23, 50:20-21, 77:9-78:3. The KDLAapproved form describes the act being licensed as “marriage” at six places. See VTC, ¶ 11, and Exs. A, D.
Kentucky marriage law also provides an alternative procedure for the issuance of marriage licenses “[i]n the absence of the county clerk, or during a vacancy in the office.” KY. REV. STAT. § 402.240; see also VTC, ¶ 13. According to this option, the county judge/executive for each county “may issue the license” instead of the county clerk “and, in so doing, he shall perform the duties and incur all the responsibilities of the clerk. The county judge/executive shall return a
4

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 13 of 49 - Page ID#: 840
memorandum thereof to the clerk, and the memorandum shall be recorded as if the license had been issued by the clerk.” KY. REV. STAT. § 402.240; see also VTC, ¶ 13.
B. Gov. Beshear’s SSM Mandate. Kentucky also has democratically-enacted law regarding the definition of marriage. Among other things, in 2004, the Kentucky legislature proposed a constitutional amendment on marriage that was approved by seventy-four (74%) of the voters, and enacted in the Commonwealth’s basic charter affirming that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.” See KY. CONST. § 233A; see also KY. REV. STAT. § 402.005 (“‘[M]arriage refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.”); Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. App. 1973) (holding that two Kentucky women who had applied for a marriage license in Kentucky were not entitled to one because marriage was “the union of a man and a woman”); DeBoer v. Snyder, 772 F.3d 388, 397, 421 (6th Cir. 2014) (reversing Kentucky federal district court opinion that Kentucky’s statutes and constitutional amendment violated the United States Constitution); VTC, ¶ 8. But on June 26, 2015, a majority of the Supreme Court held that laws from four states (including Kentucky) that defined marriage as the union of a man and a woman were “invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Obergefell v. Hodges, 135 S.Ct. 2584, 2605 (2015). Almost immediately, Gov. Beshear issued his SSM Mandate commanding all county clerks that “[e]ffective today, Kentucky will recognize as valid all same sex marriages performed in other states and in Kentucky.” See VTC, ¶¶ 25, 33, and Ex. C, Ltr. from Gov. Steven L. Beshear to Kentucky County
5

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 14 of 49 - Page ID#: 841
Clerks, dated June 26, 2015 (hereinafter, “Beshear Letter”); see also Hr’g Tr. (7/20/15), Davis Direct, at 44:3-17, and Davis Cross, at 59:9-11.
Gov. Beshear further ordered that Kentucky clerks “must license and recognize the marriages of same-sex couples,” and further instructed that “[n]ow that same-sex couples are entitled to the issuance of a marriage license, the [KDLA] will be sending a gender-neutral form to you today, along with instructions for its use.” See VTC, Ex. C, Beshear Letter; see also VTC, ¶ 25. The KDLA subsequently provided this new marriage form to county clerks, including Davis. Hr’g Tr. (7/20/15), Davis Direct, at 39:21-40:2; see also VTC, ¶ 26. The form retained all of the references to “marriage,” as well as the name, signature and authorization requirements of the county clerk. Id. at 40:11-42:7; see also VTC, ¶ 26, and Exs. A, D.
Following Gov. Beshear’s decree, county clerks across Kentucky began issuing SSM licenses, with almost no exception. See VTC, ¶ 27; see also, e.g., Hr’g Tr. (7/20/15), Davis Direct, at 54:9-19. According to Gov. Beshear, “government officials in Kentucky . . . must recognize same-sex marriages as valid and allow them to take place,” and “[s]ame-sex couples are now being married in Kentucky and such marriages from other states are now being recognized under Kentucky law.” See VTC, ¶ 27. In these same pronouncements, Gov. Beshear stated that the “overwhelming majority of county clerks” are “iss[uing] marriage licenses regardless of gender” and only “two or three” county clerks (of 120) were “refusing” to issue such licenses due to their “personal beliefs” and “personal feelings.” Id. In subsequent pronouncements, Gov. Beshear has maintained that county clerks must issue marriage licenses, including SSM licenses, despite their “own personal beliefs.” See VTC, ¶ 28. For Gov. Beshear, the only options available to county clerks who oppose SSM are (1) issue the licenses against their “personal convictions,” or (2) resign. See VTC, ¶¶ 28, 36; see also Hr’g Tr. (7/20/15), Davis Direct, at 47:5-12.
6

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 15 of 49 - Page ID#: 842
Notably, Gov. Beshear did not provide the same ultimatum to Kentucky Attorney General Jack Conway (“Atty. Gen. Conway”) when he refused to defend the Kentucky Constitution and democratically-enacted marriage law. See VTC, ¶¶ 15, 34. According to Atty. Gen. Conway in his tearful and prayer-induced proclamation at the time, “There are those who believe it’s my mandatory duty, regardless of my personal opinion, to continue to defend this case…I can only say that I am doing what I think is right. In the final analysis, I had to make a decision that I could be proud of – for me now, and my daughters’ judgment in the future.” See VTC, ¶ 14 (emphasis added). Gov. Beshear did not force Atty. Gen. Conway to abandon his “inescapable” conscience and instead hired outside counsel to represent Kentucky in defending its own Constitution and democratically-enacted laws—which cost the Commonwealth upwards of $200,000. See VTC, ¶¶ 14-15, 34-36.
C. Davis’ Sincerely Held Religious Beliefs About Marriage. Davis serves as the elected county clerk for Rowan County, Kentucky. See VTC, ¶ 5; see also Hr’g Tr. (7/20/15), Davis Direct, at 24:2-5. Before taking office as the county clerk in January 2015, she worked at the Rowan County clerk’s office as a deputy clerk for nearly thirty years. See VTC, ¶ 5; see also Hr’g Tr. (7/20/15), Davis Direct, at 24:6-12. Davis is a professing Apostolic Christian who attends church “[e]very time the doors are open,” attends weekly Bible study and worship services, and leads a weekly Bible study with women at a local jail. Hr’g Tr. (7/20/15), Davis Direct, at 29:8-30:6; see also VTC, ¶ 16; Hr’g Tr. (7/20/15), Blevins Cross, at 20:1-2 (describing Davis as “very religious”). As a Christian, Davis possesses a sincerely held religious belief that “[m]arriage is a union between one man and one woman,” only. Hr’g Tr. (7/20/15), Davis Direct, at 31:7-14, 32:4-7; see also VTC, ¶ 17. As county clerk, she authorizes the “marriage” licenses issued from her office.
7

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 16 of 49 - Page ID#: 843
See VTC, ¶ 18; see also Hr’g Tr. (7/20/15), Davis Direct, at 37:10-16, 38:9-17, 40:11-14, 41:4-7, 41:16-23, 50:20-21, 77:9-12, 77:21-78:3. But Davis cannot authorize the marriage of same-sex couples because it violates her religious beliefs and convictions. See VTC, ¶ 18; see also Hr’g Tr. (7/20/15), Davis Direct, at 42:17-20 (“Because if I say that I authorize that, I’m saying I agree with it, and I can’t.”); id. at 43:2-5; Hr’g Tr. (7/20/15), Davis Cross, at 62:10-12 (“[M]y religious beliefs can’t condone issuing and being a party to the issuance of same-sex marriage licenses.”); see also id., Blevins Cross, at 17:3-6 (“[Davis] did tell me early on, before the decision was made, that if it was to allow same-sex marriage that she could not do that in her moral judgment. She just could not do it.”). Moreover, her name appears on every marriage license issued from the Rowan County clerk’s office, and she cannot have her name on a SSM license because her name equates to approval. See VTC, ¶ 18; see also Hr’g Tr. (7/20/15), Davis Direct, at 38:9-17, 40:24-41:3, 41:2442:1; id., Davis Cross, 61:15-19, 67:5-7; id., Davis Redirect, 75:16-19, 80:16-18.
Before taking office as Rowan County clerk, Davis swore an oath to support the Constitutions and laws of the United States and Kentucky “so help me God.” KY. CONST. § 228. Davis understood (and understands) this oath to mean that, in upholding the federal and state constitutions and laws, she would not act in contradiction to the moral law of God, natural law, and her sincerely held religious beliefs and convictions. See VTC, ¶ 19. Moreover, she also understood (and understands) that she swore to uphold the Constitutions and laws that incorporate enumerated protections for all individuals’ fundamental rights of conscience, religious liberty, and speech, including her own. See VTC, ¶ 19; see also Hr’g Tr. (7/20/15), Davis Direct, at 54:2056:5. Not only that, Kentucky marriage law at the time she took office (not to mention during her multi-decade tenure as a deputy clerk) unequivocally aligned with her sincerely held religious beliefs about marriage. See VTC, ¶ 20; see also Hr’g Tr. (7/20/15), Davis Redirect, at 71:23-72:1.
8

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 17 of 49 - Page ID#: 844
On June 27, 2015, following the Obergefell decision, Davis discontinued issuing any marriage licenses. See VTC, ¶ 29; see also Hr’g Tr. (7/20/15), Davis Direct, at 33:13-24. This was not a “spur-of-the-moment decision” reached by Davis; to the contrary, it was something that, after exhorting legislators to provide conscience protection for county clerks, she “had prayed and fasted over weekly” in the weeks and months leading up to the Obergefell decision; she “sought God on it.” Hr’g Tr. (7/20/15), Davis Direct, at 34:14-18; see also VTC, ¶ 29. In fact, before the Obergefell decision (and just one week after the Supreme Court granted certiorari), Davis wrote Kentucky legislators pleading with them to “get a bill on the floor to help protect clerks” who had a religious objection to authorizing SSM licenses. Hr’g Tr. (7/20/15), Davis Direct, at 34:2-14, 35:8-36:3; see also VTC, ¶¶ 21-22, and Ex. B, Ltr. From K. Davis to Ky. Sen. Robertson, dated Jan. 23, 2015. Her views about marriage have not changed. Hr’g Tr. (7/20/15), Davis Direct, at 36:1-3, 43:1416. To ensure that all individuals and couples were treated the same, Davis suspended the issuance of all marriage licenses in Rowan County. See VTC, ¶ 29; see also Hr’g Tr. (7/20/15), Davis Direct, at 43:6-9; id., Davis Cross, at 62:13-14, 67:7, 70:17-20; see also id., Blevins Cross, 20:56, 21:3-5. Even though one of her deputy clerks (and perhaps two) is (or are) willing to issue a SSM license, she instructed all deputy clerks to stop issuing marriage licenses because licenses are issued on her authority (not the deputy clerk’s), and because every license requires her name to appear on the license as the authorizing person (even if signed by a deputy clerk). See Hr’g Tr. (7/20/15), Davis Direct, at 38:25-39:4, 48:19-49:18; id., Davis Cross, at 61:15-19, 62:4-12; id., Davis Redirect, 81:1-2.
On July 8, 2015, Davis sent a letter appealing to Gov. Beshear to uphold her religious conscience rights, and to call a special session of the Kentucky General Assembly to legislatively address the conflict between her religious beliefs and the SSM Mandate effected by Gov. Beshear.
9

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 18 of 49 - Page ID#: 845
See VTC, ¶ 30, and Ex. E. To date, Davis has received no response to her letter. During Davis’s entire tenure in the Rowan County clerk’s office, spanning nearly thirty years, neither Davis, any deputy clerk, nor Davis’s predecessor in office ever asserted a religious objection to performing any other function of the clerk’s office. See VTC, ¶ 31.
D. Procedural History. Plaintiffs filed their Complaint against Davis and Rowan County on July 2, 2015. See D.E. 1. They simultaneously filed a motion seeking preliminary injunctive relief. See D.E. 2. This Court held hearings on July 13, 2015 and July 20, 2015 in connection with Plaintiffs’ motion. Davis and Rowan County submitted their written oppositions to Plaintiffs’ motion on July 30, 2015. See D.E. 28, 29. On August 4, 2015, Davis filed a motion to dismiss Plaintiffs’ Complaint. See D.E. 32. On that same day, Davis also filed a Verified Third-Party Complaint against Gov. Beshear and Commr. Onkst. See D.E. 34. Davis now files this motion seeking preliminary injunctive relief. III. STANDARD OF REVIEW District courts reviewing motions for preliminary injunction relief consider the following four factors: “(1) whether the movant has demonstrated a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable harm; (3) whether an injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of such injunction.” Suster v. Marshall, 149 F.3d 523, 528 (6th Cir. 1998); see also Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ. of Boyd County, Ky., 258 F. Supp. 2d 667, 679 (E.D. Ky. 2003) (Bunning, J.).
10

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 19 of 49 - Page ID#: 846

IV. ARGUMENT
A. Davis Has A Strong Likelihood Of Succeeding On The Merits.
1. The Mandate Ordering Davis To Authorize SSM Licenses Violates The Kentucky Religious Freedom Restoration Act.
Davis’ inability to authorize and approve SSM licenses pursuant to Gov. Beshear’s SSM
Mandate is protected by the Kentucky Religious Freedom Restoration Act, 2013 Kentucky Laws
Ch. 111 (HB 279) (hereinafter, “Kentucky RFRA”).2 Specifically, the Kentucky RFRA protects
her right to act or refuse to act in a way motivated by a sincerely held religious belief. The
Kentucky RFRA was enacted by an overwhelming majority in 2013, over Governor Beshear’s
veto,3 and provides that:
Government shall not substantially burden a person’s 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. Davis is entitled to assert claims under the Kentucky RFRA because
the statute protects the religious freedom of all “persons” in Kentucky.4 Therefore, Gov. Beshear
and Commr. Onkst may not substantially burden Davis’ religious freedom unless they demonstrate

2

The Kentucky RFRA is housed under Chapter 446 of Kentucky’s statutes, which is entitled “Construction of

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

“Computation of Time,” “Severability,” “Titles, Headings, and Notes,” KY. REV. STAT. §§ 446.010, 446.030, 446.090,

446.140. Even more specifically, the Kentucky RFRA is included under a section of Chapter 446 reserved for “Rules

of Codification.” As such, Kentucky marriage law cannot be interpreted without also considering and applying the

Kentucky RFRA. And, as recognized by Plaintiffs in the underlying action, Davis’ purported obligations with respect

to issuing marriage licenses are matters of Kentucky law. See, e.g., D.E. 1, Compl., at ¶¶ 31-33; D.E. 2-1 at 6; D.E.

36, at 4-5, 11.

3

The Kentucky Legislature overrode Gov. Beshear’s veto by votes of 79-15 in the state House and 32-6 in the

state Senate.

4

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 for individuals who are publicly elected officials.

11

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 20 of 49 - Page ID#: 847

the existence of a compelling governmental interest and the least restrictive means were used to further that interest.
The Kentucky RFRA is similar to the Federal Religious Freedom Restoration Act (“Federal RFRA”), 42 U.S.C. § 2000bb-1(a) & (b), which was enacted in 1993 to “provide very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2760 (2014).5 As broad as the protections are under the Federal RFRA, however, the Kentucky RFRA goes even further in protecting religious liberties because it (1) protects any act or refusal to act based upon a sincerely held religious belief, (2) requires that government show a compelling government interest “in infringing the specific act or refusal to act” at issue (thus, broadly construed interests will not suffice), and (3) imposes a “clear and convincing” evidentiary standard on the government for demonstrating both the required compelling government interest and the least restrictive means to achieve that interest.6 Therefore, in this case, Gov. Beshear and Commr. Onkst must demonstrate by clear and convincing evidence that they have a compelling governmental interest in infringing Davis’ religious conscience through the SSM Mandate and they must also demonstrate by clear and convincing evidence that they have used the least restrictive means to accomplish that interest.

5

The Federal RFRA provides that “Government shall not substantially burden a person’s exercise of religion

even if the burden results from a rule of general applicability,” unless the government “demonstrates that application

of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a) & (b). In its original form,

Federal RFRA defined the “exercise of religion” to mean “the exercise of religion under the First Amendment.” 42

U.S.C. § 2000bb-2(4) (1994 ed.). In subsequent years, Congress amended the Federal RFRA definition for “exercise

of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious

belief,” 42 U.S.C. § 2000cc-5(7)(A), and mandated that this concept “shall be construed in favor of a broad protection

of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” 42 U.S.C.

§ 2000cc-3(g). See also Hobby Lobby, 134 S.Ct. at 2761-62, 2772-73.

6

See In re: Backer, 51 Fed. App’x 522, 531 (6th Cir. 2002) (“Clear and convincing evidence requires a party

with the burden of proof to present evidence that is more persuasive than a mere preponderance, but proof which

need not rise to the level of beyond a reasonable doubt.”) (citing Hardin v. Savageau, 906 S.W.2d 356, 357-58 (Ky.

1995)).

12

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 21 of 49 - Page ID#: 848
Davis establishes a prima facie case under the Kentucky RFRA by showing a substantial burden on her “right to act or refuse to act in a manner motivated by a sincerely held religious belief.” See Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372, 384 (6th Cir. 2014) (discussing elements of prima facie Federal RFRA claim), judgment vacated on other grounds, 135 S.Ct. 1914 (2015). Upon this showing, the burden then shifts to the government to satisfy a particularized compelling interest test accomplished by the least restrictive means, id.— and, under the Kentucky RFRA, by a heightened standard of proof, see KY. REV. STAT. § 446.350.
a. Davis’ inability to authorize SSM licenses is motivated by her sincerely-held religious beliefs about marriage.
As indicated above, the Kentucky RFRA protects a person’s “right to act or refuse to act in a manner motivated by a sincerely held religious belief.” As such, the Kentucky RFRA is not solely directed at what a person may believe—but also how those beliefs translate to actions (or non-actions). In the case at bar, the undisputed evidence is that Davis holds sincere religious beliefs about marriage and her inability to issue SSM licenses is motivated by those convictions. See VTC, ¶¶ 17-18; see also Hr’g Tr. (7/20/15), Davis Direct, at 31:13-16; id., Davis Cross, at 62:10-17, 63:21-25. In her view, marriage is the sacred union of a man and a woman, only. See VTC, ¶ 17; see also Hr’g Tr. (7/20/15), Davis Direct, at 31:10-12, 32:4-7; id., Davis Cross, at 69:10. She cannot license, authorize and approve a union that is not “marriage,” according to her religious beliefs. See VTC, ¶¶ 17-18; see also Hr’g Tr. (7/20/15), Davis Direct, at 42:17-20; id., Davis Cross, 62:10-12. To authorize a SSM license bearing her imprimatur sears her conscience because she would be endorsing the proposed union and calling something “marriage” that is not marriage according to her beliefs. See VTC, ¶¶ 17-18.
It is not for this Court to question the reasonableness or scriptural accuracy of Davis’ beliefs about marriage. Hobby Lobby, 134 S.Ct. at 2779 (citing Thomas v. Review Bd. of Indiana
13

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 22 of 49 - Page ID#: 849
Employment Security Div., 450 U.S. 707, 716 (1981)). Indeed, judges “are not arbiters of scriptural interpretation,” and they are not tasked with determining who “more correctly” perceives their faith’s commands. Thomas, 450 U.S. at 716. Moreover, it is not for this Court to determine whether Davis’ religious beliefs are “mistaken” or “insubstantial.” Hobby Lobby, 134 S.Ct. at 2779. Instead, the “‘narrow function’ . . . in this context is to determine’ whether the line drawn reflects ‘an honest conviction.’” Id. (quoting Thomas, 450 U.S. at 716). Davis, who has never before raised a religious objection to the performance of any tasks in the county clerk’s office over the course of three decades, see VTC, ¶ 31, has unquestionably demonstrated an honest conviction against about marriage, and her sincerely held religious beliefs about marriage are the impetus behind her inability to issue SSM licenses. See VTC, ¶¶ 18, 29. Therefore, Davis has shown that her “right to act or refuse to act” is “motivated by a sincerely held religious belief.”
b. Forcing Davis to authorize SSM licenses substantially burdens her religious freedom.
Forcing Davis to authorize SSM licenses substantially burdens her religious freedom. As indicated above, Kentucky marriage law predating Obergefell requires that “each county clerk” use the same prescribed form to issue a marriage license. KY. REV. STAT. §§ 402.100, 402.110. As county clerk, Davis is provided this form by the KDLA, and she has no local discretion in the composition and requirements of that prescribed form. See VTC, ¶¶ 7, 10; see also Hr’g Tr. (7/20/15), Davis Direct, at 37:17-20, 38:9-17, 39:9-12, and Davis Cross, 57:8-23. By legislative enactment predating Obergefell, this form included: (1) an “authorization statement of the county clerk issuing the license”; (2) “the signature of the county clerk or deputy clerk issuing the license”; (3) “[a] signed statement by the county clerk or a deputy county clerk of the county in which the marriage license was issued”; and (4) the “the name of the county clerk under whose authority the license was issued.” KY. REV. STAT. § 402.100(1)-(3) (emphasis added). Thus,
14

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 23 of 49 - Page ID#: 850
before Obergefell, as county clerk, Davis had to include her name, signature, and approval four times on marriage licenses she signed. See VTC, ¶ 11, and Ex. A. Even on licenses that she did not sign, the KDLA-approved form required Davis to put her imprimatur no less than two times on each and every marriage license issued in her county. See VTC, ¶ 11, and Ex. A. When marriage licenses were being authorized by Davis bearing her name and endorsement exclusively to couples consisting of one man and one woman, she had (and has) no religious objection to authorizing those marriages and placing her imprimatur on their marriage licenses. See VTC, ¶ 23.
But on Gov. Beshear’s own initiative, the KDLA prepared a revised mandatory form in response to his SSM Mandate, which was then circulated to county clerks for them to begin using immediately, without exception. See VTC, ¶¶ 25-26, and Ex. C. This form provided no opportunity for county clerks (or deputy clerks for that matter) with religious objections to SSM not to participate in endorsement and approval of SSM. On this new form, as constructed by Gov. Beshear and Commr. Onkst, the “authorization” or permission to marry (even on licenses she does not personally sign) still unmistakably comes from Davis herself. See VTC, ¶ 12, and Ex. C; see also Hr’g Tr. (7/20/15), Davis Direct, at 37:10-16, 38:9-17, 40:11-14, 41:4-7, 41:16-23, 50:20-21, 77:9-12, 77:21-78:3. As in the old forms, the new KDLA-approved form requires Davis to put her imprimatur no less than two times on each and every marriage license issued in her county. See VTC, ¶¶ 11, 26, and Ex. C.
But Davis cannot sanction, endorse, and approve a union of two persons which, in her sincerely-held belief, is not marriage. See VTC, ¶ 18; see also Hr’g Tr. (7/20/15), Davis Direct, at 31:10-12, 32:4-7; 42:17-20, and Davis Cross, at 62:10-12 (“[M]y religious beliefs can’t condone issuing and being a party to the issuance of same-sex marriage licenses.”); see also id., Blevins Cross, at 17:5-6 (confirming that “[Davis] just could not do it”). The marriage licenses Davis
15

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 24 of 49 - Page ID#: 851

authorizes become permanent records stating the marriage was endorsed by her, which she cannot do. See Hr’g Tr. (7/20/15), Davis Direct, at 42:19-20 (“Because if I say that I authorize that, I’m saying I agree with it, and I can’t.”), and Davis Cross, 67:5-7 (“I could [not] put my name to a marriage license that was issued to a same-sex couple.”).
Gov. Beshear has flatly rejected Davis’ request for religious exemption. In his view, Davis must either comply with his SSM Mandate, or resigns from office. See VTC, ¶¶ 28, 36; see also Hr’g Tr. (7/20/15), Davis Direct, at 47:5-12. In doing so, Gov. Beshear is imposing a direct and severe pressure on Davis by the SSM Mandate, forcing Davis “to choose between following the precepts of her religion and forfeiting benefits [her job], on the one hand, and abandoning one of the precepts of her religion in order to accept work [keep her job], on the other hand.” Sherbert v. Verner, 374 U.S. 398, 404 (1963). This Hobson’s choice places undue pressure on Davis to choose between her job and her religion.
In addition to his unmitigated “approve or resign” rule, Gov. Beshear has ominously declared that “the courts” will deal with county clerks who do not comply with his SSM Mandate. See VTC, ¶ 35. Moreover, immediately after issuance of the SSM Mandate, Atty. Gen. Conway even threatened possible legal action against county clerks who did not comply with the SSM Mandate, even seemingly inviting this very lawsuit against Davis: “Any clerk that refuses to issue marriage licenses is opening himself or herself to potential legal liability and sanctions. Any couple or person denied a license may seek remedy in federal court, but should consult with a private attorney about their particular situation.”7 Loss of job. Civil liability. Sanctions. Private lawsuits

7

This statement attributed to Atty. Gen Conway was contemporaneously reported by multiple news sources.

See, e.g., Several county clerks defy same-sex marriage ruling, refuse to issue marriage licenses, Lexington Herald-

Leader, June 29, 2015, available at http://www.kentucky.com/2015/06/29/3923157_some-kentucky-county-clerks-

refusing.html?rh=1 (last accessed August 7, 2015); Steve Beshear and Jack Conway: On refusing marriage licenses,

WTVQ.com, June 30, 2015, available at http://www.wtvq.com/story/d/story/steve-beshear-and-jack-conway-on-

refusing-marriage/39801/_4cM2DBkQ0aBolGpMeZz_A (last accessed August 7, 2015).

16

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 25 of 49 - Page ID#: 852
in federal court. Davis is being threatened with all of the above. Certainly, the Kentucky RFRA is designed to protect a person from such substantial burdens upon their religious freedom.
Importantly, Davis is not claiming a substantial burden on her religious freedom if someone else authorizes and approves a SSM license. For example, Davis is not claiming that her religious freedom is substantially burdened if she must complete an opt-out form to be exempted from issuing SSM licenses. Davis is also not claiming that a SSM license authorized by the Rowan County Judge/Executive and devoid of her name and authority substantially burdens her religious freedom. Davis is also not claiming that her religious freedom is substantially burdened if the license were issued by someone else in Rowan County (e.g., a deputy clerk), so long as that license is not issued under her name or on her authority. But as it stands now, and through no fault of her own, no marriage license can be issued from the Rowan County clerk’s office without Davis’ authorization and without her imprimatur. Davis is also not claiming that the mere administrative act of recording substantially burdens her religious freedom. But county clerks are not mere scriveners for a marriage. Instead, county clerks actually authorize the marriage license. See KY. REV. STAT. § 402.100(1)-(3). Such participation in and approval of SSM substantially burdens her religious freedom.
c. The SSM Mandate does not survive strict scrutiny. As a result of the above, Gov. Beshear and Commr. Onkst must demonstrate by clear and convincing evidence that they have (1) a compelling governmental interest in infringing Davis’ religious conscience through the SSM Mandate and (2) they have used the least restrictive means to accomplish that interest. Under this strict scrutiny analysis, to be a compelling governmental interest, the SSM Mandate must further an interest “of the highest order,” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993), and, “[i]f a less restrictive alternative would serve Government’s purpose, the legislature must use that alternative.” United States v.
17

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 26 of 49 - Page ID#: 853
Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000) (emphasis added). Indeed, the Federal RFRA imposes “the most demanding test known to constitutional law,” City of Boerne v. Flores, 521 U.S. 507, 534 (1997)—notwithstanding, as discussed above, the Kentucky RFRA is only more demanding.
i. The SSM Mandate furthers no compelling governmental interest in infringing upon Davis’ religious freedom.
There is no compelling governmental interest in forcing Davis to violate her religious freedom. In Hobby Lobby, the Supreme Court emphasized that the similar Federal RFRA “contemplates a ‘more focused’ inquiry” in considering government’s purported interests. See Hobby Lobby, 134 S.Ct. at 2779. This inquiry “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religions is being substantially burdened,” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (emphasis added) (quoting 42 U.S.C. § 2000bb-1(b)), and further requires courts “to ‘loo[k] beyond broadly formulated interests’ and to ‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’—in other words, to look to the marginal interest in enforcing” the SSM Mandate in this case. See Hobby Lobby, 134 S.Ct. at 2779 (emphasis added) (quoting O Centro, 546 U.S. at 431); see also Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000) (explaining that compelling interest determination “is not to be made in the abstract” but instead “in the circumstances of this case” and how the asserted interest is “addressed by the law at issue”).
In applying the Kentucky RFRA, a similar (but even more exacting) particularized inquiry is necessary, for the statute requires a compelling governmental interest “in infringing the specific act or refusal to act” at issue to be shown by clear and convincing evidence. Thus, to overcome Davis’ religious freedom claim, Gov. Beshear and Commr. Onkst must demonstrate a compelling
18

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 27 of 49 - Page ID#: 854
government interest in infringing upon Davis’ inability to authorize SSM licenses that is “beyond broadly formulated interests” and shows why granting a “specific exemption” to this “particular religious claimant,” O Centro, 546 U.S. at 431, will commit a “grave[] abuse[], endangering paramount interests,” Thomas v. Collins, 323 U.S. 516, 530 (1945). Gov. Beshear cannot show that granting a specific exemption to Davis will endanger this Commonwealth, let alone Kentucky’s marriage licensing scheme.
Reviewing Gov. Beshear’s edicts, he appears to be professing essentially three governmental interests in his SSM Mandate, none of which satisfy this exacting scrutiny. First, Gov. Beshear implemented his SSM Mandate based upon a misreading of what the Obergefell decision “makes plain.” See VTC, Ex. C. Immediately following Obergefell, Gov. Beshear, on his own initiative, decreed his SSM Mandate, which was neither expressly nor impliedly compelled by the Supreme Court’s decision in Obergefell. The SSM Mandate leaves no room for individual county clerks’ religious freedoms. But in Obergefell, the Court unanimously agreed that First Amendment protections remain despite same-sex “marriage.” Specifically, dissenting justices in Obergefell recognized that “[m]any good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion” is specifically “spelled out” in the First Amendment of the Constitution. Obergefell, 135 S.Ct. at 2625 (Roberts, C.J., dissenting). Continuing, these Justices noted that “[r]espect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice.” Id.; see also id. at 2638 (explaining the historical significance of “religious liberty”) (Thomas, J., dissenting). The majority opinion also recognized that religious freedoms continue unabated even as they redefined marriage:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere
19

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 28 of 49 - Page ID#: 855

conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. Obergefell, 135 S.Ct. at 2607 (Kennedy, J., majority) (emphasis added). Gov. Beshear was thus
under no compulsion to order each and every individual Kentucky County Clerk to authorize and
approve SSM marriage.
Second, Gov. Beshear claims that county clerks must apply his SSM Mandate because their
oath of office purportedly requires them to leave their personal convictions at the door of public
service and “prescribes” how they must act once in office. Gov. Beshear is wrong. A person’s
constitutional and statutory rights and liberties are not immediately eviscerated the moment they take their oath of office.8 This is further demonstrated in the circumstances of this case, where
Davis took an oath of office to support a Kentucky Constitution that perfectly aligned with her
religious beliefs about marriage. See VTC, ¶¶ 18-20; Hr’g Tr. (7/20/15), Davis Redirect, at 71:23-
72:1; see also KY. CONST. § 233A; KY. REV. STAT. § 402.005; Jones, 501 S.W.2d 588 (Ky. App.
1973); DeBoer, 772 F.3d at 397, 421. Moreover, Davis took an oath to “support the Constitution
of the United States and the Constitution of this Commonwealth” that, in their enumerated
provisions, expressly protect her “inalienable” and “inviolate” rights of conscience, religious
liberty, and speech, see U.S. CONST. art. VI & amend. I; KY. CONST. Preamble, and §§ 1, 5, 8, 26,

8

“Almost fifty years ago, this Court declared that citizens do not surrender their First Amendment rights by

accepting public employment.” Lane v. Franks, 134 S. Ct. 2369, 2374 (2014). Indeed, the Supreme Court has “made

clear that public employees do not surrender all their First Amendment rights by reason of their employment.”

Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Although a citizen entering government service must “by necessity”

accept “certain limitations on his or her freedom,” id. at 417, such person’s constitutional rights are not

circumscribed in their entirety. Instead, there are “some rights and freedoms so fundamental to liberty” that a citizen

is “‘not deprived of [these] fundamental rights by virtue of working for the government.’” Borough of Duryea, Pa.

v. Guarnieri, 131 S.Ct. 2488, 2493-94 (2011) (citation omitted). Fundamental rights are implicated in this case, as

this Court already acknowledged. See, e.g., Hr’g Tr. (7/13/15), at 84:3-4, 85:20-22, 98:19-22, 99:19-21, 103:15-18,

104:8-9.

20

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 29 of 49 - Page ID#: 856
as well as the fundamental rights of others. See VTC, ¶ 19; see also Hr’g Tr. (7/20/15), Davis Direct, at 54:20-56:5. Furthermore, and always omitted from Gov. Beshear’s discussion, Davis swore an oath to faithfully execute the office of County Clerk “according to law. . . so help me God,” thereby further incorporating her sincerely held religious beliefs. KY. CONST. § 228 (emphasis added). Thus, contrary to Gov. Beshear’s view, the oath does not require her to set aside her conscience and beliefs outright.
Third, and related the foregoing, Gov. Beshear appears to suggest that his SSM Mandate is necessary based upon his narrow conception of a public official’s “duty.” Gov. Beshear is, again, mistaken. His deliberately circumscribed perspective ignores entirely any consideration of the Kentucky RFRA, or religious accommodation generally. As such, Gov. Beshear shirks the Supreme Court’s conclusion that “government may (and sometimes must) accommodate religious practices,” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144-45 (1987), and repudiates the Sixth Circuit’s finding that “[o]ur Nation’s history is replete with . . . accommodation of religion.” ACLU v. Mercer County, Ky., 432 F.3d 624, 639 (6th Cir. 2005). After all, “[w]e are a religious people whose institutions presuppose a Supreme Being,” Zorach v. Clauson, 343 U.S. 306, 313 (1952).
Providing accommodation for religious conviction is not antithetical for public employees or inconsistent with governmental mandates. See, e.g., Slater v. Douglas County, 743 F. Supp. 2d 1188, 1192-95 (D. Or. 2010) (denying summary judgment to county defendant that only proposed to reassign a county clerk employee who refused on religious grounds to issue same-sex domestic partnership registrations rather than accommodating her request). By way of further example, federal and state employees who have a “moral or religious” conviction against capital punishment are provided an exemption from “be[ing] in attendance at” or “participat[ing] in any prosecution
21

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 30 of 49 - Page ID#: 857
or execution” performed under the Federal Death Penalty Act. 18 U.S.C. § 3597(b). In a similar fashion, medical providers (and other persons) with conscience-based objections to governmental mandates and programs related to providing abortions, abortion-related drugs, and abortion-related insurance coverage may also be exempted from generally applicable requirements. See, e.g., Stormans, Inc. v. Selecky, 844 F. Supp. 2d 1172, 1188-93 (W.D. Wash. 2012) (pharmacists with religious objection based upon sincerely held beliefs against providing certain abortion-related drugs did not have to comply with government’s mandate to carry those drugs); Hobby Lobby, 134 S.Ct. at 2759 (holding that government mandate to force closely held corporations to provide health insurance coverage for methods of contraception that violated the sincerely-held religious beliefs of the companies’ owners was an unlawful burden on religious exercise). Moreover, persons can be naturalized as citizens with conscience-based non-combatant objections, Girouard v. United States, 328 U.S. 61, 64-67 (1946), or religious-based objections to certain vaccinations, 8 U.S.C. § 1182(g).
The foregoing examples illustrate that, in certain matters, the law already accounts for religious-based objections to generally applicable legal duties or mandates. In each of the foregoing areas (i.e., abortion, capital punishment, non-combatant in wartime), there are wellestablished historical roots for the objection. For marriage, the nature of the objection is even more firmly established in history because the “meaning of marriage” as a union between one man and one woman “has persisted in every culture,” “has formed the basis of human society for millennia,” and has singularly “prevailed in the United States throughout our history.” Obergefell, 135 S. Ct. at 2612-13 (Roberts, C.J., dissenting); see also id. at 2641 (“For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.”) (Alito, J., dissenting). In fact, the majority in Obergefell conceded that the institution of marriage as
22

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 31 of 49 - Page ID#: 858
exclusively a union between a man and a woman “has existed for millennia and across civilizations” and this view “long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” Obergefell, 135 S. Ct. at 2594 (Kennedy, J., majority) (emphasis added). Thus, although the traditional view of marriage was discarded in Obergefell, that long-held view of marriage provides the historical underpinnings for a religious exemption and accommodation from the redefinition of marriage.
Accommodating a person’s sincere religious beliefs and practices about marriage and ensuring that individual religious freedom is not substantially burdened promotes the religious pluralism and tolerance that have made this country distinctive, Gov. Beshear’s view notwithstanding. Of course, religious accommodations are not provided for each and every whim or scruple raised by a person, and merely stating a religious objection does not mean that any county clerk can deny a marriage license at any time for any reason. That is not this case. As noted above, Davis has served in the Rowan County clerk’s office for thirty years, and, during this entire time period, this is the first instance in which she (or anyone else for that matter) has raised a religious objection to performing a function in the county clerk’s office. See VTC, ¶ 31; see also Hr’g Tr. (7/20/15), Davis Direct, at 51:18-52:2. Plainly, this is not a situation where an accommodation of Davis’ religious objections will swallow the general law on marriage and marriage licenses in Kentucky, because licenses are readily available in more than 130 marriage licensing locations spread across Kentucky. See VTC, ¶¶ 9, 27. Thus, “[e]ven a compelling interest may be outweighed in some circumstances by another even weightier consideration.” Hobby Lobby, 134 S.Ct. at 2780.
23

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 32 of 49 - Page ID#: 859
ii. Many less restrictive alternatives are available for furthering Gov. Beshear’s purported interests.
Yet even if Gov. Beshear and Commr. Onkst demonstrate by clear and convincing evidence a compelling government interest in infringing upon Davis’ religious freedom, forcing Davis to sign, issue, and approve SSM licenses over and against her sincere religious objections also is not the least restrictive means of obtaining a Kentucky marriage license. This is evidenced here by the simple fact that Gov. Beshear did not even wait for the ink to dry from the Obergefell opinion before issuing his SSM Mandate to all Kentucky County Clerks on June 26, 2015—the same day the Obergefell decision was announced. See VTC, ¶¶ 24-25, and Ex. C.
“The least-restrictive-means standard is exceptionally demanding.” Hobby Lobby, 134 S. Ct. at 2780. Gov. Beshear and Commr. Onkst cannot demonstrate that they “lack[] other means” of issuing marriage licenses to same-sex couples “without imposing a substantial burden” on Davis’ “exercise of religion.” See Hobby Lobby, 134 S. Ct. at 2780. Not only that, the least restrictive means test may “require the Government to expend additional funds to accommodate citizens’ religious beliefs.” Hobby Lobby, 134 S. Ct. at 2781. This is consistent with the Kentucky Legislative Research Commission’s (“KYLRC”) fiscal impact reports provided to Kentucky legislators prior to enacting the Kentucky RFRA. In those reports, the KYLRC noted that the least restrictive alternative requirements “may be minimal . . . or significant, for example, if it requires hiring additional staff or paying overtime for other staff to do a job that an employee declines to do because of religious beliefs.” See Kentucky LRC, Local Mandate Fiscal Impact Estimates, Ky. House Bill 279 (2013 Reg. Sess.), dated Feb. 26, 2013 and Mar. 6, 2013 (copies attached hereto as Exhibit “D”). Thus, even if proposed less restrictive alternatives require additional costs in applying Kentucky marriage law, such costs are specifically envisioned by the Kentucky RFRA to ensure that a person’s religious freedom is protected.
24

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 33 of 49 - Page ID#: 860
In this matter, several less restrictive means are available to accomplish the goal of providing Plaintiffs with Kentucky marriage licenses (if that is the “desired goal,” Hobby Lobby, 134 S.Ct. at 2780) without substantially burdening Davis’ religious freedom and conscience. Indeed, because the entire Kentucky marriage licensing scheme is founded upon the millennia-old natural definition of marriage, Gov. Beshear and Commr. Onkst can take steps that both recognize SSM and protect county clerks’ religious conscience rights in response to the redefinition of marriage in Obergefell.
First, Gov. Beshear and Commr. Onskt can provide an opt-out or exemption to county clerks who have a religious objection to issuing SSM licenses. Other states, such as North Carolina, have provided precisely this type of remedy to conscientious objectors to same-sex “marriage.” See, e.g., N.C. GEN. STAT. § 51-5.5. Indeed, Kentucky law itself already provides to county clerks an exemption from issuing fishing and hunting licenses, which any county clerk may claim simply by submitting a written memorandum. KY. REV. STAT. § 150.195. Thus, if Kentucky is able to accommodate personal beliefs and conscientious objection regarding something that is (to some) as trivial as fishing and hunting, surely Gov. Beshear and Commr. Onkst can and must provide similar accommodation for deeply held beliefs about the fundamental nature of marriage. Exempting Davis from issuing marriage licenses still leaves more than 130 marriage licensing locations spread across the Commonwealth of Kentucky.
Second, Gov. Beshear and Commr. Onkst can deputize a neighboring county clerk who is willing to issue the Rowan County licenses as well. There are already multiple counties in Kentucky that have multiple branch offices issuing marriage licenses. See VTC, ¶ 9 (in Kentucky, there are 120 counties, but approximately 137 marriage licensing locations). The county clerk in those counties cannot be at multiple locations at one time, but marriage licenses are nonetheless
25

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 34 of 49 - Page ID#: 861
still issued with their authority and bearing their name from locations where they are not physically present. In the case at bar, the seven counties bordering Rowan County are issuing marriage licenses. See Hr’g Tr. (7/20/15), Davis Direct, at 53:5-15. Any one of those county clerks can be empowered to authorize and approve marriage licenses in Rowan County.
Third, Gov. Beshear and Commr. Onkst can designate and deputize other persons who are able to authorize SSM licenses in a particular county in the event the county clerk in that county has a religious objection to issuing such licenses. For example, at least one (and perhaps two) of Davis’ deputy clerks in Rowan County is willing to issue, authorize, and approve SSM licenses if they were permitted to issue it on their own authority (rather than Davis’) and bearing their own (rather than Davis’) imprimatur. See Hr’g Tr. (7/20/15), Davis Direct, at 48:20-49:11.
Fourth, Gov. Beshear and Commr. Onkst can modify the SSM Mandate and prescribed KDLA-approved form to remove the personal nature of the authorization, approval, and imprimatur that a county clerk must provide on the current form for any marriage license.
Fifth, Gov. Beshear and Commr. Onkst can keep the issuance of marriage licenses at the state-level through an online or other state-wide, state-based licensing scheme rather than deputizing county clerks as state agents for authorizing and approving SSM.
Sixth, Gov. Beshear can call a special legislative session to address Kentucky’s entire marriage licensing scheme, which will naturally include consideration of the ongoing debate between religious liberty and SSM. In fact, the Kentucky political branches have already indicated an intent to address this matter with a legislative solution, after Gov. Beshear is out of office. Specifically, gubernatorial candidates from both parties in Kentucky have indicated an intent to address this issue—to “protect[] religious freedoms” (Matt Bevin) or to “allow county clerks some
26

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 35 of 49 - Page ID#: 862

flexibility” (Atty. Gen. Conway)—when the legislature returns to session in January 2016.9 In fact, two bills addressing religious freedom have already been pre-filed for that general session, and one of those bills expressly protects clerks such as Davis from having to issue SSM licenses. This bill amends the Kentucky RFRA to state expressly that “[i]ssuing or recording a marriage license, or solemnizing a marriage, to which a person holds a sincere religious objection or which is contrary to that person’s faith tradition due to the marriage being between persons of the same sex shall be considered a substantial burden for which there is no compelling government interest, and that person shall additionally be immune from any civil or criminal liability for declining to solemnize such a marriage.” See An Act Relating to Marriage, Ky. House Bill 101 (2016 Reg. Sess.) (emphasis added) (copy attached hereto as Exhibit “E”). But Gov. Beshear does not have to wait until January; he can call the special session now, and any additional costs associated therewith (which Kentucky RFRA envisions) are comparable to the hundreds of thousands of dollars incurred in outside counsel fees when Atty. Gen. Conway refused to defend the Kentucky Constitution and laws on marriage.
Seventh, Gov. Beshear and Commr. Onkst can instruct the KDLA to design a form “memorandum” to be used by county judge/executives for the issuance of marriage licenses when county clerks are rendered legally absent from their office for purposes of marriage licensing based upon a religious conscience objection. As explained further in Davis’ opposition to Plaintiffs’ Motion for Preliminary Injunction, see D.E. 29 at 45-48, incorporated by reference here, an alternative to a marriage license issued by a county clerk under Kentucky marriage law is a marriage license issued by a county judge/executive, the highest elected officer in a county, when

9

See Bevin: Kentucky should stop issuing marriage licenses, Washington Times, July 10, 2015, available at

http://www.washingtontimes.com/news/2015/jul/10/bevin-kentucky-should-stop-issuing-marriage-licens/

(last

accessed August 7, 2015).

27

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 36 of 49 - Page ID#: 863
a county clerk is deemed absent. See KY. REV. STAT. § 402.240. This alternative procedure does not require the use of the KDLA marriage license form referred to in KY. REV. STAT. §§ 402.100, 402.110; rather, it authorizes the county judge/executive to issue a marriage license by “a memorandum thereof,” which is recorded by the clerk in the same manner as a KDLA form. See KY. REV. STAT. § 402.240. At present, the County Judge/Executive of Rowan County, Walter Blevins has refused to issue a marriage license to any of the Plaintiffs in the underlying action against Davis based on his belief that Davis’s discontinuation of the issuance of all marriage licenses in Rowan County does not count as the “absence” of Davis for purposes of the issuance of marriage licenses under this statute. See VTC, ¶ 32. However, Judge Blevins has also admitted that he would raise no religious objection to issuing marriage licenses to same-sex couples if he were authorized to issue licenses. See VTC, ¶ 32 Hr’g Tr. (7/20/15), Blevins Direct, at 14:16-18. Gov. Beshear can interpret this statutory provision to include absences based upon religious conscience objection, and, along with Commr. Onskt, provide a KDLA-approved marriage memorandum to county judge/executives to remove any uncertainty about this alternative process.
All of these options, and certainly others as well, are available to avoid substantially burdening Davis’ religious freedom.
2. The Mandate Directing Davis To Authorize SSM Licenses Violates Her Fundamental Rights Of Religious Freedom And Conscience Protected By The United States And Kentucky Constitutions.
Davis is also protected by fundamental rights of religious freedom and conscience that are firmly enshrined in the United States and Kentucky Constitutions. The First Amendment of the United States Constitution requires that government must not “prohibit[] the free exercise” of religion, U.S. CONST. amend I, and ensures that a person may “express himself in accordance with the dictates of his own conscience.” Wallace v. Jaffree, 472 U.S. 38, 49 (1985). The Free Exercise Clause “protects not only the right to hold a particular religious belief, but also the right to engage
28

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 37 of 49 - Page ID#: 864
in conduct motivated by that belief.” Prater v. City of Burnside, Ky., 289 F.3d 417, 427 (6th Cir. 2002). The Kentucky Constitution also provides expansive constitutional protections for religious liberties and conscience. KY. CONST., § 1 (identifying the “inherent and inalienable rights” of persons, including the “right of worshipping Almighty God according to the dictates of their consciences”); id., § 5 (“[T]he civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.”).
Most cases with free exercise claims are considered under the framework established by the Supreme Court in Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). According to this well-established framework, a neutral and generally applicable law does not violate the Free Exercise Clause “even if the law has the incidental effect of burdening a particular religious practice.” Lukumi, 508 U.S. at 531; Smith, 494 U.S. at 878-80. However, if the free exercise claim is combined with another constitutional right, as involved here, see Section IV.A.3 (free speech rights), infra, the standard of protection is at its constitutional zenith. Smith, 494 U.S. at 881. Thus, similar to the Kentucky RFRA analysis set forth above, a successful free exercise challenge can be made if the individual demonstrates that (1) a sincerely held religious belief (2) was burdened by a governmental action, and the government cannot show that it had (3) a compelling reason for burdening the religious belief and (4) it used the least restrictive means to achieve its interest. Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert, 374 U.S. 398. “Many laws will not meet the test.” Smith, 494 U.S. at 888. As discussed extensively above, there is no compelling interest in withholding an exemption from Davis, and Kentucky’s marriage licensing
29

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 38 of 49 - Page ID#: 865
scheme will not be thwarted in the least by accommodating an exemption for Davis, particularly where other alternatives for licensing are readily available both within and without Rowan County.
Moreover, by directing county clerks to disregard their religious beliefs in no uncertain terms, Gov. Beshear is not applying Kentucky marriage law in a neutral and generally applicable manner through his SSM Mandate. A law or policy “burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny,” and laws or policies that “target religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” Lukumi, 508 U.S. at 546. The SSM Mandate specifically targets county clerks like Davis who possesses certain religious beliefs about marriage. This targeting is demonstrated by the exemption Gov. Beshear granted to Atty. Gen. Conway when—after “pray[ing] over this decision”—he was unwilling to defend Kentucky’s democratically-enacted marriage law pursuant to his own personal beliefs and feelings (his purported conscience) about “doing what I think is right” and “mak[ing] a decision that I could be proud of.” See VTC, ¶¶ 14-15, 34.
Gov. Beshear is picking and choosing the conscience-based exemptions to marriage that he deems acceptable—which is constitutionally unacceptable. For instance, when Atty. Gen. Conway refused to defend the Kentucky Constitution on marriage, Gov. Beshear did not direct Conway that “Neither your oath nor the Supreme Court dictates what you must believe. But as elected officials, they do prescribe how we must act,” but he did so direct county clerks like Davis. See VTC, ¶ 35, and Ex. C, Beshear Letter. Gov. Beshear did not command Atty. Gen. Conway that “when you accepted this job and took that oath, it puts you on a different level,” and “[y]ou have official duties now that the state law puts on you,” but he did deliver this command to county clerks like Davis. See VTC, ¶¶ 28, 35. Gov. Beshear did not publicly proclaim that Atty. Gen.
30

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 39 of 49 - Page ID#: 866
Conway was “refusing to perform [his] duties” and failing to “follow[] the law and carry[] out [his] duty,” and should instead “comply with the law regardless of [his] personal beliefs,” but he did make this proclamation (repeatedly) about county clerks like Davis See VTC, ¶¶ 27, 35. Gov. Beshear did not instruct Atty. Gen. Conway that “if you are at that point to where your personal convictions tell you that you simply cannot fulfill your duties that you were elected to do, than obviously the honorable course to take is to resign and let someone else step-in who feels that they can fulfill these duties,” but he did issue this instruction to county clerks like Davis. See VTC, ¶¶ 28, 35. Gov. Beshear did not ominously declare that “[t]he courts and voters will deal appropriately with” Atty. Gen. Conway, but he did so declare with the “two or three” county clerks who are not issuing marriage licenses. See VTC, ¶¶ 27, 35
In no uncertain terms, the SSM Mandate being implemented by Gov. Beshear has “as [its] object the suppression of religion,” Lukumi, 508 U.S. at 542—even worse, a particular religious belief. Thus, although Atty Gen. Conway was given a pass for his conscience about marriage without any threats of repercussion, clerks like Davis are being repeatedly told by Gov. Beshear to abandon their religiously-informed beliefs or resign. There is no compelling reason, let alone an “interest of the highest order,” Lukumi, 508 U.S. at 546, to impose this choice on Davis when no “substantial threat to public safety, peace or order” is at stake, Sherbert, 374 U.S. at 403-04. The Free Exercise Clause “commits government itself to religious tolerance,” and this Court must not permit Gov. Beshear to abdicate his “own high duty to the Constitution and to the rights it secures,” Lukumi, 508 U.S. at 547, including the religious freedom of persons like Davis. Accordingly, Davis possesses a viable free exercise claim that must be protected.
31

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 40 of 49 - Page ID#: 867
3. The Mandate Commanding Davis To Affix Her Name And Approval To SSM Licenses Violates Her Fundamental Free Speech Rights Protected By The United States And Kentucky Constitutions.
The United States and Kentucky Constitutions also protect the free speech rights of Davis. U.S. CONST. amend. I (government may not “abridg[e] the freedom of speech”); KY. CONST., § 1 (persons have an inalienable right of “freely communicating their thoughts and opinions”); id., § 8 (“[e]very person may freely and fully speak”). The Free Speech Clause of the First Amendment protects “the decision of both what to say and what not to say.” Riley v. Nat’l Federation of Blind of N.C., Inc., 487 U.S. 781, 797 (1988) (emphasis in original). Indeed, “[t]he right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705, 714 (1976) (citing West Va. State Bd. of Ed. v. Barnette, 319 U.S. 624, 637 (1943)). In Wooley, a religious individual objected to carrying the New Hampshire state motto of “Live Free or Die” on his state-issued license plate. Wooley, 430 U.S. at 707, 715. In Barnette, religious individuals objected to a West Virginia statute requiring public school students to affirmatively salute the flag. Barnette, 319 U.S. at 636. In both cases, the objecting individuals prevailed because the State improperly “invade[d] the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” Barnette, 319 U.S. at 642; Wooley, 430 U.S. at 715.
This “compelled-speech” doctrine applies when “an individual is obliged personally to express a message he disagrees with, imposed by the government.” Johanns v. Livestock Marketing Ass’n, 544 U.S. 550, 557 (2005). In this matter, this Court is faced with a state measure that “forces an individual, as part of [her] daily life” to “be an instrument for fostering public adherence to an ideological point of view [she] finds unacceptable.” See Wooley, 430 U.S. at 715. The single-page KDLA-approved form uses the word “marriage” at six different places on the document (not including the reference to “join[ing] together in the state of matrimony”), and twice
32

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 41 of 49 - Page ID#: 868
designates Davis as the person authorizing the marriage license. See VTC, ¶¶ 11-12, and Exs. A, D. Unlike other governmental licensing or registration schemes that Kentucky provides (e.g., driver’s licenses, fishing and hunting licenses, motor vehicle registration, voter registration), the issuance of a marriage license requires an individual person (the county clerk) to authorize a particular relationship between persons against their religious convictions. Thus, pursuant to Gov. Beshear’s SSM Mandate, Davis is being told to validate and affirm on the prescribed KDLA form a view and message that she finds “morally objectionable” and “repugnant to [her] moral and religious beliefs.” See Wooley, 430 U.S. at 707. As it currently stands, her name and approval cannot be divorced from a SSM license. The principles enshrined in Wooley and Barnette therefore protect Davis from being coerced into placing her imprimatur on a union that, in her view, is not a marriage. To hold otherwise forces Davis to agree with a message and point of view she finds abhorrent and unconstitutionally “invades” her “intellect and spirit.”
Further, even if the KDLA-approved form is state-issued, state-designed, and identified with the state, the form still requires personal speech from a person (the county clerk) to validate, authorize and approve the marriage. The KDLA form identifies “Kim Davis” by name in several places and further designates her as the individual under whose “authority” the license was issued. KY. REV. STAT. § 402.100(3); see also VTC, Exs. A, D. Thus, even if the license entails government speech to a certain degree, it also necessarily implicates the private speech of Davis, whose imprimatur and authority must be stamped on every license she issues. See Wooley, 430 U.S. 705 (engraved message on standardized, state-issued license plates implicated driver’s free speech rights). If Gov. Beshear now wants Kentucky to issue SSM licenses and recognize SSM licenses from other States following Obergefell that is one thing. But if Gov. Beshear, through his
33

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 42 of 49 - Page ID#: 869
SSM Mandate, commandeers Davis to be an “instrument” for a message that she finds objectionable and repulsive, it is another thing altogether and violates her free speech rights.
4. The Mandate Requiring Davis To Affirm A Definition Of Marriage Contrary To Her Religious Belief Violates The Religious Test Clause.
In addition to First Amendment protections, Davis’ religious conscience is further protected by the Religious Test Clause of the Constitution, which mandates that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” U.S. CONST. art. VI. Compelling all individuals who have any connection with the issuance of marriage licenses (e.g., a county clerk like Davis) to authorize, approve, and participate in that act against their sincerely held religious beliefs about marriage, without providing accommodation, amounts to an improper religious test for holding (or maintaining) public office.
The Kentucky Constitution includes a limited number of requirements for county clerks to hold office, including age and Kentucky residency. KY. CONST. §§ 99, 100. None of the requirements pertain to religious belief or practice. Gov. Beshear, through his SSM Mandate, is importing a newly minted qualification to the Kentucky Constitution’s prescribed qualifications for county clerks: approval of SSM. But at the time she took public office in January 2015 for a four-year term, Davis’ religious beliefs and convictions about marriage undeniably conformed to the law of Kentucky. See VTC, ¶¶ 19-20. To require Davis to now participate in the issuance of SSM licenses is repugnant and antithetical to her religious convictions and conscience. However, government may not “oppos[e] or show[] hostility to religion, thus ‘preferring those who believe in no religion over those who do believe.’” Sch. Dist. Of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 225 (1963).
The case of Girouard v. United States, supra, is instructive here. In Girouard, a Canadian native filed a petition for naturalization and stated in his application that “he understood the
34

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 43 of 49 - Page ID#: 870
principles of the government of the United States, believed in its form of government, and was willing to take the oath of allegiance,” that included swearing an oath “to support and defend the Constitution . . . So help me God,” that was “in no material respect different from” the oath of office for public officials. 328 U.S. at 62, 65. But in answering the question on his application regarding whether he was willing to take-up arms in defense of his country, he stated that his religious beliefs prevented him from “combatant military duty.” Id. at 62. He was willing to serve in the army, just not bearing arms. Id. The district court admitted him for citizenship, which the court of appeals reversed. The Supreme Court then reversed the court of appeals since “[o]ne may serve his country “faithfully and devotedly, though his religious scruples make it impossible for him to shoulder a rifle.” Id. at 64. The fact that his role may be limited “by religious convictions” had no bearing “on his attachment to his country or on his willingness to support and defend it to his utmost.” Id. at 65. In rejecting argument that the individual could not support and defend the Constitution, the Supreme Court concluded that “[i]t is hard to believe that one need forsake his religious scruples to become a citizen but not to sit in the high councils of state,” implying thereby that persons need not forsake their “religious scruples” to “sit in the high councils of state.” Id. at 66. As further evidence of the parallels to be drawn in this scenario, the religious conscience objection was acceptable in light of the historical back-up for the belief. See id. at 64-65. Finally, the importance of protecting religious liberty in this country cannot be overemphasized:
The struggle for religious liberty has through the centuries been an effort to accommodate the demands of the State to the conscience of the individual. The victory for freedom of thought recorded in our Bill of Rights recognizes that in the domain of conscience there is a moral power higher than the State. Throughout the ages men have suffered death rather than subordinate their allegiance to God to the authority of the State. Freedom of religion guaranteed by the First Amendment is the product of that struggle.
35

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 44 of 49 - Page ID#: 871
Girouard, 328 U.S. at 68. Like a non-combatant who cannot shoulder a rifle, a county clerk who cannot issue SSM licenses can still faithfully and devotedly serve this country, and their county.
In Gov. Beshear’s view, which is apparently shared by Plaintiffs in the underlying action, religious persons like Davis, who became county clerk before Obergefell, must either participate without exception in the issuance of SSM marriage licenses (her conscience be damned) or resign since holding public office is her choice (her livelihood, qualifications for office, and commitment to public service be damned). Thus, she is told to cast aside her deep religious convictions after entering the door of public service, and those not yet serving in similar public roles are told to shed any such convictions before taking office. But the fact “that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution.” Torcaso v. Watkins, 367 U.S. 488, 495-96 (1961). Indeed, the very idea that religious persons “need not apply” for these public positions that have historically been accessible to them constitutes an unmistakable religious litmus test that is “abhorrent to our tradition.” Girouard, 328 U.S. at 829. Imposing on all public officials—whether elected or appointed—a mandate to participate in SSM, without any protection for religious conscience, violates the First Amendment and Religious Test Clause.
B. Preliminary Relief Protects Davis From Irreparable Harm. In the Sixth Circuit, “it is well-settled that ‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (noting that “courts have held that a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA”). In fact, the Sixth Circuit has expressly found that “[t]he Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury[.]”
36

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 45 of 49 - Page ID#: 872
Newsom v. Norris, 888 F.2d 371, 378 (6th Cir. 1989). The stringent protection of First Amendment rights is due to the “‘intangible nature of the benefits flowing from the exercise of those rights; and the fear that, if these rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future.’” Id. (citation omitted).
Davis is facing imminent harms absent a preliminary injunction. Gov. Beshear has already issued his SSM Mandate, and repeatedly instructed county clerks to either comply with the SSM Mandate, or resign. Not only that, Davis is facing multiple lawsuits from individuals seeking to enforce the SSM Mandate. See D.E. 1, Compl., at ¶¶ 32-33 (referring to the June 26, 2015 “directive from the Chief Executive [Gov. Beshear]” that was sent to “all of Kentucky’s County Clerks”); D.E. 2-2 at 6 (contending that Davis’ refusal to act “is contrary to the direct admonition of the Governor”); see also David Ermold, et al. v. Kim Davis, et al., No. 0:15-cv-00046 (E.D. Ky. July 10, 2015) (D.E. 1, Compl., at ¶¶ 11-12) (referring to “Governor Beshear’s directives” and alleging that “Kentucky Governor Steve Beshear directed all County Clerks to recognize same sex marriages effective June 26, 2015”). Also, Plaintiffs in the underlying action are seeking their own preliminary injunctive relief to enjoin Davis to authorize and approve SSM licenses. See D.E. 22. Accordingly, this factor weighs strongly in providing Davis with preliminary injunctive relief.
C. Granting Preliminary Relief Will Not Cause Irreversible Harm To Others. Granting Davis preliminary injunctive relief will simply prevent enforcement of the SSM mandate against Davis in particular, thereby preserving the status quo between all parties to this action. See United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir. 2004) (noting that “purpose” of a preliminary injunction is “simply to preserve the status quo” until a trial on the merits). In this matter, Kentucky County Clerks are, overwhelmingly, applying the SSM mandate from Gov. Beshear. Thus, Kentucky marriage licenses, including SSM licenses, are readily available across the Commonwealth of Kentucky in nearly all of its 120 counties. See VTC, ¶ 27;
37

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 46 of 49 - Page ID#: 873
see also VTC, Ex. C, Beshear Letter. Therefore, barring Gov. Beshear and Commr. Onskt from enforcing the SSM mandate against Davis would not substantially harm them.
Neither will the Plaintiffs in this action suffer permanent or irrevocable harm if Davis obtains her requested preliminary injunctive relief against Gov. Beshear and Commr. Onskt. The preliminary injunctive relief requested by Davis herein will not substantially harm Plaintiffs’ purported right to marry because no “absolute barrier” has been constructed that “absolutely or largely prevent[s]” Plaintiffs from marrying whom they want to marry. See Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 710 (6th Cir. 2001). The lack of marriage licenses authorized and approved by Davis “does not change the essential fact” that Plaintiffs are not barred “from getting married, nor did it prevent them from marrying a large portion of population even in [Rowan] County.” Vaughn, 269 F.3d at 712.10
Additionally, this case is neither the same case as Obergefell nor controlled by it. Before Obergefell, Plaintiffs were “absolutely prevented” from obtaining a Kentucky marriage license if they wanted to marry a person of the same sex. No same-sex couple was able to obtain a Kentucky marriage license in any one of Kentucky’s 120 counties. And even if Plaintiffs had gotten “married” in a different state, their “marriages” would not have been recognized in Kentucky. But now individuals desiring SSM licenses can obtain them due to the application of the SSM mandate

10

The right to marry cases relied upon by Plaintiffs in the underlying action do not compel a different

conclusion. Critically, the cases of Loving v. Virginia, 388 U.S. 1 (1968), Zablocki v. Redhail, 434 U.S. 374 (1978),

Turner v. Safley, 482 U.S. 78 (1987), and Obergefell, 135 S.Ct. 2584, all involve state-wide bans affecting marriage.

See, e.g., Loving, 388 U.S. at 11-12 (striking down Virginia ban on inter-racial marriages); Zablocki, 434 U.S. at 379,

390-91 (striking down Wisconsin law that required any resident with child support obligations to satisfy such

obligations before marrying and to obtain a court order permitting the marriage); Turner, 482 U.S. at 81-82, 99

(striking down Missouri prison regulation that represented a near “almost complete ban” on inmate marriage);

Obergefell, 135 S.Ct. at 2593, 2599-2605 (redefining marriage to include same-sex couples, and striking down

Kentucky, Tennessee, Michigan and Ohio marriage laws to the contrary). Some of the restrictions also came with

criminal penalties attached for violating the terms of the restrictions (e.g., Loving and Zablocki). Furthermore, none

of those cases also involved religious conscience and First Amendment objections that are present in the case at bar.

38

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 47 of 49 - Page ID#: 874
by nearly all Kentucky County Clerks. Obergefell does not mandate that a person obtain a marriage license in their home county that is approved by a particular individual.
As noted above, because marriage licenses are readily available throughout Kentucky, and have been for more than forty days as of the date of this filing, Plaintiffs have failed to demonstrate that they will suffer any irreparable harm without Davis personally signing, issuing, approving, and authorizing their proposed unions. Importantly, Plaintiffs have admitted that they can obtain a Kentucky marriage license elsewhere and are not required to obtain a marriage license in the county where they reside, see KY. REV. STAT. § 402.080, but they also have uniformly conceded that, although they are aware of these facts, they intentionally have not even tried to secure a license from another county.11 This includes the seven counties neighboring Rowan County, all of whom are issuing marriage licenses, Hr’g Tr. (7/20/15), Davis Direct, at 53:5-15, along with Boyd and Kenton Counties, where the July 13, 2015 and July 20, 2015 hearings were held in this matter (and attended by multiple Plaintiffs). Hr’g Tr. (7/20/15), Davis Direct, at 54:9-19.12 Plaintiffs’ actual desire to be married is apparently less important than having Davis participate in and approve of their desired union. Accordingly, in stark contrast to the foregoing minimal (at most) harm to others, Davis faces severe, immediate, and irreversible harm.

11

See Hr’g Tr. (7/13/15), Miller Direct, at 28:23-25, and Miller Cross, at 31:2-4, 31:10-11; id., Fernandez

Direct, at 37:16-18; id., Fernandez Cross, at 38:10-17; id., Spartman Direct, at 46:23-25, 47:1-2, and Spartman Cross,

at 48:1-6, 48:11-13.

12

Thus, Plaintiffs are willing and able to drive approximately 60 miles to the Ashland federal courthouse (the

distance from the Rowan County clerk’s office) and more than 100 miles to the Covington federal courthouse for

Court hearings, but they cannot drive to any of the dozens of nearby and surrounding counties issuing marriage licenses

to obtain a Kentucky marriage license. More than fifteen (15) Kentucky county clerk’s offices are within 60 miles of

the Rowan County clerk’s office, and more than sixty (60) county clerk’s offices are within 100 miles of the Rowan

County clerk’s office.

39

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 48 of 49 - Page ID#: 875

D. An Injunction To Protect Davis Is In The Public Interest.

Finally, a preliminary injunction will uphold the public interest by protecting Davis’

constitutional and Kentucky RFRA rights. The public has no interest in enforcement of the SSM

Mandate to coerce Davis to violate her conscience and religious freedom. See, e.g., Dayton Area

Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (finding that the

public has a “significant interest” in the “protection of First Amendment liberties”); O Centro

Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 1010 (10th Cir. 2004)

(“[P]ursuant to RFRA, there is a strong public interest in the free exercise of religion even where

that interest may conflict with [another legislative scheme].”).

V. CONCLUSION

For all the foregoing reasons, Davis’ Motion for Preliminary Injunction against Third Party

Defendants Gov. Beshear and Commr. Onkst should be granted.

DATED: August 7, 2015
A.C. Donahue Donahue Law Group, P.S.C. P.O. Box 659 Somerset, Kentucky 42502 Tel: (606) 677-2741 Fax: (606) 678-2977 ACDonahue@DonahueLawGroup.com

Respectfully submitted:
/s/ Jonathan D. Christman Roger K. Gannam Jonathan D. Christman Liberty Counsel P.O. Box 540774 Orlando, Florida 32854 Tel: (800) 671-1776 Fax: (407) 875-0770 rgannam@lc.org jchristman@lc.org
Attorneys for Defendant/Third-Party Plaintiff Kim Davis

40

Case: 0:15-cv-00044-DLB Doc #: 39-1 Filed: 08/07/15 Page: 49 of 49 - Page ID#: 876

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 the following counsel or parties of record:

Daniel J. Canon L. Joe Dunman Laura E. Landenwich CLAY DANIEL WALTON ADAMS, PLC 462 S. Fourth Street, Suite 101 Louisville, KY 40202 dan@justiceky.com joe@justiceky.com laura@justiceky.com
William Ellis Sharp ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 sharp@aclu-ky.org

Jeffrey C. Mando Claire Parsons ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC 40 West Pike Street Covington, KY 41011 jmando@aswdlaw.com cparsons@aswdlaw.com
Attorneys for Rowan County

Attorneys for Plaintiffs

I also hereby certify that two (2) true and correct copies of the foregoing will be sent via

Fedex and U.S.P.S. first class mail to the Attorney General of Kentucky on behalf of Third-Party

Defendants Steven L. Beshear, Governor of Kentucky, and Wayne Onkst, Commissioner of the

Kentucky Department for Libraries and Archives, at the following location:

Attorney General Jack Conway OFFICE OF THE ATTORNEY GENERAL
700 Capitol Avenue, Suite 118 Frankfort, KY 40601-3449

DATED: August 7, 2015

/s/ Jonathan D. Christman Jonathan D. Christman Attorney for Defendant/Third-Party Plaintiff Kim Davis

Case: 0:15-cv-00044-DLB Doc #: 39-2 Filed: 08/07/15 Page: 1 of 45 - Page ID#: 877

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :12oof f3425- -PPaaggeeIDID##: :784758

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION

APRIL MILLER, ET AL., Plaintiffs,
v. KIM DAVIS, ET AL.,
Defendants.

: : : CIVIL ACTION : : 0:15-CV-00044-DLB : : DISTRICT JUDGE : DAVID L. BUNNING : :

KIM DAVIS,

:

:

Third-Party Plaintiff,

:

:

v.

:

:

STEVEN L. BESHEAR, in his official

:

capacity as Governor of Kentucky, and

:

WAYNE ONKST, in his official capacity as :

State Librarian and Commissioner,

:

Kentucky Department for Libraries and :

Archives,

:

:

Third-Party Defendants.

:

:

VERIFIED THIRD-PARTY COMPLAINT OF DEFENDANT KIM DAVIS Defendant and Third-Party Plaintiff, KIM DAVIS (“Davis”), for her third-party complaint pursuant to Rule 14, Fed. R. Civ. P., sues Third-Party Defendant STEVEN L. BESHEAR, in his official capacity as Governor of Kentucky (“Governor Beshear”), and ThirdParty Defendant WAYNE ONKST, in his official capacity as State Librarian and Commissioner, Kentucky Department for Libraries and Archives (“Commissioner Onkst”), and alleges:

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :23oof f3425- -PPaaggeeIDID##: :784769
INTRODUCTION 1. The Commonwealth of Kentucky, acting through Governor Beshear, has deprived Davis of her religious conscience rights guaranteed by the United States and Kentucky Constitutions and laws, by insisting that Davis issue marriage licenses to same-sex couples contrary to her conscience, based on her sincerely held religious beliefs. Because of Governor Beshear’s open declaration that Davis has no such rights, Governor Beshear has exposed Davis to the Plaintiffs’ underlying lawsuit, in which the Plaintiffs claim a constitutional right to a Kentucky marriage license issued specifically by Davis. Governor Beshear is not only liable to Davis for Plaintiffs’ claims, but is also obligated to effect Kentucky marriage licensing policies that uphold Davis’s rights of religious conscience.
JURISDICTION AND VENUE 2. This action arises under Article VI and the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, Sections 1, 3, 5, and 8 of the Constitution of Kentucky, and the Kentucky Religious Freedom Restoration Act, Ky. Rev. Stat. §§ 446.350 (the Kentucky “RFRA”). 3. This Court has subject matter jurisdiction over Davis’s federal law claims pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has subject matter jurisdiction over Davis’s state law claims pursuant 28 U.S.C. § 1367. 4. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202.
PARTIES 5. Davis is the County Clerk for Rowan County, Kentucky. She was elected to the office of County Clerk in November 2014, and officially took office January 1, 2015, for a four-
2

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :34oof f3425- -PPaaggeeIDID##: :784870
year term. Prior to taking office, Davis was a deputy clerk for her predecessor in office for nearly thirty years.
6. Governor Beshear is the Governor of the Commonwealth of Kentucky. As the highest executive officer of the Commonwealth, Governor Beshear has responsibility for effecting Kentucky marriage law, and has final policymaking authority over the enforcement of Kentucky marriage laws.
7. Commissioner Onkst is the State Librarian and Commissioner of the Kentucky Department for Libraries and Archives. The Kentucky Department for Libraries and Archives (“KDLA”) is an executive branch department of Kentucky government “headed by a commissioner whose title shall be state librarian who shall be appointed by and serve at the pleasure of the Governor.” Ky. Rev. Stat. § 171.130. Commissioner Onkst has responsibility for the design and provision of the official Kentucky marriage license form to be used by all county clerks in the issuance of marriage licenses, and has final policymaking authority over the design of the official Kentucky marriage license form to be used by all county clerks in the issuance of marriage licenses.
GENERAL ALLEGATIONS Administration of Kentucky Marriage Policy before Obergefell 8. The Commonwealth of Kentucky has a body of democratically-enacted law memorializing the millennia-old, natural definition of marriage as the union of one man and one woman. In 1998, the Kentucky legislature codified at Ky. Rev. Stat. § 402.005 the natural definition of marriage, previously entrenched in Kentucky common law, that “‘marriage’ refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon
3

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :45oof f3425- -PPaaggeeIDID##: :784881
those whose association is founded on the distinction of sex.” In 2004, the Kentucky legislature proposed a constitutional amendment, which was subsequently enacted on the approval of seventy-four percent (74%) of the voters, memorializing that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky” KY. CONST. § 233A.
9. The Commonwealth also has a body of legislation governing the issuance of marriage licenses in Kentucky. Under these Kentucky marriage laws, individuals may obtain a Kentucky marriage license in any of Kentucky’s 120 counties, Ky. Rev. Stat. § 402.080, some of which have multiple branch offices. Thus, in total, there are approximately 137 marriage licensing locations in Kentucky.
10. Pursuant to Kentucky’s marriage licensing scheme, “[e]ach county clerk shall use the form proscribed by the Department for Libraries and Archives when issuing a marriage license” which “shall be uniform throughout this state, and every license blank shall contain the identical words and figures provided in the form.” Ky. Rev. Stat. §§ 402.100, 402.110. County clerks have no local discretion under Kentucky law to alter the composition or requirements of the KDLA-prescribed form.
11. The KDLA form must include both a “marriage license” and a “marriage certificate.” Ky. Rev. Stat. § 402.100. The marriage license section must include an “authorization statement of the county clerk issuing the license” and “[t]he date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license.” Ky. Rev. Stat. § 402.100(1). The marriage certificate section must include “the name of the county clerk under whose authority the license was issued, and the county in which the license was issued” and “[a] signed statement by the county clerk or a deputy county clerk of the county in
4

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :56oof f3425- -PPaaggeeIDID##: :784892
which the marriage license was issued that the marriage license was recorded.” Ky. Rev. Stat. § 402.100(2), (3). The KDLA-prescribed form specifically uses the word “marriage” at six different places on the form (and one reference to “join[ing] together in the state of matrimony”). (A true and correct copy of a completed, KDLA-prescribed form of marriage license used in Rowan County prior to June 30, 2015, with personal information redacted, is attached hereto as Exhibit A.1)
12. Thus, every marriage license must be issued and signed in the county clerk’s name and by the county clerk’s authority. In other words, no marriage license can be issued by a county clerk without her authorization and without her imprimatur.
13. As an alternative to a marriage license issued by a county clerk, Kentucky marriage law provides for the issuance of a marriage license by a county judge/executive, the highest elected officer in a county, upon the absence of the clerk or vacancy in the clerk’s office. See Ky. Rev. Stat. § 402.240. This alternative procedure does not require the use of the KDLA marriage license form; rather, it authorizes the county judge/executive to issue a marriage license by “a memorandum thereof,” which is recorded by the clerk in the same manner as a KDLA form. See id.
14. In February 2014, the Western District of Kentucky issued a decision holding Kentucky’s definition of marriage unconstitutional.2 In March 2014, Kentucky Attorney General Jack Conway, whose office had represented Kentucky in the case, tearfully proclaimed that after

1

The document attached as Exhibit A was admitted into evidence at the hearing on

Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) as Defendant’s Exhibit 2 (“Old version of

marriage license from KDLA”). (Ex. and Witness List (Doc. 25).)

2

See Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 2014) (decided February 12,

2014).

5

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :67oof f3425- -PPaaggeeIDID##: :785803

prayer and consultation with his wife he could not continue defending Kentucky’s marriage laws
as an “inescapable” matter of conscience.3 Conway said,
There are those who believe it’s my mandatory duty, regardless of my personal opinion, to continue to defend this case through the appellate process, and I have heard from many of them. However, I came to the inescapable conclusion that, if I did so, I would be defending discrimination. . . .
That I will not do. . . .
. . . .
. . . . I can only say that I am doing what I think is right. In the final analysis, I had to make a decision that I could be proud of – for me now, and my daughters’ judgment in the future.4
15. Within minutes of Conway’s announcement, Governor Beshear announced the
Commonwealth would hire private attorneys to pursue the appeal of the Western District’s
ruling, and to represent Kentucky in a companion Western District case.5 Governor Beshear
directed no adverse statements or actions towards Conway as a result of Conway’s refusal to
perform official duties due to his conscience, though Conway’s refusal caused additional cost to
the Commonwealth upwards of $200,000.00 for outside counsel. 6

3

Beshear to hire $125-an-hour lawyer for gay marriage appeal after Conway bows out,

Wave3 News, available at http://www.wave3.com/story/24886884/beshear-to-hire-125-an-hour-

lawyer-for-gay-marriage-appeal-after-conway-bows-out (last accessed July 30, 2015) (quoting

Plaintiffs’ Counsel, Dan Canon, that Conway’s conscientious objection to performing his duty to

defend Kentucky’s marriage laws gave him “hope.”).

4

Read and watch Jack Conway’s statement on same-sex marriage, WKYT.com, dated

Mar. 4, 2014, available at http://www.wkyt.com/home/headlines/Read--watch-Attorney-

General-Conways-same-sex-statement-248381361.html (last accessed July 30, 2015) (emphasis

added).

5

See supra, n. 3. The Western District ruled against Kentucky in the second case, see Love

v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. 2014). The Sixth Circuit reversed both district court

decisions in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), which was ultimately reversed by

the Supreme Court in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

6

Ky. Pays $195K+ to defend gay-marriage ban, The Courier-Journal, dated May 20, 2015,

available at http://www.courier-journal.com/story/news/local/2015/05/20/cost-gay-marriage-

defense/27404461/ (last accessed July 30, 2015) (stating that Kentucky paid $195,400 to a

6

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :78oof f3425- -PPaaggeeIDID##: :785814
Davis’s Sincerely Held Religious Beliefs About Marriage 16. Davis is a professing Christian who is heavily involved in her local church, attending weekly Bible study and worship services there, and who leads a weekly Bible study for women at a local jail. 17. As a Christian, Davis possesses a sincerely held religious belief and conviction, based upon the Bible which she believes to be the Word of God, that “marriage” is exclusively a union between one man and one woman. According to her beliefs, there is no arrangement of people other than one man and one woman that is, or can be called, “marriage.” 18. As county clerk, as a matter of Kentucky law, Davis authorizes, and signifies her authorization and approval by affixing her name to, each and every marriage license issued from her office. But Davis can neither authorize nor approve the “marriage” of a same-sex couple according to her conscience, because even calling the relationship of a same-sex couple “marriage” would violate her deeply and sincerely held religious beliefs. Nor can Davis allow her name to appear as the source of authority and approval for any marriage license issued to a same-sex couple because providing such approval would violate her sincere religious beliefs and convictions. 19. Before taking office as County Clerk in January 2015, Davis swore an oath to support the constitutions and laws of the United States and the Commonwealth of Kentucky “so help me God.” Davis understood (and understands) this oath to mean that, in upholding the federal and state constitutions and laws, she would not act in contradiction to the moral law of God, natural law, or her sincerely held religious beliefs and convictions. Davis also understood (and understands) the constitution and laws she swore to uphold to incorporate the constitutional
private firm through March 31, 2015 to defend Kentucky’s marriage law after Conway refused to do so).
7

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :89oof f3425- -PPaaggeeIDID##: :785825

and other legal protections of all individuals’ rights to live and work according to their consciences, as informed by their sincerely held religious beliefs and convictions, including without limitation such rights she holds in her own individual capacity.
20. Davis’s sincerely held religious belief regarding the definition of “marriage” was perfectly aligned with the prevailing marriage policy in Kentucky at the time she took office, as provided in the Kentucky Constitution, Kentucky statutes, and controlling court decisions, and as effected by the Commonwealth through Governor Beshear and Commissioner Onkst.
21. On January 16, 2015, just two weeks after Davis took office, the United States Supreme Court announced it would review the then-controlling Sixth Circuit decision upholding Kentucky’s natural definition of marriage.
22. On January 23, Davis wrote Kentucky legislators exhorting them to “get a bill on the floor to help protect clerks” who had a religious objection to issuing marriage licenses to same-sex couples. (A true and correct copy of the form of letter sent to legislators is attached hereto as Exhibit B.7)
23. Davis does not have a religious objection to issuing, signing, or otherwise approving a marriage license for any man and woman who otherwise satisfy all of the legal requirements for marriage under Kentucky law, regardless of the identities, orientations, or practices of the applicants, including sexual identities, orientations, and practices. Furthermore, Davis’s religious beliefs do not compel her to inquire of such applicants as to any aspects of their identities, orientations, or practices beyond the information required to complete the prescribed marriage license form.

7

The document attached as Exhibit B was admitted into evidence at the hearing on

Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) as Defendant’s Exhibit 1 (“Letter to

Senator Robertson from Kim Davis”). (Ex. and Witness List (Doc. 25).)

8

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 93-42 FFiilleedd:: 0088//0047//1155 PPaaggee:: 910ofo3f 245- P- aPgaegeIDI#D:#7: 58386

Administration of Kentucky Marriage Policy after Obergefell 24. On June 26, 2015, a five-to-four majority of the United States Supreme Court held that democratically-approved laws from Kentucky and three other states, defining marriage as the union of one man and one woman, were “invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Obergefell v. Hodges, 135 S.Ct. 2584, 2605 (2015). According to the majority, the United States Constitution “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Id. at 2607. 25. The same day, Governor Beshear sent a letter to all “Kentucky County Clerks,” including Davis, informing them that “[e]ffective today, Kentucky will recognize as valid all same sex marriages performed in other states and in Kentucky.” The letter stated that “Kentucky . . . must license and recognize the marriages of same-sex couples,” and further instructed that “[n]ow that same-sex couples are entitled to the issuance of a marriage license, the Department of Libraries and Archives will be sending a gender-neutral form to you today, along with instructions for its use.” (A true and correct copy of Governor Beshear’s letter to county clerks is attached hereto as Exhibit C.8) 26. On Governor Beshear’s instructions, the KDLA provided county clerks with a new marriage license form, reflecting changes from the prior approved form to accommodate same-sex couples.9 Critically, however, the new form retained all references to “marriage,” and all references to the name, signature, and authorization requirements of the county clerk. (A true

8

The document attached as Exhibit C was admitted into evidence at the hearing on

Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) as Defendant’s Exhibit 4 (“6/26/15 Letter

from Governor”). (Ex. and Witness List (Doc. 25).).

9

The post-Obergefell marriage form eliminated references to “bride” and “groom” and

replaced them with “first party” and “second party.

9

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :1101oof f3425- -PPaaggeeIDID##: :785847
and correct copy of the new KDLA marriage license form is attached hereto as Exhibit D.10)
Thus, Davis cannot issue a marriage license to a same-sex couple on the new form without
violating her conscience, as informed by her sincerely held religious beliefs.
27. Following Governor Beshear’s decree, county clerks across the Commonwealth
began issuing same-sex marriage licenses. Governor Beshear reiterated, “government officials in Kentucky . . . must recognize same-sex marriages as valid and allow them to take place,”11 and
confirmed that “[s]ame-sex couples are now being married in Kentucky and such marriages from other states are now being recognized under Kentucky law.”12 In these same pronouncements,
Governor Beshear stated that the “overwhelming majority of county clerks” are “iss[uing]
marriage licenses regardless of gender” and only “two or three” county clerks (of 120) were
“refusing” to issue such licenses due to their “personal beliefs” and “personal feelings.”
28. In subsequent pronouncements, Governor Beshear has maintained that county
clerks must issue marriage licenses, including to same-sex couples, despite any clerk’s “own personal beliefs.”13 According to Governor Beshear, the only options available to county clerks
who oppose issuing marriage licenses to same-sex couples, even due to conscience or sincerely held religious beliefs, are to either issue the licenses in violation of conscience, or resign.14
10 The document attached as Exhibit D was admitted into evidence at the hearing on Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) as Defendant’s Exhibit 3 (“New version of marriage license from KDLA after S.Ct. 6/26/15 decision”). (Ex. and Witness List (Doc. 25).). 11 Press Release, Gov. Beshear Statement on Today’s Meeting with Casey County Clerk, dated July 9, 2015, available at http://migration.kentucky.gov/Newsroom /governor/20150707 statement.htm (last accessed July 29, 2015). 12 Press Release, Gov. Beshear: No special session needed, dated July 7, 2015, available at http://migration.kentucky.gov/Newsroom/governor/20150707statement.htm (last accessed July 29, 2015); 13 Gov. Beshear Tells County Clerks to Fulfill Their Duties or Resign, WMKY.com, dated July 21, 2015, available at http://wmky.org/post/gov-beshear-tells-county-clerks-fullfill-theirduties-or-resign (last accessed July 29. 2015). 14 See supra, n. 13.
10

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :1112oof f3425- -PPaaggeeIDID##: :785858
29. On June 27, 2015, Davis discontinued issuing marriage licenses in Rowan County. This was not a “spur-of-the-moment decision” reached by Davis. Rather, after exhorting legislators to provide conscience protection for county clerks upon taking office, Davis prayed and fasted during the months leading up to Obergefell over how she would respond to such a Supreme Court decision. Though Davis’s religious objection is limited to issuing licenses to same-sex couples, she suspended the issuance of all licenses to ensure that all individuals and couples in Rowan County were treated the same.
30. On July 8, 2015, Davis sent a letter appealing to Governor Beshear to uphold her religious conscience rights, and to call a special session of the Kentucky General Assembly to legislatively address the conflict between her religious beliefs and Kentucky marriage policy as effected by Governor Beshear. (A true and correct copy of the letter is attached hereto as Exhibit E.15) Davis has received no response to her letter.
31. During Davis’s entire tenure in the Rowan County Clerk’s Office, spanning nearly thirty years, neither Davis, any deputy clerk, nor Davis’s predecessor in office ever asserted a religious objection to performing any other function of the clerk’s office.
32. The County Judge/Executive of Rowan County, Walter Blevins (“Judge Blevins”), would raise no religious objection to issuing marriage licenses to same-sex couples under the authority of Ky. Rev. Stat. § 402.240. However, Judge Blevins has refused to issue a marriage license to any of the Plaintiffs in the underlying action against Davis based on his belief that Davis’s discontinuation of the issuance of all marriage licenses in Rowan County does not
15 The document attached as Exhibit E was admitted into evidence at the hearing on Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) as Defendant’s Exhibit 5 (“7/8/15 Letter from Kim Davis to Governor”). (Ex. and Witness List (Doc. 25).).
11

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :1123oof f3425- -PPaaggeeIDID##: :785869
count as the “absence” of Davis for purposes of the issuance of marriage licenses under Ky. Rev. Stat. § 402.40.
Effect of Governor Beshear’s Administration of Kentucky Marriage Policy and the Need for Immediate Relief
33. Governor Beshear took it upon himself after Obergefell to set and announce new Kentucky marriage license policies, and command county clerks to abide by such policies.
34. Governor Beshear’s policies and directives are specifically targeting clerks like Davis who possess certain religious beliefs about marriage. This targeting is demonstrated by the exemption Governor Beshear granted to Attorney General Conway when he was unwilling to defend Kentucky’s marriage laws—after “pray[ing] over this decision”—pursuant to Conway’s own personal beliefs and feelings about “doing what I think is right” and “mak[ing] a decision that I could be proud of.” (See supra, n.4.)
35. Governor Beshear is unlawfully picking and choosing the conscience-based exemptions to marriage that he deems acceptable. For instance, when Attorney General Conway refused to defend Kentucky’s marriage laws, Beshear did not admonish Conway that “Neither your oath nor the Supreme Court dictates what you must believe. But as elected officials, they do prescribe how we must act,” but Governor Beshear did so direct county clerks like Davis. (Ex. C.) Beshear did not command Conway that “when you accepted this job and took that oath, it puts you on a different level,” and “[y]ou have official duties now that the state law puts on you,” but he did deliver this command to county clerks like Davis. (See supra, n.13.) Beshear did not publicly proclaim that Conway was “refusing to perform [his] duties” and failing to “follow[] the law and carry[] out [his] duty,” and should instead “comply with the law regardless of [his] personal beliefs,” but he did make this proclamation (repeatedly) about county clerks like Davis (See supra, nn. 11, 12.) Beshear did not instruct Conway that “if you are at that point to where
12

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :1134oof f3425- -PPaaggeeIDID##: :785970
your personal convictions tell you that you simply cannot fulfill your duties that you were elected to do, than obviously the honorable course to take is to resign and let someone else stepin who feels that they can fulfill these duties,” but he did issue this instruction to county clerks like Davis. (See supra, n.13.) Beshear did not ominously declare that “[t]he courts will deal appropriately with” Conway, but he did so declare as to the “two or three” county clerks who are not issuing marriage licenses. (See supra, n.12.)
36. In no uncertain terms, Governor Beshear’s policies and directives are intended to suppress religion—even worse, a particular religious belief. Thus, although Attorney General Conway was given a pass for his conscience about marriage without any threats of repercussion, clerks like Davis are being repeatedly told by their Governor to abandon their religiouslyinformed beliefs or resign. In doing so, Governor Beshear is forcing clerks like Davis to choose between following the precepts of her religion and forfeiting her position, on the one hand, and abandoning one of the precepts of her religion in order to keep her position, on the other hand.
37. Citing Governor Beshear’s policies and directives to all county clerks to issue licenses to same-sex couples irrespective of their sincerely held religious beliefs, the Plaintiffs in the underlying action allege that they are entitled to Kentucky marriage licenses issued specifically by Davis, and claim that Davis’s refusal to issue marriage licenses violates their constitutional rights.
38. Governor Beshear’s targeted and discriminatory marriage policy pronouncements constitute government-imposed pressure on Davis to act contrary to her religious beliefs, and expose Davis to potential liability if she refuses to compromise her religious beliefs and violate her conscience.
13

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :1145oof f3425- -PPaaggeeIDID##: :785981
39. Davis needs immediate relief from Governor Beshear’s unlawful policies before this Court can properly adjudicate the Plaintiffs’ claims against Davis in the underlying action.
40. At all relevant times, Governor Beshear and Commissioner Onkst acted under color of state law.
41. All conditions precedent to the commencement and maintenance of this action have been satisfied, have occurred, or have been waived.
COUNT I Third-Party Liability 42. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 43. Plaintiffs’ claims against Davis in the underlying action are based on Governor Beshear’s unlawful policies and directives to Davis with respect to issuing Kentucky marriage licenses, including without limitation the failure of Governor Beshear to uphold and protect Davis’s rights of religious conscience. 44. Governor Beshear is liable to Davis for all of any relief obtained by Plaintiffs against Davis in the underlying action. 45. If the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the religious conscience rights of Davis. WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
14

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :1156oof f3425- -PPaaggeeIDID##: :785992
COUNT II Violation of Kentucky RFRA
Third-Party Liability 46. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 47. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 48. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, create government-imposed coercive pressure on Davis to change or violate her religious beliefs. 49. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, chill Davis’s religious exercise. 50. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, expose Davis to liability to Plaintiffs and others. 51. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, impose a substantial burden on Davis’s religious exercise. 52. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, further no compelling government interest. 53. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not narrowly tailored to any compelling government interest. 54. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not the least restrictive means of furthering any interest of Kentucky. 55. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by the Kentucky RFRA.
15

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :1167oof f3425- -PPaaggeeIDID##: :786903
56. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by the Kentucky RFRA.
57. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Substantial Burden Third-Party Liability 58. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 59. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 60. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not neutral. 61. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not generally applicable. 62. Governor Beshear has targeted and singled out Davis for discriminatory treatment under Kentucky’s marriage policies, in order to suppress the religious exercise of Davis and others.
16

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :1178oof f3425- -PPaaggeeIDID##: :786914
63. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, create government-imposed coercive pressure on Davis to change or violate her religious beliefs.
64. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, chill Davis’s religious exercise.
65. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, expose Davis to liability to Plaintiffs and others.
66. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, impose a substantial burden on Davis’s religious exercise.
67. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, further no compelling government interest.
68. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not narrowly tailored to any compelling government interest.
69. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not the least restrictive means of furthering any interest of Kentucky.
70. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by the Free Exercise Clause of the First Amendment to the United States Constitution and the Fourteenth Amendment to the United States Constitution.
71. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by the Free Exercise Clause of
17

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :1189oof f3425- -PPaaggeeIDID##: :786925
the First Amendment to the United States Constitution and the Fourteenth Amendment to the United States Constitution.
72. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination
Third-Party Liability 73. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 74. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 75. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, make it impossible for Davis to comply with both her religious beliefs and Kentucky’s marriage policies. 76. Governor Beshear has targeted and singled out Davis for discriminatory treatment under Kentucky’s marriage policies, in order to suppress the religious exercise of Davis and others. 77. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by the Free Exercise Clause of the
18

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :1290oof f3425- -PPaaggeeIDID##: :786936
First Amendment to the United States Constitution and the Fourteenth Amendment to the United States Constitution.
78. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by the Free Exercise Clause of the First Amendment to the United States Constitution and the Fourteenth Amendment to the United States Constitution.
79. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT V Religious Discrimination— Violation of the First and Fourteenth Amendments to the United States Constitution Free Exercise and Establishment Clauses; Due Process and Equal Protection
Third-Party Liability 80. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 81. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 82. By design, Governor Beshear allows some religious and conscientious objections to compliance with Kentucky marriage laws but not others, resulting in discrimination among religious objectors.
19

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :2201oof f3425- -PPaaggeeIDID##: :786947
83. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, vest Governor Beshear with unbridled discretion in deciding whether to allow exemptions from compliance with Kentucky marriage law to some persons.
84. Religious liberty is a fundamental right. 85. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, protect some religious objectors, but not Davis. 86. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution and by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. 87. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution and by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. 88. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed. WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
20

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :2212oof f3425- -PPaaggeeIDID##: :786958
COUNT VI Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech Third-Party Liability 89. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 90. Davis believes and professes that issuing marriage licenses to same-sex couples violates her religious beliefs. 91. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, would compel Davis to cooperate in activities, through the issuance of marriage licenses under her name and approval, that are violations of Davis’s religious beliefs. 92. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, would compel Davis to state her identification, authorization, and approval as “marriage” of same-sex relationships which cannot be “marriage” according to her religious beliefs. 93. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not narrowly tailored to a compelling governmental interest. 94. Kentucky’s actions, as effected by Governor Beshear and Commissioner Onkst, thus violate Davis’s right to be free from compelled speech as secured to her by the First Amendment to the United States Constitution. 95. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by the First Amendment to the United States Constitution.
21

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :2223oof f3425- -PPaaggeeIDID##: :786969
96. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT VII Violation of Article VI of the United States Constitution
Religious Test Third-Party Liability 97. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 98. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 99. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, require persons with religious beliefs like those of Davis to renounce such beliefs as a condition to holding the office of county clerk, and thereby impose a religious test as a qualification to hold the office of county clerk. 100. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by Article VI of the United States Constitution and the Fourteenth Amendment to the United States Constitution. 101. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by Article VI of the United States Constitution and the Fourteenth Amendment to the United States Constitution.
22

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :2234oof f3425- -PPaaggeeIDID##: :796070
102. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT VIII Violation of Sections 1 and 5 of the Kentucky Constitution
Religious Freedom and Rights of Conscience Third-Party Liability
103. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above.
104. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise.
105. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not neutral.
106. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not generally applicable.
107. Governor Beshear has targeted and singled out Davis for discriminatory treatment under Kentucky’s marriage policies, in order to suppress the religious exercise of Davis and others.
108. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, create government-imposed coercive pressure on Davis to change or violate her religious beliefs.
109. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, chill Davis’s religious exercise.
23

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :2245oof f3425- -PPaaggeeIDID##: :796081
110. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, expose Davis to liability to Plaintiffs and others.
111. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, impose a substantial burden on Davis’s religious exercise.
112. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, further no compelling government interest.
113. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not narrowly tailored to any compelling government interest.
114. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not the least restrictive means of furthering any interest of Kentucky.
115. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights of religious freedom and conscience secured to her by Sections 1 and 5 of the Kentucky Constitution.
116. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by Sections 1 and 5 of the Kentucky Constitution.
117. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
24

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :2256oof f3425- -PPaaggeeIDID##: :796092
COUNT IX Violation of Sections 1 and 5 of the Kentucky Constitution
Religious Discrimination Third-Party Liability
118. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above.
119. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise.
120. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, make it impossible for Davis to comply with both her religious beliefs and Kentucky’s marriage policies.
121. Governor Beshear has targeted and singled out Davis for discriminatory treatment under Kentucky’s marriage policies, in order to suppress the religious exercise of Davis and others.
122. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights against religious discrimination secured to her by Sections 1 and 5 of the Kentucky Constitution.
123. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by Sections 1 and 5 of the Kentucky Constitution.
124. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
25

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :2267oof f3425- -PPaaggeeIDID##: :797003
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT X Religious Discrimination— Violation of Sections 1, 3, and 5 of the Kentucky Constitution Religious Preference; Equality
Third-Party Liability 125. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 126. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 127. By design, Governor Beshear allows some religious and conscientious objections to compliance with Kentucky marriage laws but not others, resulting in discrimination among religious objectors. 128. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, vest Governor Beshear with unbridled discretion in deciding whether to allow exemptions from compliance with Kentucky marriage law to some persons. 129. Religious liberty is a fundamental right. 130. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, protect some religious objectors, but not Davis. 131. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights to equality and against religious discrimination and religious preferences secured to her by Sections 1, 3, and 5 of the Kentucky Constitution. 132. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to
26

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :2278oof f3425- -PPaaggeeIDID##: :797014
Plaintiffs which does not violate the rights of Davis secured to her by Sections 1, 3, and 5 of the Kentucky Constitution.
133. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief
COUNT XI Violation of the Sections 1 and 8 of the Kentucky Constitution
Freedom of Speech Compelled Speech Third-Party Liability 134. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 135. Davis believes and professes that issuing marriage licenses to same-sex couples violates her religious beliefs. 136. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, would compel Davis to cooperate in activities, through the issuance of marriage licenses under her name and approval, that are violations of Davis’s religious beliefs. 137. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, would compel Davis to state her identification, authorization, and approval as “marriage” of same-sex relationships which cannot be “marriage” according to her religious beliefs. 138. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, are not narrowly tailored to a compelling governmental interest.
27

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :2289oof f3425- -PPaaggeeIDID##: :797025
139. Kentucky’s actions, as effected by Governor Beshear and Commissioner Onkst, thus violate Davis’s right to be free from compelled speech as secured to her by Sections 1 and 8 of the Kentucky Constitution.
140. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by Sections 1 and 8 of the Kentucky Constitution.
141. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
COUNT XII Violation of Section 5 of the Kentucky Constitution
Religious Test Third-Party Liability 142. Davis realleges and incorporates herein by this reference the allegations of paragraphs 1 through 41 above. 143. Davis’s sincerely held religious beliefs prohibit her from issuing marriage licenses to same-sex couples. Davis’s compliance with her religious beliefs is a religious exercise. 144. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, require persons with religious beliefs like those of Davis to renounce such beliefs as a condition to holding the office of county clerk, and thereby impose a religious test as a qualification to hold the office of county clerk.
28

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :2390oof f3425- -PPaaggeeIDID##: :797036
145. Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Davis’s rights secured to her by Section 5 of the Kentucky Constitution.
146. Given the foregoing violations of Davis’s rights, if the Court determines Plaintiffs are entitled to a Kentucky marriage license issued in Rowan County, then Governor Beshear and Commissioner Onkst are liable to Davis to provide a means for issuance of marriage licenses to Plaintiffs which does not violate the rights of Davis secured to her by Section 5 of the Kentucky Constitution.
147. Absent injunction and declaratory relief against Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, Davis has been and will continue to be harmed.
WHEREFORE, Davis prays for relief against Governor Beshear and Commissioner Onkst as hereinafter set forth in her prayer for relief.
PRAYER FOR RELIEF WHEREFORE, Davis respectfully requests that the Court: a. Declare that Kentucky’s marriage policies, as effected by Governor Beshear and
Commissioner Onkst, violate the Kentucky RFRA; b. Declare that Kentucky’s marriage policies, as effected by Governor Beshear and
Commissioner Onkst, violate the First Amendment and Fourteenth Amendment to the United States Constitution, and Article VI of the United States Constitution; c. Declare that Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, violate Sections 1, 3, 5, and 8 of the Kentucky Constitution;
29

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :3301oof f3425- -PPaaggeeIDID##: :797047
d. Issue a preliminary and permanent injunction prohibiting enforcement of Kentucky’s marriage policies, as effected by Governor Beshear and Commissioner Onkst, against Davis;
e. Impose against or transfer to Governor Beshear and Commissioner Onkst any relief obtained by Plaintiffs against Davis in the underlying action;
f. Award Davis the costs of this action and reasonable attorney’s fees; and g. Award such other and further relief as the Court deems just and proper.
JURY DEMAND Davis requests a trial by jury on all issues so triable.
Respectfully Submitted, /s/ Roger K. Gannam Roger K. Gannam (Fla. 240450)† rgannam@LC.org court@LC.org Jonathan D. Christman (Pa. 306634)† jchristman@LC.org LIBERTY COUNSEL P.O. BOX 540774 Orlando, FL 32854-0774 (800) 671-1776 Telephone (407) 875-0770 Facsimile †Admitted pro hac vice Attorneys for Defendant and Third-Party Plaintiff, Kim Davis
30

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :3312oof f3425- -PPaaggeeIDID##: :797058 31

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3394-2 FFileiledd: :0088/0/047/1/155 PPaaggee: :3323oof f3425- -PPaaggeeIDID##: :797069

CERTIFICATE OF SERVICE

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

CM/ECF system, which will effectuate service through the Court’s transmission facilities by

notice of electronic filing to all counsel or parties of record:

Daniel J. Canon L. Joe Dunman Laura E. Landenwich CLAY DANIEL WALTON ADAMS, PLC 462 S. Fourth Street, Suite 101 Louisville, KY 40202 dan@justiceky.com joe@justiceky.com laura@justiceky.com
William Ellis Sharp ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 sharp@aclu-ky.org

Jeffrey C. Mando Claire Parsons ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC 40 West Pike Street Covington, KY 41011 jmando@aswdlaw.com cparsons@aswdlaw.com
Attorneys for Rowan County

Attorneys for Plaintiffs

DATED: August 4, 2015

/s/ Roger K. Gannam Roger K. Gannam Attorney for Defendant Kim Davis

32

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-1 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 3: 14 of 245- -PPagaegeIDID#:#7: 79710

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-1 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 3: 25 of 245- -PPagaegeIDID#:#7: 79811

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-2 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 3: 16 of 245- -PPagaegeIDID#:#7: 79912

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-2 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 3: 27 of 245- -PPagaegeIDID#:#7: 89013

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-3 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 3: 18 of 245- -PPagaegeIDID#:#7: 8914

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-3 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 3: 29 of 245- -PPagaegeIDID#:#7: 89215

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-4 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 4: 10 of 45- -PPagaegeIDID#:#7: 89316

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-4 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 4: 21 of 45- -PPagaegeIDID#:#7: 89417

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-4 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 4: 32 of 45- -PPagaegeIDID#:#7: 89518

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-4 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 4: 43 of 45- -PPagaegeIDID#:#7: 89619

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-5 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 4: 14 of 245- -PPagaegeIDID#:#7: 89720

CCaasese: 0: 0:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: 3: 394-2-5 FFileiledd: 0: 088/0/074/1/155 PPaaggee: 4: 25 of 245- -PPagaegeIDID#:#7: 89821

Case: 0:15-cv-00044-DLB Doc #: 39-3 Filed: 08/07/15 Page: 1 of 113 - Page ID#: 922

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :12oof f111123- -PPaaggeeIDID##: :1902031

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

2

NORTHERN DIVISION

ASHLAND, KENTUCKY

3

APRIL MILLER, Ph.D.,

) Ashland Civil

4 KAREN ANN ROBERTS,

) Action No. 15-44

SHANTEL BURKE,

)

5 STEPHEN NAPIER,

)

JODY FERNANDEZ,

)

6 KEVIN HOLLOWAY,

)

L. AARON SKAGGS,

)

7 BARRY W. SPARTMAN,

)

)

8

Plaintiffs,

) At Ashland, Kentucky

)

9 -vs-

)

)

10 KIM DAVIS, Individually,

)

KIM DAVIS, In her official

)

11 capacity as ROWAN COUNTY CLERK, )

ROWAN COUNTY, KENTUCKY,

)

12

) July 13, 2015

Defendants.

) 12:00 p.m.

13

14

15

16 TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING PROCEEDINGS BEFORE THE HONORABLE DAVID L. BUNNING
17

18

19

20 Court Reporter: 21 22 23

Peggy W. Weber, RPR Official Court Reporter U.S. District Court P.O. Box 362 Lexington, Kentucky 40588 (859) 421-0814

24

25 Proceedings recorded by mechanical stenography, transcript produced by computer.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :23oof f111123- -PPaaggeeIDID##: :1902142

1 Appearances of Counsel: 2 On behalf of Plaintiffs: 3 4 5 -and6 7 8 On behalf of Defendant:
(Kim Davis) 9 10 11 -and12 13 14 On behalf of Defendant:
(Rowan County, Kentucky) 15 16
-and17 18 19 20 21 22 23 24 25

WILLIAM ELLIS SHARP, ESQ. ACLU of Kentucky 315 Guthrie Street Suite 300 Louisville, Kentucky 40202
DANIEL J. CANON, ESQ. Clay Daniel Walton Adams, PLC 462 South Fourth Street Suite 101 Louisville, Kentucky 40202
ROGER K. GANNAM, ESQ. JONATHAN D. CHRISTMAN, ESQ. Liberty Counsel - Orlando P.O. Box 540774 Orlando, Florida 32854
ANTHONY CHARLES DONAHUE, ESQ. Donahue Law Group, PSC 410 South Main Street P.O. Box 659 Somerset, Kentucky 42502
CECIL R. WATKINS, ESQ. Rowan County Attorney 600 West Main Street Morehead, Kentucky 40351
Jeffrey C. Mando, ESQ. Adams Stepner Woltermann & Dusing, PLLC 40 West Pike Street P.O. Box 861 Covington, Kentucky 41012

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :34oof f111123- -PPaaggeeIDID##: :1902253

1

(Whereupon, the Preliminary Injunction Hearing

2 proceedings commenced on Monday, July 13, 2015, at

3 12:00 p.m., on the record in open court, as follows.)

4

THE COURT: All right. Madam Clerk, if you

5 could call the case set for noon, please.

6

THE CLERK: Yes, Your Honor.

7

Ashland Civil Action 15cv44, April Miller,

8 et al., versus Kim Davis, et al., this being called for a

9 preliminary injunction hearing.

10

THE COURT: All right. If we could start with

11 entries of appearance, please, and if you'd identify who

12 you're here representing.

13

We'll start over here.

14

MR. WATKINS: Cecil Watkins on behalf of

15 Rowan County, Your Honor.

16

THE COURT: All right.

17

MR. MANDO: Jeff Mando on behalf of

18 Rowan County, Your Honor.

19

MR. DONAHUE: A.C. Donahue on behalf of

20 Kim Davis by special appearance.

21

MR. CHRISTMAN: Jonathan Christman also on

22 behalf of Kim Davis by special appearance.

23

MR. GANNAM: Roger Gannam on behalf of

24 Kim Davis by special appearance.

25

MR. SHARP: Good morning, Your Honor.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :45oof f111123- -PPaaggeeIDID##: :1902364

1

Bill Sharp on behalf of Ms. April Miller and

2 the other plaintiffs.

3

MR. CANON: Dan Canon on behalf of the

4 plaintiffs.

5

THE COURT: All right. I'm glad to see we have

6 someone representing the county.

7

Did you enter your appearance today, Mr. Mando?

8

MR. MANDO: Yeah, Your Honor, we were just

9 served the end of last week.

10

MR. WATKINS: Thursday, Your Honor.

11

THE COURT: Okay. And, Mr. Watkins, you're

12 with whom?

13

MR. WATKINS: I'm the Rowan County attorney.

14

THE COURT: You are the county attorney.

15 That's what I thought.

16

MR. WATKINS: Yes.

17

THE COURT: I just wanted to make sure.

18

Okay. Well, as you know, this matter is set

19 for a preliminary injunction hearing.

20

Answers haven't been filed. I don't know if

21 there's been an answer prepared. You haven't responded

22 to the motion. I know by local rule you have a certain

23 time to respond.

24

My hope today is to take whatever evidence

25 you-all want to submit on either side for purposes of the

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :56oof f111123- -PPaaggeeIDID##: :1902475

1 preliminary injunction motion.

2

This was filed as a motion for preliminary

3 injunction, not a motion for TRO, so that told me when it

4 was filed that I would be able to allow for written

5 response. And you chose to file it the way you wanted to

6 so that was your decision.

7

I hope to allow for proof to be put on today,

8 and then, if necessary, I'll -- well, not if necessary, I

9 do plan on hearing argument. I have some questions of my

10 own.

11

The case is not about whether or not we agree

12 or disagree with what the Supreme Court ruled a couple

13 weeks ago because that's the Supreme Court's business.

14 Only the Supreme Court can overrule the Supreme Court.

15

So if anybody is in here looking for me to

16 reverse the Supreme Court, that's not going to happen. I

17 think I would quickly be reversed, and I don't really

18 enjoy doing that.

19

So we're here to hear the evidence necessary

20 for the preliminary injunction motion, and then I'll give

21 you an opportunity to orally make whatever argument you

22 want to make.

23

You can still file written response if you

24 wish. Mr. Mando, you can file a written response if you

25 wish.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :67oof f111123- -PPaaggeeIDID##: :1902586

1

So, I guess, the burden is on the plaintiff.

2 So I'll give you the opportunity to call witnesses. I

3 mean, there may be an opportunity to stipulate to facts.

4 The facts seem fairly straightforward.

5

I've read a little bit about what's in the

6 pleadings. The public statements, I think, there's

7 public statements that the Defendant Davis made within

8 the pleadings. Of course, that's not under oath so I

9 don't know if that would be the testimony that she would

10 give today.

11

But, Mr. Gannam -- is it Gannam?

12

MR. GANNAM: Yes, Your Honor.

13

THE COURT: All right. Do you wish to say

14 something, sir?

15

MR. GANNAM: Yes, Your Honor. On a preliminary

16 matter, Kim Davis, the defendant, has not been served;

17 and, therefore, this Court does not currently have

18 jurisdiction over her.

19

I have authorities providing that when a

20 preliminary injunction motion is called for hearing and

21 the defendant hasn't been served yet, the Court is

22 without jurisdiction, and the motion should be denied

23 without prejudice with the opportunity to refile it once

24 the defendant is served.

25

But Kim Davis has not been served; and,

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :78oof f111123- -PPaaggeeIDID##: :1902697

1 therefore, this Court does not currently have

2 jurisdiction over her.

3

THE COURT: Well, I have jurisdiction over the

4 complaint. We'll just hear evidence on -- I'm going to

5 hear evidence today regardless because everybody is here.

6

MR. GANNAM: Well, Your Honor, may I just ask

7 then that we would move to suspend the hearing and

8 request the Court to certify that ruling that we'll

9 proceed even though she has not been served for an

10 immediate appeal under 28 USC 1292(b)?

11

THE COURT: So you're going to come back

12 tomorrow?

13

MR. GANNAM: Your Honor, we are --

14

THE COURT: I mean, I'm here. I mean, you

15 don't know my -- I'm in -- I usually am in Covington. I

16 had a regular docket today, so I just set this for

17 hearing today because I was going to be here.

18

MR. GANNAM: Understood, Your Honor. And I

19 would just say that the case law that --

20

THE COURT: Trying to save everybody some time.

21

MR. GANNAM: The case law makes it clear the

22 burden to accomplish service is on point.

23

THE COURT: Well, I recognize that. Why hasn't

24 she been served?

25

MR. SHARP: Your Honor, if I may.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :89oof f111123- -PPaaggeeIDID##: :1903708

1

THE COURT: Sure.

2

MR. SHARP: It's been sent out via certified

3 mail, returned delivery, signature confirmation. We

4 are -- obviously, we drove here last night, which is

5 obviously a three-hour drive so we haven't been in the

6 office today to see if the confirmation on service has

7 come back.

8

I would point out that counsel for Ms. Davis

9 e-mailed me on June -- July the 7th --

10

THE COURT: So six days ago.

11

MR. SHARP: -- with their entry of appearance.

12 They formally filed their entry of appearance in this

13 case on July the 8th. It's unfortunate that after having

14 driven three hours yesterday to be here that this is the

15 first time we're hearing about it.

16

THE COURT: Well, I'm not surprised. I mean,

17 if they're -- they're going to raise arguments that

18 they're going to raise. I mean, they don't have to raise

19 arguments with you. They can -- I mean, I'm not -- I'm

20 trying to get the -- and the only -- I look out here

21 among the lawyers that I recognize, and Mr. Mando appears

22 before me regularly in Covington, and he knows one of my

23 favorite things is to see what we can all agree about.

24

MR. SHARP: If I may, Your Honor.

25

THE COURT: Yes.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 910ofo1f 11213- P- aPgaegeIDI#D:#1: 098319

1

MR. SHARP: If it please the Court, I mean, we

2 would consider asking the Court to convert the motion for

3 preliminary injunction to a motion for TRO. We're

4 prepared to present evidence on that request today.

5

THE COURT: How about that, if they convert it?

6

MR. GANNAM: Your Honor, it --

7

THE COURT: If I orally grant their motion, and

8 we convert it to a TRO motion, I mean, I can grant that

9 without notice.

10

MR. GANNAM: The TR -- they haven't filed a

11 motion for TRO.

12

THE COURT: I know, but if I allow them to do

13 it orally, and we have a temporary restraining order

14 hearing today, it wouldn't be a preliminary injunction.

15 It could only be good for 10 days.

16

MR. GANNAM: Yes, Your Honor. But the rule for

17 TRO requires, first of all, that a sworn pleading or an

18 affidavit be provided to the Court establishing the facts

19 in which the TRO would be based. I also --

20

THE COURT: Well, the --

21

MR. GANNAM: It also requires written statement

22 from the attorneys explaining why service wasn't possible

23 before the hearing. And we're prepared to provide a

24 declaration to the Court that in the second case that was

25 filed against Kim Davis the attorneys filed the case on

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :1101oof f111123- -PPaaggeeIDID##: :19031920

1 July 10th, and accomplished service by hand delivery at

2 her office on the same day.

3

So the plaintiffs cannot show that it was

4 impractical or impossible or that they were unable to

5 effect service prior to today's hearing that they've

6 known about.

7

And we believe that it was incumbent on the

8 plaintiff to notify the Court that they didn't have

9 service and couldn't proceed today.

10

THE COURT: Well, the notice that's required --

11 well, Rule 65, which is the rule that governs TROs, if

12 you want to receive injunctive -- temporary injunctive

13 relief, you have to submit an affidavit showing why the

14 other side should not be notified. And you've been

15 notified of this hearing.

16

Now, the service thing is a quandary to me

17 because I think the lawyer representing the plaintiff in

18 15-46 -- I just was able to review that Friday -- was a

19 lawyer from Lexington, as I recall.

20

MR. SHARP: Yes, sir.

21

THE COURT: And I haven't received any notice

22 of the service in ECF as of this weekend.

23

Do you take a position on this, Mr. Mando, this

24 request to continue the hearing? I don't want to

25 continue the hearing because we're all here.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :1112oof f111123- -PPaaggeeIDID##: :19131031

1

MR. MANDO: We prefer not to continue the

2 hearing just for a matter of convenience, and the fiscal

3 court's position is a little bit different than

4 Ms. Davis's.

5

THE COURT: I would -- I would suspect it would

6 be.

7

MR. MANDO: Because we have no authority,

8 Your Honor, to tell the clerk what to do when it comes to

9 issuing those marriage licenses. We can't order her to

10 issue one. We can't tell her -- to forebear her from

11 issuing one under Kentucky law.

12

THE COURT: Well, what is the -- what is the

13 process? It's been awhile since I've gotten married.

14 But I remember I lived in Fayette County at the time, and

15 I went into the clerk's office and paid $25 or whatever

16 it was and walked out with an envelope, sealed envelope,

17 that I -- it's still in my house, probably still sealed.

18

Is that the process? And I realize we're --

19 you're probably not -- maybe you might --

20

MR. MANDO: The county attorney might be able

21 to --

22

THE COURT: -- know, Mr. Watkins.

23

MR. MANDO: -- give the specifics of that than

24 I can, Your Honor.

25

MR. WATKINS: Well, afterwards, Your Honor,

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :1123oof f111123- -PPaaggeeIDID##: :19131142

1 they're going to have to come back in and do their proper

2 filing of their marriage. But, I mean, initially I think

3 you're correct what you need to do.

4

THE COURT: Okay. Well, I think what I'm going

5 to do -- get my rule book out. Let's see here.

6

MR. SHARP: Your Honor, if we could take a

7 five-minute recess, we'll check with the office to see if

8 service has been returned as of this morning.

9

THE COURT: And can I see your cases that

10 you've cited? Are they all Sixth Circuit, I guess?

11

MR. GANNAM: I'm sorry, Your Honor, I didn't

12 hear you.

13

THE COURT: You were citing some authority

14 earlier.

15

MR. GANNAM: Well, your Honor, I can provide --

16 I have -- have it all here if I may approach and provide

17 the Court, please.

18

THE COURT: Well, you can hand it to the court

19 security officer.

20

MR. GANNAM: Your Honor, the first case is

21 Schuh versus Michigan Department of Corrections.

22

Your Honor, these cases are all over the place

23 in terms of providing the basic proposition. In this

24 case it's on the second page in the highlighted portion.

25 It simply provides, "When a preliminary injunction is

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :1134oof f111123- -PPaaggeeIDID##: :19131253

1 sought under Rule 65(a), service of the summons and the

2 complaint is required. It is well settled that without

3 service of process a Court has no jurisdiction over

4 defendants named in a lawsuit."

5

THE COURT: Well, I agree that service is

6 ultimately required. I mean, if you don't get served,

7 you can't have notice of the proceeding. You can't

8 receive due process. I mean, you have to. I mean, as

9 far as no service, formal service, of course, if she

10 hasn't been formally served, the Court is not without --

11 is without jurisdiction to order her to do anything until

12 she's properly served. And I don't plan on ordering her

13 to do anything today. I don't plan on ruling today. I

14 plan on hearing evidence today so that I can ultimately

15 make an informed decision. That's all I'm here to do is

16 to hear evidence today.

17

So I understand that it's well settled that

18 without service of process, a Court has no jurisdiction

19 over defendants named in a lawsuit.

20

I have dismissed lawsuits without -- what is

21 it -- Rule 12 -- 12(b) -- I can't remember off the top of

22 my head, one of the subsections. But, at any rate, I

23 recognize that. I mean, you-all traveled here from

24 Florida. I mean, I don't want to have to bring you back

25 for another hearing.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :1145oof f111123- -PPaaggeeIDID##: :19131364

1

MR. GANNAM: Well, Your Honor, we're not

2 concerned about our own travels.

3

THE COURT: Well, I'm concerned because I think

4 it's important that we try to to the extent that everyone

5 can save resources of whatever entity is representing

6 them, we're all here. I mean, whether there's service or

7 not, I don't know how I -- why I can't hear evidence of

8 the case.

9

MR. GANNAM: Your Honor, in --

10

THE COURT: And the complaint has been filed.

11 I have jurisdiction over the civil rights complaint.

12

MR. GANNAM: That's correct, Your Honor. The

13 proper procedure if -- if you only have jurisdiction over

14 the plaintiffs would be a TRO procedure if they can show

15 there's a reason why they couldn't get notice.

16

And under Rule 65 notice includes at least

17 service of the summons and complaint and the motion

18 papers.

19

I can provide -- I can point to other cases in

20 here that -- where summons -- where the service had not

21 been accomplished, the appropriate step was to deny the

22 motion for preliminary injunction and have the plaintiffs

23 refile it.

24

THE COURT: Well, I can pull the names. We're

25 going to get to the merits.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :1156oof f111123- -PPaaggeeIDID##: :19131475

1

MR. GANNAM: Your Honor --

2

THE COURT: We will all get to the merits. I

3 mean, your client would love to get to the merits.

4

MR. GANNAM: Your Honor, we would --

5

THE COURT: Mr. Mando's client would love to

6 get to the merits, as would the plaintiffs. To the

7 extent we can expedite this, it helps everyone.

8

MR. GANNAM: Your Honor, we believe it would be

9 more appropriate to allow service to be accomplished,

10 allow Ms. Davis a regular standard briefing schedule to

11 be able to respond to this motion for preliminary

12 injunction, and then have a hearing on the merits of the

13 preliminary injunction motion after we've had an

14 opportunity to develop somewhat of a record.

15

THE COURT: Well, that's what we're here today

16 to do is develop a record.

17

MR. GANNAM: I mean, develop a record before

18 the hearing so that we're not presenting witnesses for

19 the first time at the hearing, but rather have the

20 opportunity perhaps to take a little discovery or do

21 whatever -- do whatever we can do within the regular

22 21-day briefing period that the rule already provides.

23

THE COURT: Well, the motion -- there was a

24 motion filed. Mr. Sharp, do you have that?

25

MR. SHARP: I do, Your Honor. July the 2nd.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :1167oof f111123- -PPaaggeeIDID##: :19131586

1

THE COURT: July 2nd. So your response is due

2 on the 23rd. Well, actually, it's the 26th, three days

3 for mailing. That's always been a --

4

MR. GANNAM: Your Honor, it will be due 21 days

5 after service, and it has not been served yet.

6

MR. SHARP: Your Honor, I'm a -- I'm a little

7 perplexed given that counsel has entered their appearance

8 in the case.

9

THE COURT: Well, again, we're dealing with a

10 situation where there's not going to be any agreements so

11 everybody is going to have to comply with all the rules

12 and the procedures, which is fine. If that's how

13 everybody wants to have everything work, that's -- I

14 presided over that type of case, and I've presided over

15 cases where people are more conciliatory. So it

16 really -- it doesn't matter to me.

17

But if everybody is going to be required to

18 cross every T and dot every I, that's fine. I'm going to

19 hear the evidence today. I'm going to allow the proof to

20 be put on today. Whatever proof you want to put on,

21 we're going to put it on today. You'll have time to file

22 written response, as will you if you wish to file written

23 response.

24

I have some questions myself. I take it

25 Ms. Davis is not here because she wasn't served. Is that

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :1178oof f111123- -PPaaggeeIDID##: :19131697

1 fair? I'm just guessing based upon the conversation.

2

MR. GANNAM: She's not currently in the

3 courthouse, Your Honor. She is available, but she is not

4 here.

5

THE COURT: Okay. She is available?

6

MR. GANNAM: Yes, Your Honor.

7

THE COURT: Okay. All right. Well, so let me

8 make sure I have the record that needs to be completely

9 clear.

10

There is an oral motion -- you make your oral

11 motion, and then I'll let you make your oral motion, and

12 then we can make sure the minutes reflect exactly what we

13 want here.

14

What's your oral motion, Mr. Gannam? Is it

15 Gannon or Gannam?

16

MR. GANNAM: Gannam, Your Honor.

17

THE COURT: Gannam. G-A-N-N-O-M?

18

MR. GANNAM: A-M.

19

THE COURT: A-M, okay. All right. Thank you.

20

MR. GANNAM: Well, Your Honor, our initial

21 objection was lack of service and therefore lack of

22 jurisdiction.

23

THE COURT: So oral motion to dismiss. Not

24 dismiss but -- was it -- it wasn't to dismiss. It was

25 oral motion to what?

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :1189oof f111123- -PPaaggeeIDID##: :19141708

1

MR. GANNAM: No, Your Honor. We object to

2 proceeding with the hearing on a PI motion when there has

3 not been service.

4

THE COURT: The oral motion to what?

5

MR. GANNAM: Well, in light of the Court's

6 ruling to move forward despite there not being service.

7

THE COURT: Okay. I mean, it will be

8 defendants -- Defendant Davis's objection to the hearing

9 in absence of service. Is that fair?

10

MR. GANNAM: That's correct, Your Honor.

11

THE COURT: Okay. All right. That will be

12 overruled.

13

All right. What's your other request?

14

MR. GANNAM: In light of overruling that

15 objection and proceeding forward, we request the Court to

16 suspend the hearing and immediately certify that issue

17 for an immediate appeal under 28 USC 1292(b).

18

THE COURT: Okay. That's going to be denied.

19

MR. GANNAM: And I would -- if I just may point

20 out in the same case I read from earlier, Your Honor, the

21 Court there held that to the extent plaintiff seeks an

22 ex parte preliminary injunction, which is what this

23 proceeding will now be --

24

THE COURT: It's not ex parte.

25

MR. GANNAM: -- that that's procedurally

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :1290oof f111123- -PPaaggeeIDID##: :19141819

1 improper.

2

THE COURT: It's not ex parte. Ex parte would

3 be if -- obviously, we have lots of folks in the back and

4 lots of folks here. I mean, it's not ex parte. I mean,

5 you've been -- you have notice. You haven't formally

6 been served. I mean, under Rule 65 a temporary

7 restraining order under subsection (b)(1), without --

8 without notice. The Court may issue a TRO without

9 written notice or oral notice to the adverse party only

10 if. Now, you have notice. This doesn't talk about

11 service. This talks about notice.

12

MR. GANNAM: But notice as a legal matter

13 includes at least service, Your Honor. That's our point

14 is that notice has legal significance. And in a case

15 where there has been no service there has been no notice.

16

And, therefore, under the TRO ruling reading it

17 with that interpretation, which we think is the correct

18 one, the plaintiff has to show why not providing notice,

19 which is at least service, is -- is permissible or

20 excusable under all of the circumstances. And what we're

21 willing to show --

22

THE COURT: The other case they served, they

23 walked over --

24

MR. GANNAM: -- is that there was no --

25

THE COURT: -- and hand delivered, which is

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :2201oof f111123- -PPaaggeeIDID##: :19142920

1 what should have been done here, but it wasn't.

2

Road blocks to getting to the merits. I --

3 which is certainly -- I want to give everyone a decision,

4 an informed decision, as quickly as possible, but I want

5 to make sure that everybody has a right to argue whatever

6 they want to argue for.

7

So your two requests are overruled, denied.

8

What was your request to convert it, an oral

9 motion to convert the hearing to a TRO hearing?

10

MR. SHARP: Yes, Your Honor.

11

THE COURT: All right. Well, we're going to

12 take a five-minute recess. I want you to take a gander

13 at finding out if there's been formal service by way of

14 certified mail, and then we'll reconvene at 12:30.

15

Do you mind if I keep these, Mr. Gannam? I'll

16 read them.

17

MR. GANNAM: You may keep them.

18

THE COURT: Thank you.

19

(Whereupon, a recess was taken at 12:20 p.m., and

20 the proceedings continued at 12:30 p.m., on the record in

21 open court, as follows.)

22

THE COURT: All right. I will go ahead and

23 give these cases back to you, Mr. Gannam. I see one of

24 them was one of my cases.

25

All right. Mr. Sharp, what did you find out?

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :2212oof f111123- -PPaaggeeIDID##: :19242031

1

MR. SHARP: Your Honor, if I may. We have not

2 been able to confirm that Ms. Davis has, in fact, been

3 served. Speaking with Mr. Mando, it seems like the

4 county's service was perfected Thursday night. Mr. Canon

5 is looking into an alternative option. But at this point

6 we cannot represent that she's been served.

7

THE COURT: Well, I'm certainly not going to

8 enter any formal order until she's been served. I think

9 that would be inappropriate. But I'm here. I do want to

10 hear the evidence today while I'm here.

11

I don't think it's necessary either to convert

12 the hearing to a TRO hearing. I plan on giving the

13 defendants 21 days from the date that you entered your

14 appearance to file a response. Because you entered your

15 appearance last week. I know the local rules say 21 days

16 from date of service of the motion. I think service of

17 the motion on counsel was the date you entered your

18 appearance. You would have known about it -- getting on

19 ECF you would have known when the complaint was filed.

20 You would have gotten notice of the motion filing as of

21 the date you entered your appearance.

22

So a written response to the motion for the

23 preliminary injunction will be due on July 30th.

24

MR. GANNAM: Your Honor, may I be heard on the

25 point of appearance? We -- to be clear, we have not

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :2223oof f111123- -PPaaggeeIDID##: :19242142

1 filed a general appearance. We filed -- Mr. Christman

2 and I filed in our individual capacities motions for

3 pro hac vice admission, which was necessary for us to

4 even come to court and argue anything, whether it's

5 jurisdiction or anything else. But we have not entered

6 an appearance for Ms. Davis as such. It's simply a

7 motion for pro hac vice.

8

THE COURT: Okay. Well, I granted that.

9

Well, okay, I'll rephrase.

10

MR. SHARP: If I may, Your Honor.

11

THE COURT: Both defendants -- yes.

12

MR. SHARP: I'm looking at record entry

13 number 8 and number 7. The, "Wherefore, undersigned

14 counsel will be permitted to appear and practice in this

15 court as counsel for Defendant Kim Davis in the

16 above-referenced case." Those motions is identical

17 language in both. Those are granted. I mean, that's --

18

THE COURT: Right. I granted those by gavel

19 order last week. I did.

20

What did you find out, sir, anything?

21

MR. CANON: We're working on it, Judge. Yeah,

22 as far as I know, the county was served on --

23

THE COURT: Please stand, please.

24

MR. CANON: Yes, I'm sorry.

25

The county was served on Thursday. Apparently

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :2234oof f111123- -PPaaggeeIDID##: :19242253

1 service went out on Monday, last Monday. The county was

2 served on Thursday.

3

So as far as where the service is, stands for

4 as far as Ms. Davis goes personally, I assume it's

5 sitting in her mailbox.

6

THE COURT: Well, she's apparently not in

7 Rowan County right now. She's in Boyd County. So she

8 probably doesn't have access to her mailbox.

9

At any rate, here's what I'm going to do.

10 Whether or not you were here just for -- to argue the

11 case, you will be arguing Mr. Gannan -- Gannam -- I'm

12 having a hard time with that. Is it Gannam?

13

MR. GANNAM: Gannam.

14

THE COURT: Gannam, okay. A written response

15 by either the county or the Defendant Davis individually

16 will be due on July 30th. I can always shorten or

17 lengthen the time by local rule by order, and I'm doing

18 that. So the responses will be due on the 30th of July.

19

Your oral motion to convert the hearing to a

20 TRO motion will be denied. I don't think it's necessary.

21

I'm going to hear the evidence today. So you

22 can call your first witness.

23

MR. SHARP: Thank you, Your Honor.

24

The plaintiffs call Dr. April Miller.

25

THE COURT: All right. Come around.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB APRIL MILLER,

DDoocc##: :3291-3 Ph.D. -

FFileiledd: :0078/1/067/1/155 DIRECT BY

PPaaggee: :2245oof f111123MR. SHARP

-PPaaggeeIDID##: :19242364

1

(Whereupon, the witness, APRIL MILLER, Ph.D., was

2 placed under oath by the clerk of the Court.)

3

THE COURT: Good afternoon.

4

THE WITNESS: Hi.

5

THE COURT: You may proceed.

6

MR. SHARP: Thank you, Your Honor.

7

APRIL MILLER,

8 having been first duly placed under oath, was examined

9 and testified as follows:

10

DIRECT EXAMINATION

11 BY MR. SHARP:

12 Q. Ma'am, can you please identify yourself for the

13 Court?

14 A. April Miller.

15 Q. And do you have a professional title?

16 A. I have a Ph.D., so my professional title is doctor.

17 Q. Would you please spell your last name for the Court?

18 A. Miller, M-I-L-L-E-R.

19 Q. Dr. Miller, where do you live?

20 A. I live in Morehead, Kentucky.

21 Q. And how long have you lived there?

22 A. Nine years.

23 Q. Dr. Miller, I'm now going to ask you some questions

24 about your personal life. First, are you currently in a

25 committed relationship?

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB APRIL MILLER,

DDoocc##: :3291-3 Ph.D. -

FFileiledd: :0078/1/067/1/155 DIRECT BY

PPaaggee: :2256oof f111123MR. SHARP

-PPaaggeeIDID##: :19242475

1 A. Yes. 2 Q. With whom? 3 A. Karen Roberts. 4 Q. How did the two of you meet? 5 A. We were work colleagues at the University of 6 Southern Mississippi. 7 Q. And how long have the two of you been in a 8 relationship? 9 A. A relationship, 11 years. 10 Q. Dr. Miller, do you and your partner intend to get 11 married? 12 A. Yes. 13 Q. When did the two of you decide to do so? 14 A. We talked about it on the 26th of June after the 15 Supreme Court ruling. 16 Q. Now, this may seem like an obvious question, but why 17 do the two of you want to get married? 18 A. Because we love each other, and we want to get 19 married. 20 Q. Are there any reasons why the two of you cannot 21 legally get married? 22 A. No. 23 Q. Are you both over the age of 18? 24 A. Yes. 25 Q. Neither of you are currently married to someone

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB APRIL MILLER,

DDoocc##: :3291-3 Ph.D. -

FFileiledd: :0078/1/067/1/155 DIRECT BY

PPaaggee: :2267oof f111123MR. SHARP

-PPaaggeeIDID##: :19242586

1 else?

2 A. Correct.

3 Q. And the two of you are not related by blood?

4 A. No.

5 Q. Now, I'm going to ask you a few questions about what

6 dealings, if any, you and your partner have had with the

7 Rowan County Clerk's office.

8

First, have you or your partner had an occasion to

9 seek a marriage license --

10

MR. GANNAM: Objection.

11

THE COURT: Overruled.

12 BY MR. SHARP:

13 Q. Have you or your partner had an occasion to seek a

14 marriage license from the Rowan County Clerk's office?

15 A. Yes. We went on June the 30th to seek a marriage

16 license.

17 Q. Did you do that in person?

18 A. Yes, we were both there.

19 Q. Before you sought the marriage license, were you

20 aware that the Rowan County Clerk's office had made

21 public statements about any policies regarding the

22 issuance of marriage licenses?

23 A. Yes. On Monday, the 29th of June, there were

24 media -- media outlets had said -- stated that Kim Davis

25 had said she was not issuing licenses.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB APRIL MILLER,

DDoocc##: :3291-3 Ph.D. -

FFileiledd: :0078/1/067/1/155 DIRECT BY

PPaaggee: :2278oof f111123MR. SHARP

-PPaaggeeIDID##: :19242697

1 Q. In these media reports was there any indication of

2 the reasons why that was the case?

3

MR. GANNAM: Objection.

4

THE COURT: Overruled.

5

THE WITNESS: I believe they stated that it was

6 her religious beliefs that kept her from issuing

7 licenses.

8 BY MR. SHARP:

9 Q. And those beliefs kept her from issuing licenses to

10 whom?

11 A. To all couples in Rowan County.

12 Q. Can you please explain the circumstances

13 specifically under which you and your partner went to

14 seek a marriage license that day?

15 A. On the 26th of June when the Supreme Court ruled

16 that we now had the right to marry in all 50 states, my

17 partner and I talked about finally getting married and

18 having that right.

19

And on Monday when I heard that Kim Davis was not

20 issuing licenses --

21

MR. GANNAM: Objection.

22

THE COURT: Overruled.

23

THE WITNESS: -- my partner and I decided to go

24 down to the courthouse on Tuesday morning ourselves to

25 see if that was true or to see if on Tuesday she was

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB APRIL MILLER,

DDoocc##: :3291-3 Ph.D. -

FFileiledd: :0078/1/067/1/155 DIRECT BY

PPaaggee: :2289oof f111123MR. SHARP

-PPaaggeeIDID##: :19252708

1 issuing licenses. It had not been confirmed Tuesday when

2 we were there that anybody had been denied that morning,

3 so we went in and requested a marriage license on

4 Tuesday, the 30th.

5 BY MR. SHARP:

6 Q. Were you able to obtain a marriage license that day?

7 A. No.

8 Q. Did anyone from the clerk's -- did you interact with

9 anyone from the clerk's office in seeking to obtain a

10 marriage license?

11 A. We walked into the clerk's office. We walked to the

12 desk, requested a marriage license from the person

13 sitting at the counter.

14

She got up and went to the back to speak with

15 Kim Davis in her office. Spoke to Kim Davis.

16

She turned around and came back, and she said to us,

17 we are not issuing any marriage licenses at this time.

18 Q. Did they identify any reasons why that was the case?

19 A. No.

20 Q. How did it make you feel to be denied a marriage

21 license in your county of residence?

22 A. I was pretty furious.

23 Q. Have you or your partner sought to obtain a marriage

24 license in any other county?

25 A. No.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB APRIL MILLER,

DDoocc##: :3291-3 Ph.D. -

FFCileiRledOd: S:00S78/1/0B67/Y1/155MRPP.aaggeCe:H:23R90IoSof f1T11M12A3-N-PPaaggeeIDID##: :19252819

1 Q. Why not?

2 A. We live in Morehead, Kentucky. We live in

3 Rowan County. This is where we do our business all the

4 time. This is the same county clerk's office where we

5 purchase our car tags, and we register to vote, and this

6 is where we do our business. I think it would be

7 degrading to have to go somewhere else to get my license

8 because of this.

9 Q. Dr. Miller, if you were able to obtain a marriage

10 license in Rowan County, would you and your partner then

11 get married?

12 A. Yes.

13

MR. SHARP: Nothing further, Your Honor.

14

THE COURT: Cross?

15

Mr. Christman.

16

MR. CHRISTMAN: Thank you, Your Honor.

17

CROSS-EXAMINATION

18 BY MR. CHRISTMAN:

19 Q. Good afternoon, Ms. Miller.

20

My name is Jonathan Christman. I represent

21 Ms. Davis in this case.

22 A. Hi.

23 Q. Ms. Miller, you did not try to obtain a marriage

24 license from Rowan County Judge/Executive Walter Blevins;

25 correct?

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB APRIL MILLER,

DDoocc##: :3291-3 Ph.D. -

FFCileiRledOd: S:00S78/1/0B67/Y1/155MRPP.aaggeCe:H:33R01IoSof f1T11M12A3-N-PPaaggeeIDID##: :19253920

1 A. I did speak with Walter Blevins on July 1st.

2 Q. Did you try to obtain a marriage license from

3 Mr. Blevins?

4 A. I was one of the people in the office at the time

5 that did ask for a marriage license, but other plaintiffs

6 and myself did request a license, yes, on July 1st.

7 Q. From Mr. Blevins?

8 A. Yes.

9 Q. Who else was there with you?

10 A. Plaintiffs Jody Fernandez and Kevin Holloway.

11

THE COURT: This is the Rowan County

12 Judge/Executive?

13

THE WITNESS: Rowan County Judge/Executive

14 Walter "Doc" Blevins.

15

THE COURT: So you were able to get a license

16 from him?

17

THE WITNESS: No, we did not get a license from

18 him. We requested one from him.

19

THE COURT: Oh, you requested one from him, but

20 he didn't give it to you?

21

THE WITNESS: We did not receive licenses from

22 him.

23

THE COURT: Okay. All right. Thank you. I

24 wanted to make sure that was correct. Thank you.

25

THE WITNESS: Thank you.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB APRIL MILLER,

DDoocc##: :3291-3 Ph.D. -

FFCileiRledOd: S:00S78/1/0B67/Y1/155MRPP.aaggeCe:H:33R12IoSof f1T11M12A3-N-PPaaggeeIDID##: :19353031

1 BY MR. CHRISTMAN:

2 Q. You did not attempt to obtain a marriage license

3 from another county; correct?

4 A. Correct.

5 Q. Rowan County is bordered by seven other counties

6 in -- of Kentucky; correct?

7 A. I'm not sure how many.

8 Q. And you decided to get married after the

9 Supreme Court's ruling in Obergefell; correct?

10 A. Yes. Previous to that I did not have the right to

11 get married in my state.

12 Q. And then you went to the Rowan County Clerk's office

13 to get married after hearing of Ms. Davis's deep

14 religious convictions?

15 A. I went to the Rowan County Clerk's office to get a

16 marriage license on July -- or June the 30th.

17

Had I heard about her convictions and that she was

18 not issuing marriage licenses? Yes.

19

MR. CHRISTMAN: No further questions.

20

THE COURT: Thank you. Any redirect?

21

MR. SHARP: No, Your Honor.

22

THE COURT: All right. May this witness be

23 finally excused?

24

MR. MANDO: Your Honor --

25

MR. SHARP: Yes, sir.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB APRIL MILLER,

DDoocc##: :3291-3 Ph.D. -

FFileiledd: :0078/1/067/1/155 PPaaggee: :3323oof f111123CROSS BY MR. MANDO

-PPaaggeeIDID##: :19353142

1

MR. MANDO: Your Honor, excuse me.

2

THE COURT: Oh, I'm sorry.

3

MR. MANDO: I did -- I did have one question,

4 Your Honor.

5

THE COURT: That's fine, Mr. Mando. Go ahead,

6 sir.

7

CROSS-EXAMINATION

8 BY MR. MANDO:

9 Q. Good afternoon, ma'am.

10 A. Hi.

11 Q. My name is Jeff Mando. I represent Rowan County.

12

You mentioned you spoke with Judge/Executive

13 Walter Blevins after you were denied a marriage license

14 by the clerk's office.

15

Is that correct, ma'am?

16 A. Yes.

17 Q. And when you spoke with Judge/Executive Blevins, did

18 he tell you that he could not issue a marriage license to

19 you because he did not have the authority to do so?

20 A. He told Jody and Kevin and myself that because

21 Kim Davis was not absence -- was not absent that he could

22 not issue a license.

23 Q. All right. And did he explain to you that there was

24 a statute that only allows him to issue a marriage

25 license in the absence of the clerk, and since she was

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 JODY FERNANDEZ - DIRE

FFileiledd: :0078/1/067/1/155 PPaaggee: :3334oof f111123CT BY MR. SHARP

-PPaaggeeIDID##: :19353253

1 not absent from the county, he could not issue that

2 marriage license?

3 A. Correct.

4

MR. MANDO: Thank you, ma'am.

5

THE COURT: All right. Thank you.

6

Anything else?

7

MR. SHARP: Nothing further, Your Honor.

8

MR. CHRISTMAN: No further questions.

9

THE COURT: No, all right.

10

You may step down. Thank you.

11

THE WITNESS: Thank you.

12

THE COURT: All right. Next witness, please.

13

MR. SHARP: Your Honor, the plaintiffs call

14 Jody Fernandez.

15

THE COURT: All right.

16

(Whereupon, the witness, JODY FERNANDEZ, was placed

17 under oath by the clerk of the Court.)

18

THE COURT: Good afternoon.

19

THE WITNESS: Good afternoon.

20

THE COURT: You may proceed.

21

MR. SHARP: Thank you, Your Honor.

22

JODY FERNANDEZ,

23 having been first duly placed under oath, was examined

24 and testified as follows:

25

DIRECT EXAMINATION

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 JODY FERNANDEZ - DIRE

FFileiledd: :0078/1/067/1/155 PPaaggee: :3345oof f111123CT BY MR. SHARP

-PPaaggeeIDID##: :19353364

1 BY MR. SHARP:

2 Q. Ma'am, could you please identify yourself for the

3 Court?

4 A. My name is Jody Fernandez.

5 Q. And could you please spell your last name?

6 A. F, as in Frank, E-R-N-A-N-D-E-Z.

7 Q. Ms. Fernandez, where do you live?

8 A. I live in Morehead, Kentucky.

9 Q. That's in Rowan County?

10 A. That is in Rowan County.

11 Q. And how long have you lived there?

12 A. I have lived there since 2008.

13 Q. Ms. Fernandez, I'm now going to ask you some

14 questions about your personal life as well.

15

Are you currently in a committed relationship with

16 another person?

17 A. Yes, I am, with Kevin Holloway.

18 Q. Is Kevin one of the other plaintiffs in this case?

19 A. Yes.

20 Q. Okay. How did the two of you first meet?

21 A. We met in 2005 in -- while we lived in Florida. We

22 all lived in the same neighborhood.

23 Q. Okay. And how long have the two of you been in a

24 relationship together?

25 A. Since 2006.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 JODY FERNANDEZ - DIRE

FFileiledd: :0078/1/067/1/155 PPaaggee: :3356oof f111123CT BY MR. SHARP

-PPaaggeeIDID##: :19353475

1 Q. Ms. Fernandez, do you and Mr. Holloway intend to get

2 married?

3 A. Yes.

4 Q. Again, I'm afraid I have to ask. Why?

5 A. Because we love each other.

6 Q. Are there any reasons why the two of you cannot get

7 married?

8

MR. GANNAM: Objection.

9

THE COURT: Overruled.

10

THE WITNESS: No.

11 BY MR. SHARP:

12 Q. You're both over the age of 18?

13 A. Yes.

14 Q. Neither of you are currently married to someone

15 else?

16 A. No.

17 Q. The two of you are not related by blood?

18 A. No.

19 Q. Now, I'm going to ask you about any dealings you may

20 have had with the Rowan County Clerk's office.

21

Have you --

22 A. Go ahead.

23 Q. I'm sorry. Have you or Mr. Holloway had an occasion

24 to seek a marriage license from the Rowan County Clerk's

25 office?

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 JODY FERNANDEZ - DIRE

FFileiledd: :0078/1/067/1/155 PPaaggee: :3367oof f111123CT BY MR. SHARP

-PPaaggeeIDID##: :19353586

1

MR. GANNAM: Objection.

2

THE WITNESS: Yes.

3

THE COURT: Overruled.

4

THE WITNESS: Yes. We went on July 1st to seek

5 a marriage license. Both of us went to the office.

6 BY MR. SHARP:

7 Q. And can you please describe for the Court the

8 circumstances of what happened when -- did you go in

9 person?

10 A. We both went in person. We entered the room. We

11 asked the -- there was no one sitting at the desk so we

12 asked someone else about getting a marriage license.

13

And she went back to the office and got Kim Davis,

14 and Kim Davis came out and told us she was not issuing

15 marriage licenses.

16 Q. Did Ms. Davis explain to you why that was the case?

17 A. No.

18 Q. What did you and Kevin do after that?

19 A. After that we walked down the hall, we went to

20 Dr. Blevins -- Judge Blevins's office, and requested a

21 marriage license from him.

22 Q. Okay. And what did -- what were you informed there?

23 A. That he was unable to give us a license because

24 Kim Davis was available in the building.

25 Q. Is that the meeting that Dr. Miller just talked

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 JODY FERNANDEZ - DIRE

FFileiledd: :0078/1/067/1/155 PPaaggee: :3378oof f111123CT BY MR. SHARP

-PPaaggeeIDID##: :19353697

1 about?

2 A. Yes.

3 Q. Did -- other than this explanation for why the

4 county judge/executive could not issue a marriage

5 license, did Judge Blevins explain, give you any reasons

6 why the county clerk was not issuing marriage licenses?

7 A. No, he did not.

8

MR. GANNAM: Objection.

9

THE COURT: Overruled.

10 BY MR. SHARP:

11 Q. How did it make you feel to be denied a marriage

12 license on two occasions in the same day?

13 A. We were -- I was quite upset. That date was --

14 would have been my father's 81st birthday, and it was an

15 important date for me.

16 Q. Have you or Kevin sought to obtain a marriage

17 license in any other county?

18 A. No.

19 Q. Why not?

20 A. We live in Rowan County; we work in Rowan County; we

21 pay taxes in Rowan County; we live walking distance to

22 the courthouse in Rowan County. There seemed to be no

23 need for us to drive to another county to get married.

24 Q. If you were able to obtain a marriage license in

25 Rowan County, would you and Kevin get married?

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 JODY FERNANDEZ - CROS

SFFileiBledYd: :00M78/R1/0.67/1/1C55HRPPIaagSgeTe:M:33A89Noof f1/1112M3-R-P.PaagMgeeAIDNIDD##:O:19363708

1 A. Absolutely.

2

MR. SHARP: Nothing further, Your Honor.

3

THE COURT: Any cross?

4

MR. CHRISTMAN: Yes, Your Honor.

5

CROSS-EXAMINATION

6 BY MR. CHRISTMAN:

7 Q. Good afternoon, Ms. Fernandez.

8

My name is Jonathan Christman.

9 A. Good afternoon.

10 Q. If you were able to obtain a marriage license in

11 another county in Kentucky, would you and Kevin get

12 married?

13 A. We plan to get married, but we wanted to get married

14 in our county.

15 Q. So if you got a marriage license from Boyd County,

16 you would get married; correct?

17 A. Yes.

18 Q. And how far did you drive to today's hearing?

19 A. From Morehead it took about an hour. Mileage I

20 don't know.

21

MR. CHRISTMAN: No further questions.

22

THE COURT: Mr. Mando.

23

CROSS-EXAMINATION

24 BY MR. MANDO:

25 Q. Just briefly about this short meeting with

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :3490oof f111123- -PPaaggeeIDID##: :19363819

1 Judge/Executive Blevins.

2

As I understand it, ma'am, he explained to you that

3 he was restricted by law. He could not issue the license

4 because Ms. Davis was present in the county?

5 A. That's correct.

6

MR. MANDO: All right. Thank you, ma'am.

7

THE COURT: You may step down. Thank you.

8

All right. Next witness.

9

MR. SHARP: Your Honor, if I may, defense

10 counsel previously indicated the defendant Kim Davis was

11 not in the courthouse and was available. The Court later

12 seemed to indicate that she was in Boyd County.

13

THE COURT: No, I just thought because Boyd --

14 that she was in Boyd County because I thought she was

15 here for the hearing.

16

MR. SHARP: Well --

17

THE COURT: That was my supposition I suppose.

18

MR. SHARP: -- based on defense counsel's

19 representation that she wasn't in the courthouse, she was

20 available, we would call Defendant Kim Davis to the

21 stand, Your Honor.

22

THE COURT: Is she here?

23

MR. GANNAM: Your Honor, Ms. Davis is not

24 available to testify. We believe that her appearance

25 today would potentially waive her objection to service

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :4401oof f111123- -PPaaggeeIDID##: :19364920

1 and this Court's jurisdiction; and, therefore, she will

2 not be here.

3

THE COURT: All right.

4

MR. SHARP: Your Honor, I mean, we're prepared

5 to serve counsel for Ms. Davis.

6

THE COURT: Well, they're not going to

7 accept service. I mean, unless he's changed his tune,

8 which I -- are you willing to accept service on her

9 behalf?

10

MR. GANNAM: Your Honor, the rules provide a

11 quid pro quo. If waiver of service is requested, it

12 provides more time to the defendant to respond. We

13 would --

14

THE COURT: To respond to -- for the answer,

15 sure, but not for the motion.

16

MR. GANNAM: Your Honor, we are not willing to

17 accept service at this point.

18

THE COURT: No.

19

MR. SHARP: I mean, I --

20

THE COURT: Do you have any other witnesses to

21 call?

22

MR. SHARP: We do, Your Honor.

23

THE COURT: Why don't you call your other

24 witnesses then?

25

MR. SHARP: Thank you.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 BARRY SPARTMAN - DIRE

FFileiledd: :0078/1/067/1/155 PPaaggee: :4412oof f111123CT BY MR. CANON

-PPaaggeeIDID##: :19464031

1

We now call Barry Spartman, Your Honor.

2

THE COURT: All right. Come around, sir.

3

BARRY SPARTMAN,

4 having been first duly placed under oath, was examined

5 and testified as follows:

6

DIRECT EXAMINATION

7 BY MR. CANON:

8 Q. Good afternoon, Mr. Spartman.

9 A. Good afternoon.

10 Q. Would you please identify yourself, and state your

11 full name for the Court?

12 A. Yes. My name is Barry Spartman.

13 Q. Can you spell your last name, please?

14 A. Yes. It's S-P-A-R-T-M-A-N.

15 Q. And, Mr. Spartman, how are you employed?

16 A. I work in Rowan County at Morehead State University.

17 Q. And do you also live in Rowan County?

18 A. Yes.

19 Q. And how long have you lived there?

20 A. I have lived in Rowan County for over 20 years.

21 Q. Very good. And are you currently in a committed

22 relationship with anybody?

23 A. Yes.

24 Q. Can you tell the Court who that is?

25 A. Yes. That is Aaron Skaggs.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 BARRY SPARTMAN - DIRE

FFileiledd: :0078/1/067/1/155 PPaaggee: :4423oof f111123CT BY MR. CANON

-PPaaggeeIDID##: :19464142

1 Q. And is Mr. Skaggs also a plaintiff in this case? 2 A. Yes. 3 Q. And how did the two of you first meet? 4 A. We met in college through mutual friends. 5 Q. And do you know approximately when that was? 6 A. It was around '98. 7 Q. And so the two -- how long have the two -- let me 8 ask you this. How long have the two of you been in a 9 committed relationship? 10 A. We've been together for 21 years. 11 Q. And have you-all developed the intention to get 12 married? 13 A. Yes. 14 Q. And I know this seems like a silly question, but why 15 do you want to get married? 16 A. We've been in a very long-term relationship, and we 17 love each other, and we do want to spend the rest of our 18 lives together. 19 Q. And I think you said you've been living as a couple 20 for 21 years? 21 A. Yes. 22 Q. When did you first decide to get married? 23 A. We've talked about it before the Supreme Court 24 decision on and off. 25 Q. In --

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 BARRY SPARTMAN - DIRE

FFileiledd: :0078/1/067/1/155 PPaaggee: :4434oof f111123CT BY MR. CANON

-PPaaggeeIDID##: :19464253

1 A. After the decision came down, that's when we 2 realized that if it actually come to be, that we would be 3 married. 4 Q. And is there -- is there any reason why the two of 5 you can't be married that you know of? 6 A. No. 7 Q. Now that the Obergefell decision is in? 8 A. No. 9 Q. You're not related by blood? 10 A. No. 11 Q. You're both over the age of 18? 12 A. Yes. 13 Q. And you're not currently married to someone else, 14 are you? 15 A. No. 16 Q. And let me ask you a couple of questions about the 17 dealings that you've had with the Rowan County Clerk's 18 office. Have you spoken to anybody in that office 19 personally? 20 A. Yes. We were prepared to go to the courthouse to 21 get a marriage license, and beforehand we called the 22 courthouse. 23 Q. Let me stop you there. What day was that? 24 A. It was Tuesday, June 30th. 25 Q. Okay. Go on.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 BARRY SPARTMAN - DIRE

FFileiledd: :0078/1/067/1/155 PPaaggee: :4445oof f111123CT BY MR. CANON

-PPaaggeeIDID##: :19464364

1 A. We wanted to -- since this was completely new to us,

2 we wanted to make sure that we had the correct documents

3 or anything that we may need to get the license rather

4 than go to the courthouse and not have what was

5 necessary.

6 Q. And what happened?

7 A. The person on the phone basically said that they

8 were not issuing licenses --

9

MR. GANNAM: Objection.

10

THE WITNESS: -- to anyone.

11

THE COURT: Overruled.

12

Who did you call?

13

THE WITNESS: The clerk's office.

14

THE COURT: The Rowan County Clerk's office?

15

THE WITNESS: Rowan County Clerk's office,

16 that's correct.

17

THE COURT: And were told what by whoever

18 answered the phone?

19

THE WITNESS: They said that they weren't

20 issuing any marriage licenses and don't bother coming

21 down.

22

THE COURT: All right. Overruled.

23 BY MR. CANON:

24 Q. And so did you go down there anyway after that?

25 A. After that we were pretty disappointed and

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 BARRY SPARTMAN - DIRE

FFileiledd: :0078/1/067/1/155 PPaaggee: :4456oof f111123CT BY MR. CANON

-PPaaggeeIDID##: :19464475

1 frustrated.

2 Q. Now, prior to that time had you received any

3 information that the Rowan County Clerk's office had

4 stopped issuing marriage licenses?

5 A. We had seen an article, yes.

6 Q. Okay. And did you -- did you have any reason to

7 think what those -- what the reasons were for the clerk's

8 refusal to issue licenses?

9

MR. GANNAM: Objection.

10

THE COURT: What was the question?

11

MR. CANON: The question was, did he have any

12 basis to believe -- for -- to understand what the reasons

13 were for the clerk to refuse to issue licenses.

14

THE COURT: Okay. Overruled.

15

THE WITNESS: Yes. There -- it was clearly

16 quoted that it was because of her deep religious beliefs.

17 BY MR. CANON:

18 Q. And you say it was quoted. You saw news articles,

19 or --

20 A. Yes.

21 Q. -- tell the Court about that.

22 A. That's correct.

23 Q. Okay. And any other reasons you can think of?

24 A. No. Basically -- I'm sorry. There was also she

25 would not issue licenses that, therefore, she wasn't

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 BARRY SPARTMAN - DIRE

FFileiledd: :0078/1/067/1/155 PPaaggee: :4467oof f111123CT BY MR. CANON

-PPaaggeeIDID##: :19464586

1 discriminating.

2 Q. And I take it you've not been able to obtain a

3 marriage license in Rowan County since then?

4 A. No.

5 Q. Did you attempt to obtain a license from the

6 county judge/executive?

7 A. No, we did not. We did contact his office but did

8 not physically go there.

9 Q. Well, what happened when you contacted his office?

10 A. Basically the same response, that he could not

11 issue --

12

MR. GANNAM: Objection.

13

THE COURT: Overruled.

14

THE WITNESS: He could not issue a marriage

15 license.

16 BY MR. CANON:

17 Q. And did he tell you why?

18 A. Because Kim Davis was not absent from her job.

19 Q. How did that make you feel to not be able to get a

20 marriage license in the county where you work and live

21 and pay taxes?

22 A. Pretty frustrated, kind of furious.

23 Q. Do you know if you can obtain a marriage license in

24 any other county?

25 A. Yes, I'm aware that we can.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 BARRY SPARTMAN - CROS

FFileiledd: :0078/1/067/1/155 PPaaggee: :4478oof f111123S BY MR. CHRISTMAN

-PPaaggeeIDID##: :19464697

1 Q. Have you tried to do that?

2 A. No.

3 Q. Why not?

4 A. Because we pay taxes. We've lived in Rowan County

5 and Morehead since the beginning of our relationship.

6 And that's our home, and that's where we want to obtain

7 that license and get married.

8 Q. Now, if you could get a license in Rowan County, you

9 would go get it, wouldn't you?

10 A. Yes.

11

MR. CANON: Nothing further.

12

THE COURT: Cross?

13

MR. CHRISTMAN: Yes, Your Honor.

14

CROSS-EXAMINATION

15 BY MR. CHRISTMAN:

16 Q. Good afternoon, Mr. Spartman.

17

My name is John Christman.

18 A. Good afternoon.

19 Q. Mr. Spartman, there's nothing preventing you from

20 staying in a committed relationship, as you said, with

21 Mr. Skaggs; is that correct?

22 A. No. Yes, that's correct, there's nothing.

23 Q. And nobody has stopped you from having a commitment

24 ceremony; correct?

25 A. That's correct.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 BARRY SPARTMAN - CROS

FFileiledd: :0078/1/067/1/155 PPaaggee: :4489oof f111123S BY MR. CHRISTMAN

-PPaaggeeIDID##: :19474708

1 Q. And you haven't gone to any other county to try to

2 obtain a marriage license, that's correct?

3 A. Yes.

4 Q. Okay. None of the neighboring counties around

5 Rowan County?

6 A. Correct.

7 Q. And you haven't come to Boyd County to try and

8 obtain a marriage license?

9 A. No. It would be very inconvenient to drive an hour

10 for something we could get in our own home county.

11 Q. If you could get a marriage license from another

12 county, would you and Mr. Skaggs attempt to get married?

13 A. Yes, we would.

14

MR. CHRISTMAN: No further questions.

15 Thank you.

16

THE COURT: Mr. Mando.

17

MR. MANDO: No questions, Your Honor.

18

THE COURT: All right. You may step down.

19 Thank you.

20

Next witness.

21

MR. SHARP: No further witnesses, Your Honor.

22

THE COURT: All right. Any witnesses?

23

MR. GANNAM: No, Your Honor.

24

THE COURT: All right. We're going to set a --

25 we're going to recess the evidentiary portion of this

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :4590oof f111123- -PPaaggeeIDID##: :19474819

1 hearing in progress.

2

As soon as you file a notice of service of

3 Kim Davis, 24 hours after she's served we'll reconvene

4 this hearing in Covington. So whenever that is. The

5 only conflict would be tomorrow afternoon. I'm going to

6 the All-Star game so I'm not going to be hearing it at

7 8:00 tomorrow night.

8

So we'll give you -- we'll have 24-hour notice,

9 and then we'll have the hearing in Covington whenever

10 she's served.

11

MR. SHARP: Thank you, Your Honor.

12

THE COURT: All right.

13

MR. GANNAM: Your Honor --

14

THE COURT: Yes, sir.

15

MR. GANNAM: -- may I request that that be

16 48 instead of 24, just because of the time it takes to

17 travel from our office in Florida to Covington?

18

And I would secondly request that should this

19 process coincide with this Thursday and Friday of this

20 week, I am due in Washington, D.C., for a deposition in

21 another case. We just ask the Court to accommodate those

22 two requests as part of this process.

23

THE COURT: Will the attorneys approach the

24 bench, please?

25

(Whereupon, a bench conference was had with the

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :5501oof f111123- -PPaaggeeIDID##: :19475920

1 Court and counsel out of the hearing of the open court,

2 as follows.)

3

THE COURT: All right. Let the record reflect

4 we're at the bench.

5

And I'm trying to be as accommodating as I can.

6 The service thing, I recognize that she hasn't been

7 served right now.

8

Is Ms. Davis, did you say she's not going to

9 testify today? Is she available today?

10

MR. GANNAM: Well, we won't produce her today,

11 Your Honor.

12

THE COURT: You won't produce her. Do you know

13 where she is?

14

MR. GANNAM: I do know where she is, yes,

15 Your Honor.

16

THE COURT: Okay. You --

17

MR. GANNAM: Well, actually, I don't know where

18 she is. I know how to get in touch with her.

19

THE COURT: Well, I'm just trying to -- and I

20 brought this up because I know Mr. Mando has heard me say

21 this. I try to just -- I'm trying to get the train on

22 the tracks. I'm trying to get the ball down the field.

23 I'm trying to get the evidence in that is necessary one

24 way or the other. And we're all here.

25

I mean, you're asking me to accommodate your

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :5512oof f111123- -PPaaggeeIDID##: :19575031

1 request, and I want to accommodate the lawyers as much as

2 I can because I want to be a judge that's accommodating,

3 not a judge that's obstructionist, not that I know any

4 that are. But ultimately if she's here -- if we could

5 get her here to testify, it would help everyone.

6

MR. GANNAM: I understand, Your Honor, and --

7

THE COURT: And eventually she's going to be

8 served, and eventually we're going to hear the evidence.

9 I mean, it's a -- well, I mean, she can be hit by a truck

10 tomorrow and die and never appear. I mean, that could be

11 a -- it could happen.

12

MR. GANNAM: Your Honor, we also do not desire

13 to be an obstructionist.

14

THE COURT: I'm not saying that you are.

15

MR. GANNAM: But in this case this is a

16 complaint filed where they've sued her individually.

17 Their seeking punitive damages against her. It's

18 certainly not --

19

THE COURT: Are you seeking punitive damages?

20

MR. SHARP: No, Your Honor.

21

THE COURT: Okay. I haven't --

22

MR. GANNAM: -- her responsibility to assist

23 the plaintiffs in their obligation to serve us.

24

THE COURT: No, I know you're not, but we're

25 trying to accommodate everyone here, and --

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :5523oof f111123- -PPaaggeeIDID##: :19575142

1

MR. GANNAM: Your Honor, we believe that her

2 appearing here today will prejudice her rights to object

3 to the Court not having jurisdiction over the prelim, and

4 that's the reason why.

5

THE COURT: Okay. Well, eventually she'll --

6 well --

7

MR. GANNAM: She will -- she will appear,

8 Your Honor, and she will have to, and we want that day to

9 occur, but we don't want it to occur prematurely. And we

10 will -- we will produce her at the appropriate time when

11 she's been served, and we have the ability for her to be

12 subject to the Court's jurisdiction.

13

MR. WATKINS: Judge, I will --

14

THE COURT: You need to speak into the

15 microphone. I'm sorry.

16

MR. WATKINS: I will be out of town July 25th

17 through August 2nd, if we can at least have a hearing

18 prior to then.

19

THE COURT: Well, Mr. Mando would be --

20 hopefully you're not going anywhere.

21

MR. MANDO: No, sir.

22

THE COURT: Well, I'm going to be in Columbia,

23 Kentucky, on Thursday. We can recess this in

24 Adair County, but I don't think we'll want to do that.

25

Well -- and the service thing, I mean, I'm

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :5534oof f111123- -PPaaggeeIDID##: :19575253

1 not -- this could have been prevented just with personal

2 service. I'm just -- it's -- so there's --

3

MR. SHARP: Your Honor --

4

THE COURT: -- enough to kind of -- there's

5 gifts for everyone here at the bench. But I'm a little

6 bit --

7

MR. SHARP: Your Honor, with all due respect,

8 we had -- we had no reason to suspect that

9 Ms. Davis wouldn't pick up her mail as did the

10 county judge/executive.

11

THE COURT: Well, if it's -- do you believe --

12

MR. SHARP: I mean --

13

THE COURT: -- that she just didn't pick up her

14 mail?

15

MR. SHARP: Well, I don't know. When we find

16 out, we'll -- when we get her here, we'll certainly ask

17 her. Well, I mean, the county was served.

18

THE COURT: Well, but once she's served she's

19 served. I don't think it's -- it seems kind of petty. I

20 mean, if everybody wants their --

21

MR. SHARP: And we don't want to -- we're not

22 interested in fighting over issues that are not worthy of

23 fighting over, Your Honor.

24

THE COURT: Well, all right. We're going to

25 hear argument. I know we're recessing it, and I do want

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :5545oof f111123- -PPaaggeeIDID##: :19575364

1 to hear kind of a preliminary -- your preliminary

2 thoughts on some issues that I have to raise with

3 counsel.

4

But what we'll do, your 48-hour request will be

5 granted. I won't set anything earlier than next Monday.

6

MR. GANNAM: Thank you, Your Honor.

7

THE COURT: And what we'll do, if you would

8 file a notice of service -- and you can object to the

9 service if you think that it's not appropriate under the

10 rules, and then we'll litigate the service. But once

11 she's formally served, file a notice within -- forthwith.

12 We'll contact -- we'll put on an order not earlier than

13 48 hours from that date. It won't be this week. It will

14 be no earlier than Monday. But you're leaving on the

15 25th --

16

MR. WATKINS: 25th.

17

THE COURT: -- which would be --

18

MR. WATKINS: That's a Saturday.

19

THE COURT: So probably a day next week in

20 Covington.

21

All right. Very well. Thank you.

22

MR. WATKINS: Thank you, Your Honor.

23

MR. GANNAM: Thank you, Your Honor.

24

(Whereupon, the bench conference concluded, and

25 the proceedings continued on the record in open court,

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :5556oof f111123- -PPaaggeeIDID##: :19575475

1 as follows.)

2

THE COURT: Okay. Well, we are going to

3 reconvene the hearing in progress in Covington after

4 Ms. Davis is formally served.

5

As I indicated here at the bench, we'll set

6 that matter for a date not earlier than next Monday to

7 accommodate counsels' schedules.

8

Now, let me turn to my questions here.

9

And I will allow a written response. I've

10 already indicated that will be due on the 30th of July.

11

All right. In Obergefell -- is that the right

12 pronunciation of that?

13

MR. CANON: O-ber-ge-fell, Judge.

14

THE COURT: Ober --

15

MR. CANON: Ge-fell.

16

THE COURT: Obergefell?

17

MR. CANON: Yes.

18

THE COURT: Okay. Obergefell, okay.

19

I've read that case a couple of times, the four

20 dissents a couple of times. It's clear that whether or

21 not anybody individually disagrees with the ruling, the

22 ruling is individuals have a fundamental constitutional

23 right to marry under the Fourth -- Fourteenth Amendment.

24

In this particular case we have a defendant who

25 has made public comments that she, because of her

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :5567oof f111123- -PPaaggeeIDID##: :19575586

1 religious convictions, is not going to be issuing any

2 marriage licenses at all, which, I guess, takes equal

3 protection issue off the table potentially, but not the

4 fundamental right issue under the Fourteenth Amendment.

5

What is the government's compelling state

6 interest in her refusal to issue marriage licenses?

7

Either one of -- I mean, from the defendant's

8 standpoint. I mean, that's your -- we've got a

9 fundamental right. I mean, all of us have taken

10 Con Law 1 from law school, depending on whether or not it

11 impinges on what type of right it impinges on, that

12 dictates the standard of review under the case law.

13

We've got a fundamental right involved. I

14 mean, we're not contesting that. That's what the

15 Supreme Court has held. So what is the compelling state

16 interest?

17

MR. CHRISTMAN: Your Honor, the fundamental

18 right --

19

THE COURT: Please stand, please. Thank you.

20

MR. CHRISTMAN: The compelling state interest

21 is only applicable in the context where strict scrutiny

22 would apply, and there are cases that plaintiffs cited in

23 their motion for preliminary injunction that the

24 fundamental right to marry, the strict scrutiny analysis

25 requiring a compelling government interest is a direct

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :5578oof f111123- -PPaaggeeIDID##: :19575697

1 and substantial burden on the fundamental right to marry.

2

THE COURT: Okay. What's the substan -- what's

3 the compelling state interest?

4

MR. CHRISTMAN: Again, that's assuming --

5

THE COURT: No, what's the compelling state

6 interest?

7

MR. CHRISTMAN: We would argue that it's not a

8 compelling government interest that --

9

THE COURT: Okay. What's the standard that --

10

MR. CHRISTMAN: -- needs to apply.

11

THE COURT: -- applies then?

12

MR. CHRISTMAN: The standard that should apply

13 here with respect to plaintiffs' request would be a

14 rational basis first.

15

THE COURT: Why, if it involves a fundamental

16 right?

17

MR. CHRISTMAN: Because the fundamental right

18 to marriage cases you get the strict scrutiny if it's a

19 direct and substantial burden on the fundamental right to

20 marry. Not every --

21

THE COURT: Okay. They've gone down to get a

22 license in the county they live, and she refuses to give

23 it. Why isn't that a direct burden on their right?

24

MR. CHRISTMAN: Because it's not --

25

THE COURT: Because they can go over to

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :5589oof f111123- -PPaaggeeIDID##: :19585708

1 Carter County or Fayette County and get the license?

2

MR. CHRISTMAN: Correct, Your Honor.

3

THE COURT: Is that why?

4

MR. CHRISTMAN: They can go to the neighboring

5 counties. They can go to the --

6

THE COURT: Why do they need to go to the

7 neighboring county?

8

MR. CHRISTMAN: Well, I'm explaining and

9 answering your question as to why it's not a direct and

10 substantial burden. It calls for a substantial burden

11 analysis themselves on why their fundamental right to

12 marry is being directly and substantially burdened. They

13 can go to neighboring counties. They can go to numerous

14 other counties --

15

THE COURT: So does the county --

16

MR. CHRISTMAN: -- across the state.

17

THE COURT: Does the county reimburse them for

18 going to the neighboring county? Is Kim Davis going to

19 write them a check for mileage to go to the other county?

20

MR. CHRISTMAN: Well, they haven't -- they

21 haven't made the attempt. As the plaintiffs conceded,

22 none of them have even attempted to go to another county

23 to try to obtain a license. All they've done is

24 exclusively try to go to the Rowan County Clerk's office.

25

A few of them testified that they did even try

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :5690oof f111123- -PPaaggeeIDID##: :19585819

1 to go to Chief Judge/Executive Walter Blevins.

2

And I would submit to the Court that under

3 Kentucky Revised Statute 402.240 it says that in the

4 absence of the county clerk or the vacancy of the office,

5 that the county judge or executive may issue marriage

6 licenses.

7

So that statute already -- under Kentucky law

8 there's already a provision for if the county clerk

9 cannot issue a license that --

10

THE COURT: Why can't she issue the license?

11

MR. CHRISTMAN: Which license?

12

THE COURT: Why can't Kim Davis issue the

13 marriage licenses? Why?

14

MR. CHRISTMAN: Well, it depends on which

15 plaintiff we're talking about because for --

16

THE COURT: Okay. Well, let's say Plaintiff

17 April Miller, why can't she issue the license to

18 April Miller?

19

MR. CHRISTMAN: For Ms. Miller -- overall

20 Ms. Davis stopped issuing all marriage licenses because

21 she wanted to ensure that people who were coming to seek

22 marriage licenses were treated equally, that they were

23 given the same treatment by --

24

THE COURT: Okay. But why can't -- why can't

25 she issue the one to Miller?

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :6601oof f111123- -PPaaggeeIDID##: :19586920

1

MR. CHRISTMAN: For -- in addition to that why

2 she can't issue the license to Miller is because

3 Ms. Miller wanted to be married to another woman. And

4 the count -- the mandated form from Kentucky from the

5 Department of Libraries and Archives, the marriage form

6 itself, Ms. Davis has no choice, no discretion over the

7 license that has to be issued to a couple. It's

8 prescribed from the governor's office through the

9 Kentucky Department of Libraries and Archives, and it's

10 that form. It's uniform under Kentucky statute. I can

11 provide the citation.

12

THE COURT: Okay. What's wrong with the form?

13

MR. CHRISTMAN: So the form requires the county

14 clerk on four occasions, or at a minimum at least two,

15 for every license that the county clerk issues she has to

16 give her approval at least two times on that license with

17 her name and affixing her signature, name, her sign of

18 approval for the marriage license.

19

THE COURT: But is it a sign of approval, or is

20 it more a ministerial act?

21

MR. CHRISTMAN: It's a sign of approval --

22

THE COURT: Approval.

23

MR. CHRISTMAN: -- because it's her name. So

24 as a -- as a public record when that marriage license is

25 issued, it becomes solemnized by someone that can

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :6612oof f111123- -PPaaggeeIDID##: :19686031

1 solemnize the marriage, and then comes back to be

2 recorded. It's a public record in Rowan County that the

3 Rowan County Clerk's office has issued, is the one with

4 the authority to bless, approve, sign the marriage

5 license.

6

And that form requires Ms. Davis when two

7 individuals come in, or whoever comes in, asking for a

8 marriage license requires her, even -- and I said there

9 were two or four. So the deputy clerks in her office

10 there is -- for four of the spaces that require her name

11 or signature to be on, two of those under Kentucky law

12 can be completed by the deputy clerks in a Kentucky

13 county office.

14

THE COURT: Why -- in the absence of a clerk,

15 like if I go to my home county Campbell -- and we have a

16 new clerk. Jim Luersen is the new clerk. I think the

17 only time I've been down there is to vote absentee and to

18 get my driver's license. The clerk -- I don't think I've

19 ever had any act -- ever -- I've never had any

20 interaction with the clerk himself. I think it was

21 Tom Calme before that. I never saw the clerk. The

22 deputies would take my money and my information and then

23 issue my driver's license. I mean, it may be signed by

24 the clerk, but it's not -- I mean, it's stamped by the

25 clerk.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :6623oof f111123- -PPaaggeeIDID##: :19686142

1

MR. CHRISTMAN: Yeah. There are --

2

THE COURT: What are you -- what are you

3 talking about here?

4

MR. CHRISTMAN: There are --

5

THE COURT: You said two or four. You're

6 confusing me here.

7

MR. CHRISTMAN: Right. And, I mean, I could --

8 we could show at the appropriate time what --

9

THE COURT: How about now?

10

MR. CHRISTMAN: -- a license --

11

THE COURT: I think now is the appropriate

12 time.

13

MR. CHRISTMAN: Yes, Your Honor. We

14 actually -- we actually have a copy of what the license

15 looked like immediately prior to the Obergefell decision

16 on June 26th, and then on June 30th with the governor of

17 Kentucky said, "I'm going to instruct and direct my

18 Kentucky Department of Libraries and Archives to issue a

19 new form --"

20

THE COURT: Okay.

21

MR. CHRISTMAN: "-- because Kentucky is now

22 going to recognize and issue marriage licenses to

23 same-sex couples."

24

THE COURT: Right. So now we're -- I think the

25 one that's really relevant now is the one that's

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :6634oof f111123- -PPaaggeeIDID##: :19686253

1 post-6/30/2015.

2

MR. CHRISTMAN: Right. And there's very little

3 that was changed. We just wanted to show that to

4 Your Honor that there is very little that changed before

5 and after.

6

But there are four spots. You'll see in the

7 middle of the form with the one that is redacted because

8 it was easier to draw your attention to.

9

THE COURT: Yes.

10

MR. CHRISTMAN: Where it says, issued this

11 month, day, year, in the office of, and then it says,

12 name, comma, county. And in those spots on every form is

13 Kim Davis. Every marriage license form that comes out of

14 Rowan County has to have her name right there. That's

15 prescribed by -- Kentucky marriage law requires her name

16 there.

17

Immediately below that is where it says

18 recorder's name, and that is a spot that under Kentucky

19 marriage law allows either the county clerk's name to be

20 there or a deputy clerk.

21

THE COURT: Okay. So if the statute was

22 amended to allow for a deputy clerk to sign off on all of

23 this, would that change all of your opinion of this case?

24

MR. CHRISTMAN: What -- what it would change if

25 you take -- if you take Kim Davis's requirement of having

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :6645oof f111123- -PPaaggeeIDID##: :19686364

1 affix her name and approval of that marriage off of the

2 license and put it onto the hands and the authority of

3 somebody else, that's not her name, it's not her

4 approval, she doesn't have to bless that marriage,

5 then --

6

THE COURT: Well, she's not blessing anything.

7 She's just signing it as a representative of the county.

8

MR. CHRISTMAN: Yeah, she's approving. Under

9 the statute is what it says, that --

10

THE COURT: Well, you keep using the word

11 "bless." I mean --

12

MR. CHRISTMAN: -- under the authority --

13

THE COURT: -- blessing is something we talk

14 about in church. I mean, she's signing it because she's

15 the county clerk.

16

MR. CHRISTMAN: She's authorized. The statutes

17 use the word authorized --

18

THE COURT: Right.

19

MR. CHRISTMAN: -- approved.

20

THE COURT: Right.

21

MR. CHRISTMAN: And so, yeah, if you remove --

22 if the State of Kentucky or the Commonwealth of Kentucky

23 removes the statutory requirement that a county clerk

24 must authorize and approve these licenses, then that

25 would eliminate for Ms. Davis -- when Ms. Miller walked

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :6656oof f111123- -PPaaggeeIDID##: :19686475

1 in for a marriage license, that would eliminate the

2 religious conscientious objection that Ms. Davis has to

3 having her name, signature, and approval on that license.

4

There are -- there are other ways -- again,

5 there are less restrictive means, other ways in which

6 Ms. Davis's religious objection can be accommodated. For

7 example --

8

THE COURT: Well, is that the --

9

MR. CHRISTMAN: -- you were actually talking

10 about your driver's license. There are numbers of things

11 that people can get in a county. In fact, one of them is

12 a fishing license. Well --

13

THE COURT: I do that online.

14

MR. CHRISTMAN: You can do it online, and

15 that's certainly an option that's out there. Other --

16 other states across the country have done this where they

17 move marriage out of a particular county clerk's office

18 and put it in the hands of the state or the Commonwealth

19 that people sitting in their living room, you know, can

20 go on their iPad and get a marriage license as long as

21 they verify who they are, and they pay the fee.

22

THE COURT: No, those are -- these are all

23 prospective things that could impact this case. I mean,

24 if the state were to go to online marriage licenses and

25 have the -- I guess it would be the -- is there a

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :6667oof f111123- -PPaaggeeIDID##: :19686586

1 commissioner of that particular -- who was it that prints

2 out these forms?

3

MR. CHRISTMAN: It comes from the Kentucky

4 Department of Libraries and Archives. It's a branch --

5

THE COURT: Yeah. Is there a commissioner of

6 Department of Libraries --

7

MR. CHRISTMAN: There is --

8

THE COURT: -- and Archives?

9

MR. CHRISTMAN: There is a commissioner.

10 There's a commissioner that --

11

THE COURT: That commissioner would sign off on

12 all of those I suppose. If you went to an online system,

13 I would assume that that's what would be who would sign

14 that.

15

MR. CHRISTMAN: And the -- yeah, the license

16 would come issued and --

17

THE COURT: All right.

18

MR. CHRISTMAN: -- approved out of the

19 Commonwealth's office. There are several other exempt --

20 there are --

21

THE COURT: You're going to have to keep your

22 voice up because it's getting hot in here. Why don't you

23 come over to the podium so we can hear you.

24

MR. CHRISTMAN: That -- Your Honor, that was --

25 that's one of the options that's available.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :6678oof f111123- -PPaaggeeIDID##: :19686697

1

And actually I was briefly about to mention

2 that there are several other licenses, different things,

3 that people can get from a county, and one of them is a

4 fishing license. And Kentucky actually has an exemption

5 for county clerks that they can choose to submit

6 something in writing to this -- to the Commonwealth that

7 they can exempt themselves from their requirement to

8 actually issue a fishing license.

9

The cite for that would be Kentucky Revised

10 Statute 150.195. So you --

11

THE COURT: Why would they ever to that? Do

12 they have an objection to issuing a fishing license?

13

MR. CHRISTMAN: Well, people might have

14 different kinds of objection to different things. And

15 what it shows, and evidence is, is that the legislature

16 and the governor know how to sit down and figure out how

17 to accommodate different exemptions.

18

THE COURT: Is that something that can be done

19 by executive order?

20

MR. CHRISTMAN: Actually --

21

THE COURT: Does anybody know?

22

MR. CHRISTMAN: Yes. In this country there are

23 two examples at least already in Louisiana, not too far

24 from here, where Governor Jindal--

25

THE COURT: Well, it's pretty far from here.

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :6689oof f111123- -PPaaggeeIDID##: :19696708

1

MR. CHRISTMAN: I'm coming from Florida so

2 Louisiana is not too far from here.

3

Where Bobby Jindal, the governor in that state,

4 actually issued an executive order that was entitled

5 Marriage and Conscience Order giving exemptions to a

6 whole litany of different people that would qualify.

7

Recently, after the Obergefell decision,

8 Governor Brownback in Kansas also issued an executive

9 order related to religious conscience and religious

10 exemption. Both of the gubernatorial candidates in this

11 state in recent news articles have talked about when --

12

THE COURT: In what state?

13

MR. CHRISTMAN: Kentucky.

14

THE COURT: We only have one now. I mean,

15 Bevin, didn't he win the primary? Who's the other one?

16

MR. CHRISTMAN: I believe it was Bevin is the

17 republican candidate, and the --

18

THE COURT: Oh, Jack Conway.

19

MR. CHRISTMAN: -- current attorney general

20 is --

21

THE COURT: Oh, okay, Jack Conway, okay, okay.

22

MR. CHRISTMAN: -- running for governor.

23

THE COURT: I was just thinking Republicans

24 because --

25

MR. CHRISTMAN: I apologize for devolving into

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :6790oof f111123- -PPaaggeeIDID##: :19696819

1 Kentucky politics for the moment. I'm certainly not

2 an --

3

THE COURT: I'm familiar with Kentucky

4 politics.

5

MR. CHRISTMAN: -- expert on them. But both --

6 both of them have made public statements that related to

7 religious conscience about the legislature taking this

8 up, thinking about it to both work with what the

9 Supreme Court has said in Obergefell, but also then work

10 with a person like Kim Davis who has to affix her name

11 and approval on every license. And that's -- that's

12 what's at issue here. We're not talking about -- as

13 plaintiffs conceded and admitted in their testimony, they

14 can get a license other places. They can obtain it.

15

The Commonwealth of Kentucky is not here saying

16 we're not going to issue you a license. That's not what

17 Kentucky says.

18

In fact, what Kentucky says through

19 Governor Beshear, through Attorney General Conway, is

20 that we are recognizing same-sex marriages, both those

21 here in Kentucky, as well as all of the other states, if

22 you move to Kentucky, we will recognize your same-sex

23 marriage.

24

So Kentucky is not saying you can't get a

25 marriage license. And that's what's different going back

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :7701oof f111123- -PPaaggeeIDID##: :19697920

1 to some of those --

2

THE COURT: The county -- well, what's

3 happening here is the county clerk is saying she's not

4 going to issue it.

5

MR. CHRISTMAN: Because of -- because -- she's

6 not issuing any licenses right now because she wants to

7 comply with her obligations and duties to treat people

8 equally.

9

THE COURT: Well, by doing that she's denying

10 the rights to anyone to get a marriage license in her

11 county.

12

MR. CHRISTMAN: Well, it goes back to the

13 direct and substantial burden, and is that fundamental

14 right to marry being directly and substantially burdened?

15 They can go to these other counties. They'll get -- they

16 can get licenses there. They can go to Rowan County and

17 go to the chief -- the county judge, the county

18 executive, who under Kentucky law, under current Kentucky

19 law, he may issue the license.

20

THE COURT: Even if she's sitting downstairs?

21

MR. CHRISTMAN: What the statute says is in the

22 absence of --

23

THE COURT: Or upstairs, wherever it is.

24

MR. CHRISTMAN: Any absence of the county

25 clerk, the county -- the county judge or executive may --

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :7712oof f111123- -PPaaggeeIDID##: :19797031

1

THE COURT: How is that defined absence?

2

MR. CHRISTMAN: -- issue the license. The

3 statute --

4

THE COURT: Is that an absence, physically

5 absent, or just because she has a conscientious objection

6 to issuing a license?

7

MR. CHRISTMAN: Your Honor, I think it's both.

8 The statute does not define absence so it's left for

9 interpretation. It says, "in the absence of county clerk

10 or vacancy in the office." So vacancy in the office

11 needs to be treated separately.

12

In other words, there's an instance where we

13 can have a gap in time where there's nobody in the

14 position of county clerk. That's vacancy. So in the

15 absence --

16

THE COURT: Someone resigns.

17

MR. CHRISTMAN: Someone resigns.

18

THE COURT: Right.

19

MR. CHRISTMAN: Various things could happen

20 that somebody -- there's nobody in the office, you have

21 to call special election.

22

Absence can happen in several different ways.

23 Somebody could be absent for a medical reason. Somebody

24 could be absent because of a religious conscious

25 objection. They could be absent because they're on

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :7723oof f111123- -PPaaggeeIDID##: :19797142

1 vacation. There are several ways in which somebody could

2 be absent from being able to be the county clerk who

3 issues the license.

4

And what Kentucky marriage law then provides

5 is if the county clerk is absent, you can go to the

6 chief judge and that chief judge may then issue a license

7 to you through a memorandum.

8

And what the plaintiffs have testified to

9 is that they went to the chief judge, the county

10 judge/executive, and he said no.

11

THE COURT: Okay. Let me ask this. Let me ask

12 this question. You represent Ms. Davis in her individual

13 and official capacity to the extent that she's ultimately

14 going to be served, both official and individual

15 capacity; correct?

16

MR. GANNAM: Yes, Your Honor.

17

THE COURT: Okay. If you bring -- you brought

18 this action under 1983 and have requested attorneys'

19 fees; correct?

20

MR. SHARP: Yes, Your Honor.

21

THE COURT: All right. All right.

22

MR. CHRISTMAN: Your Honor, so there is no

23 evidence that -- other than the admission now that the

24 plaintiffs actually tried the option in Rowan County. So

25 there was another option that the law provided to them,

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :7734oof f111123- -PPaaggeeIDID##: :19797253

1 that Mr. Blevins chose not to issue the license.

2 Mr. Blevins isn't before this Court so I'm not going to

3 presume upon his reasons for not issuing the license.

4 But there is that option, along with all these other

5 counties.

6

And by the governor's own statements that this

7 issue about individuals within Kentucky their inability

8 to obtain a marriage license, again, it's not -- this is

9 not the pre-Obergefell world. If a same-sex couple

10 walked into one of the 120 Kentucky counties on

11 June 25th, 2015, not a single one of them could have

12 gotten a marriage license from Kentucky on that day.

13

Because why? At that point the Kentucky

14 Constitution said what marriage was between one man and

15 one woman. Kentucky statute said that.

16

THE COURT: Well, that's --

17

MR. CHRISTMAN: Kentucky Supreme Court, so --

18

THE COURT: That's all well and good, but

19 that's pre-Supreme Court decision.

20

MR. CHRISTMAN: Right. And so it's to show

21 that -- and that county clerk in that instance

22 couldn't -- wasn't even permitted under the law, didn't

23 have any ability to issue the license.

24

Now the governor has come out, Kentucky has

25 come out and said we're recognizing and we're issuing

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :7745oof f111123- -PPaaggeeIDID##: :19797364

1 marriage licenses to same-sex couples, and here's the

2 form you must use, mandatory, prescribed. And that form

3 requires Kim Davis to put her name and her approval on

4 it.

5

The governor said this is not a widespread

6 issue, that this is limited in terms of the counties

7 where the county clerks, one of whom is Ms. Davis, is

8 unwilling to issue the marriage license. This is a much

9 different world from before. And that's why it goes back

10 to the fundamental right to marry is not being

11 substantially burden because --

12

THE COURT: Well --

13

MR. CHRISTMAN: -- in those cases it was to a

14 class. It was to classes of people on statewide

15 policies. And in --

16

THE COURT: Well, they filed a motion for

17 class cert -- well, you filed it as a purported class

18 action. I mean, the class is very small right now

19 potentially --

20

MR. CHRISTMAN: Right.

21

THE COURT: -- because of 119 other counties

22 are not objecting.

23

Is that fair?

24

MR. SHARP: Your Honor, the proposed class is

25 defined in the complaint as present and future

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :7756oof f111123- -PPaaggeeIDID##: :19797475

1 individuals who would seek to obtain a marriage license

2 in Rowan County. The proposed classes would not be

3 statewide.

4

THE COURT: It would just be one county?

5

MR. SHARP: One county.

6

THE COURT: Right.

7

MR. CHRISTMAN: Kentucky law does not require

8 these couples to get a marriage license in Rowan County.

9 Kentucky law --

10

THE COURT: I understand that.

11

MR. CHRISTMAN: -- let's them go wherever.

12

THE COURT: I understand that, I do.

13

MR. CHRISTMAN: Loving versus Virginia, all

14 these fundamental right-to-marry cases all dealt with

15 statewide policies that prohibited groups of people by

16 class identification from being married. Loving versus

17 Virginia was a Virginia law, a ban on interracial

18 marriages.

19

THE COURT: Right, right.

20

MR. CHRISTMAN: Zablocki was a Wisconsin law

21 that prevented parents who had support obligations still

22 owed to children that they had support -- child support

23 obligations to, if that wasn't paid in full, they

24 couldn't get a license. It was a statewide policy.

25

In the Turner v. Safley case, which they cited

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :7767oof f111123- -PPaaggeeIDID##: :19797586

1 in their papers, it was a Missouri statewide regulation.

2

In the case that was up at the Supreme Court in

3 Obergefell rising from Kentucky, it was a statewide

4 answer.

5

Here we're not talking about statewide. What's

6 statewide as the general policy and the general rule is

7 what Governor Beshear said, what Attorney General Conway

8 said, is that marriage for any two people, subject to

9 some other requirements, that it's open for all, that

10 here's the form. You can walk -- you can go get married,

11 and we'll recognize your marriage. We'll give all the

12 privileges, all the benefits that come from marriage.

13 Kentucky can do it. These people can -- these plaintiffs

14 can go to the neighboring counties. They can go to these

15 other things.

16

THE COURT: Well, why should they have to? Why

17 should they have to?

18

MR. CHRISTMAN: Four -- there are four sets of

19 couples who are plaintiffs in this case. Again, I'll go

20 back to as my initial answer the reason for four is

21 because Ms. Davis does not want to issue -- does not want

22 to make any steps that would be seen as not treating

23 couples equally so --

24

THE COURT: Right. Now, how many --

25

MR. CHRISTMAN: -- she does --

CCaassee: :00:1:155-c-cvv-0-000004444-D-DLLBB DDoocc##: :3291-3 FFileiledd: :0078/1/067/1/155 PPaaggee: :7778oof f111123- -PPaaggeeIDID##: :19797697

1

THE COURT: Hold on, hold on. When was she

2 elected?

3

MR. CHRISTMAN: She was elected in November of

4 2014 and --

5

THE COURT: So she has --

6

MR. CHRISTMAN: -- took office --

7

THE COURT: Is it a four-year term?

8

MR. CHRISTMAN: It's a four-year term.

9

THE COURT: So for the next four years no

10 marriage licenses at all in Rowan County? Is that -- is

11 that what's going to happen?

12

MR. CHRISTMAN: I believe -- I believe that

13 there's an easier solution, and there are -- and it --

14

THE COURT: Well, what's the --

15

MR. CHRISTMAN: -- can be easily resolved.

16

THE COURT: -- easier solution?

17

MR. CHRISTMAN: Well, we talked about some

18 other less restrictive alternatives and means that can

19 happen, is the -- remember, in Rowan County they can get

20 a license. They can get one from Judge Blevins as well.

21

THE COURT: Well, that's something I want to --

22

MR. CHRISTMAN: Apparently they're saying --

23

THE COURT: That's something I want to explore

24 at some point with Mr. Mando.

25

MR. CHRISTMAN: We'll cabin that.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 7789 ooff 111123 -- PPaaggee IIDD##:: 117077080

1

So another option is that, as I mentioned

2 earlier, there are other legislative and executive

3 options that are available that as that --

4

THE COURT: Well, they may not --

5

MR. CHRISTMAN: -- other states --

6

THE COURT: -- be available now.

7

MR. CHRISTMAN: They're not available today,

8 but states are already working to take steps, and both of

9 the candidates have indicated that this is something that

10 they want to --

11

THE COURT: Well, that's probably not going to

12 happen --

13

MR. CHRISTMAN: -- to take up and address.

14

THE COURT: -- until the spring anyway. That

15 wouldn't happen until the spring.

16

MR. CHRISTMAN: Yeah.

17

THE COURT: I can't imagine them calling a

18 legislative session for this one issue. That would seem

19 a little --

20

MR. CHRISTMAN: And the current --

21

THE COURT: -- bit expensive.

22

MR. CHRISTMAN: Admittedly, the current

23 governor has said that he will not call a current -- a

24 special session right now for it.

25

But there are other -- there are other ways for

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 7890 ooff 111123 -- PPaaggee IIDD##:: 117078091

1 licenses to begin to get issued because the governor can

2 work with the KDLA --

3

THE COURT: Okay.

4

MR. CHRISTMAN: -- to revise the form in the

5 interim and, again, going back to the four couples.

6

So that's why everybody -- that's why no one is

7 getting a marriage license with Kim Davis's authorization

8 and signature right now.

9

Now, for the two couples who came -- there is

10 one couple that was two women and another couple that was

11 two men. For those two couples Ms. Davis has a sincerely

12 held religious belief and a religious conscience

13 objection that prevents her name and her affixing her

14 name and signature to those licenses. She does not --

15 we'll present evidence that she does not have a

16 religious -- a sincerely held religious belief,

17 conscientious objection, to issuing a license to a couple

18 that's one man and one woman because --

19

THE COURT: Do you know what religion she is?

20

MR. CHRISTMAN: She's a professing Christian,

21 Your Honor.

22

THE COURT: She's a Christian, okay. All

23 right, all right.

24

MR. CHRISTMAN: And when she took office as the

25 elected county clerk, she -- at the time -- the day she

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 8801 ooff 111123 -- PPaaggee IIDD##:: 117089002

1 took office it was January 1st, 2015. Or maybe it wasn't

2 the 1st. It was the first Monday of January in the new

3 year. When she took office at that moment, what marriage

4 was in Kentucky was one man, one woman. The

5 constitutional amendment, the legislative act, the

6 Sixth Circuit case at that point had overruled

7 Judge Heyburn's decision from the Western District, had

8 reversed that.

9

So there was no question at that point what the

10 law of marriage in Kentucky was. And that law comported

11 with what Ms. Davis's sincerely held religious beliefs

12 were at that moment.

13

After she took office, and only after, is when

14 the Supreme Court even granted certiorari in the

15 Obergefell case. That happened on January 16th of 2015.

16

And we'll present evidence from Ms. Davis that

17 from the moment the Obergefell decision, the cert

18 petition was granted, knowing that Kentucky's law there

19 was going to be a decision on it, that Ms. Davis began to

20 take steps that she could to alert legislators in

21 Kentucky, representatives, that depending on how this

22 goes, this is going to be a real issue for me because of

23 my religious, conscientious objection and what I believe

24 marriage to be.

25

She swore an oath to the Constitution, the

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 8812 ooff 111123 -- PPaaggee IIDD##:: 118080013

1 United States Constitution, the Kentucky Constitution, so

2 help me God, that the entire oath was an oath that was --

3 it's built into the oath is inherent inalienable

4 protections for her conscience, for her religious

5 liberties, for her freedom.

6

THE COURT: Well, she -- didn't she -- you

7 mentioned the oath. Did the oath require her to uphold

8 the Constitution?

9

MR. CHRISTMAN: And she is upholding the

10 Constitution.

11

THE COURT: Well, now, the --

12

MR. CHRISTMAN: What she took an oath --

13

THE COURT: -- definition of fundamental right

14 to marry has changed in the last two weeks.

15

MR. CHRISTMAN: The Supreme --

16

THE COURT: Well, the Supreme Court hasn't

17 changed. It's been --

18

MR. CHRISTMAN: The Supreme --

19

THE COURT: -- the Supreme Court has upheld the

20 Fourteenth Amendment due process, fundamental right to

21 marry same-sex couples. That's different now than it was

22 in March of this year. So the Constitution -- she took

23 an oath to uphold the Constitution. The Constitution has

24 now been expanded, if you will, to include same-sex

25 marriage.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 8823 ooff 111123 -- PPaaggee IIDD##:: 118081024

1

MR. CHRISTMAN: Your Honor, I would submit that

2 the Constitution only expands by way of amendment and --

3

THE COURT: Well, okay. Listen, we're --

4

MR. CHRISTMAN: -- she took an oath. I don't

5 want --

6

THE COURT: -- not going to --

7

MR. CHRISTMAN: -- to -- you said --

8

COURT REPORTER: I can only take one at a time.

9

THE COURT: Yes, thank you.

10

From the standpoint -- you're talking to

11 somebody who generally speaking is -- I look at the

12 Constitution and somebody can say it changes, it's a

13 living, breathing document. Some people say that. Some

14 people say it's what it says is what it should be. And

15 we probably got lots of people in this room that agree

16 with one or the other.

17

Now, I took an oath to uphold the law 13 plus

18 years ago. The Supreme Court in matters like this has

19 the last say.

20

Now, from a -- in a civilized society we set it

21 up that way. We've got district courts, we have

22 appellate courts, and then we have the Supreme Court.

23

And if you get to the Supreme Court and they

24 make a final ruling -- and I apologize for using the word

25 amendment because I know how the constitutional amendment

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 8834 ooff 111123 -- PPaaggee IIDD##:: 118082035

1 process works. I did go to law school. I'm pretty

2 familiar with that. I'm sure you're aware of it as well.

3

But the Supreme Court made its ruling. That's

4 what from a constitutional Fourteenth Amendment

5 perspective there's a fundamental right to marry to

6 both same and opposite-sex couples. That's what the

7 Supreme Court says the Constitution includes now, whether

8 it be -- it's not an amendment to the Constitution, but

9 it's held to be a fundamental right.

10

I'm here to uphold the Constitution, among

11 other things. Individuals who take oaths who are there

12 to uphold the Constitution have to do that as well.

13

MR. CHRISTMAN: Yes.

14

THE COURT: So, I mean, I'm trying to follow

15 your point. I mean, she took this oath to uphold the

16 Constitution. The Constitution may not be what it was

17 when she took office.

18

MR. CHRISTMAN: Yes, Your Honor, that's correct

19 in terms of how the Supreme Court is interpreting the

20 Constitution.

21

THE COURT: Correct, correct.

22

MR. CHRISTMAN: But what was also in effect on

23 January 1st, as well June 26th and today, was the

24 First Amendment of the United States.

25

THE COURT: All right. So we have a

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 8845 ooff 111123 -- PPaaggee IIDD##:: 118083046

1 conflict --

2

MR. CHRISTMAN: So there are --

3

THE COURT: -- First Amendment versus

4 Fourteenth Amendment. We're getting somewhere.

5

MR. CHRISTMAN: And what the Supreme Court said

6 in Obergefell --

7

THE COURT: Page 27. I've read it multiple

8 times.

9

MR. CHRISTMAN: -- the one unanimous -- the one

10 unanimous ruling from that court was that religious

11 liberties, religious freedoms are still protected in this

12 country.

13

THE COURT: Right, pastors --

14

MR. CHRISTMAN: And that when --

15

THE COURT: -- and churches, all agree.

16

MR. CHRISTMAN: Well, I mean, there's -- how

17 far does religious freedom and religious liberty go?

18

Religious conscience objections have been and

19 are accepted constitutionally for public employees, for

20 public officials that -- when you take office, you don't

21 waive and suddenly shed your constitutional rights,

22 freedoms, and liberties at the door of the government

23 courthouse --

24

THE COURT: Sometimes you have to.

25

MR. CHRISTMAN: -- when you walk in. There --

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 8856 ooff 111123 -- PPaaggee IIDD##:: 118084057

1

THE COURT: I mean, if I'm telling -- if I'm

2 picking a jury, I got to be careful what I say sometimes.

3

When I'm in this courtroom, I've got to be

4 careful what I say sometimes. I mean, I can't profess

5 religion from this bench. I would never try to because

6 that would be inappropriate.

7

I recognize that there's a conflict here. The

8 Supreme Court recognizes a conflict. If you read

9 Justice Thomas's dissent, I mean, he may very well be a

10 prophet. I mean, he --

11

MR. CHRISTMAN: Your Honor, he predicted this

12 very --

13

THE COURT: -- says, "It appears all but

14 inevitable that the two will come into conflict." That

15 is being these two Fourteenth and First Amendment.

16 "Government and religious institutions, particularly as

17 individuals and churches are confronted with demands to

18 participate and endorse civil marriages between same-sex

19 couples."

20

So this is just the first, according to

21 Justice Thomas, of many situations where there may be a

22 conflict going forward.

23

MR. CHRISTMAN: That's correct, Your Honor.

24

THE COURT: So, I mean, I'm -- I'm aware of

25 that. I am trying to get -- I would love for this to be

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 8867 ooff 111123 -- PPaaggee IIDD##:: 118085068

1 a situation where if Kim Davis has a conflict, a deeply

2 held religious belief, that she can't sign off on these

3 marriage licenses, they go down the hall to the

4 judge/executive, and he signs it. Then we don't have to

5 worry about an attorney fee petition where Rowan County

6 might be on the hook to sign -- to pay their attorneys'

7 fees. I mean, there's a lot in play here potentially. I

8 recognize that.

9

So, I mean, I'm going to go back to the very

10 first question that I asked that you then, as a good

11 advocate will, you kind of answered in a way that didn't

12 really answer the question.

13

But is there a compelling state interest in her

14 denying these marriage licenses?

15

MR. CHRISTMAN: Yes, there is, and that

16 compelling --

17

THE COURT: What is that?

18

MR. CHRISTMAN: -- state interest is protecting

19 the individual religious freedoms of every person in the

20 Commonwealth of Kentucky. One of those people is

21 Kim Davis.

22

THE COURT: Okay. So that's your answer?

23

MR. CHRISTMAN: That is a -- that is the

24 compelling interest of the highest degree because it goes

25 to the very first freedoms that are articulated in the

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 8878 ooff 111123 -- PPaaggee IIDD##:: 118086079

1 United States Constitution, as well as the Kentucky

2 Constitution, which says, "The civil rights, privileges,

3 or capacities of no person shall not be taken away, or in

4 anywise diminished or enlarged, on account of his belief

5 or disbelief of any religious tenet, dogma, or teaching.

6 No human authorities shall, in any case whatever, control

7 or interfere with the rights of conscience."

8

That Kentucky has a compelling government

9 interest of upholding the rights of conscience, the

10 rights of religious freedom, rights of religious liberty,

11 free speech implications here because she's actually

12 putting her name and signature again on a form.

13

It is a -- if Kentucky is forcing her to do it,

14 Kentucky is compelling her, forcing her to speak as to a

15 view, a message, an idea, that -- a belief that she does

16 not agree with.

17

In addition to the constitutional protections,

18 in Kentucky enacted in 2013 over Governor Beshear's veto

19 overwhelmingly -- I think the votes were approximately

20 75 plus percent or 80 percent over the veto -- enacting a

21 Religious Freedom Restoration Act, which prevents the

22 government, prevents Kentucky, from burdening a person's

23 religious freedom.

24

THE COURT: Now, a --

25

MR. CHRISTMAN: They --

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 8889 ooff 111123 -- PPaaggee IIDD##:: 118087180

1

THE COURT: -- person's religious freedom in

2 what regard?

3

MR. CHRISTMAN: The statute goes on. "To act

4 or refuse to act motivated by a sincerely held religious

5 belief."

6

So when you get to the same-sex couple that

7 wants Ms. Davis personally to affix her name and approval

8 on it, and Kentucky is saying you must do it because this

9 is the form, and that's the only acceptable form, and

10 nothing else can be a marriage license in the

11 Commonwealth of Kentucky, what the government of Kentucky

12 is doing is saying to Kim Davis you have to act in a way

13 that violates your sincerely held religious belief.

14

And she says, no, the Kentucky Religious

15 Freedom Restoration Act protects me from refusing to act

16 in a certain way, motivated by a sincerely held religious

17 belief, which we will present and demonstrate at the

18 appropriate time, unless -- now, there is an unless.

19

When Ms. Davis says, I have a sincerely held

20 religious belief, I have a conscious objection, that

21 doesn't end this case. Because the government of

22 Kentucky then can prove by a compelling, clear and

23 convincing evidence that it has a compelling government

24 interest and has used the least restrictive means.

25

So when Ms. Davis steps up and says, I submit

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 8990 ooff 111123 -- PPaaggee IIDD##:: 118088191

1 that I have a sincerely held religious belief that

2 prevents me from putting my name and signature and

3 approval on this license, the government of Kentucky can

4 come in and make an argument that as a state, if they

5 want to argue, and I don't think they do, because the

6 candidates have said they want to recognize religious

7 conscience, but they would have to make some argument

8 that the Kentucky has a compelling government interest to

9 force Ms. Davis to violate her individual religious

10 liberties, protections. But they have to do it in the

11 least restrictive means. Not only do they have to show a

12 compelling government interest, they have to do it in the

13 least restrictive means.

14

In the Supreme Court's Hobby Lobby case from a

15 year ago, they interpreted the federal RFRA, which is

16 very similar and analogous to what Kentucky enacted. But

17 the Kentucky statute even puts government on a higher

18 burden. It's clear and convincing is what the burden of

19 proof is for Kentucky to show.

20

And in the Hobby Lobby case, it talked very

21 much about how -- how invasive and difficult it is to

22 satisfy the least restrictive means, that Kentucky is

23 going to have to show that there was no other way for

24 these four couples to get a license unless Kim Davis

25 personally signs, approves, and do it, that there's no

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 9901 ooff 111123 -- PPaaggee IIDD##:: 118099102

1 other least restrictive means because --

2

THE COURT: Well, I don't know why. I'm

3 still -- you pointed --

4

MR. CHRISTMAN: -- they've already --

5

THE COURT: -- to this form, marriage

6 certificate. How many clerk's deputies does she have, do

7 you know?

8

MR. CHRISTMAN: Your Honor, she has -- she has

9 six deputy clerks currently employed. The numbers --

10

THE COURT: Okay. How many share --

11

MR. CHRISTMAN: -- sometimes fluctuate.

12

THE COURT: How many share her deep religious

13 conscientious objection?

14

MR. CHRISTMAN: Your Honor, I don't know the

15 answer to that question.

16

THE COURT: Because you only represent her?

17

MR. CHRISTMAN: That's correct, Your Honor.

18

THE COURT: Okay. Do you know the answer to

19 that, Mr. Mando?

20

MR. MANDO: I'm sorry?

21

THE COURT: Do you know how many of her six

22 deputies share her religious convictions?

23

MR. MANDO: No, I do not, Your Honor.

24

THE COURT: Do not?

25

MR. MANDO: No.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 9912 ooff 111123 -- PPaaggee IIDD##:: 119090113

1

MR. CHRISTMAN: Okay. Your Honor --

2

THE COURT: That might be an answer you might

3 want to get when she testifies --

4

MR. CHRISTMAN: What I -- what I --

5

THE COURT: -- the next hearing.

6

MR. CHRISTMAN: -- would also submit is if

7 those deputy clerks also themselves have a sincerely held

8 religious belief, that Kim Davis in that case as the

9 employer of those individuals has a compelling government

10 interest herself to protect the individual consciences

11 and rights of those employees because of Kentucky Civil

12 Rights laws and other -- and constitutional protections

13 that she has. She swore an oath to the Constitution --

14

THE COURT: Okay.

15

MR. CHRISTMAN: -- to protect her religious

16 liberties but also others. And so if an employee of hers

17 steps up and says, well, I have a religious conscientious

18 objection as well, as the employer in that instance

19 Ms. Davis would have to figure out a way, or try to

20 figure out a way, to accommodate that interest.

21

But here again, I go back to the other -- the

22 other ways in which Kentucky can --

23

THE COURT: Well, we've talked --

24

MR. CHRISTMAN: -- issue a license without --

25

THE COURT: -- about that ad nauseam.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 9923 ooff 111123 -- PPaaggee IIDD##:: 119091124

1

MR. CHRISTMAN: So those individuals are not

2 currently before this Court.

3

THE COURT: No, they're not, they're not. But

4 I'm -- part of my job is to try to figure out a way to

5 resolve all of this without lots of paper being burned,

6 with briefs, and lots of potential attorneys' fees being

7 litigated. And I'm thinking of that as I listen to you

8 argue of ways to try to resolve this.

9

MR. CHRISTMAN: And I go back to what we talked

10 about earlier about this is not -- this is not -- again,

11 it's not a statewide policy or mandate --

12

THE COURT: No, we're limited to one --

13

MR. CHRISTMAN: -- that's at issue. We're

14 talking about --

15

THE COURT: -- county, in --

16

MR. CHRISTMAN: We're talking about --

17

THE COURT: -- Rowan County, yes, sir.

18

MR. CHRISTMAN: -- one county. So, again, if

19 there is a scenario in place where there is a county

20 clerk that has a religious objection and demonstrates

21 that, and that government hasn't shown a compelling

22 government interest or a least restrictive means to

23 overturn it, and it turns out in the facts and the record

24 to be demonstrated later on that other deputy clerks also

25 have a sincerely held belief --

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 9934 ooff 111123 -- PPaaggee IIDD##:: 119092135

1

THE COURT: So are you thinking --

2

MR. CHRISTMAN: -- over this --

3

THE COURT: -- that the other six are going to

4 have the same belief she has?

5

MR. CHRISTMAN: I -- again, I don't know.

6 They're not before this Court. The plaintiffs --

7

THE COURT: It sounds to me like you think they

8 all will have it.

9

MR. CHRISTMAN: I don't think that, Your Honor.

10

THE COURT: You don't think that?

11

MR. CHRISTMAN: I don't.

12

THE COURT: Okay. So you think there may be a

13 deputy clerk in Rowan County that would be willing to

14 issue a license to a same-sex marriage?

15

MR. CHRISTMAN: More importantly than a deputy

16 clerk is the chief judge, the county executive who --

17

THE COURT: Well, that's something --

18

MR. CHRISTMAN: -- publicly on record --

19

THE COURT: Okay. Well, let's --

20

MR. CHRISTMAN: -- as saying he would.

21

THE COURT: I think I've heard enough from you

22 here. I mean, I don't -- not that I'm mad at you. I

23 just want to give the others an opportunity --

24

MR. CHRISTMAN: I'm not --

25

THE COURT: -- to speak.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 9945 ooff 111123 -- PPaaggee IIDD##:: 119093146

1

MR. CHRISTMAN: -- going to take that as a slap

2 across the face, Your Honor.

3

THE COURT: It's not a slap across the face,

4 sir. I just want to give these other --

5

MR. CHRISTMAN: I appreciate --

6

THE COURT: -- folks an opportunity to talk.

7

MR. CHRISTMAN: -- it. Thank you very much,

8 Your Honor.

9

THE COURT: All right. Thank you.

10

Mr. Mando, clear up this statute thing. I

11 wasn't prepared to discuss this particular statute that

12 you referenced, or Mr. Christman mentioned about the

13 judge/executive having the ability to issue licenses in

14 the absence of the clerk herself.

15

MR. MANDO: Right. I believe the statute,

16 Your Honor -- and I don't have it with me -- but I think

17 it's 402.240.

18

THE COURT: Russ, could you turn down the air,

19 please?

20

Thank you.

21

MR. MANDO: And that statute, Your Honor,

22 provides that the judge/executive may issue a marriage

23 license in the -- when there's a vacancy in office or the

24 absence of the county clerk.

25

In this particular case the evidence that I've

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 9956 ooff 111123 -- PPaaggee IIDD##:: 119094157

1 heard from the bench -- from the witness stand so far is

2 that Ms. Davis was, in fact, present when the plaintiffs

3 called and/or visited the office to secure the license.

4

And the testimony from the witness stand was is

5 that judge/executive understood what the limitations on

6 his authority were, that he could not issue that if, in

7 fact, Ms. Davis was not absent.

8

THE COURT: Okay.

9

MR. MANDO: And she wasn't.

10

THE COURT: Is absence -- I don't think absence

11 is defined though.

12

MR. MANDO: I don't believe it is, but it's --

13 absence to me is she's not there.

14

THE COURT: Okay.

15

MR. MANDO: She's gone.

16

THE COURT: Well, if -- so if these two

17 same-sex couples hypothetically were to go to Morehead on

18 a day that she was at lunch, or not at the courthouse for

19 whatever reason, doctor appointment, medical appointment

20 with a child, something, vacation, and Walter Blevins was

21 there, he could -- he would issue a license to them in

22 her absence?

23

MR. MANDO: It depends on -- in that

24 particular situation, I mean -- again, I think absence

25 means she's not there. I think the interprets of the

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 9967 ooff 111123 -- PPaaggee IIDD##:: 119095168

1 General Assembly would be if she is out of the country,

2 if she is incapacitated in some way.

3

THE COURT: Right.

4

MR. MANDO: It doesn't mean, I don't think,

5 from trying to get commonsense from what the General

6 Assembly is trying to say, I don't think it means she's

7 simply out for lunch. In that case they should come back

8 at 1 o'clock and secure their licenses.

9

THE COURT: I understand that. I was being a

10 little bit flippant.

11

MR. MANDO: But the statute says that he --

12 that he met. He doesn't have to issue that particular

13 license.

14

THE COURT: Are you aware of any conscientious,

15 religious deeply held belief that the judge/executive has

16 on this issue? Has he made any public comments at all?

17

MR. MANDO: No.

18

THE COURT: No?

19

MR. MANDO: No. The county's position on this,

20 Your Honor, is that they have no authority except for

21 this limited exception in the statute for the

22 judge/executive. The county itself has no authority to

23 issue marriage licenses to people who apply or to

24 restrict the clerk to forebear from issuing licenses when

25 they are sought.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 9978 ooff 111123 -- PPaaggee IIDD##:: 119096179

1

Instead, the county clerk is a separate

2 constitutional office under the Kentucky Constitution.

3

The fiscal court of Carter -- of Rowan County

4 and Judge/Executive Blevins have no authority to weigh in

5 here and tell her what not to do or what to do with

6 regard to her religious objections to issuing these

7 licenses.

8

THE COURT: Okay. Who -- hypothetically, if

9 the plaintiffs prevail in this case, who would be

10 responsible for the attorneys' fees under the statute?

11 Would it be the county? Would it be --

12

MR. MANDO: There's two potentials there,

13 Your Honor. Because the more I've listened to the

14 testimony today and thought about this, hearing the

15 evidence, it sounds to me like there's potential that the

16 county clerk in terms of issuing this license could be

17 considered a state actor. Because, according to the

18 evidence I heard today, the license forms come from the

19 KDLA, Kentucky Department of Libraries and Archives, an

20 executive branch of Kentucky state government.

21

The governor issued a directive to the county

22 clerks to issue -- for the clerks to issue the licenses.

23

Those types of forms, directives are not coming

24 from the fiscal court. And, therefore, if that ends up

25 being the proof, that's not a policy, custom, or practice

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-13 FFiilleedd:: 0078//1067//1155 PPaaggee:: 9989 ooff 111123 -- PPaaggee IIDD##:: 119097280

1 of the county, which would expose the county to that

2 attorney fee exposure.

3

I do, however, acknowledge the counter-argument

4 that she is a separately elected county clerk, and there

5 is certainly a potential exposure that the county, the

6 county clerk's office, her budget could be at risk if

7 attorney fees are awarded.

8

THE COURT: All right. Thank you.

9

MR. MANDO: Thank you.

10

THE COURT: All right. I'm not going to let

11 you off without some questions here, Mr. Sharp.

12

Could the defendants comply with Obergefell by

13 having someone else in the clerk's office issue the

14 license?

15

MR. SHARP: That's not the world we live in,

16 Your Honor.

17

THE COURT: Well, is it? I mean, I finally got

18 Mr. Christman to answer a question after a little bit of

19 discussion. But, I mean, is that -- I know other states

20 are trying to accommodate the religious conflict that

21 exists here between the First Amendment and the

22 Fourteenth Amendment. And there's -- history is littered

23 with situations where you've got one constitutional claim

24 pitted up against another constitutional claim. And we

25 have that to a certain extent here. I mean, they've

CCaassee::00::1155--ccvv--0000004444--DDLLBB DDoocc##::2319-3FileF1d0il:e20d17: /0186//0175/15PaPgea:g9e9: 1o0f011o2f 1-1P3a-gPeaIDge#:ID19#98: 9

1 raised it.

2

Now, whether or not she has a legitimate

3 religious conviction or not, I mean, they say she does.

4

So -- and on page 27 of the decision that I

5 quoted from earlier, this is the majority. I mean, this

6 is Kennedy writing. "The First Amendment ensures that

7 religious organizations and persons are given proper

8 protection as they seek to teach the principles that are

9 so fulfilling and so central to their lives and faiths

10 and to their own deep aspirations to continue the family

11 structure that they have long revered."

12

It goes on to state, "It must be emphasized

13 that the religion -- that religions and those who adhere

14 to religious doctrines, may continue to advocate with

15 utmost, sincere conviction that, by devine precepts,

16 same-sex marriage should not be condoned."

17

So, I mean, that -- I've read the decision

18 multiple times, and there are going to be situations

19 where it's difficult to reconcile a -- in this case, a

20 particular defendant's First Amendment right as set forth

21 in -- well, reconcile the fundamental right that the

22 Supreme Court in Obergefell found with that

23 First Amendment right.

24

I mean, it -- there is -- even the

25 Supreme Court seemed to recognize that there could be

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le20d27:/1068/1057/1P5agPea:g1e0:01o0f11o1f21-13Pa-gPeaIgDe#I:D11#90:90

1 conflicts.

2

MR. SHARP: I don't think it's as complicated

3 as that, Your Honor. The -- Justice Kennedy's opinion

4 says that, you know, they may continue to advocate, not

5 that they may continue to impose their religious beliefs

6 on others when they are, in fact, employed and an actor

7 of the government.

8

This case is really quite simple. And the

9 political proposals that have been offered by opposing

10 counsel about solutions to this, you know, that's for the

11 General Assembly. That's for the political branches of

12 government.

13

Today we're dealing with a very simple

14 situation, and that is whether or not it is unlawful for

15 a government official for personal religious reasons to

16 impose a substantial burden on individuals' right to

17 marry by withholding an essential government service.

18 And that's really what this is about.

19

I mean, aside from the legally articulated

20 interest of protecting, you know, all the clerks' right

21 to the free exercise of religion, I mean, Ms. Davis

22 herself has said she opposes on religious grounds

23 same-sex marriage. She has said she would never affix

24 her name to a same-sex marriage license.

25

Opposite-sex couples got swept up in

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le20d37:/1068/1057/1P5agPea:g1e0:11o0f21o1f21-13Pa-gPeaIgDe#I:D21#00:01

1 Ms. Davis's policy because she said she didn't want to

2 discriminate against same-sex couples. So she broadened

3 the class of individuals whose rights she decided to

4 violate.

5

She does not get to impose her religious views

6 on others. It's as simple as that. They have a

7 fundamental right to marry. And she, as a government

8 official, crosses the line when for personal religious

9 reasons she withholds a government benefit that they are

10 otherwise entitled to receive.

11

Particularly, where, as here, the government

12 entitlement is a legally required prerequisite for those

13 individuals to exercise their own constitutionally

14 protected fundamental right to marry.

15

THE COURT: So if -- going back to the original

16 question I asked you though, if someone else in the

17 clerk's office would sign off on that marriage license,

18 would that be enough?

19

MR. SHARP: Your Honor, I will tell you that I

20 think that would depend largely on the facts because

21 there is a -- there would very much be an equal

22 protection concern insofar as separate but equal.

23

You know, the notion that Kim Davis could with

24 a wink and a nod go on break, and this other clerk deal

25 with the same-sex couples is offensive insofar as --

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le20d47:/1068/1057/1P5agPea:g1e0:21o0f31o1f21-13Pa-gPeaIgDe#I:D21#00:12

1

THE COURT: Okay. If it's offensive, there's

2 a --

3

MR. SHARP: I mean, to the extent the same-sex

4 couples have to accommodate Kim Davis's schedule, be it

5 vacation or break or lunch so they can avail themselves

6 of their fundamental --

7

THE COURT: I understand.

8

MR. SHARP: -- right to marry, that's not what

9 the First Amendment free exercise provides.

10

THE COURT: Well, I know that some states are

11 allowing that to occur.

12

MR. SHARP: If --

13

THE COURT: Some counties, I guess, are

14 allowing that to occur; not in Kentucky but in other

15 places.

16

MR. SHARP: If the General Assembly crafted

17 such a thing, I mean, it would be impossible for me to

18 offer any conjecture about what that would look like at

19 this point.

20

THE COURT: Well, it seems like the license

21 itself -- and I'm not trying to -- I mean, obviously, the

22 choice of the sacrament of marriage and getting married

23 is much more important than making sure you have your

24 fishing license to go fish at Cave Run there in Zilpo

25 in Rowan County. Make sure -- I mean, there are two

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le20d57:/1068/1057/1P5agPea:g1e0:31o0f41o1f21-13Pa-gPeaIgDe#I:D21#00:23

1 different -- there's two licenses. One you pay whatever,

2 $25 or whatever the fee is, and you go fish. The other

3 one is something that lasts a lifetime, much more

4 significant.

5

But at the end of the day the piece of paper,

6 the license itself, is just a piece paper that's signed

7 by whoever the clerk happens to be. So it's -- that's

8 why these ideas of making it just online, if you're

9 really just dealing with a piece of paper, it seems like

10 that would be the best way to do it.

11

Now, again, that's a legislative choice, an

12 executive choice. We're here in the judicial branch, so

13 those are all things that could impact potentially this

14 case going forward.

15

But I'm -- the idea of trying to accommodate

16 the defendant's First Amendment right, which even the

17 Supreme Court says, she does have a First Amendment

18 right. Now, whether or not she -- it allows her to

19 exercise that in her capacity as the Rowan County Clerk,

20 I mean, the Supreme Court talks about individuals and

21 churches. It talks about -- let's see. Well, I'm just

22 not so sure that -- like, for instance, pastors who want

23 to not -- who don't want to officiate over same-sex

24 marriage, I don't think that this case requires a pastor

25 in a church to officiate over same sex. They still can

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le20d67:/1068/1057/1P5agPea:g1e0:41o0f51o1f21-13Pa-gPeaIgDe#I:D21#00:34

1 say, no, I don't want to do it.

2

And I have someone I knew from college who just

3 officiated over a same-sex marriage in Covington, one of

4 the district judges, a family court judge. And that was

5 her right to do that if she wanted to. Now, I don't know

6 if you could compel her to do that. But she's a judge.

7 No one has asked me one way or the other.

8

But I'm just thinking that her First Amendment

9 right I'm going to need to -- hopefully you can address

10 this in your written filing. I mean, you finally

11 answered my question about what the substantial

12 government interest is when you were talking earlier

13 about her individual First Amendment right. I mean, and

14 the government has a compelling interest in allowing that

15 to occur. I mean, that seems to be her individual right,

16 not the state's right, but --

17

MR. SHARP: Your Honor, that -- and I think

18 that's exactly correct. I mean, we're not talking

19 about we're -- that analysis, whether it be strict

20 scrutiny, compelling interest, intermediate scrutiny,

21 important interest, or rational basis, legitimate

22 interest --

23

THE COURT: It's not rational basis. It has to

24 be something higher than that.

25

MR. SHARP: It's state -- exactly. It's state

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le20d77:/1068/1057/1P5agPea:g1e0:51o0f61o1f21-13Pa-gPeaIgDe#I:D21#00:45

1 interest. What is the state interest at stake?

2

What we have here is Ms. Davis's personal

3 interest. Her personal religious beliefs conflict with

4 her obligations to issue same-sex marriage licenses on

5 the same terms as opposite-sex couples.

6

I mean, it's evident in her own public

7 statements. It's not coincidence that this blanket

8 prohibition on issuing marriage licenses occurred after

9 Obergefell.

10

So -- and to the extent that opposing counsel

11 suggest, well, the plaintiffs can simply drive to another

12 county or they can walk down the hall. I mean, A, they

13 have walked down the hall, and the county judge/executive

14 has said, I'm in charge of enforcing or applying this

15 statute, she's not absent, can't, won't issue you a

16 marriage license.

17

Ms. Davis through her religious beliefs does

18 not get to impose those on the plaintiff. She does not

19 get to dictate the manner in which they have to exercise

20 their own fundamental right.

21

When she voluntarily seeked public office,

22 elected or employment or otherwise, she is no longer

23 acting as citizen vis-a-vis government sovereign. She's

24 acting as government herself, vis-a-vis the residence of

25 Rowan County.

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le20d87:/1068/1057/1P5agPea:g1e0:61o0f71o1f21-13Pa-gPeaIgDe#I:D21#00:56

1

And when she has to comply with the legal

2 requirements of her office, that is her employment.

3

And the cases cited about, you know, burden on

4 the right to marry, you know, and whether it's a

5 substantial and direct, I mean, it doesn't get more

6 substantial and direct than when the county clerk

7 responsible for issuing marriage licenses refuses to

8 issue them, particularly where the plaintiffs have to

9 obtain those in order to avail themselves of the right to

10 marry in the first place.

11

The suggestion that they should simply go to

12 another county is totally inadequate and misses the

13 point.

14

It then confers on county clerks the apparent

15 authority, you know, at what point does the Court decide

16 whether or not there's enough counties available to issue

17 marriage licenses?

18

I mean, the media has reported, you know,

19 somewhere in the neighborhood of 60 county clerks who

20 have indicated that perhaps they have objections.

21

But, you know, in any event, Ms. Davis's legal

22 obligations to perform the functions of her office,

23 though conflicting with her personal religious beliefs,

24 is not -- her personal religious beliefs or opposition to

25 it is not in and of itself a state interest.

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le20d97:/1068/1057/1P5agPea:g1e0:71o0f81o1f21-13Pa-gPeaIgDe#I:D21#00:67

1

THE COURT: Okay. One of the things I want

2 someone to produce, and I don't know if it's going to be

3 Ms. Davis or the county itself or both, what are her

4 obligations as the county clerk? What are her, I guess,

5 job duties, if you will? Is there a --

6

MR. SHARP: Vis-a-vis marriage licenses or more

7 broadly?

8

THE COURT: No, just -- well, I mean, vis-a-vis

9 marriage licenses. I mean, just something that if you

10 have something -- if it's like a job description, or I

11 don't know if it would be a regulation or administrative

12 regulation, I don't know what it would be. Perhaps --

13 and that can be produced the next time we meet. You

14 don't have to produce it today.

15

I -- is there anything else you want to say? I

16 don't want to keep everybody too long.

17

MR. SHARP: Your Honor, I believe -- again, the

18 focus here is on whether or not Ms. Davis can withhold

19 government benefits based on her religious beliefs. The

20 fact that she has included in this blanket policy

21 opposite sex couples is of no consequence. It's the

22 interest that's served by her policy is personal,

23 personal religious beliefs. And it simply is untenable

24 in so far as it imposes an unlawful burden on plaintiffs'

25 right to get married.

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le30d07:/1068/1057/1P5agPea:g1e0:81o0f91o1f21-13Pa-gPeaIgDe#I:D21#00:78

1

Thank you.

2

THE COURT: All right. Okay. Well, here is

3 what we're going to do. This -- the evidentiary portion

4 of this hearing will be continued in progress. Like I

5 said, as soon as we find that -- or learn that she has

6 been properly served, file a notice of that with the

7 Court. We'll set a follow-up evidentiary hearing in

8 Covington not earlier than Monday of next week. I do

9 have Court on the 21st. I know of a final pretrial in an

10 employment case. I'm not sure what time that is.

11

Do you recall what time that is set, morning?

12

LAW CLERK: 10:00.

13

THE COURT: 10:00, okay. It will be no earlier

14 than Monday. I'll have my clerk contact counsel.

15

Are you going to enter a formal entry of

16 appearance?

17

MR. MANDO: I will make sure that's done

18 tomorrow as soon as I return to the office.

19

THE COURT: Okay, great. And then we'll

20 contact counsel just by phone just to get a time that

21 will work. I want to try to expedite this as much as I

22 can.

23

All right. Can I see counsel -- oh, yes, sir.

24

MR. MANDO: Just one more thing, Your Honor.

25

The county is interested in reducing expense,

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le30d17:/1068/1057/1P5agPea:g1e0:91o1f01o1f21-13Pa-gPeaIgDe#I:D21#00:89

1 being efficient as we possibly can. We know there's

2 another lawsuit that was filed. I think it was filed by

3 Attorney Joe Buckles who's out of Lexington.

4

THE COURT: Right.

5

MR. MANDO: I haven't had a chance to get it

6 downloaded yet. I think it was maybe filed Friday.

7

THE COURT: I have a copy in my office if you

8 want a copy of it.

9

MR. MANDO: I'm not sure if it's -- if they've

10 asked for injunctive relief.

11

THE COURT: They have not.

12

MR. MANDO: All right. I'm just saying that if

13 there -- we would be interested in some consolidation,

14 again, to minimize expense to the county, to save

15 resources.

16

THE COURT: Okay. Any objection to that? It's

17 15-46.

18

MR. SHARP: I'm sorry, Your Honor, consolidate

19 the later filed case?

20

THE COURT: Well, it's assigned to me.

21 Judge Wilhoit refused in that case as well so -- in fact,

22 it's related.

23

MR. SHARP: No objection.

24

MR. GANNAM: Your Honor, I think we would have

25 to -- there's complexities with the punitive class action

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le30d27:/1068/1057/1P5agPea:g1e1:01o1f11o1f21-13Pa-gPeaIgDe#I:D21#01:90

1 on one hand and an individual action on the other. Would

2 they be class reps? I just think we would need to see a

3 proper motion for consolidation.

4

THE COURT: Well, I'm thinking that this case

5 is going to be resolved well before we get to any motion

6 for class certification.

7

MR. SHARP: Your Honor, if I may. The proposed

8 class is 23(b)(2), prospective injunctive relief.

9

THE COURT: It would likely include them

10 anyway.

11

MR. SHARP: They are only seeking damages

12 actions in that subsequent case. I mean, yes, they would

13 presumably be class members unless and until they get

14 married. But they would have an independent cause of

15 action for their damages claims aside from the class

16 action.

17

THE COURT: Well --

18

MR. CHRISTMAN: Your Honor, those plaintiffs

19 haven't asked for injunctive relief so if they're going

20 to be joined in the action in any way, Your Honor, we

21 would ask that they, you know, have to file their own

22 motion in order to be --

23

THE COURT: Well, since they are both assigned

24 to me, they are related. I'm not necessarily going to

25 join them at this point. It makes sense to at least

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le30d37:/1068/1057/1P5agPea:g1e1:11o1f21o1f21-13Pa-gPeaIgDe#I:D21#11:01

1 consider that at some point.

2

I would like to see the attorneys in my office

3 after this hearing.

4

MR. SHARP: If I may, Your Honor.

5

THE COURT: Yes, sir.

6

MR. SHARP: One final thing. I think the Court

7 had ordered that the response be due July the 30th

8 presuming -- July 30. We would just ask for an expedited

9 reply time of --

10

THE COURT: Seven days?

11

MR. SHARP: Seven days is fine.

12

THE COURT: All right. Seven days.

13

MR. SHARP: Thank you.

14

THE COURT: Very well. We will be in recess.

15

MR. SHARP: Thank you.

16

(Whereupon, the proceedings adjourned at 12:20 p.m.)

17

C E R T I F I C A T E

18

I, Peggy W. Weber, certify that the foregoing is a

19 correct transcript from the record of proceedings in the

20 above-entitled matter.

21

22

July 16, 2015

23

DATE

s/Peggy W. Weber PEGGY W. WEBER, RPR

24

25

CCaasese: :00:1:155-c-vc-v0-000444-D-DLLBB DDoocc##: :2319-F3ileF1d0i:le30d47:/1068/1057/1P5agPea:g1e1:21o1f31o1f21-13Pa-gPeaIgDe#I:D21#11:12

1

W I T N E S S E S

2

3 PROOF ON BEHALF OF THE PLAINTIFFS:

4 Testimony of APRIL MILLER, Ph.D.

Direct Examination by Mr. Sharp

5

Cross-Examination by Mr. Christman

Cross-Examination by Mr. Mando

6

Testimony of JODY FERNANDEZ

7

Direct Examination by Mr. Sharp

Cross-Examination by Mr. Christman

8

Cross-Examination by Mr. Mando

9 Testimony of BARRY W. SPARTMAN

Direct Examination by Mr. Canon

10

Cross-Examination by Mr. Christman

11 Certificate of Reporter Index of Witnesses
12

13

14

15

16

17

18

19

20

21

22

23

24

25

Pages
24 29 32
34 38 38
41 47 111 112

Case: 0:15-cv-00044-DLB Doc #: 39-4 Filed: 08/07/15 Page: 1 of 84 - Page ID#: 1035

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 12 ooff 8834 -- PPaaggee IIDD##:: 2110736 1

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

2

NORTHERN DIVISION at ASHLAND

---

3

APRIL MILLER, et al.,

: Docket No. 15-CV-44

4

:

Plaintiffs,: Covington, Kentucky

5

: Monday, July 20, 2015

versus

: 10:00 a.m.

6

:

KIM DAVIS, et al.,

:

7

:

Defendants.:

8

9

---

10

TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING

BEFORE DAVID L. BUNNING

11

UNITED STATES DISTRICT COURT JUDGE

---

12

APPEARANCES:

13

For the Plaintiffs:

WILLIAM ELLIS SHARP, ESQ.

14

ACLU of Kentucky

315 Guthrie Street

15

Suite 300

Louisville, KY 40202

16

DANIEL J. CANON, ESQ.

17

Clay Daniel Walton Adams, PLC

462 S. Fourth Street

18

Suite 101

Lousiville, KY 40202

19

For the Defendant,

ROGER K. GANNAM, ESQ.

20

Kim Davis:

JONATHAN D. CHRISTMAN, ESQ.

Liberty Counsel - Orlando

21

P.O. Box 540774

Orlando, FL 32854

22

ANTHONY CHARLES DONAHUE, ESQ.

23

Donahue Law Group, P.S.C.

410 S. Main Street

24

P.O. Box 659

Somerset, KY 42502-0659

25

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 23 ooff 8834 -- PPaaggee IIDD##:: 2110837 2

1

For the Defendant,

Rowan County:

2

3

JEFFREY C. MANDO, ESQ. Adams Stepner Woltermann & Dusing 40 W. Pike Street P.O. Box 861 Covington, KY 41011

4
5
6 Court Reporter:
7
8
9

CECIL R. WATKINS, ESQ. Rowan County Attorney 600 W. Main Street Morehead, KY 40351
LISA REED WIESMAN, RDR-CRR Official Court Reporter 35 W. Fifth Street Covington, KY 41012 (859) 291-4410

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

Proceedings recorded by mechanical stenography,

25

transcript produced with computer.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 34 ooff 8834 -- PPaaggee IIDD##:: 2110938 3

1

(Proceedings commenced at 9:59 a.m.)

2

THE COURT: Good morning. Madam Clerk, if you would

3

call the matter for preliminary injunction hearing.

4

DEPUTY CLERK: Ashland Civil 15-44, April Miller,

5

et al., versus Kim Davis, et al.

6

THE COURT: Why don't we have entries of appearance,

7

please.

8

MR. SHARP: Your Honor, Bill Sharp on behalf of

9

plaintiffs.

10

MR. CANON: Judge, Dan Canon here for the plaintiffs.

11

MR. GANNAM: Roger Gannam for the defendant, Kim

12

Davis.

13

MR. CHRISTMAN: Good morning, Your Honor. John

14

Christman also for Kim Davis.

15

MR. DONAHUE: A.C. Donahue on behalf of the

16

defendant, Kim Davis, Your Honor.

17

MR. MANDO: Jeff Mando for the defendant, Rowan

18

County, Your Honor.

19

MR. WATKINS: Cecil Watkins for the defendant, Rowan

20

County, Your Honor.

21

THE COURT: You're Miss Davis?

22

THE DEFENDANT: Yes.

23

THE COURT: We continued the hearing today because

24

you had not been formally served last week. Your attorneys

25

made some motions regarding that, which the Court previously

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 45 ooff 8834 -- PPaaggee IIDD##:: 2120039 4

1

denied. But we're here now. You're here. You've been

2

served.

3

The purpose of today's hearing is to hear any proof that

4

you have or that Rowan County has on behalf of either yourself

5

or the county.

6

I had asked, I think it was you, Mr. Mando, last week

7

about the oath of the duties of the county clerk, if there was

8

something formal that I could see. I know we had talked

9

generally about that. I can't remember if it was you or

10

Mr. Gannam's client. Someone was going to bring today

11

something that showed the formal duties of the clerk.

12

I can't remember who I left that with at the end of the

13

hearing.

14

MR. MANDO: Your Honor, I took that -- I apologize,

15

but I took that upon Miss Davis and her lawyer, since she is

16

the county clerk, to provide the list of duties. I do have

17

some statutes that I think we would all agree apply to the

18

county clerk for issuing of marriage licenses.

19

THE COURT: You had sent me that or shown me that

20

last week. That was just the one that allowed the county

21

judge, in her absence, to act.

22

MR. MANDO: 402.240 that talks about the permissive

23

nature of the judge executive to issue a marriage license in

24

the absence of the county clerk or in the vacancy of the

25

office. We talked about that and I showed you a copy.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 56 ooff 8834 -- PPaaggee IIDD##:: 2120140 5

1

THE COURT: You did. This is a separate statute

2

you're referring to?

3

MR. MANDO: There are two other statutes that I think

4

also I would talk about, which would be KRS 402.080, which

5

talks about the issuance of the marriage license shall be

6

issued by the county clerk. And 402.100 talks about the form

7

that must be used by the county clerk as prescribed by the

8

State Department of Library and Archives.

9

THE COURT: I recall that. And someone submitted --

10

I think it was you, Mr. Gannam -- the actual form itself, and

11

it had some blocked-out sections. There's a new one that had

12

first party, second party that's, I guess, being used now

13

since the Supreme Court's decision.

14

MR. GANNAM: That's correct, Your Honor. We're

15

prepared to, through Miss Davis, put on testimony today of all

16

her duties as well as formally admit the forms into evidence.

17

THE COURT: That's fine. I just couldn't remember

18

who I left that task with. I guess it's you, Mr. Gannam.

19

We'll allow you to call your first witness.

20

MR. GANNAM: Your Honor, before we begin, I wanted to

21

say that the defendant is prepared to argue at this point that

22

the motion could be denied based on the plaintiffs' failure to

23

carry their burden of proving the elements necessary for a

24

preliminary injunction. If the Court would hear argument on

25

that point now, before we proceed to put on our evidence,

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 67 ooff 8834 -- PPaaggee IIDD##:: 2120241 6

1

we're prepared to do that.

2

THE COURT: That motion will be denied.

3

MR. GANNAM: Thank you, Your Honor. We will call our

4

first witness, who will be County Judge Executive Blevins.

5

THE COURT: All right. Come around, sir.

6

WALTER BLEVINS, JR., DEFENSE WITNESS, SWORN

7

THE COURT: You may proceed.

8

Good morning, sir.

9

THE WITNESS: Good morning.

10

DIRECT EXAMINATION

11

BY MR. GANNAM:

12

Q. Good morning. My name is Roger Gannam. I'm one of the

13

attorneys representing Kim Davis in this lawsuit. Will you

14

please state your full name for the record?

15

A. Walter Blevins, Jr.

16

Q. And what is your title?

17

A. Rowan County Judge Executive.

18

Q. And what is your business address, Judge Blevins?

19

A. 600 West Main Street, Morehead, Kentucky, 40351.

20

Q. Is your position as county judge executive an elected

21

position?

22

A. Yes, sir.

23

Q. When were you elected?

24

A. November of last year. I don't know the exact date. I

25

think it was maybe the 8th.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 78 ooff 8834 -- PPaaggee IIDD##:: 2120342 7

1

Q. And how long is your term?

2

A. Four-year term.

3

Q. Judge Blevins, can you just generally describe the

4

duties, responsibilities of your office?

5

A. Well, I'm kind of like the mayor of the county. I'm the

6

chairman of the board, more or less, in the fiscal court

7

meetings. My job really is to advocate to the county and to

8

try to bring, hopefully, jobs and opportunity to the

9

community, help in any kind of disasters that occur, and just

10

try to do the duties of the judge.

11

Q. You mentioned presiding over the fiscal court. Are there

12

any other boards or committees that you preside over?

13

A. Yeah, there's several. I'm on the Gateway Ad Board. I'm

14

on the Gateway Services Community Board. I'm on the -- I

15

appoint many of the boards and attend many of the board

16

meetings. The airport board, I serve on it, or attend the

17

meetings. The district health board, the county health board.

18

I'm on several boards.

19

Q. Would it be fair to say that you are the highest elected

20

official in Rowan County?

21

A. Yes.

22

Q. I'm going to read to you from Kentucky Revised Statute

23

402.240 and then ask you some questions about it. The title

24

of the statute is County Judge Executive to Issue License in

25

Absence of Clerk. It reads, In the absence of the county

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 89 ooff 8834 -- PPaaggee IIDD##:: 2120443 8

1

clerk, or during a vacancy in the office, the county judge

2

executive may issue the license and, in so doing, he shall

3

perform the duties and incur all the responsibilities of the

4

clerk. The county judge executive shall return a memorandum

5

thereof to the clerk and the memorandum shall be recorded as

6

if the license was issued by the clerk. Are you familiar with

7

this statute, Judge Blevins?

8

A. Yes.

9

Q. And according to the statute, is it your understanding

10

that you have authority to issue a marriage license in the

11

absence of the county clerk?

12

A. According to the statute. I don't know if it's been used

13

by any other judge executive, though.

14

Q. What is your understanding of the word "absence" in the

15

term, "in the absence of the county clerk"?

16

A. Since she has deputy clerks, and I know that at least her

17

mother at times, when she was gone on vacation, she would

18

allow the deputy clerks to perform that duty. So I don't

19

think the judge executive office, as far as I know, has ever

20

done that.

21

Q. So but when it says in the absence of the county clerk,

22

what would have to occur for the county clerk to be absent,

23

based on your understanding of that statute?

24

A. Say that again. Let me make sure I understand the

25

question.

CaCsaes: e0::105:1-c5v--c0v0-0004044-D4-LDBLBDoDco#c: #3:92-46 FFiilleedd:: 0087//0273//1155 PPaaggee:: 190oof f8834- -PPaaggeeIDID##: :2120544 9

1

Q. Where the statute says, "in the absence of the county

2

clerk, the county judge executive may issue a marriage

3

license," what is your understanding of what the word

4

"absence" means?

5

A. I would say absent would be due to health reasons, due to

6

being out of office or if the clerk passed away or something

7

like that, it would absent then.

8

Q. The statute also talks about a vacancy in office, which I

9

would submit would occur if the clerk were to die, as you

10

said, or were to leave office completely. Apart from that,

11

you talked about an absence for health reasons. Are there any

12

other circumstances that you would understand to mean "absent"

13

as it's used in that statute?

14

A. If she was in the hospital or if she was on vacation, I

15

would assume she would be absent. But again, the judge

16

executive, as far as I know, has never performed that duty.

17

I'm in and out of the office quite often. I'm not there on a

18

regular, eight-hour day because of meetings and going to

19

Frankfort and continuing education, of course, I have to take.

20

So in that respect, when she's not there, her clerks are

21

there to -- the office is still open. Her clerks are there

22

performing those duties.

23

Q. During the regular business hours of the clerk's office,

24

are you aware of any time that the clerk, Kim Davis, has not

25

been there but that there were not deputy clerks there to

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 1101 ooff 8834 -- PPaaggee IIDD##:: 2120645 10

1

perform her duties?

2

A. I can't, I can't remember a time that's occurred.

3

Q. Is your understanding of the meaning of that statute, KRS

4

402.240, based on any court decision that you've read or

5

received?

6

A. Again, I can't remember any of those.

7

Q. Have you received an opinion of the attorney general of

8

the Commonwealth of Kentucky regarding interpretation of that

9

statute?

10

A. Yes. I think I had a conversation, a telephone

11

conversation with the county attorney and some people out of

12

the attorney general's office.

13

Q. When did that conversation occur?

14

A. That was shortly after this case became prominent in the

15

newspaper that marriage licenses were not going to be given

16

out in Rowan County. And we're basically on new ground. I

17

wanted to find out as much as I could about this issue.

18

Q. Who did you speak with in the attorney general's office?

19

A. I can't remember their -- county attorney might remember

20

who he had on the phone when I talked to him. Also, I talked

21

to my KACO attorney, and he basically said that there was no

22

way that -- county judges are not there to perform that duty.

23

And in an absence, if it was that kind of an absence, that I

24

would appoint someone to perform those duties.

25

Q. Have are you received any kind of formal, written opinion

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 1112 ooff 8834 -- PPaaggee IIDD##:: 2120746 11

1

from the attorney general's office?

2

A. No, I have not.

3

Q. Are you aware that the Rowan County Clerk, Kim Davis, is

4

not issuing any marriage licenses?

5

A. Yes, I am.

6

Q. Are you aware that she has directed her deputy clerks

7

also not to issue marriage licenses?

8

A. Yes, I am.

9

Q. Since Kim Davis discontinuing -- discontinued issuing

10

marriage licenses out of her office, have you been requested

11

to issue any marriage licenses?

12

A. I have people -- one couple came by the office after

13

being denied and asked if I could do it. I said, well, she's

14

not absent. I cannot do that.

15

Q. Any besides that one couple?

16

A. That's the only couple I remember that came actually to

17

the office. I think she -- they were accompanied by another

18

individual who I think she's one of the plaintiff -- or I

19

guess, yeah, one of the plaintiffs in the case. She was with

20

them.

21

Q. Is your interpretation of the word "absent" as used in

22

KRS 402.240 the only reason why you did not issue the license

23

upon that request?

24

A. Well, I've never issued a license like that. I'm not

25

sure I would have the proper paperwork to even do it. So I --

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 1123 ooff 8834 -- PPaaggee IIDD##:: 2120847 12

1

that would be one of the main reasons is not having any

2

knowledge of how to do -- how to fill it out and the proper

3

procedure I'd have to go through.

4

Q. Do you agree that there are circumstances where,

5

according to the statute, you would have the legal authority

6

to issue a marriage license?

7

A. Again, I would probably appoint someone to take those

8

duties over. So it would basically be if she was absent for

9

an extended period of time or if for some reason she wasn't

10

able to perform her duties, then I would appoint someone.

11

Q. I'm going to read to you another statute. It's

12

KRS 63.220, Vacancies in County Offices. It says, A vacancy

13

in the office of sheriff, coroner, surveyor, county clerk,

14

county attorney, jailer, or constable shall be filled by the

15

county judge executive or by the mayor in a consolidated local

16

government.

17

Are you familiar with that statute?

18

A. Yes.

19

Q. Would that be the statute that you would rely upon to

20

fill a vacancy in the clerk's office?

21

A. Yes. That's how -- that's the same statute that I would

22

use for any -- any of those individuals or elected office

23

holders, it would be up to me to appoint someone to fill

24

their -- fulfill their duties until another election.

25

Q. Are you aware of any statute that gives you the authority

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 1134 ooff 8834 -- PPaaggee IIDD##:: 2120948 13

1

to appoint a replacement clerk if she is merely absent but not

2

vacant from office?

3

A. I think those -- I'm really not. I think those clerks

4

are basically under her purview. When she's not there, they

5

take over the duties.

6

Q. So going back to -- we've covered that you have the

7

authority to appoint someone to fill a vacancy in the clerk's

8

office. But in a circumstance where the clerk is merely

9

absent, as that's defined in the statute, would you agree that

10

you have authority in that situation to issue the license

11

yourself?

12

A. I'm not sure on that myself because I don't have those --

13

the software to print it. I asked my secretary about this.

14

She said we don't have the software to print them out. I

15

would have to go to the clerk's office, I assume get one of

16

the deputies.

17

I don't understand why I -- the deputies normally take

18

over her job description when she's absent, like an illness or

19

vacation, so I assume continue with them.

20

Q. Are you aware that there's a statute dictating that the

21

form of marriage license to be used by the clerk's office is

22

created by the Kentucky Department of Library and Archives?

23

A. Yes, I found that out about a week or two ago.

24

Q. Are you aware of any statute that dictates who provides

25

the form of memorandum that's mentioned in the statute giving

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 1145 ooff 8834 -- PPaaggee IIDD##:: 2130049 14

1

the county judge executive authority to issue a marriage

2

license in the absence or vacancy of the clerk?

3

A. No, I'm not, sir.

4

Q. Assuming there is a situation where you do have the

5

authority to issue a marriage license, would you have a

6

religious objection to issuing that license to a same-sex

7

couple?

8

MR. MANDO: Objection.

9

THE COURT: Overruled.

10

THE WITNESS: I would follow the law. If the law

11

says I have to give them to everyone, I would do that. But

12

morally, it's a tough decision for me, because I'm taught in

13

my Bible that marriage is between a man and a woman. I would

14

still follow the law.

15

BY MR. GANNAM:

16

Q. And so is your answer that yes, you would issue that

17

license to a same-sex couple?

18

A. I would issue those license.

19

MR. GANNAM: No further questions, Your Honor.

20

THE COURT: I guess processing-wise, do you all want

21

to ask any questions, Mr. Mando? Then I'll turn to the

22

plaintiffs.

23

MR. MANDO: I just have a couple questions, Your

24

Honor.

25

THE COURT: All right.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 1156 ooff 8834 -- PPaaggee IIDD##:: 2130150 15

1

CROSS-EXAMINATION

2

BY MR. MANDO:

3

Q. First, Judge Blevins, to clarify something, when you had

4

the conversation with the county attorney and some state

5

officials, you said it was the attorney general's. Could that

6

have been the Department of Local Government that you had the

7

conversation with?

8

A. I'd have to ask my counsel over there to make sure,

9

because I've had a lot of phone calls and discussions with

10

people.

11

Do you remember, Cecil?

12

Q. You just have to answer based on your own recollection.

13

A. It could have been the Department of Local Government.

14

It could have been the attorney general's office. I'm not

15

positive on that, no.

16

Q. When the plaintiffs -- when the plaintiffs in this case

17

came to see you about securing a marriage license late June,

18

early July, at that time, was Kim Davis absent from the county

19

or absent from her office?

20

A. No, she was not.

21

Q. Did you feel you had the authority, in that situation, to

22

issue the license?

23

A. No, I did not.

24

Q. Had you ever issued a marriage license in the past?

25

A. No, I have not.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 1167 ooff 8834 -- PPaaggee IIDD##:: 2130251

BLEVINS - Cross

16

1

Q. And as you read the statute, are you required to issue

2

the marriage license?

3

A. Only in her absence, and I felt with the deputy clerks

4

she has, it would not be -- they take over when she's not

5

there so it would still be in her office's duties.

6

Q. Is it your understanding that the county clerk is a

7

separately elected constitutional office under the -- in

8

Kentucky?

9

A. That's correct.

10

MR. MANDO: No further questions at this time, Your

11

Honor.

12

THE COURT: Cross.

13

MR. SHARP: Thank you, Your Honor.

14

CROSS-EXAMINATION

15

BY MR. SHARP:

16

Q. Judge Executive Blevins, good morning. Let me ask you,

17

how did you first learn of the policy that you've testified

18

about in the clerk's office?

19

A. It was after the denial of a marriage license by Miss

20

Davis.

21

Q. Did you learn about it from Miss Davis herself?

22

A. No, I don't believe I did.

23

Q. Did she send you a memorandum telling you what the policy

24

was?

25

A. I don't remember receiving anything.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 1178 ooff 8834 -- PPaaggee IIDD##:: 2130352

BLEVINS - Cross

17

1

Q. Did she consult with you prior to adopting the policy for

2

your input?

3

A. Kim and I have conversations, and she did tell me early

4

on, before the decision was made, that if it was to allow

5

same-sex marriage that she could not do that in her moral

6

judgment. She just could not do it.

7

Q. And when did you have this conversation with her?

8

A. It's been -- it was probably shortly after we got sworn

9

in, I think she brought the issue to me and talked about it.

10

And she did tell me also that I think she -- I don't know if

11

it was that early in the process, but I know she later told me

12

she had contacted all the state representatives and all the

13

state senators in regards to this issue, that she was hoping

14

something would be done because morally, she just could not do

15

it.

16

Q. When you said you spoke with her about this after the

17

decision, are you talking about the Obergefell decision?

18

A. Yes.

19

Q. Let's talk a little bit about the clerk's office. How

20

many deputy clerks are employed in the Rowan County Clerk's

21

Office?

22

A. I don't have the exact number, but there's probably six

23

or seven, at least.

24

Q. And how is that office funded?

25

A. It's funded through their fees. They collect fees for

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 1189 ooff 8834 -- PPaaggee IIDD##:: 2130453

BLEVINS - Cross

18

1

marriage license, for hunting, fishing license, for any kind

2

of registration of vehicles, all those types of different

3

things that they perform, those type of duties. And they get

4

a fee for that, and that's basically how they're funded.

5

Q. And what role, if any, does the Rowan County Fiscal Court

6

have in the county clerk's budget?

7

A. We approve their budget, and that's about all. The only,

8

really, power we have is she submits a budget. And along with

9

myself and four magistrates, we pass the budget.

10

Q. So the funding mechanism is from county funds, then?

11

MR. MANDO: Objection.

12

THE COURT: Grounds?

13

MR. MANDO: He just said the funds we are generated

14

through fees that were issued.

15

THE COURT: So asked and answered?

16

MR. MANDO: Yes.

17

THE COURT: Sustained.

18

BY MR. SHARP:

19

Q. Am I correct the county would be responsible for any

20

judgment levied against the county clerk's office?

21

MR. MANDO: Objection. Calls for a conclusion of

22

law.

23

THE COURT: Sustained.

24

BY MR. SHARP:

25

Q. Now, you're familiar also with the directive that the

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 1290 ooff 8834 -- PPaaggee IIDD##:: 2130554

BLEVINS - Cross

19

1

Governor of Kentucky sent to all the county clerks on June 26,

2

correct?

3

A. Yes, I am.

4

Q. And you're aware that the policy that's been adopted by

5

Rowan County Clerk's Office is in direct conflict with the

6

governor's directive?

7

A. Yes, it is.

8

Q. Do you have any authority to sanction or otherwise

9

censure the elected county clerk?

10

A. Not that I know of.

11

Q. Prior to the Obergefell decision, were there any problems

12

with the Rowan County Clerk's Office issuing marriage

13

licenses?

14

A. No, not that I know of.

15

Q. When you had this conversation with Miss Davis following

16

the Obergefell decision, did she explain why she intended to

17

adopt this policy?

18

MR. CHRISTMAN: Objection. Misstates testimony.

19

THE COURT: Overruled.

20

THE WITNESS: Can you repeat the question?

21

MR. SHARP: Sure.

22

BY MR. SHARP:

23

Q. When you had this conversation with Miss Davis following

24

the Obergefell decision, did she explain why she was adopting

25

this policy?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 2201 ooff 8834 -- PPaaggee IIDD##:: 2130655

BLEVINS - Cross

20

1

A. Yes. We talked for quite a while, and Kim's very

2

religious, and she was not going to issue any license to

3

anyone because she didn't want to, basically, not issue them

4

to one group that are man and woman versus same-sex marriages,

5

and she just wasn't going to issue any licenses because she

6

didn't want to discriminate in that respect.

7

She was concerned that the -- a 5-to-4 decision is a very

8

close decision by the Supreme Court, and she was concerned --

9

she had some question, I think she told me it was 30 days

10

after their decision, they could actually make a change in

11

that decision if they -- if other information was brought

12

forward. And she was concerned that -- I think she even said

13

some of the Supreme Court members probably should have excused

14

themselves from the ruling.

15

THE COURT: Did she explain why she thinks that

16

Supreme Court justices should have recused themselves from the

17

ruling?

18

THE WITNESS: I don't think she got into detail on

19

that, but she did have some concerns that some of them maybe

20

should have recused themselves. I don't know if we actually

21

talked about the details on it. She can probably answer that

22

better than me.

23

THE COURT: All right, go ahead.

24

BY MR. SHARP:

25

Q. So am I correct her religious objection went to issuing

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 2212 ooff 8834 -- PPaaggee IIDD##:: 2130756

BLEVINS - Cross

21

1

marriage licenses to same-sex couples?

2

A. Yes, I would say that's correct.

3

Q. And her decision to stop issuing them altogether, even to

4

opposite-sex couples, was so as to not discriminate?

5

A. I would say that's correct.

6

Q. The conversation that you had, was that generally

7

consistent with the statements she made to the media following

8

that conversation?

9

A. I would say they are.

10

Q. As far as you are aware, is this policy still in place in

11

Rowan County?

12

A. Yes, it is.

13

Q. Have you issued any marriage licenses in her stead since

14

it was adopted?

15

A. No, I have not.

16

Q. Let me ask you some specific questions about absence.

17

Since June the 26th, are you aware of whether or not

18

Mrs. Davis has been to work?

19

A. As far as I know, she's there every day. If she's missed

20

a day, I wasn't aware of it. Of course, I'm gone pretty often

21

to meetings. I'm just not there in the courthouse at times.

22

I wouldn't be absolutely sure. I know she was absent on the

23

last court date. Of course, I was out of the office as well,

24

went to attend the court hearing, let the judge know I was

25

concerned about this issue as well. I didn't want to be --

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 2223 ooff 8834 -- PPaaggee IIDD##:: 2130857

BLEVINS - Cross

22

1

the county to be sued and not show up for court. And today,

2

she's absent from the court and so am I.

3

Q. Now, when she's not physically in the office, does the

4

office -- does the county clerk's office close?

5

A. No. It remains open. At least it has in past years.

6

I'm not sure -- I would assume it would continue to be open

7

when she's not there.

8

Q. Other than the marriage licenses, does the county clerk's

9

office in Rowan County continue to do business and perform its

10

other duties?

11

A. Yes.

12

Q. Has Miss Davis been on extended leave since June the

13

26th?

14

A. Not that I know of.

15

Q. Has she otherwise been unable to perform her job duties

16

since June the 26th?

17

A. No. She's been available and able.

18

MR. SHARP: Nothing further, Your Honor.

19

THE COURT: Any redirect?

20

MR. GANNAM: No, Your Honor.

21

THE COURT: May this witness be finally excused?

22

MR. MANDO: Yes, sir.

23

MR. SHARP: Your Honor, we would ask --

24

MR. GANNAM: As far as we're concerned, yes, Your

25

Honor.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 2234 ooff 8834 -- PPaaggee IIDD##:: 2130958

DAVIS - Direct

23

1

MR. SHARP: Your Honor, we would ask him to be

2

subject to recall, pending Miss Davis's testimony.

3

THE COURT: Can you stick around?

4

THE WITNESS: Yes, sir.

5

THE COURT: Thank you. Next witness, please.

6

MR. GANNAM: Your Honor, the defense calls Kim Davis.

7

THE COURT: All right. Come around, ma'am.

8

KIMBERLY DAVIS, DEFENDANT, SWORN

9

THE COURT: Good morning, ma'am.

10

THE WITNESS: Good morning.

11

THE COURT: You may proceed.

12

DIRECT EXAMINATION

13

BY MR. GANNAM:

14

Q. Good morning, Miss Davis.

15

A. Good morning.

16

Q. Please state your full name for the record.

17

A. Kimberly Davis.

18

THE COURT: Try to keep your voice up, please.

19

THE WITNESS: Yes, sir.

20

THE COURT: Thank you.

21

BY MR. GANNAM:

22

Q. What is your title, Miss Davis?

23

A. I'm the Rowan County Clerk.

24

Q. And your business address?

25

A. 600 West Main Street, Room 102, Morehead, Kentucky,

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 2245 ooff 8834 -- PPaaggee IIDD##:: 2140059

DAVIS - Direct

24

1

40351.

2

Q. When were you elected to the position of Rowan County

3

Clerk?

4

A. Final election was November 4th of 2014, and took office

5

in January.

6

Q. January of this year?

7

A. January 5th, yes, sir.

8

Q. Were you an employee of the clerk's office prior to being

9

elected as the clerk?

10

A. Yes.

11

Q. How long did you work in the clerk's office?

12

A. Almost 27 years.

13

Q. Can you describe generally what are the functions of the

14

county clerk?

15

A. The clerk is a pass-through collection agency for many

16

departments; Department of Revenue, Transportation Cabinet,

17

Fish and Wildlife. We -- I bring archives, we record deeds,

18

mortgages, all land records. We're responsible for

19

maintaining voter registration records, overseeing elections.

20

There's just a plethora of stuff we do. Motor vehicle

21

registration, delinquent taxes. We generate property tax

22

bills, franchise tax bills for collection and then we -- those

23

fees that we collect, we send out every month by the -- you

24

know, the reports are due the 10th of the month.

25

But at the end of that month prior, you know, we have to

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 2256 ooff 8834 -- PPaaggee IIDD##:: 2140160

DAVIS - Direct

25

1

allocate all those monies out and write checks to every taxing

2

district to Frankfort for all the fees we've collected for

3

them. There's daily reports, weekly reports, monthly reports,

4

quarterly reports, end of year reports.

5

Q. And does the clerk's office retain a portion of what it

6

collects as compensation or as its own fees?

7

A. Yeah. The clerk's office is a fee office. Every year,

8

starting on January 1, we start out with zero dollars. So

9

every penny that comes into the clerk's office is money that

10

we have generated and collected from our services.

11

Q. So does the clerk's office receive checks from the

12

Commonwealth of Kentucky, for example?

13

A. No.

14

Q. Does the clerk's office receive any other checks other

15

than from fees that it collects itself?

16

A. No. We get -- we do get a check for preparing tax bills

17

from the Department of Revenue, which is a fee of our office

18

and just goes into our office, but we don't get any money from

19

anyone else.

20

The Secretary of State, State Board of Elections also

21

gives us so much money for each registered voter. I think

22

this year, I got $162.

23

Q. For all registered voters in Rowan County?

24

A. Um-hmm.

25

Q. Does the clerk's office also issue marriage licenses?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 2267 ooff 8834 -- PPaaggee IIDD##:: 2140261

DAVIS - Direct

26

1

A. We do.

2

Q. What is the fee collected by the clerk's office for a

3

marriage license?

4

A. It's $35.50.

5

Q. And out of that fee, how does that break down?

6

A. The clerk retains $21.17, and the state gets $14.33.

7

Q. So does the clerk's office receive fees for marriage

8

licenses other than the license that it issues itself?

9

A. No.

10

Q. Does the clerk's office receive any funding on the

11

subject of marriage other than from the licenses that it

12

issues itself?

13

A. No.

14

Q. How many employees do you have in the clerk's office?

15

A. I have six full-time employees. I have one girl that's

16

hired on a 1099 to do grant work for me.

17

Q. And what do -- your full-time employees, are those called

18

deputy clerks?

19

A. They are.

20

Q. What is the total revenue in your 2015 budget?

21

A. We had budgeted $4.2 million.

22

Q. And year-to-date, is your office carrying a surplus or a

23

deficit?

24

A. We're actually 700 -- as of the end of June, we were $733

25

above on our receipts and everything. So our office is really

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 2278 ooff 8834 -- PPaaggee IIDD##:: 2140362

DAVIS - Direct

27

1

very -- doing very well.

2

Q. Did you mean 733,000?

3

A. 733,000, yes, sir.

4

Q. So that's a surplus currently?

5

A. It is.

6

Q. If you get to the end of the year and you have a surplus,

7

what happens to those funds?

8

A. Those fees are turned over to the county -- the fiscal

9

court as excess fees.

10

Q. Do you know how much revenue your office collected from

11

the issuance of marriage licenses last year?

12

A. The total that we took in was $4,500. We sold 212

13

licenses in 2014.

14

Q. So if, in 2015, if you were to hit that same, that same

15

number, is my math correct that that would be 0.1 percent of

16

the total budget for the clerk's office?

17

A. Yeah.

18

Q. Is that a yes?

19

A. Yes.

20

Q. How many licenses did the clerk's office issue in the

21

first half of this year?

22

A. Ninety-nine.

23

Q. So compared to 212 for all of last year, would you say

24

that it's comparable?

25

A. Yeah. Yes.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 2289 ooff 8834 -- PPaaggee IIDD##:: 2140463

DAVIS - Direct

28

1

Q. Do all six of the deputy clerks perform the task of

2

issuing marriage licenses?

3

A. Yes.

4

Q. If you just limited that task to one of your deputy

5

clerks, approximately how many hours a week would that deputy

6

spend issuing marriage licenses?

7

A. Maybe one hour.

8

Q. One hour a week for one employee?

9

A. Um-hmm.

10

Q. And that would handle all marriage licenses issued by the

11

Rowan County Clerk's Office?

12

A. Yes.

13

Q. Now, I trust that the volume of marriage licenses that

14

your office issues isn't exactly the same every month, right?

15

A. No, it's not.

16

Q. What is the busiest month this year, to date?

17

A. May and June were very close.

18

Q. And in those months, those were the busiest so far this

19

year?

20

A. Um-hmm.

21

Q. And in, let's just say June, for example, in the month of

22

June, with that increased volume, would one employee in your

23

office still be able to handle all of that volume?

24

A. Yes. It only takes about five to seven minutes to issue

25

a marriage license, to get the information, populate it in the

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 2390 ooff 8834 -- PPaaggee IIDD##:: 2140564

DAVIS - Direct

29

1

computer system, print it out, have them proof it, sign it,

2

collect their money, and they're gone.

3

Q. And in these months of May and June, where the volume is

4

higher, approximately how many licenses were issued in each of

5

those months?

6

A. Probably 18, 20 at the most.

7

Q. Miss Davis, I want to ask you now about your religious

8

practices. First of all, what religion do you practice?

9

A. I'm Apostolic.

10

Q. And is Apostolic, is that a subset of the Christian

11

religion?

12

A. It is.

13

Q. As part of your Christian faith, do you attend a church?

14

A. I do.

15

Q. How often?

16

A. Every time the doors are open.

17

Q. At least weekly, then?

18

A. We have Bible study on Tuesday, church on Wednesday,

19

church on Sunday.

20

Q. And was that your practice before taking office as the

21

Rowan County Clerk?

22

A. Yes.

23

Q. Has that been your continued practice since taking

24

office?

25

A. Yes.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 3301 ooff 8834 -- PPaaggee IIDD##:: 2140665

DAVIS - Direct

30

1

Q. Do you participate in any Christian ministries outside of

2

your church itself?

3

A. I do.

4

Q. Give me an example.

5

A. Every Monday night, since October of 2013, I go to the

6

jail, visit the ladies there, do Bible study with them.

7

Q. Are you aware of some of the offenses committed by the

8

women in the jail --

9

MR. SHARP: Objection, Your Honor. Relevance.

10

THE COURT: Sustained.

11

MR. GANNAM: Your Honor, the plaintiffs have alleged

12

in this case that Miss Davis has treated them with malice, and

13

I believe that her activities according to her religious

14

beliefs are relevant to the question of whether she is not

15

issuing licenses based out of malice.

16

THE COURT: She goes to the jail, ministers to women

17

at the jail. I think that's sufficient. What they're in for,

18

I'm sure they're in for Class D felonies or on pretrial

19

detention for more serious offenses. I don't think the actual

20

offenses are really relevant.

21

MR. GANNAM: I'll move on, Your Honor.

22

THE COURT: Thank you.

23

BY MR. GANNAM:

24

Q. Miss Davis, do you get paid for visiting the jail?

25

A. No.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 3312 ooff 8834 -- PPaaggee IIDD##:: 2140766

DAVIS - Direct

31

1

Q. How do you feel towards these women who you minister to

2

there?

3

A. I love them. They're the best part of my Monday.

4

Q. Does the fact that they've done bad things, perhaps even

5

felonies, affect how you feel towards them?

6

A. No, not at all.

7

Q. Miss Davis, do your Christian beliefs include a belief

8

about the definition of marriage?

9

A. Yes, they do.

10

Q. And according to your Christian beliefs, what is the

11

definition of marriage?

12

A. Marriage is a union between one man and one woman.

13

Q. And what do you base that definition on?

14

A. The Bible.

15

Q. And what do you believe the Bible to be?

16

A. God's holy word.

17

Q. So according to your Christian belief, can the union of

18

two men be a marriage?

19

A. No.

20

Q. Can the union of two women be a marriage?

21

A. No.

22

Q. How about three men?

23

A. No.

24

Q. How about a person and an animal?

25

MR. SHARP: Objection, Your Honor.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 3323 ooff 8834 -- PPaaggee IIDD##:: 2140867

DAVIS - Direct

32

1

THE WITNESS: No.

2

THE COURT: Sustained. We don't have that here.

3

BY MR. GANNAM:

4

Q. According to your religious beliefs, Miss Davis, is there

5

any arrangement of people other than one man and one woman

6

which can be called a marriage?

7

A. No.

8

Q. Miss Davis, according to your Christian beliefs, do you

9

believe it is a sin for a man and a woman who are not married

10

to have sex?

11

A. Yes.

12

Q. Do you believe it is a sin for two men to have sex?

13

A. Yes.

14

Q. Do you believe it is a sin for two women to have sex?

15

A. Yes.

16

Q. Do you believe all sex outside of man and woman marriage

17

is a sin?

18

A. Yes.

19

Q. During the almost 30 years total that you've spent in the

20

clerk's office, either as a deputy clerk or as the elected

21

clerk, have you ever asked a marriage license applicant what

22

kind of sins they've committed prior to applying?

23

A. No.

24

Q. Have you ever asked marriage license applicants what

25

kinds of sins they plan to commit after getting married?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 3334 ooff 8834 -- PPaaggee IIDD##:: 2140968

DAVIS - Direct

33

1

A. No.

2

Q. Is it your religious belief that you are required to ask

3

applicants for marriage licenses what kinds of sins they

4

committed?

5

A. No.

6

Q. Is it your religious belief that you're required to ask

7

applicants for marriage what kind of sins they might commit

8

after marriage?

9

A. No.

10

Q. Is it your religious belief that sin disqualifies a

11

person from being married?

12

A. No.

13

Q. When did your office stop issuing marriage licenses this

14

year?

15

A. We issued one on the 26th. So we were open the 27th of

16

June, so June 27th would have been when we stopped.

17

Q. And are you aware that June 26 is the date that the

18

United States Supreme Court decision in Obergefell was handed

19

down?

20

A. I am.

21

Q. Your office was open on June 27?

22

A. We were.

23

Q. Did you issue any licenses then?

24

A. No.

25

Q. And was that pursuant to a decision you had made as of

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 3345 ooff 8834 -- PPaaggee IIDD##:: 2150069

DAVIS - Direct

34

1

June 27 not to issue licenses?

2

A. When I first took office, when he went to -- the clerks

3

had a legislative meeting in January, and they formed a

4

committee in regard to this Supreme Court decision that was --

5

in light that it was going to be heard in April.

6

After that meeting, I came back and I directed a letter

7

to every senator and every legislator that I could get an

8

email address to and asked them, pleaded with them to, while

9

there was still time, to get a bill on the floor to help

10

protect clerks who had a moral issue in this regard.

11

I emailed every person. I'm not sure. It was

12

January 23rd was the date that I emailed them, and I emailed

13

every person and our legislators at LRC that I could get an

14

email address to. This is not something I decided because of

15

this decision that came down. It was something that was a

16

forethought and that I had prayed and fasted over weekly.

17

So it wasn't just a spur-of-the-moment decision. It was

18

thought out and, you know, I sought God on it.

19

MR. GANNAM: Your Honor, may I approach the witness

20

to provide an exhibit?

21

THE COURT: Sure. What are you showing her?

22

MR. GANNAM: This is a copy of the letter she's just

23

testified to.

24

THE COURT: That's fine. Do you have a copy,

25

Mr. Sharp?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 3356 ooff 8834 -- PPaaggee IIDD##:: 2150170

DAVIS - Direct

35

1

MR. SHARP: Yes, sir.

2

MR. GANNAM: Your Honor, would you like a copy?

3

THE COURT: Yes, thank you. Mark this as Defendant's

4

Exhibit 1?

5

MR. GANNAM: I marked the version I gave to the

6

witness.

7

BY MR. GANNAM:

8

Q. Miss Davis, I've just handed you a document I've marked

9

as Defendant's Exhibit 1. It has a salutation, Dear Senator

10

Robertson. Is this a copy of the letter you just testified to

11

that you sent to multiple legislators in January?

12

A. It is.

13

Q. The first sentence says, I am contacting you in hope of

14

support of possible legislation that would give county clerks

15

the option to exempt themselves from issuing marriage license.

16

Are those your words, Miss Davis?

17

A. It is.

18

Q. And in the last sentence of that paragraph, I wanted to

19

have the option, as a person who has deep moral conviction, to

20

choose not to discriminate any party by allowing a clerk to

21

apply for an exemption for the issuance of marriage licenses.

22

Are those also your words?

23

A. They are.

24

Q. This was sent to legislators in January of 2015?

25

A. Yeah, January 23rd.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 3367 ooff 8834 -- PPaaggee IIDD##:: 2150271

DAVIS - Direct

36

1

Q. And has your position regarding the issuance of marriage

2

licenses changed between January 23rd of this year and today?

3

A. No.

4

Q. Miss Davis, I'd like to talk about the marriage license

5

form itself.

6

MR. GANNAM: Your Honor, may I approach the witness?

7

THE COURT: You may. Are you moving to admit

8

Exhibit 1?

9

MR. GANNAM: Yes, Your Honor. Thank you.

10

THE COURT: Any objection?

11

MR. SHARP: No objection.

12

THE COURT: Let it be received without objection.

13

BY MR. GANNAM:

14

Q. Miss Davis, I've handed you an exhibit, which will be

15

Defendant's Exhibit 2. Do you recognize this document?

16

A. I do.

17

Q. Can you describe what it is?

18

A. It is the old version of the marriage license that was

19

prescribed by the KDLA for us to use for the issuance of

20

marriage applications.

21

Q. When you say old version, do you mean the version prior

22

to the Supreme Court decision?

23

A. Yes, sir.

24

Q. So this would be the form of marriage license used by

25

your office up until June 26 of this year?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 3378 ooff 8834 -- PPaaggee IIDD##:: 2150372

DAVIS - Direct

37

1

A. Yes.

2

Q. I wanted to point out for you the very first sentence

3

after the heading that says Marriage License, Valid Only in

4

the Commonwealth of Kentucky. It says, To any person or

5

religious society qualified to perform marriages per

6

KRS 402.050, you are hereby authorized to join together in the

7

state of matrimony, according to the laws of the Commonwealth

8

of Kentucky. Do you see that language?

9

A. I do.

10

Q. And when this license says "you are authorized," who do

11

you understand to be authorizing the people on this license to

12

be getting married?

13

A. That would be me, the clerk.

14

Q. And is it your understanding that that is dictated by the

15

law of the Commonwealth of Kentucky?

16

A. Yes.

17

Q. And did you prepare this form yourself?

18

A. No.

19

Q. Who prepared or created this form?

20

A. The Kentucky Department of Library and Archives.

21

Q. I want to call your attention down to the middle of the

22

form. And just for the record, there are areas blacked out of

23

this form that would contain the personal information of

24

whoever these applicants are. The original forms would not

25

contain those black boxes, correct?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 3389 ooff 8834 -- PPaaggee IIDD##:: 2150473

DAVIS - Direct

38

1

A. Correct.

2

Q. So in the middle of the form, it says, We hereby certify

3

the above information is true to the best of our knowledge.

4

And it has spaces for, on this form, the bride and groom to

5

sign. Directly under that, it says, Issued this June 16,

6

2015, and the office of Kim Davis, Rowan County, County Clerk.

7

Do you see that language?

8

A. I do.

9

Q. Who puts that information on the form, your name and your

10

title as Rowan County Clerk?

11

A. It populates from our software.

12

Q. Do you have any control over that?

13

A. No.

14

Q. So when your software in your office is used to create a

15

marriage license, does it automatically put your name and

16

title into every marriage license?

17

A. It does.

18

Q. According to your understanding, who does this license

19

say is issuing the marriage license?

20

A. It was issued by my office.

21

Q. And underneath, in the next line, it says By, and there's

22

a name here, Brian Mason, Deputy Clerk. Is that a deputy

23

clerk in your office?

24

A. It is.

25

Q. Do deputy clerks have the authority to sign marriage

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 3490 ooff 8834 -- PPaaggee IIDD##:: 2150574

DAVIS - Direct

39

1

licenses?

2

A. They have authority to sign it, yes.

3

Q. Whose authority are they exercising when they sign it?

4

A. Mine.

5

Q. Are you aware of any marriage license currently available

6

in the Commonwealth of Kentucky in Rowan County that would not

7

require you to authorize it?

8

A. No.

9

Q. And do you have the discretion to create a different kind

10

of license that would not require your authorization for it to

11

be issued?

12

A. No.

13

MR. GANNAM: Your Honor, I move to admit Defendant's

14

Exhibit 2 into evidence.

15

THE COURT: Any objection?

16

MR. SHARP: No objection.

17

THE COURT: Let it be received without objection.

18

MR. GANNAM: May I approach again, Your Honor?

19

THE COURT: You may.

20

BY MR. GANNAM:

21

Q. Miss Davis, I've shown you a document that's been marked

22

as Defendant's Exhibit 3. Are you familiar with this

23

document?

24

A. I am.

25

Q. What is this document?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 4401 ooff 8834 -- PPaaggee IIDD##:: 2150675

DAVIS - Direct

40

1

A. It is the marriage license that KDLA has prescribed that

2

we use after the Supreme Court decision on June 26th.

3

Q. And I want to draw your attention to the language at the

4

beginning, To any person or religious society qualified to

5

perform marriages per KRS 402.050, you are hereby authorized

6

to join together in the state of matrimony, according to the

7

laws of the Commonwealth of Kentucky -- I'll stop right there.

8

Is this language the same as was on the prior form marriage

9

license?

10

A. Yes.

11

Q. And under this new version of the marriage license who,

12

do you understand, is authorizing the people named in the

13

license to be getting married?

14

A. That would be me, the clerk.

15

Q. In moving down to the middle section of the form, after

16

where the party information would be filled in, it says, We

17

hereby certify the above information is true to the best of

18

our knowledge, and then there are lines for signatures of

19

first party and second party, correct?

20

A. Yes.

21

Q. Now, on the prior form, that said bride and groom,

22

correct?

23

A. That is correct.

24

Q. Now, below that it says issued this -- there's a blank

25

for the date, and the office of. There's a space for a name

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 4412 ooff 8834 -- PPaaggee IIDD##:: 2150776

DAVIS - Direct

41

1

and then a county. When this form is used in your office,

2

what would go in that space for name and county?

3

A. That would be my name, Rowan County.

4

Q. And is it your understanding that this signifies that the

5

office would be -- the license would be issued under your

6

authority?

7

A. Yes.

8

Q. Moving down to the part that reads Marriage Certificate,

9

the third line down, it says -- I'm sorry, let me just read

10

that whole section under Marriage Certificate. It says, I do

11

certify that blank and blank were united in marriage on the --

12

there's a space for a date and location -- under the authority

13

of the above license and in the presence of, please print

14

witnesses' names. Do you see that language?

15

A. I do.

16

Q. What is your understanding to be the authority of the

17

above license that it's referring to?

18

A. That would be me.

19

Q. And since the change in the form following the Obergefell

20

decision, are you aware of any option in Rowan County to issue

21

a marriage license form that's not issued under your

22

authority?

23

A. No.

24

Q. Are you aware of any option for a marriage license form

25

that would not show your name on it?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 4423 ooff 8834 -- PPaaggee IIDD##:: 2150877

DAVIS - Direct

42

1

A. No.

2

Q. Apart from the sort of aesthetic differences in this form

3

and the prior form marked as Exhibit 2 and the change in

4

designation of parties from bride and groom to first party and

5

second party, is there any substantive difference between the

6

old form and the new form?

7

A. No.

8

MR. GANNAM: Your Honor, I move to admit Defendant's

9

Exhibit 3 into evidence.

10

THE COURT: Any objection?

11

MR. SHARP: No objection, Your Honor.

12

THE COURT: Let it be received without objection.

13

BY MR. GANNAM:

14

Q. Miss Davis, we've covered your religious belief about

15

what marriage is, and we've covered the licensing scheme where

16

the licenses are issued in Rowan County under your authority.

17

I want to ask you specifically, why does authorizing the

18

marriage of same-sex couples violate your religious beliefs?

19

A. Because if I say that I authorize that, I'm saying I

20

agree with it, and I can't.

21

Q. And to be clear, is your religious objection to

22

authorizing a marriage license for a same-sex couple based on

23

any sin that you believe this couple may have committed?

24

A. No.

25

Q. Is it based on any sin you believe they might commit?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 4434 ooff 8834 -- PPaaggee IIDD##:: 2150978

DAVIS - Direct

43

1

A. No.

2

Q. Is your religious objection to authorizing a marriage

3

license for a same-sex couple based on any religious objection

4

other than what you believe the definition of marriage is?

5

A. No.

6

Q. Miss Davis, understanding that your religious objection

7

prevents you from issuing licenses to same-sex couples, why

8

did you decide not to issue licenses to any couples?

9

A. I didn't want to discriminate against anybody.

10

Q. Is that consistent with the position you took in January,

11

when you sent the letter to legislators asking them to provide

12

you an opt-out from issuing any licenses at all?

13

A. Yes.

14

Q. And has that position ever changed since that letter in

15

January?

16

A. No.

17

Q. Miss Davis, when the Supreme Court decided the Obergefell

18

case in June, after that, did you receive any guidance from

19

the Governor of Kentucky on issuing marriage licenses?

20

A. He issued a directive that came over the email, and I

21

later got a hard copy that said we may not agree with it,

22

but -- morally, you know, you may not agree with it, but we

23

had to issue them regardless.

24

MR. GANNAM: May I approach again, Your Honor?

25

THE COURT: You may. This will be Exhibit 4?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 4445 ooff 8834 -- PPaaggee IIDD##:: 2160079

DAVIS - Direct

44

1

MR. GANNAM: Yes, Your Honor.

2

BY MR. GANNAM:

3

Q. Miss Davis, I've just handed you what has been marked as

4

Defendant's Exhibit 4. This appears to be a letter on the

5

letterhead of the Office of the Governor dated June 26, 2015.

6

This also appears in the complaint in this case as Plaintiff's

7

Exhibit Number 3. Is this the letter you were just referring

8

to?

9

A. It is.

10

Q. And what did you understand this letter to be directing

11

you to do as a clerk of court or as the county clerk?

12

A. Well, it simply states, says, Neither your oath nor the

13

Supreme Court dictates what you must believe. But as elected

14

officials, they do prescribe how we must act.

15

And we were instructed that Kentucky would recognize as

16

valid all same-sex marriages performed in other states, and we

17

were to start issuing license.

18

Q. Was there any doubt in your mind that the governor was

19

communicating to all the county clerk that they should issue

20

the marriage licenses regardless of what they believe?

21

A. Yes.

22

Q. Have you sent any communications back to the governor

23

after this letter was sent to you?

24

A. I have.

25

THE COURT: You have or you have not?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 4456 ooff 8834 -- PPaaggee IIDD##:: 2160180

DAVIS - Direct

45

1

THE WITNESS: I have.

2

THE COURT: You have, all right. Thank you.

3

MR. GANNAM: Before I get to that, I would move to

4

admit Defendant's Exhibit 4 into evidence.

5

THE COURT: Any objection?

6

MR. SHARP: No objection, Your Honor.

7

THE COURT: Let it be received.

8

MR. GANNAM: May I approach, Your Honor?

9

THE COURT: You may.

10

MR. GANNAM: Your Honor, I apologize, I don't have a

11

final copy of this one.

12

THE COURT: That's fine.

13

BY MR. GANNAM:

14

Q. Miss Davis, I just handed you a document marked as

15

Defendant's Exhibit 5. Do you recognize this document?

16

A. I do.

17

Q. What is this document?

18

A. It's a letter that not just myself but many clerks had

19

sent to the governor just trying to compel him to call a

20

special session or to do something in order to help the clerks

21

who had objections to issuing the same-sex marriage license on

22

grounds of conscience, that he would do something to try to

23

help us.

24

Q. I want to read from the letter. The first paragraph, the

25

last sentence says, Many clerks firmly believe that forcing

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 4467 ooff 8834 -- PPaaggee IIDD##:: 2160281

DAVIS - Direct

46

1

county clerk offices to issue same-sex marriage licenses, when

2

it is against their deeply held religious beliefs and

3

traditions, is a direct violation of the U.S. Constitution's

4

First Amendment.

5

Are those the words you sent to the governor?

6

A. It is.

7

Q. And do you believe that to be the case?

8

A. I do.

9

Q. The next paragraph says, This dramatic and sudden change

10

has caused some clerks to go as far as to halt issuing

11

marriage licenses to anyone rather than compromise their

12

deeply held religious convictions.

13

Would that include you, Miss Davis?

14

A. Yes, it does.

15

Q. Next sentence says, This position has ignited litigation,

16

and it is foreseeable that it may invite more lawsuits.

17

How many times have you been sued so far, Miss Davis?

18

A. Twice.

19

Q. Finally, next paragraph says, It appears the only timely

20

and reasonable solution to this conflict is a legislative one.

21

So for that reason, I respectfully request that you

22

immediately call an extraordinary session of General Assembly

23

to address the issues that have been caused in this transition

24

from traditional marriage being redefined to include same-sex

25

couples.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 4478 ooff 8834 -- PPaaggee IIDD##:: 2160382

DAVIS - Direct

47

1

Are those your words to the governor, Miss Davis?

2

A. They are.

3

Q. Have you received any direct response from the governor?

4

A. No.

5

Q. Are you aware of press reports of conversations between

6

your counterpart in Casey County, Clerk Casey Davis, and the

7

governor?

8

A. I am.

9

Q. And are you aware of what's been reported as the

10

governor's answer to Mr. Davis's similar objection, that he

11

should simply issue the licenses or resign?

12

A. I am.

13

Q. Miss Davis, is resigning an option for you?

14

A. No, sir.

15

Q. Why not?

16

A. Because if I resign, that leaves my deputies to deal with

17

this. It leaves another clerk to deal with it. They may not

18

have an issue with it, but the people that work for me have

19

issue with this also. And if I resign, that solves nothing.

20

It helps nobody. And there is a solution out there that

21

everybody can be happy, and it can be done so that nobody has

22

to be compromised in any way.

23

Q. Would you say that you've done a good job as the clerk of

24

Rowan County?

25

A. I think so, yes, sir.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 4489 ooff 8834 -- PPaaggee IIDD##:: 2160483

DAVIS - Direct

48

1

Q. Is that based in part on the, for example, the three

2

quarters of a million dollar surplus you've generated since

3

you've been the clerk?

4

A. Yes.

5

Q. And all those funds, if there's a surplus at the end of

6

the year, go back to the county?

7

MR. SHARP: Objection, Your Honor. Relevance.

8

THE COURT: Overruled.

9

BY MR. GANNAM:

10

Q. My question was, those funds would go back to the county

11

if there's a surplus at the end of the year, correct?

12

A. That's correct.

13

MR. GANNAM: Your Honor, I would move to admit

14

Defendant's Exhibit 5 into evidence.

15

THE COURT: Any objection to 5?

16

MR. SHARP: No objection, Your Honor.

17

THE COURT: Let it be received without objection.

18

BY MR. GANNAM:

19

Q. You mentioned some of your deputy clerks may share the

20

same objection. Out of your six deputy clerks, how many do

21

you know would have a similar religious objection to signing

22

off on a marriage license to a same-sex couple?

23

A. I know for certainty four.

24

Q. And out of the other two, do you know their positions?

25

A. One --

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 4590 ooff 8834 -- PPaaggee IIDD##:: 2160584

DAVIS - Direct

49

1

MR. SHARP: Objection, Your Honor.

2

THE COURT: Overruled. If you have a reason to know

3

why. I mean, first of all, have you spoken with the other six

4

clerks about the issuance of marriage licenses post-Supreme

5

Court decision?

6

THE DEFENDANT: Yes.

7

THE COURT: You have spoken with them?

8

THE DEFENDANT: Yes.

9

THE COURT: The four that you've identified as having

10

objections, did they tell you they had objections?

11

THE WITNESS: Yes.

12

THE COURT: What about the other two?

13

THE WITNESS: One said they would be willing to issue

14

the license, wouldn't have any problem with it, one is kind of

15

ambiguous, just kind of straddling the fence.

16

THE COURT: So there would be one that would be

17

willing to issue the licenses?

18

THE WITNESS: Yes, sir.

19

THE COURT: And would that individual be able to

20

issue the licenses without any repercussions from you?

21

THE WITNESS: My name would be on that license.

22

THE COURT: Okay. I understand that. But as far as

23

that individual would be able to issue the licenses without

24

any repercussions from you?

25

THE WITNESS: That deputy would not have my authority

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 5501 ooff 8834 -- PPaaggee IIDD##:: 2160685

DAVIS - Direct

50

1

to issue a license if I did not grant that authority.

2

THE COURT: All right. If the authority was required

3

to be granted, would that deputy be able to issue the license

4

without any repercussions from you?

5

THE WITNESS: Repercussions as far as maybe firing

6

that deputy?

7

THE COURT: Correct.

8

THE WITNESS: I don't know how to answer that,

9

because that causes me to speculate that if there was a form

10

that was generated that didn't have my name on it --

11

THE COURT: Is it the marriage license -- I know your

12

attorney asked to read this section. To any person or

13

religious society qualified to perform marriages pursuant to

14

KRS Section 402.050. Are you such a person authorized or

15

qualified to perform marriages?

16

THE WITNESS: No. I'm the authority --

17

THE COURT: You don't perform marriages, correct?

18

THE WITNESS: No.

19

THE COURT: All right.

20

THE WITNESS: I'm the authorizing agent of that

21

license.

22

THE COURT: But you're not a person qualified to

23

perform the marriages, correct?

24

THE WITNESS: No.

25

THE COURT: All right. You may proceed.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 5512 ooff 8834 -- PPaaggee IIDD##:: 2160786

DAVIS - Direct

51

1

BY MR. GANNAM:

2

Q. Miss Davis, knowing what you do, that there is an

3

employee who is willing to issue the licenses, have you taken

4

any adverse employment action against that employee?

5

A. No.

6

Q. Do you have any intention of doing that?

7

A. No.

8

Q. Do you consider that employee to be a good employee?

9

A. Very loyal, very dedicated, very good employee.

10

Q. And I believe you testified earlier that -- could a

11

single employee handle all of the volume of Rowan County

12

marriage licenses, if called upon to do so?

13

A. Yes.

14

Q. I believe you testified that might take an hour a week?

15

MR. SHARP: Objection. Asked and answered.

16

THE COURT: Sustained.

17

BY MR. GANNAM:

18

Q. In the almost 30 years that you've been at the clerk's

19

office, have you ever objected on religious grounds to doing

20

any of the clerk's office functions apart from this marriage

21

license issue?

22

A. No.

23

Q. In your almost 30 years in the clerk's office, have you

24

ever witnessed another deputy clerk or the elected clerk make

25

a religious objection to performing some function of the

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 5523 ooff 8834 -- PPaaggee IIDD##:: 2160887

DAVIS - Direct

52

1

clerk's office?

2

A. No.

3

Q. Are you aware of types of licenses that some clerk's

4

offices issue and some clerk's offices don't?

5

A. I am.

6

Q. Can you give an example?

7

A. Not all county clerks sell hunting and fishing licenses.

8

You can opt out of selling those, just by giving a written

9

explanation to the Department of Fish and Wildlife.

10

Q. And was that a directive or a law that was created by the

11

Department of Fish and Wildlife?

12

MR. SHARP: Objection. Relevance, Your Honor.

13

THE COURT: I'm going to overrule the objection.

14

THE WITNESS: I'm not sure how that law is. It's in

15

our duties that it says that a clerk can opt out from selling

16

hunting and fishing licenses.

17

BY MR. GANNAM:

18

Q. Is there anything else that's issued out of your office

19

or filed in your office that doesn't depend on your authority?

20

A. No.

21

Q. Let me give you an example what I'm talking about. If

22

someone brings a document to you to be recorded, you're not

23

required to authorize or approve of whatever that document

24

says; is that correct?

25

A. That's correct.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 5534 ooff 8834 -- PPaaggee IIDD##:: 2160988

DAVIS - Direct

53

1

Q. Your duty would be limited to just recording it in the

2

public records?

3

A. As long as it meets the statutory requirements for that

4

particular type of document, we would record it.

5

Q. Approximately how many counties surround Rowan County,

6

immediately surround it?

7

A. About seven.

8

Q. Would those be Lewis, Fleming, Bath, Menifee, Morgan,

9

Elliott and Carter Counties?

10

A. Yes.

11

Q. To your knowledge, are all marriage licenses being issued

12

in those seven counties?

13

MR. SHARP: Objection. Speculation.

14

THE COURT: Overruled. If she knows.

15

THE WITNESS: They are.

16

BY MR. GANNAM:

17

Q. And what would be the longest distance one would have to

18

drive, approximately, from Rowan County to one of those seven

19

surrounding counties?

20

A. Maybe 30 minutes at the most.

21

Q. That would be for any of those seven?

22

A. Yes.

23

Q. Are there other --

24

THE COURT: Probably longer to Vanceburg.

25

THE WITNESS: Might be if you go over --

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 5545 ooff 8834 -- PPaaggee IIDD##:: 2170089

DAVIS - Direct

54

1

THE COURT: Go ahead.

2

BY MR. GANNAM:

3

Q. Are there even more counties within a 60-minute drive of

4

Rowan County?

5

A. Oh, yes.

6

Q. And to your knowledge, are any of the counties within a

7

60-minute drive of Rowan County not issuing marriage licenses?

8

A. Not that I'm aware of.

9

Q. When we were in court in Ashland last week, do you know

10

what county we were in?

11

A. We were in Boyd.

12

Q. And to your knowledge, is Boyd County issuing all

13

marriage licenses?

14

A. They are.

15

Q. And today, we're sitting in what county?

16

A. Kenton, I believe.

17

Q. And to your knowledge, is Kenton County issuing marriage

18

licenses?

19

A. Yes, they are.

20

Q. Miss Davis, when you took office in January of 2015, did

21

you swear out an oath?

22

A. I did.

23

Q. And did that oath include an oath to uphold the United

24

States Constitution and laws?

25

A. It did.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 5556 ooff 8834 -- PPaaggee IIDD##:: 2170190

DAVIS - Direct

55

1

Q. And did it include an oath to uphold the Kentucky

2

Constitution and laws?

3

A. Yes, it did.

4

Q. Have you kept that oath since taking office?

5

A. Yes.

6

Q. How do you explain the not issuing marriage licenses and

7

upholding, for example, the United States Constitution and

8

laws?

9

A. I think the First Amendment right gives me a right to

10

religious freedom.

11

Q. So have you ever made a decision that you're not going to

12

uphold the U.S. Constitution?

13

A. No.

14

Q. And how about under the Kentucky Constitution and laws.

15

How are you upholding those when you're not issuing marriage

16

licenses?

17

A. Well, so far, our Kentucky Constitution hasn't been

18

rewritten. I think it takes an act of legislation to do that,

19

and it still states and has defined, as we voted on in 2004,

20

to define marriage as a union between one man and one woman.

21

Q. Are you aware of any things that would be called

22

conscience protections in the Kentucky Constitution?

23

A. Yes. Our Bill of Rights.

24

Q. And so have you ever made a decision not to follow the

25

Kentucky Constitution?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 5567 ooff 8834 -- PPaaggee IIDD##:: 2170291

DAVIS - Direct

56

1

A. No.

2

Q. And in connection with your current policy on marriage

3

licenses, have you ever made a decision that you were not

4

going to follow the Kentucky Constitution and laws?

5

A. No.

6

MR. GANNAM: No further questions, Your Honor.

7

THE COURT: Any questions, Mr. Mando?

8

MR. MANDO: I do have a few questions, Your Honor.

9

CROSS-EXAMINATION

10

BY MR. MANDO:

11

Q. Good morning, Miss Davis. I introduced myself to you

12

earlier this morning. My name is Jeff Mando. I represent

13

Rowan County. I just have a few questions.

14

A. Yes.

15

Q. It's my understanding you occupy the office of county

16

clerk in Rowan County, correct?

17

A. I do.

18

Q. As you understand it, that's a constitutional office,

19

created and recognized by the Kentucky Constitution?

20

A. Yes.

21

Q. And with regard to marriage licenses, you are directed by

22

state statute as a county clerk to issue marriage licenses,

23

correct?

24

A. I am.

25

Q. In fact, issuance of marriage licenses requires you to

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 5578 ooff 8834 -- PPaaggee IIDD##:: 2170392

DAVIS - Direct

57

1

remit the fee for the marriage licenses, part of it back to

2

the state, correct?

3

A. It is.

4

Q. And then you have to report to the state so that the

5

state Department of Vital Statistics can gather and publish

6

information about marriages state-wide, correct?

7

A. Yes.

8

Q. Also, with regard to marriage licenses, the forms that

9

you are required to utilize come from the state Department of

10

Libraries and Archives; is that correct?

11

A. That's correct.

12

Q. That is a state agency that reports to the governor?

13

A. I would assume they do.

14

Q. And that state agency, the Department of Libraries and

15

Archives, to your knowledge, directs all clerks to issue

16

marriage licenses on this prescribed form? It's uniform?

17

A. That's correct.

18

Q. All right. I'm sorry, that was two questions. It's a

19

uniform form, correct?

20

A. Yes.

21

Q. And it's directed by the Department of Library and

22

Archives that all county clerks use this state form?

23

A. That's correct.

24

Q. The employees in your office, you hire the employees in

25

your office, correct?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 5589 ooff 8834 -- PPaaggee IIDD##:: 2170493

DAVIS - Direct

58

1

A. I do.

2

Q. And you retain the authority to discharge and discipline

3

the employees in your office, correct?

4

A. I do.

5

Q. And you retain the authority to set the salaries for the

6

employees in your office, correct?

7

A. I do.

8

Q. That's not a fiscal court function?

9

A. The fiscal court has authority over my maximum allowable

10

salaries and benefits that I pay my deputies as a total, but

11

they do not have control over what each individual one makes.

12

Q. So they have approval over the total budget, and you

13

decide how to apportion it among your staff?

14

A. Yes.

15

Q. You mentioned that as county clerk, you viewed your job

16

as one where you're -- I think I wrote this down -- a

17

pass-through collection -- you viewed it as a pass-through

18

clerk's agency is the words I heard you say.

19

A. Yes.

20

Q. And you're a pass-through for the state, correct?

21

A. Yes.

22

Q. Because you remit funds to the Department of

23

Transportation, state Department of Revenue, state Department

24

of Fish and Wildlife, state motor vehicle registration,

25

correct?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 5690 ooff 8834 -- PPaaggee IIDD##:: 2170594

DAVIS - Direct

59

1

A. Yes.

2

Q. All right. And after the Obergefell decision came down,

3

it was the state Department of Libraries and Archives that

4

sent you the revised form and other county clerks across the

5

state to use, correct?

6

A. It is.

7

Q. All right. And it was the governor who issued a letter

8

that was introduced by your lawyer, referred to you by your

9

lawyer. It was the governor who issued a letter directing you

10

to comply with that decision and issue these licenses?

11

A. It is.

12

MR. MANDO: Thank you, ma'am. No further questions.

13

THE COURT: Cross-examination.

14

CROSS-EXAMINATION

15

BY MR. CANON:

16

Q. Good morning, Miss Davis.

17

A. Good morning.

18

Q. My name is Dan Canon. I represent the plaintiffs here.

19

The good news is that both Mr. Mando and Mr. Gannam have asked

20

you most of the questions I was planning to ask you anyway. I

21

promise not to be too long with you.

22

You testified you were elected on November the 4th, 2014;

23

is that right?

24

A. Yes.

25

Q. And you took office on January 1?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 6601 ooff 8834 -- PPaaggee IIDD##:: 2170695

DAVIS - Direct

60

1

A. 5th.

2

Q. The 5th of 2015. When did you first register to run for

3

that office?

4

A. I filed an intent in -- it was either the last part of

5

June, the first part of July of 2013.

6

Q. Okay. And Mr. Gannam asked you about the oath that you

7

took at the time that you took office. At the time that you

8

were elected to that office on November the 4th, were you

9

aware of a district court opinion by Judge Heyburn that struck

10

down the constitutionality of the portion of the Kentucky

11

Constitution that you testified about before?

12

A. Yes.

13

Q. Okay. And Mr. Gannam asked you whether or not you made a

14

decision not to follow the Constitution of Kentucky, and you

15

said no.

16

Did you make a conscious decision not to follow the

17

Constitution of the United States?

18

MR. GANNAM: Objection, Your Honor. Asked and

19

answered.

20

MR. CANON: I don't think it's been asked.

21

THE COURT: Overruled.

22

THE WITNESS: Say again, please.

23

BY MR. CANON:

24

Q. Did you make a conscious decision not to follow the

25

Constitution of the United States?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 6612 ooff 8834 -- PPaaggee IIDD##:: 2170796

DAVIS - Direct

61

1

A. No.

2

Q. Okay. And so did you believe that you were following the

3

Constitution of the United States on June 26, when you stopped

4

issuing marriage licenses?

5

A. We issued a license on June 26. It was June 27.

6

Q. June 27, then. Sorry.

7

A. I still feel I'm following the Constitution, knowing my

8

First Amendment rights are constitutional.

9

Q. Okay. So let's back up. You've got the ability to make

10

the rules for the Rowan County Clerk's Office, right?

11

A. For my office.

12

Q. You set policies, practices, all that good stuff for

13

Rowan County, right?

14

A. Yes.

15

Q. So even if you've got a deputy clerk that's willing to

16

issue licenses, issue marriage licenses, you can tell them no,

17

right?

18

A. As long as my name is issued -- is on that license, I'm

19

not going to ask them to do something I wouldn't do myself.

20

Q. You believe you've got the discretion to tell them not to

21

issue those licenses even if they're willing to do it; is that

22

right?

23

A. Yes.

24

Q. Okay. And that's, in fact, what you've done here, isn't

25

it?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 6623 ooff 8834 -- PPaaggee IIDD##:: 2170897

DAVIS - Direct

62

1

A. (No response.)

2

Q. Yes?

3

A. Yes.

4

Q. Okay. And in what way did you first institute that

5

policy? Did you sit down with your deputy clerks and have a

6

talk with them, or did you distribute a memo, or how did that

7

happen?

8

A. After the doors closed, we had a meeting.

9

Q. Tell me about that meeting.

10

A. Just simply stated that my religious beliefs can't

11

condone issuing and being a party to the issuance of a

12

same-sex marriage license. And I told them that we weren't

13

going to be issuing license, period, so we didn't discriminate

14

against any party.

15

Q. Okay. And was there any reason, other than your personal

16

religious beliefs, for refusing to issue those licenses?

17

A. No.

18

Q. And do you believe that county clerks have the discretion

19

to refuse to issue marriage licenses in general if they

20

believe that doing so runs contrary to their religious

21

beliefs?

22

A. Yes.

23

Q. Mr. Gannam asked you about, if you'll look at Defense

24

Exhibit 2, you'll recall that Mr. Gannam asked you about a

25

litmus test that you may or may not go through. Said you

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 6634 ooff 8834 -- PPaaggee IIDD##:: 2170998

DAVIS - Direct

63

1

didn't go through whether you asked applicants for marriage

2

licenses whether they had engaged in any kind of sinful

3

behavior. Do you remember that line of questioning?

4

A. I do.

5

Q. You do ask applicants whether or not they've been

6

divorced, don't you?

7

A. I do.

8

Q. Okay. And do you have any religious objection to

9

somebody getting remarried once they've been divorced?

10

A. That's between them and God.

11

Q. Okay. But you don't have -- you don't personally have a

12

religious objection to issuing a license to somebody who's

13

been divorced?

14

A. No.

15

Q. And if a clerk has that religious objection, can they

16

then refuse to issue a license on that basis? Any clerk.

17

A. I don't know. I can't speak for them.

18

Q. Well, I'm asking about your conception of the discretion

19

that you have as a county clerk to deny the issuance of

20

marriage licenses. Do you understand?

21

A. My denial of a marriage license is the basis of what

22

marriage is defined.

23

Q. I understand. And the definition of marriage is based

24

upon your religious beliefs, right?

25

A. The word of God, yes.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 6645 ooff 8834 -- PPaaggee IIDD##:: 2180099

DAVIS - Direct

64

1

Q. So if a clerk has a religious belief that someone who is

2

divorced should not be able to get remarried, can that clerk

3

then refuse to issue a license on that basis?

4

A. I can't speak for them.

5

Q. Okay. What if a clerk has a religious objection to an

6

interracial marriage. Can they then refuse to issue a license

7

to an interracial couple?

8

A. I can't speak for them.

9

Q. So would you acknowledge --

10

A. If you would like me to answer that, I can answer it.

11

Q. Would you acknowledge -- do you have a religious

12

objection to an interracial marriage?

13

A. No.

14

Q. Are you aware if any clerks do?

15

A. Not that I'm aware of.

16

Q. But if a clerk did have that religious objection, they'd

17

be able to not issue a marriage license?

18

A. I don't know. I can't speak for them.

19

Q. I just want to understand what your concept of your

20

discretion as a county clerk is. How far does that go?

21

MR. GANNAM: Objection, Your Honor. Calls for a

22

legal conclusion.

23

THE COURT: That's really not a question, how far

24

does it go. Why don't you ask a more specific question.

25

MR. CANON: Sure.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 6656 ooff 8834 -- PPaaggee IIDD##:: 2181100

DAVIS - Direct

65

1

BY MR. CANON:

2

Q. If I've got a personal belief -- if I'm a county clerk,

3

I've got a personal belief that interracial marriage is

4

unBiblical and I don't want to authorize it, can I refuse to

5

authorize it?

6

A. I don't know. That would be up to you.

7

Q. Okay. You understand if somebody doesn't have a marriage

8

license, they can't have their marriage recognized by the

9

state, correct?

10

A. Yes.

11

Q. And you --

12

THE COURT: Why don't you ask one question at a time.

13

MR. CANON: I'm sorry?

14

THE COURT: You were starting to ask a compound

15

question.

16

MR. CANON: I didn't intend to.

17

THE COURT: You understand if someone doesn't have a

18

marriage license, they can't have their marriage recognized by

19

the state, correct?

20

Did you say yes?

21

THE WITNESS: I did.

22

THE COURT: I'm sorry. Go ahead.

23

BY MR. CANON:

24

Q. Have you been in the clerk's office every work day since

25

June 27?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 6667 ooff 8834 -- PPaaggee IIDD##:: 2181201

DAVIS - Direct

66

1

A. Last Monday, I was out for court.

2

Q. When we were in court in Ashland?

3

A. I was there.

4

Q. Okay.

5

A. Not there --

6

Q. You were in the courthouse?

7

A. No, I wasn't at the courthouse. I was in Ashland. And

8

Wednesday, I had a clerk's meeting in Lexington, and then I'm

9

not there today.

10

Q. Okay. But generally speaking, you've been available; is

11

that right?

12

A. Yes.

13

Q. And you heard Mr. Blevins testify that you haven't been

14

unavailable at any point in time, as far as he's concerned, to

15

issue those licenses. Do you disagree with anything he said?

16

A. No. I'm always there at my office.

17

Q. Have you been personally present when any couples came to

18

apply for a license?

19

A. I have.

20

Q. And what did you tell them?

21

A. I didn't speak to any of the parties involved, I think,

22

except maybe Miss Miller, the couple that you sat back behind

23

the bench. I don't know who they were.

24

Q. That's okay. Any couples. Do you recall --

25

A. There was one in this case.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 6678 ooff 8834 -- PPaaggee IIDD##:: 2181302

DAVIS - Direct

67

1

Q. And you recall personally turning them away?

2

A. I do.

3

Q. Okay. And what did you tell them?

4

A. I just told them that at the present time, we weren't

5

issuing marriage licenses. Didn't feel that I could put my

6

name to a marriage license that was issued to a same-sex

7

couple, and I didn't want to discriminate.

8

And I asked -- I told them that if what they were trying

9

to accomplish was to receive a marriage license, that they

10

could go to any of the surrounding counties and that they

11

could get a marriage license. They could actually come back

12

and get married in Rowan County if they wanted to, but that we

13

weren't issuing them, and I apologized for their

14

inconvenience.

15

Q. Now, how long is your term?

16

A. Four years.

17

Q. And assuming that you're not reelected for a second term,

18

do you intend not to issue marriage licenses during that

19

entire four-year duration?

20

A. Yes.

21

Q. And you had testified before that you think that that's

22

not a violation of the United States Constitution. You

23

understand that you swore an oath to uphold the United States

24

Constitution, right?

25

A. I did.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 6689 ooff 8834 -- PPaaggee IIDD##:: 2181403

DAVIS - Direct

68

1

Q. How do you determine what the Constitution of the United

2

States means?

3

A. Well, I'm not a lawyer.

4

Q. Right.

5

A. But I do know that the First Amendment right gives me the

6

right to my religious freedom.

7

Q. Very good. And your religious freedom, in your

8

conception, trumps the right -- you understand that the

9

couples in this case have a right to get a marriage license,

10

correct?

11

MR. GANNAM: Objection, Your Honor. Calls for a

12

legal conclusion.

13

THE COURT: Overruled.

14

BY MR. CANON:

15

Q. Is that your understanding of the law?

16

A. My understanding is that the U.S. Supreme Court redefined

17

marriage.

18

Q. And you don't want to abide by that definition, correct?

19

A. It's not the definition that I believe in.

20

Q. But you understand when the Supreme Court says that,

21

that's an issue of constitutional interpretation. That's the

22

law of the land. You do understand that?

23

A. I suppose.

24

Q. Okay. And you also understand that a marriage license

25

isn't quite the same thing as a hunting or a fishing license,

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 6790 ooff 8834 -- PPaaggee IIDD##:: 2181504

DAVIS - Direct

69

1

don't you?

2

A. They're still a license.

3

Q. Well, is there any --

4

A. It's still giving authority to do something.

5

Q. Is there any difference in the rank of importance to you

6

between hunting and fishing and marriage?

7

A. They're a license.

8

Q. So they're all the same? Hunting, fishing, getting

9

married, all the same thing?

10

A. I think marriage is a sacred union.

11

Q. I agree. Aside from traveling to another county and

12

going to the judge executive's office, which we've already

13

talked about, are there any alternatives available for anybody

14

in Rowan County that wants to actually have their marriage

15

licensed in Rowan County right now?

16

A. Not unless the legislation can enact something.

17

Q. So that's a no?

18

A. Not unless the legislation can enact something.

19

Q. And they haven't enacted anything, right?

20

A. Uh-uh.

21

Q. And if Judge Bunning orders you to start issuing marriage

22

licenses as a result of the proceedings we've had here today,

23

are you going to do it?

24

A. I can't tell you.

25

Q. You can't tell me?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 7701 ooff 8834 -- PPaaggee IIDD##:: 2181605

DAVIS - Direct

70

1

A. Because you're asking me to speculate on something that

2

hasn't happened.

3

Q. You understand that it's a possibility that he could

4

order you to do that, right?

5

A. He could.

6

Q. Have you thought about what that possibility might look

7

like for you?

8

A. I have.

9

Q. Okay. And have you made a decision as to what you're

10

going to do if you are ordered to start issuing licenses?

11

A. I'll deal with that when the time comes.

12

Q. And you testified a little bit about the seven counties

13

that surround Rowan County. Now, you understand that once

14

somebody has their marriage license, they've got to also

15

travel back and have that marriage license filed?

16

A. They can mail it.

17

Q. Okay, very good. Now, you're not -- you testified about

18

this a little bit before. You're not denying licenses to

19

opposite-sex couples based on your religious beliefs, right?

20

A. No. I just didn't want to discriminate.

21

MR. CANON: Nothing further, Your Honor.

22

THE COURT: Any redirect? Because I have a few

23

questions myself.

24

MR. DONAHUE: Your Honor, may I be excused?

25

THE COURT: Yes. We were told you would have to be

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 7712 ooff 8834 -- PPaaggee IIDD##:: 2181706

DAVIS - Redirect

71

1

in Louisville this afternoon. You may be excused, sir.

2

MR. DONAHUE: Thank you.

3

(Mr. Donahue exited the courtroom.)

4

THE COURT: Mr. Gannam.

5

REDIRECT EXAMINATION

6

BY MR. GANNAM:

7

Q. I want to clarify, the oath of office that you took, you

8

said that you pledged to uphold the United States

9

Constitution; is that correct?

10

A. I did.

11

Q. Did you pledge to abide by the United States Supreme

12

Court's decisions?

13

A. No.

14

Q. So that wasn't a specific part of your oath?

15

A. No.

16

Q. Mr. Canon referenced a federal district court decision

17

invalidating Kentucky's marriage laws at the end of last year.

18

Are you familiar with that?

19

A. Yes.

20

Q. Were you also aware that a federal appellate court, the

21

Sixth Circuit Court of Appeals, reversed that decision?

22

A. I am.

23

Q. At the time you took office in January of 2015 and swore

24

your oath, was same-sex marriage permitted in the Commonwealth

25

of Kentucky?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 7723 ooff 8834 -- PPaaggee IIDD##:: 2181807

DAVIS - Recross

72

1

A. No.

2

MR. GANNAM: No further question, Your Honor.

3

THE COURT: Anything else, Mr. Mando?

4

MR. MANDO: No, sir.

5

RECROSS-EXAMINATION

6

BY MR. CANON:

7

Q. Ma'am, do you get to interpret what the Constitution

8

means?

9

A. No.

10

Q. Who has the final say on what the United States

11

Constitution means?

12

MR. GANNAM: Objection, Your Honor. Calls for a

13

legal conclusion.

14

THE COURT: I can answer that. It's not me.

15

BY MR. CANON:

16

Q. I'll ask it a different way. Who do you understand has

17

the final say as to what the United States Constitution says?

18

A. (No response.)

19

Q. Do you know?

20

A. I don't know.

21

Q. And the Sixth Circuit opinion that Mr. Gannam referenced,

22

do you know what day that came down?

23

A. No.

24

Q. If I told you November the 6th, would you have any reason

25

to dispute that?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 7734 ooff 8834 -- PPaaggee IIDD##:: 2181908

DAVIS - Recross

73

1

A. I assume you wouldn't lie to me.

2

Q. I would not, ma'am.

3

THE COURT: I can take judicial notice of that.

4

MR. CANON: Very good.

5

BY MR. CANON:

6

Q. And the prior opinion that you and I discussed, the

7

opinion striking down the portion of the Kentucky Constitution

8

that prohibits same-sex marriage, you knew about that the

9

entire time you were on the campaign trail, didn't you?

10

A. It was there.

11

MR. CANON: Nothing further.

12

THE COURT: All right. Can I have Exhibit 3? Now, I

13

asked you earlier, ma'am, about the marriage license. Now I'm

14

looking at the one that was prepared by the state Department

15

of Library and Archives. You should have Defendant's

16

Exhibit 3 there.

17

THE WITNESS: I do.

18

THE COURT: I asked you earlier about this KRS

19

section referenced in the top, 402.050. And this includes, in

20

the definitional section -- it's not on the form, but it

21

includes ministers of the gospel and priests, justices and

22

judges of the court, county judge executives, justices of the

23

peace, and fiscal court commissioners authorized by the

24

governor or county judge and any religious society with no

25

minister.

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 7745 ooff 8834 -- PPaaggee IIDD##:: 2191009

DAVIS - Recross

74

1

Those are the -- where it says to any person qualified to

2

perform marriages, that list I just gave you, that's the list.

3

THE WITNESS: Right.

4

THE COURT: County clerks aren't on that list. So if

5

Jane Doe and Richard Roe came in and said will you marry us,

6

like formally, you take this person, you take this person, et

7

cetera, you don't do that?

8

THE WITNESS: No.

9

THE COURT: Okay. So where it says you are

10

authorized to join together in the state of matrimony

11

according to the laws of the Commonwealth of Kentucky, you're

12

not authorized to join together in the state of matrimony

13

because you're not included in that definition?

14

THE WITNESS: But I'm authorizing the license of --

15

THE COURT: I understand that, but he read this.

16

"You are hereby authorized to join together." You're not

17

authorized to join them together?

18

THE WITNESS: No.

19

THE COURT: As an official of the marriage?

20

THE WITNESS: That's correct.

21

THE COURT: Now, when two individuals come in to seek

22

to get the license, the top part, above where it says "we

23

hereby certify," is that already filled out?

24

THE WITNESS: No.

25

THE COURT: So the deputy or the clerk would help

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 7756 ooff 8834 -- PPaaggee IIDD##:: 2191110 75

1

them fill that out?

2

THE WITNESS: Yeah. We ask the information, type it

3

in.

4

THE COURT: So they come in across the counter and

5

they ask -- it's actually typed into some sort of template

6

form, then printed out?

7

THE WITNESS: Um-hmm.

8

THE COURT: At the bottom of Exhibit 2, where it says

9

issued June 16, 2015, the office of Kim Davis, Rowan County,

10

Morehead, and then Brian makes -- you referenced him. These

11

initials, these are Brian Mason's initials?

12

THE WITNESS: They are.

13

THE COURT: So the individual filling this out, that

14

typewritten portion would be based on whoever's typing the

15

information into the computer; is that fair?

16

THE WITNESS: Yeah. His name, he types his name in,

17

but my name is already populated in there.

18

THE COURT: Yours is just part of the form?

19

THE WITNESS: Yes.

20

THE COURT: Now, at the bottom of the marriage

21

certificate itself, this is handwritten, said recorded this

22

July 2, 2015, and the office in Kim Davis, Rowan County Clerk,

23

says Roberta H. -- is it --

24

THE WITNESS: Earley.

25

THE COURT: Earley, deputy clerk. Is that actually

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 7767 ooff 8834 -- PPaaggee IIDD##:: 2191211 76

1

handwritten in by the deputy clerk?

2

THE WITNESS: It is.

3

THE COURT: In this case, why would Brian Mason be

4

different than Roberta Earley?

5

THE WITNESS: Because you're catching the license at

6

two different times. Brian Mason issued the license. Then

7

the center section where it says Marriage Certificate is

8

filled out by the person performing the ceremony. Then once

9

it's performed and completed, then the license is turned back

10

into the clerk's office, and then that's the recording of the

11

bottom part down here. That is the actual recording of the

12

document into our permanent records and indexing system.

13

THE COURT: And who fills that out, the bottom

14

portion?

15

THE WITNESS: The very bottom would be my clerk, my

16

deputy.

17

THE COURT: The clerk would fill that out, all right.

18

Let me check my notes here. That's all the questions I

19

have. Any further questions of the witness?

20

MR. SHARP: No, Your Honor.

21

MR. GANNAM: Your Honor, just briefly on the form.

22

FURTHER REDIRECT EXAMINATION

23

BY MR. GANNAM:

24

Q. Miss Davis, going back to Defendant's Exhibit 3, the

25

marriage license, the new marriage license, where it reads to

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 7778 ooff 8834 -- PPaaggee IIDD##:: 2191312 77

1

any person or religious society qualified to perform

2

marriages, it says who it's to. What is your understanding of

3

who it's from?

4

A. It's from me.

5

Q. When it says "you are hereby authorized," who is the

6

"you" referring to?

7

A. "You" is talking about the people performing the

8

ceremony.

9

Q. And who is telling them that they are authorized?

10

A. Me, the clerk.

11

Q. So who is it that is authorizing them to do it?

12

A. It would be me, the clerk.

13

MR. GANNAM: No further questions, Your Honor.

14

THE COURT: And you believe that, even though the

15

statute doesn't include you? The statute I read to you

16

doesn't include the deputy clerk.

17

THE WITNESS: Right. But if you read after the

18

semicolon, it says you. The people you talked about in the

19

KRS that you read, it says you are authorized to join together

20

in the state of matrimony according to the laws of Kentucky.

21

I'm the one that's authorizing that marriage license. I'm the

22

one giving the authority because they can't get a marriage

23

license online, or they can't, you know -- it's actually the

24

clerk that's authorizing -- I'm saying that these people meet

25

the qualifications, and that they're not related, that

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 7789 ooff 8834 -- PPaaggee IIDD##:: 2191413 78

1

they're -- that they meet the age requirements and everything.

2

That's the authority that I'm given through the statutes to

3

issue the marriage license and that's what --

4

THE COURT: The statute you referenced earlier before

5

we got started, Mr. Mando, those are the statutes she's

6

referring to?

7

MR. MANDO: The statute I was referring to, Your

8

Honor, was 402.080, talks about issuing -- the license shall

9

be issued by the clerk.

10

THE COURT: The license itself.

11

MR. MANDO: The license is issued by the clerk. The

12

ceremony is performed by one of those in the statute.

13

THE COURT: The individuals authorized to perform the

14

ceremonies are the 402.050?

15

MR. MANDO: Correct.

16

THE WITNESS: Um-hmm.

17

MR. CHRISTMAN: Your Honor, if I can interject as

18

well, Section 402.100 is actually the section that walks the

19

clerk through what the clerk needs to do in order to issue a

20

license, and it's the form that says each -- I'm reading

21

directly out of the statute.

22

Each county clerk shall use the form prescribed by the

23

Department For Libraries and Archives when issuing a marriage

24

license. This form shall provide for the entering of all the

25

information required in this section and may also provide for

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 7890 ooff 8834 -- PPaaggee IIDD##:: 2191514 79

1

the entering of additional information prescribed by the

2

Department For Libraries and Archives.

3

The form shall consist of, and then it identifies what

4

has to be on the license. A marriage license which provides

5

for the entering of an authorization statement of the county

6

clerk issuing the license.

7

THE COURT: So you are authorizing the -- you are, in

8

essence, telling the state that the information provided on

9

this is accurate?

10

THE WITNESS: Um-hmm.

11

THE COURT: Is that what you're doing?

12

THE WITNESS: The information that's given, they

13

presented their information, and we applied it to the

14

prescribed document. And if they meet those statutory

15

requirements, then we're authorizing someone who is eligible,

16

like what you had stated earlier, to perform a ceremony, to

17

take this license that we've issued and actually marry

18

someone.

19

THE COURT: So once the couple, if you will, leaves

20

the courthouse with this, takes it, gets married, brings it

21

back or mails it back --

22

THE WITNESS: Or mails it back, yes.

23

THE COURT: So you're, in essence, signing off on the

24

accuracy of the information provided? Is that kind of what

25

this is?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 8801 ooff 8834 -- PPaaggee IIDD##:: 2191615 80

1

THE WITNESS: Well, we are verifying the information,

2

yes, as true and correct. And by our signature and the

3

issuance of it, we're saying that they're authorized to take

4

this and go to someone who is legally able to perform a

5

marriage, and they can present this form to them and that they

6

can have their ceremony performed and then bring it back in to

7

us for recording.

8

THE COURT: All right.

9

MR. CHRISTMAN: Your Honor, if I could continue with

10

the statute. Further down, with the marriage certificate

11

portion of the statute, it then says that the name it refers

12

to -- all the information that needs to be listed again, and

13

it refers to authority, and says the name of the county clerk

14

under whose authority the license was issued. That's why her

15

name is required on every license in those two places.

16

THE COURT: All right. You just object to your name

17

being on the license?

18

THE WITNESS: My name and my county, yeah.

19

THE COURT: Well, your county, you're elected by the

20

county. But if it said Rowan County and listed a deputy

21

clerk -- let's say the deputy clerk that would be permitted

22

to, or has agreed that he or she would not be religiously

23

opposed to issuing the license, if it just was the deputy

24

clerk's name with Rowan County and not your name, would you

25

object to that?

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 8812 ooff 8834 -- PPaaggee IIDD##:: 2191716 81

1

THE WITNESS: It is still my authority as county

2

clerk that issues it through my deputy.

3

THE COURT: All right. Very well.

4

You may step down. Thank you.

5

Any further proof?

6

MR. GANNAM: No, Your Honor.

7

THE COURT: All right. Mr. Mando, any proof from the

8

county's perspective?

9

MR. MANDO: No, sir.

10

THE COURT: All right. Any rebuttal?

11

MR. SHARP: No rebuttal evidence, Your Honor.

12

THE COURT: We have a response which is due on the

13

30th, and then the reply is due seven days after that.

14

MR. SHARP: That's correct.

15

THE COURT: Well, I think the earliest I would have a

16

decision -- I start a trial in Ashland on the 11th -- probably

17

the week of the 11th at some point. The response is due on

18

Thursday, the 7th, so I'll get a decision out as quickly as I

19

can on the motion.

20

We'll be in recess.

21

(Proceedings concluded at 11:43 a.m.)

22

---

23

24

25

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 8823 ooff 8834 -- PPaaggee IIDD##:: 2191817 82

1

CERTIFICATE

2

I, LISA REED WIESMAN RDR-CRR, certify that the

foregoing is a correct transcript from the record of

3

proceedings in the above-entitled case.

4

_\s\ Lisa Reed Wiesman

5

LISA REED WIESMAN, RDR-CRR

Official Court Reporter

6

July 23, 2015 Date of Certification

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

CaCsaes:e0: :01:51-5c-vc-v0-00004044-4D-LDBLB DoDcoc#:#3: 92-64 FFiilleedd:: 0078//2037//1155 PPaaggee:: 8834 ooff 8834 -- PPaaggee IIDD##:: 2191918 83

1

INDEX

DEFENSE WITNESSES

2

WALTER BLEVINS, JR.

3

Direct Examination............................... Page 6

Cross-examination by Mr. Mando................... Page 15

4

Cross-examination by Mr. Sharp................... Page 16

5

KIMBERLY DAVIS

Direct Examination............................... Page 23

6

Cross-examination by Mr. Mando................... Page 56

Cross-examination by Mr. Canon................... Page 59

7

Redirect Examination............................. Page 71

Recross-examination by Mr. Canon................. Page 72

8

Further redirect examination..................... Page 76

9

---

DEFENSE EXHIBITS

10

Exhibit No. 1, Letter to Senator Robertson

11

Identified....................................... Page 35

Admitted......................................... Page 36

12

Exhibit No. 2, Redacted marriage license

13

Identified....................................... Page 36

Admitted......................................... Page 39

14

Exhibit No. 3, Marriage license

15

Identified....................................... Page 40

Admitted......................................... Page 42

16

Exhibit No. 4, 6/26/15 letter

17

Identified....................................... Page 44

Admitted......................................... Page 45

18

Exhibit No. 5, 7/8/15 letter

19

Identified....................................... Page 45

Admitted......................................... Page 48

20

---

21

22

23

24

25

Case: 0:15-cv-00044-DLB Doc #: 39-5 Filed: 08/07/15 Page: 1 of 5 - Page ID#: 1119

Case: 0:15-cv-00044-DLB Doc #: 39-5 Filed: 08/07/15 Page: 2 of 5 - Page ID#: 1120

Case: 0:15-cv-00044-DLB Doc #: 39-5 Filed: 08/07/15 Page: 3 of 5 - Page ID#: 1121

Case: 0:15-cv-00044-DLB Doc #: 39-5 Filed: 08/07/15 Page: 4 of 5 - Page ID#: 1122

Case: 0:15-cv-00044-DLB Doc #: 39-5 Filed: 08/07/15 Page: 5 of 5 - Page ID#: 1123

Case: 0:15-cv-00044-DLB Doc #: 39-6 Filed: 08/07/15 Page: 1 of 5 - Page ID#: 1124

Case: 0:15-cv-00044-DLB Doc #: 39-6 Filed: 08/07/15 Page: 2 of 5 - Page ID#: 1125

Case: 0:15-cv-00044-DLB Doc #: 39-6 Filed: 08/07/15 Page: 3 of 5 - Page ID#: 1126

Case: 0:15-cv-00044-DLB Doc #: 39-6 Filed: 08/07/15 Page: 4 of 5 - Page ID#: 1127

Case: 0:15-cv-00044-DLB Doc #: 39-6 Filed: 08/07/15 Page: 5 of 5 - Page ID#: 1128

Case: 0:15-cv-00044-DLB Doc #: 39-7 Filed: 08/07/15 Page: 1 of 2 - Page ID#: 1129

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION

APRIL MILLER, ET AL., Plaintiffs,
v. KIM DAVIS, ET AL.,
Defendants.

: : : CIVIL ACTION : : 0:15-CV-00044-DLB : : DISTRICT JUDGE : DAVID L. BUNNING : :

KIM DAVIS,

:

:

Third-Party Plaintiff,

:

:

v.

:

:

STEVEN L. BESHEAR, in his official

:

capacity as Governor of Kentucky, and :

WAYNE ONKST, in his official capacity :

as State Librarian and Commissioner,

:

Kentucky Department for Libraries and :

Archives,

:

:

Third-Party Defendants. :

:

[PROPOSED] ORDER This Court, having reviewed Defendant/Third-Party Plaintiff Kim Davis’ Motion for Preliminary Injunction against Third-Party Defendants Steven L. Beshear, Governor of Kentucky, and Wayne Onkst, Commissioner of the Kentucky Department for Libraries and Archives, in their official capacities, and any responses thereto, and having considered the evidence submitted at an evidentiary hearing on this matter, and for good cause shown, GRANTS Kim Davis’ Motion for Preliminary Injunction.

Case: 0:15-cv-00044-DLB Doc #: 39-7 Filed: 08/07/15 Page: 2 of 2 - Page ID#: 1130 IT IS HEREBY ORDERED that Third-Party Defendants Governor Beshear and
Commissioner Onkst, in their official capacities, are preliminarily enjoined from enforcing Governor Beshear’s mandate directing Kim Davis to authorize the issuance of Kentucky marriage licenses.
IT IS FURTHER ORDERED that Kim Davis is preliminarily exempted from having to authorize the issuance of Kentucky marriage licenses.
_____________________________ HON. DAVID L. BUNNING DISTRICT JUDGE
2

Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Eastern District of Kentucky; United States District Court for the Eastern District of Kentucky
Civil Rights - Other[440]
0:15-cv-00044

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 309

 
 Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 1 of 36
APPEAL,CLOSED
U.S. District Court Eastern District of Kentucky (Ashland) CIVIL DOCKET FOR CASE #: 0:15−cv−00044−DLB

Miller et al v. Davis et al Assigned to: Judge David L. Bunning Case in other court: 6CCA, 15−05880
6CCA, 15−05880 6CCA, 15−05961 6CCA, 15−05978 6CCA, 17−06385 6CCA, 17−06404 Cause: 42:1983 Civil Rights Act Plaintiff
April Miller Ph.D.

Date Filed: 07/02/2015 Date Terminated: 08/18/2016 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Daniel J. Canon Clay Daniel Walton & Adams, PLC 917 Lily Creek Road Louisville, KY 40243 502−561−2005 Fax: 502−589−5500 Email: dan@dancanonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel I. Mach American Civil Liberties Union Foundation− DC 915 15th Street Sixth Floor Washington, DC 20005 202−675−2330 Fax: 202−456−0738 Email: dmach@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Heather L. Weaver American Civil Liberties Union Foundation− DC 915 15th Street Sixth Floor Washington, DC 20005 202−675−2330 Fax: 202−546−0738 Email: hweaver@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James D. Esseks ACLU Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2627 Fax: 212−549−2650 Email: jesseks@aclu.org LEAD ATTORNEY PRO HAC VICE

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 2 of 36

ATTORNEY TO BE NOTICED

Laura E. Landenwich Adams Landenwich Walton, PLLC 517 W. Ormsby Avenue Louisville, KY 40203 502−561−0085 Email: laura@justiceky.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard Joe Dunman Attorney at Law 900 S. Shelby Street Louisville, KY 40203 Email: joe@joedunmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ria Tabacco Mar American Civil Liberties Union − National Headquarters 125 Broad Street National Headquarters New York, NY 10004−2400 212−546−2627 Fax: 212−549−2650 Email: rmar@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Ellis Sharp Blackburn, Domene & Burchett PLLC 614 W. Main Street Suite 3000 Louisville, KY 40202 502−584−1600 Email: wsharp@bdblawky.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Denise Cubbage Ackerson & Yann, PLLC 734 W Main Street Suite 200 Louisville, KY 40202 502−583−7400 Fax: 502−589−4997 Email: acubbage@ackersonlegal.com ATTORNEY TO BE NOTICED

Plaintiff Karen Ann Roberts

represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel I. Mach (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heather L. Weaver

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 3 of 36

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard Joe Dunman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ria Tabacco Mar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Ellis Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Denise Cubbage (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Shantel Burke

represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel I. Mach (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heather L. Weaver (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 4 of 36

Leonard Joe Dunman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ria Tabacco Mar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Ellis Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Denise Cubbage (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Stephen Napier

represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel I. Mach (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heather L. Weaver (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard Joe Dunman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ria Tabacco Mar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Ellis Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Denise Cubbage

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 5 of 36

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jody Fernandez

represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel I. Mach (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heather L. Weaver (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard Joe Dunman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ria Tabacco Mar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Ellis Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Denise Cubbage (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kevin Holloway

represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel I. Mach (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heather L. Weaver

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 6 of 36

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard Joe Dunman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ria Tabacco Mar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Ellis Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Denise Cubbage (See above for address) ATTORNEY TO BE NOTICED

Plaintiff L. Aaron Skaggs

represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel I. Mach (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heather L. Weaver (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 7 of 36

Leonard Joe Dunman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ria Tabacco Mar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Ellis Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Denise Cubbage (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Barry W. Spartman

represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel I. Mach (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heather L. Weaver (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard Joe Dunman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ria Tabacco Mar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Ellis Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Denise Cubbage

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 8 of 36
(See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kim Davis Individually
Defendant Rowan County, Kentucky

represented by Anthony Charles Donahue Donahue Law Group, P.S.C. 410 S. Main Street P. O. Box 659 Somerset, KY 42502−0659 606−677−2741 Fax: 606−678−2977 Email: acdonahue@donahuelawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Horatio G. Mihet Liberty Counsel − Orlando P.O. Box 540774 Orlando, FL 32854 800−671−1776 Fax: 407−875−0770 Email: hmihet@lc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Christman Liberty Counsel − Orlando P.O. Box 540774 Orlando, FL 32854 800−671−1776 Fax: 407−875−0770 Email: jchristman@lc.org TERMINATED: 07/13/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Roger K. Gannam Liberty Counsel − Orlando P.O. Box 540774 Orlando, FL 32854 407−875−1776 Fax: 407−875−0770 Email: rgannam@lc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cecil R. Watkins Rowan County Attorney 600 W. Main Street Morehead, KY 40351 606−784−4640 Fax: 606−780−4824 Email: cwatkins@prosecutors.ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Claire E. Parsons Adams, Stepner, Woltermann & Dusing,

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 9 of 36

PLLC 40 W. Pike Street P.O. Box 861 Covington, KY 41012−0861 859−394−6200 Fax: 859−392−7277 Email: cparsons@aswdlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey C. Mando Adams, Stepner, Woltermann & Dusing, PLLC 40 W. Pike Street P.O. Box 861 Covington, KY 41012−0861 859−394−6200 Fax: 859−392−7263 Email: jmando@aswdlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Official Defendant
Kim Davis In her official capacity as Rowan County Clerk

represented by Anthony Charles Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Horatio G. Mihet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan D. Christman (See above for address) TERMINATED: 07/13/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Roger K. Gannam (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Movant Cable News Network, Inc. TERMINATED: 09/08/2015
Movant

represented by Mark Anthony Flores Littler Mendelson, P.C. − TX 2001 Ross Avenue Suite 1500 Lock Box 116 Dallas, TX 75201 214−880−8100 Fax: 214−880−0181 Email: markflores@littler.com ATTORNEY TO BE NOTICED
represented by

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 10 of 36

American Broadcasting Companies, Inc. TERMINATED: 09/08/2015

Aaron J. Silletto Goldberg Simpson, LLC 9301 Dayflower Street Prospect, KY 40059 502−589−4440 Fax: 502−581−1344 Email: asilletto@goldbergsimpson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
NBCUniversal Media, LLC Movant TERMINATED: 09/08/2015

represented by C. Timothy Cone Gess, Mattingly & Atchison, P.S.C. 201 W. Short Street Lexington, KY 40507 859−252−9000 Fax: 859−233−4269 Email: ctcone@gmalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Paul Stoltz Gess Mattingly & Atchison, P.S.C. 201 W. Short Street Suite 102 Lexington, KY 40507 859−252−9000 Fax: 859−233−4269 Email: sstoltz@gmalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

ThirdParty Defendant Matthew G. Bevin

represented by Palmer G. Vance , II Stoll Keenon Ogden, PLLC − Lexington 300 W. Vine Street Suite 2100 Lexington, KY 40507 859−231−3000 Fax: 859−253−1093 Email: gene.vance@skofirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William M. Lear , Jr. Stoll Keenon Ogden, PLLC − Lexington 300 W. Vine Street Suite 2100 Lexington, KY 40507 859−231−3000 Fax: 859−253−1093 Email: william.lear@skofirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

ThirdParty Defendant Terry Manuel

represented by Palmer G. Vance , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William M. Lear , Jr. (See above for address)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 11 of 36

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Robert Stivers

represented by Vaughn Murphy Kentucky Legislative Research Commission 702 Capitol Ave Suite 265 Frankfort, KY 40601 502−564−8100 Email: vaughn.murphy@lrc.ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Earl Fleenor Office of the Kentucky Senate President 702 Capitol Ave. Room 236 Frankfort, KY 40601 502−564−3120 Email: dave.fleenor@lrc.ky.gov ATTORNEY TO BE NOTICED

V. Other Party Nathanial Davis
Other Party Chrissy Plank
Other Party Brian Mason
Other Party Kim Russell

represented by Michael R. Campbell Campbell, Rogers & Hill, PLLC 154 Flemingsburg Road Morehead, KY 40351 606−783−1012 Fax: 606−784−8926 Email: mrcampbell@windstream.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael B. Fox Fox Law Office 185 Tom T. Hall Boulevard P. O. Box 1450 Olive Hill, KY 41164−1450 606−286−5351 Fax: 606−286−5352 Email: mike@foxlaw1.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard A. Hughes P.O. Box 1139 Ashland, KY 41105 606−325−3399 Fax: 606−324−6500 Email: sonholly2@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 12 of 36

Sebastian M. Joy Joy Law Office 2710 Louisa St P.O. Box 411 Catlettsburg, KY 41129 606−739−4569 Fax: 606−739−0338 Email: sjoy@joylawoffice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Other Party Melissa Thompson

represented by Andy Markelonis 2708 Louisa Street P.O. Box 464 Catlettsburg, KY 41129 606−739−8616 Fax: 606−405−0052 Email: kyova29@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Other Party Roberta Earley

represented by Jeremy L. Clark 2706 Louisa Street P.O. Box 532 Catlettsburg, KY 41129 606−739−6774 Fax: 606−739−9125 Email: jeremy6uk@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

ThirdParty Plaintiff
Kim Davis Individually

represented by Anthony Charles Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Horatio G. Mihet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan D. Christman (See above for address) TERMINATED: 07/13/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Gannam (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
ThirdParty Defendant
Steven L. Beshear in his official capacity as Governor of Kentucky

represented by Palmer G. Vance , II (See above for address) LEAD ATTORNEY

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 13 of 36

ATTORNEY TO BE NOTICED

William M. Lear , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ThirdParty Defendant
Wayne Onkst in his official capacity as State Librarian and Commissioner, Kentucky Department for Libraries and Archives

represented by Palmer G. Vance , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William M. Lear , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ThirdParty Plaintiff
Kim Davis In her official capacity as Rowan County Clerk

represented by Anthony Charles Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Horatio G. Mihet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan D. Christman (See above for address) TERMINATED: 07/13/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Gannam (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/02/2015
07/02/2015 07/02/2015
07/03/2015

# Docket Text
1 COMPLAINT ( Filing fee $400; receipt number 0643−3252874), filed by Karen Ann Roberts, Shantel Burke, Jody Fernandez, Barry W. Spartman, Kevin Holloway, April Miller, Stephen Napier, L. Aaron Skaggs. (Attachments: # 1 Exhibit 1 − Cheves Article, # 2 Exhibit 2 − Wolfson Article, # 3 Exhibit 3 − Gov. Letter, # 4 Civil Cover Sheet, # 5 Case Assignment, # 6 Summons Davis, # 7 Summons Rowan County, KY)(SKV) (Entered: 07/03/2015)
2 MOTION for Preliminary Injunction by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(SKV) (Entered: 07/03/2015)
3 Summons Issued as to Kim Davis,Individually, Kim Davis in her official capacity as Rowan County Clerk, and Rowan County, Kentucky for service on the County Judge Executive; Summons issued and returned to counsel electronically for service by Certified Mail. (Attachments: # 1 Summons Kim Davis, Officially, # 2 Summons Rowan County, KY) (SKV) (Entered: 07/03/2015)
Conflict Check run. (SKV) (Entered: 07/03/2015)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 14 of 36

07/03/2015 07/06/2015 07/06/2015 07/06/2015 07/06/2015 07/06/2015 07/08/2015 07/08/2015 07/08/2015 07/08/2015 07/09/2015 07/13/2015 07/13/2015

***MOTION SUBMITTED TO CHAMBERS of Judge Wilhoit for review: re 2 MOTION for Preliminary Injunction by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (SKV) (Entered: 07/03/2015)
4 ORDER: IT IS ORDERED that the above−styled action is hereby REASSIGNED to Honorable David L. Bunning, Judge of the Eastern District of Kentucky, for all further proceedings. Judge Henry R. Wilhoit, Jr recused. Signed by Judge Henry R. Wilhoit, Jr on 7/6/15.(KSS)cc: COR (Entered: 07/06/2015)
***FILE SUBMITTED TO CHAMBERS of Bunning for review upon filing of 4 Order of Recusal (KSS) (Entered: 07/06/2015)
***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 2 MOTION for Preliminary Injunction by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (KSS) (Entered: 07/06/2015)
5 ORDER re 2 MOTION for Preliminary Injunction: IT IS ORDERED that this matter be and is, hereby scheduled for a preliminary injunction hearing on Monday, July 13, 2015 at 12:00 p.m. in Ashland, Ky before Judge David L. Bunning. Signed by Judge David L. Bunning on 7/6/15.(KSS)cc: COR (Entered: 07/06/2015)
6 NOTICE TO ATTORNEY L. Joe Dunman by Clerk re: L.R. 83− Attorney Admission procedure w/ a copy of L.R. 83 and Attorney Admission Application (KSS) (Entered: 07/06/2015)
7 MOTION for Jonathan D. Christman to Appear Pro Hac Vice for Defendant Kim Davis (Attachments: # 1 Exhibit A−Certificate of Good Standing Pennsylvania, # 2 Cover letter, # 3 Receipt)(KSS) (Entered: 07/08/2015)
8 MOTION for Roger K. Gannam to Appear Pro Hac Vice for Defendant Kim Davis (Attachments: # 1 Exhibit A−Certificate of Good Standing Florida, # 2 Exhibit B−Request for certificate, # 3 Exhibit C−The Florida Bar webpage, # 4 Cover letter, # 5 Receipt)(KSS) (Entered: 07/08/2015)
BAR STATUS Check completed as to Jonathan D. Christman, Roger K. Gannam re 7 MOTION for Jonathan D. Christman to Appear Pro Hac Vice by Kim Davis; 8 MOTION for Roger K. Gannam to Appear Pro Hac Vice by Kim Davis (KSS) (Entered: 07/08/2015)
***MOTIONS SUBMITTED TO CHAMBERS of Bunning for review: re 7 MOTION for Jonathan D. Christman to Appear Pro Hac Vice for Kim Davis; 8 MOTION for Roger K. Gannam to Appear Pro Hac Vice for Kim Davis (KSS) (Entered: 07/08/2015)
9 VIRTUAL ORDER: granting 8 Motion to Appear Pro Hac Vice by Roger K. Gannam for Kim Davis granting 7 Motion to Appear Pro Hac Vice by Jonathan D. Christman for Kim Davis. Signed by Judge David L. Bunning on 7/9/2015. (KSS)cc: COR, Gannam, Christman (via US Mail w/ECF packet) (Entered: 07/09/2015)
Attorney Update. Attorney Anthony Charles Donahue for Kim Davis,Anthony Charles Donahue for Kim Davis,Jeffrey C. Mando,Cecil R. Watkins for Rowan County, Kentucky added. (SMT) (Entered: 07/14/2015)
10 MINUTE ENTRY ORDER PRELIMINARY INJUNCTION HEARING held on 7/13/2015 re 2 MOTION for Preliminary Injunction; matter was called with parties present; during hearing counsel advised that dft Kim Davis had not yet been formally served; court having heard counsel and testimony of witnesses and 1) dft Kim Davis oral motion to continue hearing and deny motion for prel inj w/o prej for lack of service on dft is denied; Counsel for Kim Davis oral motion to certify that issue for Sixth Circuit is is also denied 2) pla oral motion to convert to a TRO hearing is denied 3) the evidentiary portion of the hearing is continued generally as set forth in paragraph six herein 4) dft shall be prepared to produce evidence of the Rowan County Clerk's formal functions and duties at the reconvened hearing 5) dfts written Responses due by 7/30/2015, and pla Replies due NLT 7 days thereafter; 6) pla shall file forthwith a notice of service as soon as dft Kim Davis has been formally served; upon filing of that Notice, the court will reconvene the evidentiary portion of the prel.

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 15 of 36

07/13/2015 07/14/2015
07/14/2015 07/14/2015 07/14/2015 07/14/2015 07/14/2015 07/15/2015
07/15/2015
07/15/2015 07/15/2015 07/15/2015 07/16/2015

inj hearing in Covington on a date not earlier than 7/20/15; the court will contact counsel prior to scheduling that reconvened hearing. before Judge David L. Bunning: (Court Reporter Peggy Weber.) (SMT)cc: COR (Entered: 07/14/2015)
16 Witness List for Preliminary Injunction Hearing held on 7/13/2015. (KSS) (Entered: 07/14/2015)
11 NOTICE OF MANDATORY ECF DIRECTED TO Cecil R. Watkins, non−registered re 10 Motion Hearing minute order HAD TO BE MAILED TO, which is in direct violation of this court's General Orders re: Mandatory ECF. Failure to comply will result in this matter being submitted to the Chief Judge. cc: COR, with ecf packet (SMT) (Entered: 07/14/2015)
12 STRICKEN FROM DOCKET AS AN INCOMPLETE DOCUMENT (Entered: 07/14/2015)
13 STRICKEN FROM DOCKET AS AN IN COMPLETE DOCUMENT (Entered: 07/14/2015)
14 NOTICE OF APPEARANCE by Rowan County, Kentucky. (Mando, Jeffrey) (Entered: 07/14/2015)
15 NOTICE OF APPEARANCE by Kim Davis, Kim Davis. (Donahue, Anthony) (Entered: 07/14/2015)
Attorney Update. Attorney Claire E. Parsons for Rowan County, Kentucky added. (SMT) (Entered: 07/15/2015)
NOTICE OF ACTION BY CLERK STRIKING A DOCUMENT FROM THE RECORD re 13 Summons Returned Executed, 12 Summons Returned Executed, was an INCOMPLETE PDF document (only page 2 of the summons was presented) filed as main document; Attorney shall re−file the corrected Summons within seven (7) calendar days. In addition please file the green card showing the date and signature on which summons was executed *CD* cc: COR (SMT) (Entered: 07/15/2015)
17 INCORRECTLY FILED SUMMONS Returned Executed by Karen Ann Roberts, Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier via certified mail, Restricted Delivery, Return Receipt to Rowan County, Kentucky served on 7/9/2015, answer due 7/30/2015. (Attachments: # 1 Certified Mail Slips, # 2 screen Shot showing deliveryc, # 3 return receipt)(Landenwich, Laura) Modified on 7/16/2015 See DE 20 for correction (KSS). (Entered: 07/15/2015)
18 ORDER: IT IS ORDERED that the parties shall RECONVENE before the Court on Monday, July 20, 2015 at 10:00 a.m. in Covington. The parties shall come prepared to CONCLUDE the evidentiary portion of the preliminary injunction hearing. Signed by Judge David L. Bunning on 7/15/15.(KSS)cc: COR (Entered: 07/15/2015)
19 SUMMONS Returned Executed by Karen Ann Roberts, Shantel Burke, Jody Fernandez, Barry W. Spartman, Kevin Holloway, April Miller, Stephen Napier, L. Aaron Skaggs via Personal Service to (Sharp, William) (Entered: 07/15/2015)
20 SUMMONS Returned Executed by Karen Ann Roberts, Shantel Burke, Jody Fernandez, Barry W. Spartman, Kevin Holloway, Kim Davis, April Miller, Stephen Napier, L. Aaron Skaggs via Certified Mail to (Attachments: # 1 Receipt Blevins Receipt)(Canon, Daniel) (Entered: 07/15/2015)
21 TRANSCRIPT of Proceedings: Preliminary Injunction held on 07−13−2015 before Judge Bunning. Court Reporter: Peggy W. Weber, Telephone number 859−421−0814. Transcript ordered by: Roger Gannam, Esq.. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 16 of 36

07/17/2015 07/17/2015 07/17/2015 07/20/2015
07/20/2015 07/23/2015
07/29/2015 07/30/2015 07/30/2015

Release of Transcript Restriction. Redaction Request due 8/10/2015. Redacted Transcript Deadline set for 8/20/2015. Release of Transcript Restriction set for 10/19/2015. (Entered: 07/16/2015)
22 ORDER: IT IS ORDERED that Defendant Kim Davis' counsel shall formally enter their appearances in advance of the hearing set for Monday, July 20, 2015 at 10:00 a.m. in Covington. Signed by Judge David L. Bunning on 7/17/15.(KSS)cc: COR (Entered: 07/17/2015)
23 NOTICE OF APPEARANCE by Kim Davis, Kim Davis. (Gannam, Roger) (Entered: 07/17/2015)
***FILE SUBMITTED TO CHAMBERS of Bunning for review: 23 NOTICE OF APPEARANCE Attorneys Gannam, Christman (KSS) (Entered: 07/17/2015)
24 MINUTE ENTRY ORDER FOR PRELIMINARY INJUNCTION MOTION HEARING held on 7/20/2015 re 2 MOTION for Preliminary Injunction before Judge David L. Bunning. Court reconvened to conclude evidentiary portion of preliminary injunction hearing; IT IS ORDERED as follows: 1) Dft Kim Davis' oral motion to dismiss Plf's Motion for Preliminary Injunction R. 2 is denied. 2) The Clerk is directed to submit Plf's Motion for Preliminary Injunction DE 2 to the undersigned chambers for decision upon the filing of Dft's written response and Plf's reply (Court Reporter Lisa Wiesman.) (KSS)cc: COR (Entered: 07/20/2015)
25 Witness and Exhibit List from Preliminary Injunction Hearing held on 7/20/2015 in COVINGTON. (KSS) (Entered: 07/21/2015)
26 TRANSCRIPT of Proceedings: Preliminary Injunction Hearing held on July 20, 2015 before Judge David L. Bunning. Court Reporter: Lisa Reed Wiesman, Telephone number 859−291−4410. Transcript ordered by: Roger K. Gannam, Esq. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 8/17/2015. Redacted Transcript Deadline set for 8/27/2015. Release of Transcript Restriction set for 10/26/2015. (Entered: 07/23/2015)
27 ANSWER to 1 Complaint, with Jury Demand by Rowan County, Kentucky.(Mando, Jeffrey) (Entered: 07/29/2015)
28 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman filed by Rowan County, Kentucky. (Mando, Jeffrey) Modified on 8/13/2015 to reflect Supplemental Memorandum in Opposition filed 8/7/15 at DE#49 per Order DE#48 (KSS). (Entered: 07/30/2015)
29 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman filed by Kim Davis, Kim Davis. (Attachments: # 1 Exhibit A: July 13, 2015 Hearing Transcript, # 2 Exhibit B: July 20, 2015 Hearing Transcript, # 3 Exhibit C: Copies of Davis Exhibits 1 through 5 admitted at July 20, 2015, # 4 Exhibit D: Collection of Kentucky marriage law provisions from Chapter 402 of KRS, # 5 Exhibit E: Kentucky RFRA, # 6 Exhibit F: Governor Beshear Press Release dated June 26, 2015, # 7 Exhibit G: News Article re: issuance of marriage licenses in Boyd County dated July 9, 2015, # 8 Exhibit H: News Article re: issuance of marriage licenses in Kenton County dated June 29, 2015, # 9 Exhibit I: Governor Beshear Press Release dated July 9, 2015, # 10 Exhibit J: Governor Beshear Press Release dated July 7, 2015, # 11 Exhibit K: Governor Beshear Public Statement on July 21, 2015, # 12 Exhibit L: Attorney General Conways Public Statement on March 4, 2014, # 13 Exhibit M: Governor Beshear Press Release dated March 4, 2014, # 14 Exhibit N: Kentucky LRC Reports on Kentucky RFRA, # 15 Exhibit O: News

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 17 of 36

07/31/2015
08/02/2015 08/04/2015 08/04/2015
08/04/2015
08/04/2015 08/06/2015 08/07/2015 08/07/2015

Article re: fees paid by Kentucky to defend Kentucky marriage law dated May 20, 2015, # 16 Exhibit P: News Article re: Governor Beshears appeal in Bourke v. Beshear dated March 4, 2014, # 17 Exhibit Q: News Article re: hiring of private law firm after Attorney General Conway refused to defend Kentucky marriage law dated April 18, 2014, # 18 Exhibit R: News Article re: July 20, 2015 hearing dated July 21, 2015, # 19 Exhibit S: News Article re: Kentucky legislature general session dated July 10, 2015, # 20 Exhibit T: Prefiled Kentucky House Bill for January 2016 general session to protect religious liberties, # 21 Exhibit U: Map of Kentucky counties)(Christman, Jonathan) (Entered: 07/30/2015)
30 ORDER: IT IS HEREBY ORDERED that Plf's Reply Brief shall address Dft Rowan County's arguments re the pursuit of injunctive relief against Dft Kim Davis in her official capacity. Specifically, Plf's shall explain (1) whether they intend to pursue injunctive relief against Dft Kim Davis in her official capacity and/or individual capacity; and (2) if Plf's still intend to pursue injunctive relief against Dft Kim Davis in her official capacity, the legal basis for doing so. Signed by Judge David L. Bunning on 7/31/15.(KSS)cc: COR (Entered: 07/31/2015)
31 MOTION to Certify Class by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Sharp, William) (Entered: 08/02/2015)
32 MOTION to Dismiss by Kim Davis, Kim Davis (Attachments: # 1 Memorandum in Support of Defendant Kim Davis' Motion to Dismiss Plaintiffs' Complaint, # 2 Proposed Order Granting Defendant Kim Davis' Motion to Dismiss Plaintiffs' Complaint)(Christman, Jonathan) (Entered: 08/04/2015)
33 INCORRECTLY FILED VERIFIED THIRD PARTY COMPLAINT against Steven L. Beshear, Wayne Onkst, filed by Kim Davis, Kim Davis. (Attachments: # 1 Exhibit A. Pre−Obergefell KDLA marriage license form (Def. Ex. 2), # 2 Exhibit B. 1/23/15 Letter to Senator Robertson from Kim Davis (Def. Ex. 1), # 3 Exhibit C. 6/26/15 Letter from Governor Beshear to County Clerks (Def. Ex. 4), # 4 Exhibit D. Post−Obergefell KDLA marriage license form (Def. Ex. 3), # 5 Exhibit E. 7/8/15 Letter from Kim Davis to Governor Beshear (Def. Ex. 5))(Gannam, Roger) Modified on 8/5/2015 TO STATE INCORRECTLY FILED SEE ENTRY 34 FOR CORRECT ENTRY (SMT). (Entered: 08/04/2015)
34 VERIFIED THIRD PARTY COMPLAINT (corrected filing to include summonses) against Steven L. Beshear, Wayne Onkst, filed by Kim Davis, Kim Davis. (Attachments: # 1 Exhibit A. Pre−Obergefell KDLA marriage license form (Def. Ex. 2), # 2 Exhibit B. 1/23/15 Letter to Senator Robertson from Kim Davis (Def. Ex. 1), # 3 Exhibit C. 6/26/15 Letter from Governor Beshear to County Clerks (Def. Ex. 4), # 4 Exhibit D. Post−Obergefell KDLA marriage license form (Def. Ex. 3), # 5 Exhibit E. 7/8/15 Letter from Kim Davis to Governor Beshear (Def. Ex. 5), # 6 Summons Governor Steven L. Beshear, # 7 Summons State Librarian and Commissioner Wayne Onkst)(Gannam, Roger) (Entered: 08/04/2015)
35 Summons Issued as to Steven L. Beshear, Wayne Onkst; Summons issued and returned to counsel electronically (SMT) (Entered: 08/05/2015)
36 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Sharp, William) (Entered: 08/06/2015)
37 MOTION for Leave by Rowan County, Kentucky (Attachments: # 1 Proposed Order, # 2 Supplement Supplemental Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction)(Mando, Jeffrey) (Entered: 08/07/2015)
38 ORDER: The Court having reviewed the briefing on Plf's Motion for Preliminary Injunction, Docs 2 28 29 and 36 and being otherwise sufficiently advised, IT IS ORDERED that this matter be, and is, hereby set for a telephonic conference on Monday, August 10, 2015 at 9:00 a.m.. The parties shall be prepared to address the pursuit of injunctive relief against Def Davis in her official capacity as Rowan County Clerk. Arguments shall be limited to fifteen (15) mins per side. No further briefing

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 18 of 36

08/07/2015
08/07/2015 08/10/2015 08/10/2015 08/11/2015
08/12/2015
08/12/2015 08/13/2015 08/13/2015

shall be permitted. The parties must dial in to this conference at least five (5) mins in advance of the scheduled time by the steps herein. Signed by Judge David L. Bunning on 8/7/15.(KSS)cc: COR (Entered: 08/07/2015)
39 MOTION for Preliminary Injunction by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) (Attachments: # 1 Memorandum in Support of Defendant/Third−Party Plaintiff Kim Davis' Motion for Preliminary Injunction, # 2 Exhibit A: Verified Third−Party Complaint of Defendant Kim Davis, # 3 Exhibit B: July 13, 2015 Hearing Transcript, # 4 Exhibit C: July 20, 2015 Hearing Transcript, # 5 Exhibit D: Kentucky LRC Reports on Kentucky RFRA, # 6 Exhibit E: Prefiled Kentucky House Bill for January 2016 general session to protect religious liberties, # 7 Proposed Order Granting Defendant/Third−Party Plaintiff Kim Davis' Motion for Preliminary Injunction)(Christman, Jonathan) (Entered: 08/07/2015)
49 SUPPLEMENTAL MEMORANDUM of Defendant Rowan County, In Opposition to Plaintiffs' Motion for Preliminary Injunction filed by Rowan County, Kentucky.(Filed pursuant to Virtual Order DE#48)(KSS) (Entered: 08/13/2015)
40 SUMMONS Returned Executed by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) via service of summons on person designated by law to accept service of process to Wayne Onkst served on 8/10/2015, answer due 8/31/2015. (Christman, Jonathan) (Entered: 08/10/2015)
41 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 8/10/2015 before Judge David L. Bunning. Matter called for further hearing on Plf's Motion for Preliminary Injunction DE 2 with parties present, by counsel, as noted above. The Court having heard counsel and testimony of witnesses and being otherwise sufficiently advised, ORDERED AS FOLLOWS: 1) After hearing arguments from the parties, the Motion for Preliminary Injunction DE 2 STANDS SUBMITTED (Court Reporter Peggy Weber.) (KSS)cc: COR (Entered: 08/10/2015)
42 MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Certify Class by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) (Attachments: # 1 Exhibit A: E−mails between counsel re: request for extension of time to respond to Plaintiffs' Motion for Class Certification, # 2 Proposed Order Granting Motion for Extension of Time to File Response to Plaintiffs' Motion for Class Certification)(Christman, Jonathan) (Entered: 08/11/2015)
43 VACATED MEMORANDUM OPINION & ORDER: IT IS ORDERED that Plaintiffs' Motion for Preliminary Injunction DE 2 against Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby granted. IT IS FURTHER ORDERED that Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby preliminarily enjoined from applying her "no marriage licenses" policy to future marriage license requests submitted by Plaintiffs. Signed by Judge David L. Bunning on 8/12/15.(KSS)cc: COR Modified on 8/18/2016 to mark "Vacated" per Order DE181 (KSS). (Entered: 08/12/2015)
44 NOTICE OF APPEAL as to 43 Memorandum Opinion & Order, Terminate Motions,,,, by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk). Filing fee $ 505, receipt number 0643−3282893. (Attachments: # 1 Exhibit A: August 12, 2015 Memorandum Opinion and Order)(Christman, Jonathan) (Entered: 08/12/2015)
45 MOTION to Stay re 43 Memorandum Opinion & Order, Terminate Motions,,,, by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) (Attachments: # 1 Memorandum in Support of Defendant/Third−Party Plaintiff Kim Davis' Motion to Stay the August 12, 2015 Injunction Order Pending Appeal, # 2 Proposed Order Granting Defendant/Third−Party Plaintiff Kim Davis' Motion to Stay the August 12, 2015 Injunction Order Pending Appeal)(Christman, Jonathan) (Entered: 08/13/2015)
46 RESPONSE in Opposition re 45 MOTION to Stay re 43 Memorandum Opinion & Order by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Attachments: # 1 Exhibit 1 − wkyt.com web page article 8/13/15, # 2 Exhibit 2 − Declaration of April Miller, PhD, # 3 Proposed Order)(Sharp, William) Modified on 8/14/2015 to describe exhibits

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 19 of 36

08/13/2015 08/13/2015 08/13/2015 08/14/2015 08/14/2015 08/17/2015 08/17/2015 08/18/2015 08/19/2015

(KSS). (Entered: 08/13/2015)
47 ORDER: IT IS ORDERED that Plaintiffs shall file a written response to Defendant's Motion to Stay DE 45 by close of business on Friday, August 14, 2015. Defendant's reply brief shall be due by close of business on Monday, August 17, 2015. Upon the filing of the reply, the Clerk shall submit the Motion to Stay to the undersigned's chambers for review. Signed by Judge David L. Bunning on 8/13/15.(KSS)cc: COR (Entered: 08/13/2015)
48 VIRTUAL ORDER: granting 37 Motion for Leave by Defendant Rowan County, Kentucky. Defendant Rowan County's Supplemental Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction (37−2) shall be filed and docketed by the Clerk, nunc pro tunc to August 7, 2015. Signed by Judge David L. Bunning on 8/13/15. (KSS)cc: COR (Entered: 08/13/2015)
50 ORDER: Plaintiffs having already filed their Response in Opposition DE 46 to Defendant Kim Davis' Motion to Stay DE 45 the Court's Memorandum Opinion and Order of August 12, 2015 DE 43 , and the Court being otherwise sufficiently advised, IT IS ORDERED that Defendant Kim Davis shall submit her reply brief by close of business on Friday, August 14, 2015. Davis' reply shall be limited to five (5) pages. Signed by Judge David L. Bunning on 8/13/15.(KSS)cc: COR (Entered: 08/13/2015)
NOTICE OF DOCKET MODIFICATION TO William Sharp re 46 Response in Opposition to Motion; Error: Attachments were insufficiently described as "Exhibit 1," "Exhibit 2." Entry by attorney; Correction: the Clerk renamed the attachments. Attachments must be adequately described. Example: Exhibit A (incorrect); Exhibit A Affidavit of John Doe (correct). No further action required by counsel cc: COR (KSS) (Entered: 08/14/2015)
51 REPLY to Response to Motion re 45 MOTION to Stay re 43 Memorandum Opinion & Order, Terminate Motions,,,, by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) filed by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk). (Attachments: # 1 Exhibit A: Ltr. to V. Puente, et al., Demanding Correction Pursuant to Ky. Rev. Stat. §§ 411.051, 411.061, dated Aug. 14, 2015)(Christman, Jonathan) (Entered: 08/14/2015)
***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 45 MOTION to Stay re 43 Memorandum Opinion & Order, Terminate Motions,,,, by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) (SMT) (Entered: 08/17/2015)
52 ORDER: IT IS ORDERED denying 45 Motion to Stay; IT IS FURTHER ORDERED that this order denying Kim Davis Motion to Stay be TEMPORARILY STAYED pending review of dft Davis' motion to stay 45 by the Sixth Circuit Court of Appeals. Signed by Judge David L. Bunning on 8/17/15. (SMT)cc: COR (Entered: 08/17/2015)
53 SUMMONS Returned Executed by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) via summons on person designated by law to accept service of process to Steven L. Beshear served on 8/10/2015, answer due 8/31/2015. (Christman, Jonathan) (Entered: 08/18/2015)
54 TRANSCRIPT of Proceedings: Telephone Conference for dates of August 10, 2015 before Judge David L. Bunning, re 44 Notice of Appeal,. Court Reporter: Lisa Reed Wiesman, Telephone number 859−291−4410. Transcript ordered by: Jonathan D. Christman, Esq.. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 9/14/2015. Redacted Transcript Deadline set for 9/24/2015. Release of Transcript Restriction set for 11/20/2015. (Entered: 08/19/2015)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 20 of 36

08/19/2015
08/24/2015 08/25/2015
08/25/2015
08/26/2015 08/26/2015 08/26/2015 08/27/2015 08/27/2015 08/28/2015 08/28/2015
08/28/2015 08/28/2015

55 ORDER ; on 8/17/15 this court entered an order 52 denying dft Kim Davis' motion to stay the 8/12/15 order 43 granting pla a prel inj enjoining dft Davis from enforcing her "no marriage licenses" policy against pla; however, in deference to the 6CCA the court temporarily stayed its 8/12/15 order to give and appellate court an opportunity to review, on an expedited basis, the 8/17/15 order denying the motion to stay; upon review of FRAP 8(a)(2) governing stays of injunctions pending appeal the court finds it necessary to set an expiration date for temporary stay; IT IS ORDERED that the court's stay of its 8/17/15 order shall expire on 8/31/15; absent to the contrary by the 6CCA. Signed by Judge David L. Bunning on 8/19/15.(SMT)cc: COR (Entered: 08/19/2015)
56 REPLY BRIEF to 42 Motion for Extension of Time to File Response to Plaintiffs' Motion for Class Certification filed by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk). (Christman, Jonathan) (Entered: 08/24/2015)
57 VIRTUAL ORDER: Plaintiffs having filed no opposition to the MOTION, IT IS ORDERED that Defendant Kim Davis' Motion for Extension of Time to File Response to Plaintiffs' Motion to Certify Class 42 is GRANTED. Defendant Davis' response to said motion is due 30 days after the Sixth Circuit Court of Appeals renders its decision on the appeal of the Court's granting of Plaintiffs' motion for a preliminary injunction. Signed by Judge David L. Bunning on 8/25/15. (KSS)cc: COR (Entered: 08/25/2015)
58 ORDER: IT IS ORDERED that briefing on Defendant Kim Davis' Motion to Dismiss 32 and Motion for Preliminary Injunction 39 be, and is, hereby STAYED pending review of the Court's Memorandum Opinion and Order 43 by the United States Court of Appeals for the Sixth Circuit. A briefing schedule on the Motions will be set by subsequent order after the Sixth Circuit renders its decision. Signed by Judge David L. Bunning on 8/25/15.(KSS)cc: COR (Entered: 08/25/2015)
59 NOTICE OF APPEARANCE by Steven L. Beshear, Wayne Onkst. (Vance, Palmer) (Entered: 08/26/2015)
60 Proposed Agreed Order/Stipulation by Steven L. Beshear, Kim Davis, Wayne Onkst. (Vance, Palmer) (Entered: 08/26/2015)
Attorney Update. Attorney William M. Lear, Jr for Steven L. Beshear,William M. Lear, Jr for Wayne Onkst added. (SMT) (Entered: 08/27/2015)
***FILE SUBMITTED TO CHAMBERS of Bunning for review: re 60 Proposed Agreed Order/Stipulation by Steven L. Beshear, Kim Davis, Wayne Onkst (SMT) (Entered: 08/27/2015)
61 AGREED ORDER: IT IS HEREBY ORDERED 1. That the third−party defendants shall have until and including September 11, 2015 by which to serve their pleadings and/or papers in response to the Third−Party Complaint DE 34 . Signed by Judge David L. Bunning on 8/27/15.(KSS)cc: COR (Entered: 08/27/2015)
62 MOTION re 52 Order on Motion to Stay, 55 Order,,, by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) [MOTION TO EXTEND TEMPORARY STAY OF INJUNCTION ORDER] (Attachments: # 1 Proposed Order Granting Motion to Extend Temporary Stay)(Gannam, Roger) (Entered: 08/28/2015)
63 RESPONSE in Opposition re 62 MOTION re 52 Order on Motion to Stay, 55 Order,,, by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) [MOTION TO EXTEND TEMPORARY STAY OF INJUNCTION ORDER] filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Attachments: # 1 Exhibit Davis 6th Circuit Reply Brief, # 2 Exhibit 6th Circuit Order Denying Stay, # 3 Proposed Order)(Sharp, William) (Entered: 08/28/2015)
64 REPLY to 63 filed by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk). (Attachments: # 1 Exhibit A. Emergency Application to Stay Preliminary Injunction Pending Appeal)(Gannam, Roger) (Entered: 08/28/2015)
65 VIRTUAL ORDER: denying Defendant Davis' 62 Motion to extend temporary stay of injunction order pending final resolution of Davis' emergency application to stay preliminary injunction pending appeal filed in the United States Supreme Court. Signed by Judge David L. Bunning on 8/28/15. (KSS)cc: COR (Entered: 08/28/2015)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 21 of 36

08/31/2015 08/31/2015 09/01/2015 09/01/2015 09/01/2015
09/01/2015 09/02/2015 09/02/2015
09/02/2015 09/02/2015 09/03/2015

66 NOTICE OF APPEAL as to 58 Order, by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk). Filing fee $ 505, receipt number 0643−3294835. (Attachments: # 1 Exhibit A: August 25, 2015 Order)(Christman, Jonathan) (Entered: 08/31/2015)
USCA Case Number 15−5880 Case Manager Michelle M. Davis for 44 Notice of Appeal filed by Kim Davis. (KSS) (Entered: 08/31/2015)
67 MOTION to Compel by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (Attachments: # 1 Exhibit Miller Declaration, # 2 Proposed Order)(Sharp, William) (Entered: 09/01/2015)
68 MOTION to Amend/Correct 43 Memorandum Opinion & Order by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (Attachments: # 1 Exhibit Miller Declaration, # 2 Proposed Order)(Sharp, William) (Entered: 09/01/2015)
69 MINUTE ENTRY ORDER FOR TELEPHONIC SCHEDULING CONFERENCE held on 9/1/2015 before Judge David L. Bunning. IT IS ORDERED that this matter be, and is, hereby set for a hearing on Plaintiff's Motion to Hold Defendant Kim Davis in Contempt of Court DE 67 on Thursday, September 3, 2015 at 11:00 a.m. in Ashland, Kentucky. Defendant Davis and each of her deputy clerks shall be present at the hearing. IT IS FURTHER ORDERED that if Defendant Davis wishes to file a response to Plaintiffs' Motion DE 67 , it shall be filed by close of business on September 2, 2015, and shall not exceed five (5) pages in length. (Court Reporter Lisa Wiesman.). Signed by Judge David L. Bunning on 9/1/15. (KSS)cc: COR (Entered: 09/01/2015)
USCA Case Number 15−5961 Case Manager Michelle M. Davis for 66 Notice of Appeal filed by Kim Davis. (KSS) (Entered: 09/01/2015)
70 MOTION for Injunction Pending Appeal of This Court's August 25, 2015 Order by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) (Attachments: # 1 Memorandum in Support of Motion for Injunction Pending Appeal of This Court's August 25, 2015 Order, # 2 Proposed Order Granting Motion for Injunction Pending Appeal of This Court's August 25, 2015 Order)(Christman, Jonathan) (Entered: 09/02/2015)
71 TRANSCRIPT of Proceedings: Telephone Conference held on September 1, 2015 before Judge David L. Bunning. Court Reporter: Lisa Reed Wiesman, Telephone number 859−291−4410. Transcript ordered by: Roger K. Gannam, Esq. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 9/28/2015. Redacted Transcript Deadline set for 10/8/2015. Release of Transcript Restriction set for 12/4/2015. (Entered: 09/02/2015)
72 RESPONSE in Opposition re 67 MOTION to Compel by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman filed by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk). (Christman, Jonathan) (Entered: 09/02/2015)
73 MOTION for Leave to File by Robert Stivers (Attachments: # 1 Memorandum in Support Tendered Brief, # 2 Proposed Order Order)(Fleenor, David) (Entered: 09/02/2015)
74 VACATED ORDER: IT IS HEREBY ORDERED: Plaintiffs' Motion Pursuant to Rule 62(c) to Clarify the Preliminary Injunction Pending Appeal is hereby GRANTED. IT IS FURTHER ORDERED: The Court's August 12, 2015 preliminary injunction order, R 43 is hereby modified to state that Defendant Kim

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 22 of 36

09/03/2015
09/03/2015 09/04/2015 09/05/2015 09/06/2015

Davis, in her official capacity as Rowan County Clerk, is hereby preliminarily enjoined from applying her "no marriage licenses" policy to future marriage license requests submitted by Plaintiffs or by other individuals who are legally eligible to marry in Kentucky. Signed by Judge David L. Bunning on 9/3/15. (KSS)cc: COR Modified on 8/18/2016 to mark "Vacated" per Order DE181 (KSS). (Entered: 09/03/2015)
75 MINUTE ENTRY ORDER FOR Hearing on Motion before Judge David L. Bunning. This matter was called for a hearing on the Plaintiffs Motion to Hold Defendant Kim Davis in Contempt of Court (DE # 67) in Ashland, Kentucky, with parties present, by counsel, as noted above. Having heard arguments from counsel and testimony of witnesses, and the Court being otherwise sufficiently advised, IT IS ORDERED AS FOLLOWS: 1) There being no objection from the parties, Kentucky Senate President Robert Stivers Motion for Leave to File a Brief as Amicus Curiae in support of Defendants (DE # 73) is GRANTED. 2) By agreement of the parties, Third Party Defendants shall have until close of businesson Tuesday, September 8, 2015 to respond to Defendant Davis Motion for Injunction Pending Appeal (Doc. # 70). Defendant Davis shall have until close of business on Thursday, September 10, 2015 to file her reply brief. The parties are advised that these deadlineshave been expedited. 3) The Court appoints MICHAEL R. CAMPBELL as counsel for Rowan County Deputy Clerk Nathaniel Davis. MICHAEL B. FOX is appointed as counsel for Rowan County Deputy Clerk Chrissy Plank. RICHARD A. HUGHES is appointed as counsel for Rowan County Deputy Clerk Brian Mason. SEBASTIAN JOY is appointed as counsel for Rowan County Deputy Clerk Kim Russell. ANDY MARKELONIS is appointed as counsel for Rowan County Deputy Clerk Melissa Thompson. JEREMY CLARK is appointed as counsel for Rowan County Chief Deputy Clerk Roberta Earley. 4) After hearing arguments from counsel and testimony from witnesses, the Court finds Defendant Davis in contempt of the Courts Order of August 12, 2015, for reasons stated on the record. Accordingly, Plaintiffs Motion to Hold Defendant Kim Davis in Contempt of Court (DE # 67) is GRANTED. Defendant Davis shall be remanded to the custody of the United States Marshal pending compliance of the Courts Order of August 12, 2015, or until such time as the Court vacates the contempt Order. 5) Defendant Davis oral motion to stay enforcement of the Courts contempt order pending review of the Courts August 12, 2015 Order by the Sixth Circuit Court of Appeals is DENIED. Defendant Davis oral motion to certify the contempt order for appeal is DENIED. 6) Defendant Davis oral motion to suspend any sentence until the Kentucky Legislature convenes is DENIED. (Court Reporter Sandy Wilder.) (KSS)cc: COR (Entered: 09/04/2015)
76 Witness List for Hearing on Motion held 9/3/15 before Judge David L. Bunning. (KSS) (Entered: 09/04/2015)
77 MOTION to Allow Interview of Kim Davis by Cable News Network, Inc. (Attachments: # 1 Proposed Order)(Flores, Mark) (Entered: 09/04/2015)
78 TRANSCRIPT of Proceedings: MOTION HEARING held on 09/03/2015 before Judge David L. Bunning. Court Reporter: Sandra L. Wilder, Telephone number (859) 516−4114. Transcript ordered by: HON. JONATHAN D. CHRISTMAN. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 10/1/2015. Redacted Transcript Deadline set for 10/9/2015. Release of Transcript Restriction set for 12/7/2015. (Entered: 09/05/2015)
79 INCORRECTLY FILED AMENDED DOCUMENT by Kim Davis, Kim Davis. Amendment to 44 Notice of Appeal, Amended Notice of Appeal. (Attachments: # 1 Exhibit A: September 3, 2015 Order Granting Plaintiffs' Motion to Hold Defendant Kim Davis in Contempt of Court (D.E. 75), # 2 Exhibit B: September 3, 2015 Order Granting Plaintiffs' Motion Pursuant to Rule 62(c) to Clarify the Preliminary

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 23 of 36

09/07/2015
09/07/2015 09/08/2015 09/08/2015 09/08/2015
09/08/2015 09/08/2015 09/08/2015 09/08/2015
09/08/2015
09/08/2015

Injunction Pending Appeal (D.E. 74), # 3 Exhibit C: August 12, 2015 Memorandum Opinion and Order (D.E. 43))(Christman, Jonathan) Modified on 9/8/2015 to reflect "incorrectly filed". Attorney notified that new Notice of Appeal needs to be filed. (KSS). (Entered: 09/06/2015)
80 ORDER: Plaintiffs, by and through counsel, shall file a status report not later than 10:00 a.m. eastern standard time on Tuesday, September 8, 2015 informing the Court of whether any of the named Plaintiffs have had a marriage license issued to them by the Rowan County Clerk's office and shall attach a copy of any such license(s) to their status report. The Clerk shall send notice of this order to all counsel of record and CJA counsel appointed to represent the Rowan County deputy clerks. Signed by Judge David L. Bunning on 9/7/2015.(TJZ)cc: COR (Entered: 09/07/2015)
81 MOTION for permission to interview Defendant Kim Davis by American Broadcasting Companies, Inc. (Attachments: # 1 Proposed Order)(Silletto, Aaron) (Entered: 09/07/2015)
Clerk's Note: re 79 Amended Document. Clerk spoke with counsel for defendant to notify that a new Notice of Appeal needs to be filed. Clerk marked document 79 as "incorrectly filed." (KSS) (Entered: 09/08/2015)
82 NOTICE OF APPEAL as to 74 Order on Motion to Amend/Correct,, by Kim Davis, Kim Davis. Filing fee $ 505, receipt number 0643−3299672. (Attachments: # 1 Exhibit A: September 3, 2015 Order (D.E. 74))(Christman, Jonathan) (Entered: 09/08/2015)
83 NOTICE OF APPEAL as to 75 Order on Motion to Compel, Order on Motion for Leave to File, Contempt Hearing, Add and Terminate Attorneys, Set Motion and R&R Deadlines/Hearings, Terminate Motions by Kim Davis, Kim Davis. Filing fee $ 505, receipt number 0643−3299683. (Attachments: # 1 Exhibit A: September 3, 2015 Order Granting Plaintiffs' Motion to Hold Defendant Kim Davis in Contempt of Court (D.E. 75))(Christman, Jonathan) (Entered: 09/08/2015)
84 STATUS REPORT by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Attachments: # 1 Exhibit A − Issued Licenses, # 2 Exhibit B − Davis Testimony)(Canon, Daniel) (Entered: 09/08/2015)
85 MOTION for Order by NBCUniversal Media, LLC Allowing Interview of Kim Davis (Attachments: # 1 Proposed Order)(Cone, C.) (Entered: 09/08/2015)
***FILE SUBMITTED TO CHAMBERS of Bunning for review upon filing of 84 Status Report filed pursuant Court Order 80 (KSS) (Entered: 09/08/2015)
86 NOTICE OF DEFICIENCY RE: FAILURE TO FILE FRCP 7.1 DISCLOSURES to counsel of record, Mark Flores. 77 MOTION to Allow Interview of Kim Davis by Cable News Network, Inc. has been filed by Cable News Network, Inc. without the required Rule 7.1 Disclosure statement. Rule 7.1 Disclosures must be filed within fourteen (14) calendar days. Failure to file the Disclosure Statement will cause the case to be submitted to the presiding judge for further action. cc: COR (KSS) (Entered: 09/08/2015)
87 NOTICE OF DEFICIENCY RE: FAILURE TO FILE FRCP 7.1 DISCLOSURES to counsel of record, Aaron Silletto. 81 MOTION for permission to interview Defendant Kim Davis by American Broadcasting Companies, Inc. has been filed by American Broadcasting Companies, Inc. without the required Rule 7.1 Disclosure statement. Rule 7.1 Disclosures must be filed within fourteen (14) calendar days. Failure to file the Disclosure Statement will cause the case to be submitted to the presiding judge for further action. cc: COR (KSS) (Entered: 09/08/2015)
88 NOTICE OF DEFICIENCY RE: FAILURE TO FILE FRCP 7.1 DISCLOSURES to counsel of record, C. Timothy Cone. 85 MOTION for Order by NBCUniversal Media, LLC Allowing Interview of Kim Davis has been filed by NBCUniversal without the required Rule 7.1 Disclosure statement. Rule 7.1 Disclosures must be filed within fourteen (14) calendar days. Failure to file the Disclosure Statement will cause the case to be submitted to the presiding judge for further action. cc: COR (KSS) (Entered: 09/08/2015)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 24 of 36

09/08/2015 09/08/2015 09/08/2015
09/08/2015 09/08/2015 09/08/2015 09/09/2015 09/09/2015 09/09/2015 09/10/2015
09/10/2015

USCA Case Number 15−5978 for 83 Notice of Appeal filed by Kim Davis. (KSS) (Entered: 09/08/2015)
USCA Case Number 15−5880 for 82 Notice of Appeal filed by Kim Davis. (KSS) (Entered: 09/08/2015)
89 ORDER: 1. Defendant Davis shall be released from the custody of the U.S. Marshal forthwith. Defendant 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. If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered. 2. CJA counsel for the five (5) deputy clerks who indicated they would comply with the Court's Order shall file a Status Report every fourteen (14) days from the date of entry of this Order unless otherwise excused by the Court. Within those reports Counsel shall report on their clients' respective compliance with the Court's August 12, 2015 Order enjoining the Rowan County Clerk from enforcing her "no marriage licenses" policy, as well as its Order of September 3, 2015 requiring them to issue marriage licenses to all eligible couples in compliance with the Court's prior Order. Signed by Judge David L. Bunning on 9/8/15.(KSS)cc: COR, USMS (Entered: 09/08/2015)
90 VIRTUAL ORDER: finding as moot 81 Motion Permission to Interview Defendant Kim Davis by American Broadcasting Companies, Inc., 85 Motion for Orderby NBCUniversal Media, LLC Allowing Interview of Kim Davis; 77 Motion to Allow Interview of Kim Davis by Cable News Network, Inc.Signed by Judge David L. Bunning on 9/8/15. (KSS)cc: COR (Entered: 09/08/2015)
91 RESPONSE in Opposition re 70 MOTION for Injunction Pending Appeal of This Court's August 25, 2015 Order by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) filed by Steven L. Beshear, Wayne Onkst. (Attachments: # 1 Proposed Order)(Vance, Palmer) (Entered: 09/08/2015)
92 MOTION to Dismiss by Steven L. Beshear, Wayne Onkst Third−Party Complaint (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 − 6/26/15 Beshear Letter, # 3 Proposed Order)(Vance, Palmer) (Entered: 09/08/2015)
93 MOTION for Daniel I. Mach to Appear Pro Hac Vice by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman ( Filing fee $95; receipt number 0643−3301110) (Attachments: # 1 Exhibit Affidavit, # 2 Exhibit Certificate of Good Standing, # 3 Proposed Order)(Sharp, William) (Entered: 09/09/2015)
94 MOTION for Ria Tabacco Mar to Appear Pro Hac Vice by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman ( Filing fee $95; receipt number 0643−3301118) (Attachments: # 1 Exhibit Affidavit, # 2 Exhibit Certificate of Good Standing, # 3 Proposed Order)(Sharp, William) (Entered: 09/09/2015)
95 MOTION for Heather L. Weaver to Appear Pro Hac Vice by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman ( Filing fee $95; receipt number 0643−3301132) (Attachments: # 1 Exhibit Affidavit, # 2 Exhibit Certificate of Good Standing, # 3 Proposed Order)(Sharp, William) (Entered: 09/09/2015)
BAR STATUS Check completed re 93 MOTION for Daniel I. Mach to Appear Pro Hac Vice (Filing fee $95; receipt number 0643−3301110), 95 MOTION for Heather L. Weaver to Appear Pro Hac Vice (Filing fee $95; receipt number 0643−3301132), 94 MOTION for Ria Tabacco Mar to Appear Pro Hac Vice (Filing fee $95; receipt number 0643−3301118) for Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (KSS) (Entered: 09/10/2015)
96 ORDER: Upon the Court's own motion, IT IS ORDERED that Third−Party Plaintiff Kim Davis shall file a written response to Third−Party Defendants' Motion to Dismiss Third−Party Complaint DE 92 by close of business on Monday, September 14, 2015. Third−Party Defendants shall submit their reply brief by close of business on Wednesday, September 16, 2015. Upon the filing of the reply, the Clerk shall submit the motion to the undersigned's chambers for decision. Signed by Judge David L.

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 25 of 36

09/10/2015 09/11/2015 09/11/2015 09/11/2015 09/11/2015
09/11/2015
09/11/2015 09/11/2015 09/15/2015 09/16/2015

Bunning on 9/10/15.(KSS)cc: COR (Entered: 09/10/2015)
97 REPLY to Response to Motion re 70 MOTION for Injunction Pending Appeal of This Court's August 25, 2015 Order by Kim Davis, Kim Davis(In her official capacity as Rowan County Clerk) filed by Kim Davis, Kim Davis. (Christman, Jonathan) (Entered: 09/10/2015)
98 (Copy of) USCA for SIXTH CIRCUIT LETTER directing the appellee(s) to respond to motion to stay injunction pending appeal on or before close of business Tuesday, September 15, 2015 (Attachments: # 1 Appellant's Motion to Stay Injunction)(KSS) (Entered: 09/11/2015)
99 MOTION for Horatio G. Mihet to Appear Pro Hac Vice by Kim Davis, Kim Davis ( Filing fee $95; receipt number 0643−3303754) (Attachments: # 1 Declaration of Horatio G. Mihet, Esq., # 2 Exhibit A: Certificate of Good Standing for Horatio G. Mihet, Esq.)(Christman, Jonathan) (Entered: 09/11/2015)
100 MOTION for Extension of Time to File Response/Reply as to 92 MOTION to Dismiss by Steven L. Beshear, Wayne Onkst Third−Party Complaint by Kim Davis, Kim Davis (UNOPPOSED) (Attachments: # 1 Proposed Order Granting Unopposed Motion for Extension of Time)(Gannam, Roger) (Entered: 09/11/2015)
101 VIRTUAL ORDER: granting 100 MOTION for Extension of Time to File Response/Reply as to 92 MOTION to Dismiss by Steven L. Beshear, Wayne Onkst Third−Party Complaint by Kim Davis. IT IS ORDERED that Defendant/Third Party Plaintiff Kim Davis shall file a written response to Third−Party Defendants Motion to Dismiss Third−Party Complaint 92 by close of business on Thursday, September 24, 2015. Third−Party Defendants shall submit their reply brief by close of business on Tuesday, September 29, 2015. Upon filing of the reply, the clerk shall submit the motion to the undersigned's chambers for decision. Signed by Judge David L. Bunning on 9/11/15.(KSS)cc: COR (Entered: 09/11/2015)
102 VIRTUAL ORDER: granting 93 MOTION for Daniel I. Mach to Appear Pro Hac Vice by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman ( Filing fee $95; receipt number 0643−3301110), 95 MOTION for Heather L. Weaver to Appear Pro Hac Vice by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman ( Filing fee $95; receipt number 0643−3301132), 99 MOTION for Horatio G. Mihet to Appear Pro Hac Vice by Kim Davis, Kim Davis ( Filing fee $95; receipt number 0643−3303754), 94 MOTION for Ria Tabacco Mar to Appear Pro Hac Vice by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman ( Filing fee $95; receipt number 0643−3301118). Signed by Judge David L. Bunning on 9/11/15. (KSS)cc: COR, Attorneys Mach, Weaver, Mar, Mihet (via US Mail w/ECF packet) (Entered: 09/11/2015)
103 ORDER: IT IS ORDERED that Davis' Motion for Injunctive Relief DE 70 be, and is, hereby DENIED. Davis retains the right to reassert her claim for injunctive relief on state law grounds in the appropriate state court. Signed by Judge David L. Bunning on 9/11/15. (KSS)cc: COR (Entered: 09/11/2015)
BAR STATUS Check completed as to Horatio G. Mihet re 99 MOTION for Horatio G. Mihet to Appear Pro Hac Vice by Kim Davis, Kim Davis ( Filing fee $95; receipt number 0643−3303754). (KSS) (Entered: 09/11/2015)
104 MOTION for James D. Esseks to Appear Pro Hac Vice by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman ( Filing fee $95; receipt number 0643−3306144) (Attachments: # 1 Affidavit, # 2 Exhibit Certificate of Good Standing, # 3 Proposed Order)(Sharp, William) (Entered: 09/15/2015)
BAR STATUS Check completed as to James D. Esseks re 104 MOTION for James D. Esseks to Appear Pro Hac Vice by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman ( Filing fee $95; receipt number 0643−3306144). (KSS) (Entered: 09/16/2015)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 26 of 36

09/16/2015
09/16/2015 09/16/2015 09/16/2015 09/16/2015 09/16/2015 09/16/2015 09/17/2015 09/18/2015
09/18/2015 09/18/2015
09/21/2015 09/21/2015 09/21/2015 09/21/2015 09/21/2015 09/21/2015

105 VIRTUAL ORDER: granting 104 MOTION for James D. Esseks to Appear Pro Hac Vice by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman(Filing fee $95; receipt number 0643−3306144). Signed by Judge David L. Bunning on 9/16/15. (KSS)cc: COR, Esseks (via US Mail w/ECF packet) (Entered: 09/16/2015)
106 CJA 20: Appointment of Attorney Michael R. Campbell for Nathaniel Davis. Signed by Judge David L. Bunning on 9/3/15.(KSS)cc: COR (Entered: 09/16/2015)
107 CJA 20: Appointment of Attorney Michael B. Fox for Chrissy Plank. Signed by Judge David L. Bunning on 9/3/15.(KSS)cc: COR (Entered: 09/16/2015)
108 CJA 20: Appointment of Attorney Richard A. Hughes for Brian Mason. Signed by Judge David L. Bunning on 9/3/15.(KSS)cc: COR (Entered: 09/16/2015)
109 CJA 20: Appointment of Attorney Sebastian Joy for Kim Russell. Signed by Judge David L. Bunning on 9/3/15.(KSS)cc: COR (Entered: 09/16/2015)
110 CJA 20: Appointment of Attorney Andy Markelonis for Melissa Thompson. Signed by Judge David L. Bunning on 9/3/15.(KSS)cc: COR (Entered: 09/16/2015)
111 CJA 20: Appointment of Attorney Jeremy L. Clark for Roberta Earley. Signed by Judge David L. Bunning on 9/3/15.(KSS)cc: COR (Entered: 09/16/2015)
112 ORDER of USCA: Order filed denying motion to stay injunction pending appeal for failure to comply with Rule 8(a)(1) 43 filed by Mr. Roger K. Gannam (Attachments: # 1 USCA Cover Letter)(KSS) (Entered: 09/17/2015)
113 EMERGENCY MOTION to Stay re 74 Order on Motion to Amend/Correct,, by Kim Davis, Kim Davis Pending Appeal (Attachments: # 1 Memorandum in Support of Emergency Motion for Immediate Consideration and Motion to Stay September 3, 2015 Injunction Order Pending Appeal, # 2 Exhibit A: Kim Davis' Emergency Motion to Stay filed in Sixth Circuit on September 11, 2015, # 3 Exhibit B: Plaintiffs' response to Motion to Stay filed in the Sixth Circuit on September 15, 2015, # 4 Exhibit C: Third−Party Defendants' response to Motion to Stay filed in the Sixth Circuit on September 15, 2015, # 5 Exhibit D: Kim Davis' Reply Brief in support of Motion to Stay filed in the Sixth Circuit on September 16, 2015, # 6 Exhibit E: Sixth Circuit Motions Panel Decision dated September 17, 2015, # 7 Proposed Order Granting Emergency Motion for Immediate Consideration and Motion to Stay September 3, 2015 Injunction Order Pending Appeal)(Christman, Jonathan) (Entered: 09/18/2015)
114 NOTICE OF FILING Report by Brian Mason (Hughes, Richard) Modified on 9/21/2015 to further describe (KSS). (Entered: 09/18/2015)
115 MOTION to Reopen Briefing and Expedite Consideration of Plaintiffs' Class Certification Motion by Jody Fernandez, Kevin Holloway, April Miller, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (Attachments: # 1 Proposed Order)(Weaver, Heather) Modified on 9/21/2015 to further describe (KSS). (Entered: 09/18/2015)
***FILE SUBMITTED TO CHAMBERS of Bunning for review: 114 Notice of Filing Report of Clerk Brian Mason (KSS) (Entered: 09/21/2015)
116 NOTICE OF FILING by Kim Russell re 89 Order,,,, (Joy, Sebastian) (Entered: 09/21/2015)
117 NOTICE OF FILING by Melissa Thompson (Markelonis, Andy) (Entered: 09/21/2015)
118 NOTICE OF FILING by Chrissy Plank (Fox, Michael) (Entered: 09/21/2015)
119 NOTICE OF FILING by Roberta Earley (Clark, Jeremy) (Entered: 09/21/2015)
120 MOTION for Order by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman Motion to Enforce (Attachments: # 1 Exhibit Marriage License, # 2 Proposed Order)(Weaver, Heather) (Entered: 09/21/2015)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 27 of 36

09/23/2015
09/24/2015 09/24/2015 09/29/2015
09/30/2015 10/04/2015 10/05/2015 10/05/2015 10/05/2015 10/05/2015 10/06/2015
10/06/2015 10/09/2015
10/13/2015
10/13/2015
10/14/2015
10/20/2015

121 ORDER: IT IS ORDERED that Defendant Kim Davis' Emergency Motion to Stay the Court's Injunction Order of September 3, 2015 Pending Appeal DE 113 be, and is, hereby DENIED. Signed by Judge David L. Bunning on 9/23/15. (KSS)cc: COR (Entered: 09/23/2015)
122 AMENDED DOCUMENT by Roberta Earley. Amendment to 119 Notice of Filing to correct paragraph two. (Clark, Jeremy) (Entered: 09/24/2015)
123 RESPONSE BRIEF to Third−Party Defendants' Motion to Dismiss Third−Party Complaint filed by Kim Davis, Kim Davis. (Christman, Jonathan) Modified on 9/25/2015 to create link to Motion 92 (KSS). (Entered: 09/24/2015)
124 REPLY to Response to Motion re 92 MOTION to Dismiss by Steven L. Beshear, Wayne Onkst Third−Party Complaint filed by Steven L. Beshear, Wayne Onkst. (Attachments: # 1 Exhibit 1: Sixth Circuit Order, # 2 Exhibit 2: Motion to Dismiss Appeal, # 3 Exhibit 3: Plaintiffs' Response to Motion for Injunction Pending Appeal)(Vance, Palmer) (Entered: 09/29/2015)
***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 92 MOTION to Dismiss by Steven L. Beshear, Wayne Onkst Third−Party Complaint (KSS) (Entered: 09/30/2015)
125 NOTICE OF FILING by Kim Russell (Joy, Sebastian) (Entered: 10/04/2015)
126 NOTICE OF FILING by Melissa Thompson (Markelonis, Andy) (Entered: 10/05/2015)
127 STATUS REPORT by Chrissy Plank. (Fox, Michael) (Entered: 10/05/2015)
128 NOTICE OF FILING by Kim Russell (Joy, Sebastian) (Entered: 10/05/2015)
129 SECOND STATUS REPORT by Roberta Earley. (Clark, Jeremy) (Entered: 10/05/2015)
130 ORDER: IT IS ORDERED that CJA counsel for the five (5) deputy clerks who indicated they would comply with the Court's Order shall file Status Reports every thirty (30) days from the date of entry of this Order, unless otherwise excused by the Court. In these filings, counsel shall continue to report on their clients' respective compliance with the Court's Orders of August 12, 2015 and September 3, 2015. Signed by Judge David L. Bunning on 10/6/15.(KSS)cc: COR (Entered: 10/06/2015)
131 NOTICE OF FILING by Brian Mason (Hughes, Richard) (Entered: 10/06/2015)
132 RESPONSE in Opposition re 115 MOTION to Reopen Briefing and Expedite Consideration of Plaintiffs' Class Certification Motion by Jody Fernandez, Kevin Holloway, April Miller, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman filed by Kim Davis, Kim Davis. (Christman, Jonathan) (Entered: 10/09/2015)
133 RESPONSE in Opposition re 120 MOTION for Order by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman Motion to Enforce filed by Kim Davis, Kim Davis. (Christman, Jonathan) (Entered: 10/13/2015)
134 RESPONSE in Opposition re 115 MOTION to Reopen Briefing and Expedite Consideration of Plaintiffs' Class Certification Motion by Jody Fernandez, Kevin Holloway, April Miller, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman filed by Rowan County, Kentucky. (Mando, Jeffrey) (Entered: 10/13/2015)
135 ORDER: IT IS ORDERED that Third−Party Defendants, Gov. Beshear and Comm. Onkst, shall file a written response to Plf's Motion to Enforce DE 120 within thirty (30) days of the date of entry of this Order. Within their response the Third−Party Defendants shall address the validity of the marriage licenses issued by the Rowan County Clerk's Office on or after September 14, 2015. Signed by Judge David L. Bunning on 10/14/15.(KSS)cc: COR (Entered: 10/14/2015)
136 UNOPPOSED MOTION for Extension of Time to File Response/Reply as to 120 MOTION for Order by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman Motion to Enforce by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 28 of 36

10/21/2015
10/22/2015
10/23/2015
10/26/2015
10/26/2015 10/28/2015
11/04/2015 11/04/2015 11/04/2015 11/04/2015 11/04/2015 11/04/2015 11/05/2015 11/05/2015 11/13/2015
11/20/2015

Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (Attachments: # 1 Proposed Order)(Sharp, William) Modified on 10/21/2015 to add "unopposed" (KSS). (Entered: 10/20/2015)
***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 136 UNOPPOSED MOTION for Extension of Time to File Response/Reply as to 120 MOTION for Order by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman Motion to Enforce (KSS) (Entered: 10/21/2015)
137 ORDER: IT IS HEREBY ORDERED: Plaintiffs' Unopposed Motion for Extension of Time to File a Reply in Support of Plaintiffs' Motion to Enforce DE 120 is hereby GRANTED. IT IS FURTHER ORDERED: Plaintiffs may file a reply memorandum in support of their Motion to Enforce DE 120 within seven (7) days of service of Third−Party Defendants' response. Signed by Judge David L. Bunning on 10/21/15. (KSS)cc: COR (Entered: 10/22/2015)
138 REPLY to Response to Motion re 115 MOTION to Reopen Briefing and Expedite Consideration of Plaintiffs' Class Certification Motion by Jody Fernandez, Kevin Holloway, April Miller, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Sharp, William) (Entered: 10/23/2015)
***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 115 MOTION to Reopen Briefing and Expedite Consideration of Plaintiffs' Class Certification Motion by Jody Fernandez, Kevin Holloway, April Miller, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (SMT) (Entered: 10/26/2015)
139 ORDER: IT IS ORDERED that Plaintiffs' Motion to Reopen Briefing and Expedite Consideration DE 115 is DENIED. Signed by Judge David L. Bunning on 10/26/15. (KSS)cc: COR (Entered: 10/26/2015)
140 ORDER of USCA as to 83 Notice of Appeal as to 75 Order filed by Kim Davis. The release of Davis from custody largely if not entirely moots her request for an emergency stay of the contempt sanction, and her motion for a stay is therefore DENIED (Attachments: # 1 USCA Cover Letter)(KSS) (Entered: 10/28/2015)
141 NOTICE OF FILING by Brian Mason (Hughes, Richard) (Entered: 11/04/2015)
142 INCORRECT STATUS REPORT by Roberta Earley. (Clark, Jeremy) Modified on 11/4/2015 to reflect incorrect pdf attached by counsel(KSS). (Entered: 11/04/2015)
Clerk's Note: re 142 Status Report by Roberta Early. Counsel called to state incorrect pdf attached to entry by mistake (KSS) (Entered: 11/04/2015)
143 STATUS REPORT by Roberta Earley. (Clark, Jeremy) (Entered: 11/04/2015)
144 STATUS REPORT by Chrissy Plank. (Fox, Michael) (Entered: 11/04/2015)
145 NOTICE OF FILING by Kim Russell (Joy, Sebastian) (Entered: 11/04/2015)
146 NOTICE OF FILING by Melissa Thompson (Markelonis, Andy) (Entered: 11/05/2015)
147 ORDER of USCA: Order filed denying renewed motion to stay injunction pending appeal R.57 (Attachments: # 1 Cover letter)(KSS) (Entered: 11/05/2015)
148 RESPONSE to Motion re 120 MOTION for Order by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman Motion to Enforce filed by Steven L. Beshear, Wayne Onkst. (Vance, Palmer) (Entered: 11/13/2015)
149 REPLY to Response to Motion re 120 MOTION for Order by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman Motion to Enforce filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Attachments: # 1 Exhibit Fernandez Declaration)(Mar, Ria) (Entered: 11/20/2015)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 29 of 36

11/23/2015
12/04/2015 12/04/2015 12/04/2015 12/06/2015 12/08/2015 12/09/2015 12/10/2015 12/24/2015
01/11/2016
01/12/2016 02/02/2016 02/04/2016
02/09/2016 02/09/2016 02/10/2016
02/16/2016 02/21/2016 02/22/2016 02/22/2016

***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 120 MOTION for Order Motion to Enforce by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (KSS) (Entered: 11/23/2015)
150 NOTICE OF FILING by Kim Russell (Joy, Sebastian) (Entered: 12/04/2015)
151 STATUS REPORT by Roberta Earley. (Clark, Jeremy) (Entered: 12/04/2015)
152 STATUS REPORT by Chrissy Plank. (Fox, Michael) (Entered: 12/04/2015)
153 NOTICE OF FILING by Melissa Thompson (Markelonis, Andy) (Entered: 12/06/2015)
154 NOTICE OF FILING by Brian Mason (Hughes, Richard) (Entered: 12/08/2015)
155 NOTICE by Steven L. Beshear, Wayne Onkst of Substitution of Third−Party Defendant (Vance, Palmer) (Entered: 12/09/2015)
***FILE SUBMITTED TO CHAMBERS of Bunning for review: 155 Notice of Substitution of Third−Party Defendant by Steven L. Beshear (KSS) (Entered: 12/10/2015)
156 NOTICE by Kim Davis, Kim Davis of Supplemental Authority in Opposition to Third−Party Defendants' Motion to Dismiss Davis' Third−Party Complaint and Plaintiffs' Motion to Enforce September 3 and September 8 Orders (Attachments: # 1 Exhibit A: Governor Bevin's Executive Order 2015−048 Relating to the Commonwealth's Marriage License Form (December 22, 2015))(Christman, Jonathan) (Entered: 12/24/2015)
157 MOTION to Dismiss by Wayne Onkst, Matthew G. Bevin Third−Party Complaint, MOTION to Expedite by Wayne Onkst, Matthew G. Bevin Consideration (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 − Executive Order 2015−048, # 3 Exhibit 2 − Press Release of Liberty Counsel, # 4 Proposed Order − Granting Motion to Dismiss, # 5 Proposed Order − Granting Motion for Expedited Consideration)(Vance, Palmer) (Entered: 01/11/2016)
158 RESPONSE to 156 Notice of Supplemental Authority filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Mar, Ria) (Entered: 01/12/2016)
159 MOTION for Order by Brian Mason (Hughes, Richard) (Additional attachment(s) added on 2/10/2016: # 1 Proposed Order) (TDA). (Entered: 02/02/2016)
160 RESPONSE in Opposition re 157 MOTION to Dismiss by Wayne Onkst, Matthew G. Bevin Third−Party Complaint MOTION to Expedite by Wayne Onkst, Matthew G. Bevin Consideration filed by Kim Davis, Kim Davis. (Attachments: # 1 Exhibit 1 − Order)(Gannam, Roger) (Entered: 02/04/2016)
161 ORDER: Plaintiffs' Motion to Enforce 120 DENIED AS MOOT. Signed by Judge David L. Bunning on 2/9/2016. (SKV) cc: COR (Entered: 02/09/2016)
162 NOTICE by Kim Russell re 159 MOTION for Order by Brian Mason (Attachments: # 1 Proposed Order)(Joy, Sebastian) (Entered: 02/09/2016)
163 VIRTUAL ORDER: denying 159 Motion for Order by Brian Mason However, the Court's prior Order requiring Status Reports by CJA counsel every thirty (30) days 130 is modified to only require the filing of Status Reports every ninety (90) days. Signed by Judge David L. Bunning on 2/10/2016. (SKV)cc: COR (Entered: 02/10/2016)
164 NOTICE OF FILING Status Report by Brian Mason (Hughes, Richard) Modified on 2/17/2016 to further describe (KSS). (Entered: 02/16/2016)
165 NOTICE OF FILING by Melissa Thompson (Markelonis, Andy) (Entered: 02/21/2016)
166 STATUS REPORT by Roberta Earley. (Clark, Jeremy) (Entered: 02/22/2016)
167 NOTICE OF FILING by Kim Russell (Joy, Sebastian) (Entered: 02/22/2016)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 30 of 36

02/22/2016 02/22/2016
02/23/2016
03/31/2016 03/31/2016 04/19/2016
05/31/2016 05/31/2016 05/31/2016 06/02/2016 06/03/2016 07/12/2016 07/13/2016 07/13/2016
08/04/2016 08/18/2016
08/18/2016

168 STATUS REPORT by Chrissy Plank. (Fox, Michael) (Entered: 02/22/2016)
169 REPLY to Response to Motion re 157 MOTION to Dismiss by Wayne Onkst, Matthew G. Bevin Third−Party Complaint MOTION to Expedite by Wayne Onkst, Matthew G. Bevin Consideration filed by Matthew G. Bevin, Wayne Onkst. (Vance, Palmer) (Entered: 02/22/2016)
***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 157 MOTION to Dismiss by Wayne Onkst, Matthew G. Bevin Third−Party Complaint MOTION to Expedite by Wayne Onkst, Matthew G. Bevin Consideration (SMT) (Entered: 02/23/2016)
170 NOTICE by Matthew G. Bevin, Terry Manuel of Substitution of Third−Party Defendant (Vance, Palmer) (Entered: 03/31/2016)
***FILE SUBMITTED TO CHAMBERS of Bunning for review: 170 Notice by Matthew G. Bevin, Terry Manuel of Substitution of Third−Party Defendant (KSS) (Entered: 03/31/2016)
171 ORDER of USCA as to 66 Notice of Appeal filed by Kim Davis. Order filed granting motion to dismiss parties Matthew G. Bevin and Wayne Onkst and to dismiss case 15−5961 for lack of jurisdiction. No mandate to issue. (Attachments: # 1 6CCA Cover letter)(KSS) (Entered: 04/19/2016)
172 NOTICE OF FILING by Kim Russell (Joy, Sebastian) (Entered: 05/31/2016)
173 NOTICE OF FILING by Brian Mason (Hughes, Richard) (Entered: 05/31/2016)
174 STATUS REPORT by Chrissy Plank. (Fox, Michael) (Entered: 05/31/2016)
175 STATUS REPORT by Roberta Earley. (Clark, Jeremy) (Entered: 06/02/2016)
176 NOTICE OF FILING by Melissa Thompson (Markelonis, Andy) (Entered: 06/03/2016)
177 MOTION to Withdraw as Attorney by Kim Davis, Kim Davis Jonathan D. Christman, Esq. (Attachments: # 1 Proposed Order Granting Motion to Withdraw as Attorney)(Christman, Jonathan) (Entered: 07/12/2016)
178 ORDER: IT IS HEREBY ORDERED that Jonathan D. Christman, Esq. is withdrawn as an attorney of record for Defendant/Third Party Plaintiff Kim Davis in this matter. Signed by Judge David L. Bunning on 7/13/16. (KSS)cc: COR (Entered: 07/13/2016)
179 INFORMATION COPY OF ORDER/JUDGMENT of USCA as to 44 Notice of Appeal, filed by Kim Davis, 82 Notice of Appeal filed by Kim Davis; the appeals are DISMISSED and REMAND this matter to the district court with instructions to vacate its August 12, 2015 preliminary injunction order and its September 3, 2015 order modifying that injunction. Mandate to issue. (Attachments: # 1 USCA Cover Letter)(KSS) (Entered: 07/13/2016)
180 MANDATE of USCA: Pursuant to the court's disposition that was filed 7/13/2016 the mandate for this case hereby issues today as to 44 Notice of Appeal, 82 Notice of Appeal by Kim Davis (Attachments: # 1 6CCA letter)(KSS) (Entered: 08/04/2016)
181 ORDER: IT IS ORDERED that the Court's Order of August 12, 2015 DE 43 , granting Plaintiffs' Motion for Preliminary Injunction, and the Court's Order of September 3, 2015, modifying the injunction DE 74 be, and are, hereby VACATED. Signed by Judge David L. Bunning on 8/18/16.(KSS)cc: COR (Entered: 08/18/2016)
182 ORDER: IT IS ORDERED as follows: (1) In Miller v. Davis, et al, 0:15−cv−44, Plaintiffs' Motion to Certify a Class DE 31 , Defendant Kim Davis' Motion to Dismiss DE 32 , Defendant Kim Davis' Motion for Preliminary Injunction DE 39 , Third−Party Defendant Steven Beshear's Motion to Dismiss DE 92 , and Third−Party Defendant Matt Bevin's Motion to Dismiss DE 157 be, and are, hereby DENIED AS MOOT; (2) The stays imposed in Ermold et al v. Davis, et al, 0:15−cv−46, and Yates, et al v. Davis, et al, 0:15−cv−62, be and are, hereby LIFTED; (3) In Ermold, et al v. Davis, et al, 0:15−cv−46, Defendant Kim Davis' Motion to Dismiss DE 11 and Plaintiffs' Motion to Set Briefing Schedule DE 14 be, and are, hereby DENIED AS MOOT; (4) The CJA Attorneys representing the Rowan County Deputy Clerks be, and are, hereby

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 31 of 36

08/19/2016 08/19/2016 08/19/2016 08/19/2016 08/19/2016 08/19/2016 09/19/2016
09/20/2016
09/21/2016 09/21/2016 10/10/2016 10/11/2016

DISCHARGED from further service in this matter; and (5) The three above−captioned actions be, and are, hereby DISMISSED and STRICKEN from the Court's active docket. Signed by Judge David L. Bunning on 8/18/16.(KSS)cc: COR (Entered: 08/18/2016)
CJA Appointment of Attorney. The Clerk entered the representation and appointment in the eVoucher system for Michael R. Campbell for Nathaniel Davis (SMT) (Entered: 08/19/2016)
CJA Appointment of Attorney. The Clerk entered the representation and appointment in the eVoucher system for Michael B. Fox for Chrissy Plank (SMT) (Entered: 08/19/2016)
CJA Appointment of Attorney. The Clerk entered the representation and appointment in the eVoucher system for Richard A. Hughes for Brian Mason (SMT) (Entered: 08/19/2016)
CJA Appointment of Attorney. The Clerk entered the representation and appointment in the eVoucher system for Sebastian Joy for Kim Russell (SMT) (Entered: 08/19/2016)
CJA Appointment of Attorney. The Clerk entered the representation and appointment in the eVoucher system for Andy Markelonis for Melissa Thompson (SMT) (Entered: 08/19/2016)
CJA Appointment of Attorney. The Clerk entered the representation and appointment in the eVoucher system for Jeremy Clark. for Roberta Earley (SMT) (Entered: 08/19/2016)
183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1−Marriage License Miller/Roberts, # 3 Exhibit 2−Marriage License Skaggs/Spartman, # 4 Exhibit 3−Dec. Belzley, # 5 Exhibit 4−Dec. Sharp, # 6 Exhibit 5−Dec. Canon, # 7 Exhibit 6−Dec. Esseks, # 8 Exhibit 7−Dec. Clark, # 9 Exhibit 8−Dec. Mach, # 10 Proposed Order)(Weaver, Heather) Modified on 9/20/2016 to describe exhibits (KSS). (Entered: 09/19/2016)
NOTICE OF DOCKET MODIFICATION TO Heather Weaver re 183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman.Error: attachments were insufficiently described as Exhibit.Entry by attorney; Correction: the Clerk renamed the attachments. Attachmentsmust be adequately described. Example: Exhibit A (incorrect); Exhibit AAffidavit of John Doe (correct). No further action required by counsel.cc: COR (KSS) (Entered: 09/20/2016)
184 ORDER REFERRING MOTION: IT IS ORDERED that Plaintiffs' Motion for Attorney Fees DE 183 is referred to Magistrate Judge Edward B. Atkins for review and preparation of a Report and Recommendation. Motions referred to Edward B. Atkins. Signed by Judge David L. Bunning on 10/20/16.(KSS)cc: COR (Entered: 09/21/2016)
***MOTION SUBMITTED TO CHAMBERS of Atkins for review: re 183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (KSS) (Entered: 09/21/2016)
185 CONSENT MOTION for Extension of Time to File Response/Reply as to 183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman by Kim Davis, Kim Davis (Attachments: # 1 Proposed Order)(Gannam, Roger) (Entered: 10/10/2016)
***MOTION SUBMITTED TO CHAMBERS of Atkins for review: re 185 CONSENT MOTION for Extension of Time to File Response/Reply as to 183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (KSS) (Entered: 10/11/2016)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 32 of 36

10/11/2016 10/12/2016 10/13/2016 10/13/2016
10/21/2016 10/27/2016 10/27/2016 10/27/2016 10/31/2016 11/14/2016 12/30/2016 12/30/2016 01/03/2017

186 ORDER: The motion 185 is GRANTED. Defendant/Third−Party Plaintiff shall file her response to Plaintiff's Motion for Award of Attorneys' Fees and Costs DE 183 on or before October 27, 2016. Signed by Magistrate Judge Edward B. Atkins on 10/11/16.(KSS)cc: COR (Entered: 10/11/2016)
187 MOTION for Extension of Time to File Response/Reply (Unopposed) as to 183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman by Rowan County, Kentucky (Attachments: # 1 Proposed Order)(Mando, Jeffrey) Modified on 10/13/2016 (KSS). (Entered: 10/12/2016)
***MOTION SUBMITTED TO CHAMBERS of Atkins for review: re 187 MOTION for Extension of Time to File Response/Reply as to 183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman by Rowan County, Kentucky < (KSS) (Entered: 10/13/2016)
188 ORDER: Upon Motion of Defendant Rowan Co. Ky and the Court being otherwise fully advised and informed, Defendant's Unopposed Motion for an Extension of Time to Respond to Plaintiff's Motion for Award of Attys Fees and Costs is GRANTED. Defendant Rowan County shall have up to and including October 27, 2016 to file its Response to Plaintiff's Motion for Award of Attys Fees and Costs. Signed by Magistrate Judge Edward B. Atkins on 10/13/16.(KSS)cc: COR (Entered: 10/13/2016)
189 Letter from Betty Crawford filed in record per chambers of Judge Caldwell (SMT) (Entered: 10/21/2016)
190 CONSENT MOTION for Extension of Time to File Response/Reply as to 183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman by Kim Davis, Kim Davis (Attachments: # 1 Proposed Order)(Gannam, Roger) (Entered: 10/27/2016)
191 ORDER: The unopposed motion for extension of time 190 is GRANTED. Defendant/Third Party Plaintiff shall file her response to Plaintiffs Motion for Award of Attorneys' Fees and Costs DE 183 on or before October 31, 2016. Signed by Judge David L. Bunning on 10/27/16. (KSS)cc: COR (Entered: 10/27/2016)
192 RESPONSE in Opposition re 183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman filed by Rowan County, Kentucky. (Mando, Jeffrey) (Entered: 10/27/2016)
193 RESPONSE in Opposition re 183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman filed by Kim Davis, Kim Davis. (Attachments: # 1 Exhibit A − Declaration of Kim Davis)(Gannam, Roger) (Entered: 10/31/2016)
194 REPLY to Response to Motion re 183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Sharp, William) (Entered: 11/14/2016)
195 MOTION to Strike Plaintiff's Reply, or Alternatively, Leaave to File Sur−Reply 194 Reply to Response to Motion, by Rowan County, Kentucky (Attachments: # 1 Proposed Order Proposed Order)(Mando, Jeffrey) Modified on 12/30/2016 to further describe (KSS). (Entered: 12/30/2016)
196 RESPONSE in Opposition (Sur−Reply in Opposition to Motion) re 195 MOTION to Strike 194 Reply to Response to Motion, by Rowan County, Kentucky , 183 MOTION for Attorney Fees by Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman filed by Rowan County, Kentucky. (Mando, Jeffrey) Modified on 12/30/2016 (KSS). (Entered: 12/30/2016)
197 NOTICE of Change of Address by Leonard Joe Dunman (Dunman, Leonard) (Entered: 01/03/2017)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 33 of 36

01/19/2017 03/06/2017
03/20/2017
03/20/2017 03/20/2017
03/21/2017 04/07/2017 04/10/2017 05/01/2017 05/02/2017 07/21/2017
08/03/2017 08/18/2017

198 RESPONSE to Motion re 195 MOTION to Strike Plaintiff's Reply, or Alternatively, Leaave to File Sur−Reply 194 Reply to Response to Motion, by Rowan County, Kentucky filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Attachments: # 1 Proposed Order)(Sharp, William) (Entered: 01/19/2017)
199 RECOMMENDED DISPOSITION AND ORDER: (1) IT IS ORDERED that the motion to strike R. 195 is DENIED; and (2) IT IS RECOMMENDED that the Plaintiffs' motions for fees R. 183 be DENIED. Specific objs to this R&R must be filed within fourteen (14) days from the date of service thereof or further appeal is waived. Signed by Magistrate Judge Edward B. Atkins on 3/6/17.(KSS)cc: COR (Entered: 03/06/2017)
200 INCORRECTLY FILED AS NOTICE OF FILING by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman re 199 Report and Recommendations, Terminate Motions,, Plaintiffs' Objections to Magistrate Judge's Recommendation (Sharp, William) Modified on 3/21/2017 Please see DE 201 for correct filing (KSS). (Entered: 03/20/2017)
201 PLAINTIFF'S OBJECTIONS to 199 Report and Recommendations filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (KSS) (Entered: 03/21/2017)
NOTICE OF DOCKET MODIFICATION TO William Sharp re 200 Notice of Filing Error: the Objections to the Magistrate Judge's Report and Recommendation [#199] was incorrectly filed using the event Notice of Filing. Entry by attorney; Clerk modified the docket text of [#200] to state, incorrectly filed. Clerk filed the Objections as [#201]; In the future, contact the ECF help desk when assistance is needed to select the correct event. No further action required by counsel. cc: COR (KSS) (Entered: 03/21/2017)
202 ORDER: IT IS ORDERED that Defendants Kim Davis and Rowan County, Kentucky shall file a written response to Plaintiffs' Objections on or before Monday, April 10, 2017. Any Reply should be filed by Plaintiffs on or before Monday, May 1, 2017. Signed by Judge David L. Bunning on 3/21/17.(KSS)cc: COR (Entered: 03/21/2017)
203 RESPONSE TO OBJECTION to 199 Report and Recommendations filed by Rowan County, Kentucky. (Mando, Jeffrey) Modified on 4/10/2017 to add link to objection (KSS). (Entered: 04/07/2017)
204 RESPONSE TO OBJECTION to 199 Report and Recommendations filed by Kim Davis, Kim Davis. (Gannam, Roger) (Entered: 04/10/2017)
205 REPLY to 202 , 201 Plaintiffs' Objections filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Sharp, William) (Entered: 05/01/2017)
***FILE SUBMITTED TO CHAMBERS of Bunning for review: re 199 MAGISTRATE JUDGE'S RECOMMENDED DISPOSITION AND ORDER (KSS) (Entered: 05/02/2017)
206 MEMORANDUM OPINION & ORDER: (1) The R&R of the United States Magistrate Judge DE 199 is hereby REJECTED as the findings of fact and conclusions of law of the Court (2) Plaintiffs' Objections DE 201 are hereby SUSTAINED as set forth herein (3) Plaintiffs' Motion for Attorneys' Fees and Costs DE 183 is hereby GRANTED as follows: (a) Plaintiffs are awarded $222,695.00 in attorneys' fees; and (b) Plaintiffs are awarded $2,008.08 in costs; and (4) This matter is hereby STRICKEN from the Court's active docket. Signed by Judge David L. Bunning on 7/21/17.(KSS)cc: COR (Entered: 07/21/2017)
207 MOTION to Stay re 206 Memorandum Opinion & Order, Terminate Motions,,,, by Matthew G. Bevin, Terry Manuel (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Vance, Palmer) (Entered: 08/03/2017)
208 MOTION to Amend/Correct 206 Memorandum Opinion & Order, Terminate Motions,,,, by Matthew G. Bevin, Terry Manuel , MOTION to Alter Judgment by

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 34 of 36

08/23/2017 08/24/2017 08/29/2017 08/31/2017 09/01/2017 09/05/2017 09/07/2017
09/08/2017 09/14/2017
09/15/2017 09/15/2017 09/19/2017

Matthew G. Bevin, Terry Manuel as to 206 Memorandum Opinion & Order, Terminate Motions,,,, (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Vance, Palmer) (Entered: 08/18/2017)
209 RESPONSE to Motion re 207 MOTION to Stay re 206 Memorandum Opinion & Order, Terminate Motions,,,, by Matthew G. Bevin, Terry Manuel filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Attachments: # 1 Proposed Order)(Sharp, William) (Entered: 08/23/2017)
***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 207 MOTION to Stay re 206 Memorandum Opinion & Order, Terminate Motions by Matthew G. Bevin, Terry Manuel (SMT) (Entered: 08/24/2017)
210 ORDER: granting 207 Motion to Stay Enforcement of Memorandum Opinion and Order entered 7/21/17; That enforcement of MO&O entered 7/21/17 is STAYED pending further Order of the Court. Signed by Judge David L. Bunning on 8/29/17. (SMT)cc: COR (Entered: 08/29/2017)
211 Proposed Agreed Order/Stipulation for Extension of Time to File Response in Opposition to Motion to Amend Findings and Conclusions and Motion to Amend Judgment (Doc. 208) by Kim Davis, Kim Davis. (Gannam, Roger) (Entered: 08/31/2017)
***FILE SUBMITTED TO CHAMBERS of Bunning for review: re 211 Proposed Agreed Order/Stipulation for Extension of Time to File Response in Opposition to Motion to Amend Findings and Conclusions and Motion to Amend Judgment (Doc. 208) by Kim Davis, Kim Davis (SMT) (Entered: 09/01/2017)
212 ORDER: IT IS HEREBY ORDERED that Dft/Third−Party Plf Kim Davis' response in opposition to the Motion to Amend Findings and Motion to Amend Judgment DE 208 shall be filed on or before September 15, 2017. Signed by Judge David L. Bunning on 8/4/17.(KSS)cc: COR (Entered: 09/05/2017)
213 RESPONSE in Opposition re 208 MOTION to Amend/Correct 206 Memorandum Opinion & Order, Terminate Motions,,,, by Matthew G. Bevin, Terry Manuel MOTION to Alter Judgment by Matthew G. Bevin, Terry Manuel as to 206 Memorandum Opinion & Order, Terminate Motions,,,, filed by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Attachments: # 1 Proposed Order)(Sharp, William) (Entered: 09/07/2017)
214 RESPONSE in Opposition re 208 MOTION to Amend/Correct 206 Memorandum Opinion & Order, Terminate Motions,,,, by Matthew G. Bevin, Terry Manuel MOTION to Alter Judgment by Matthew G. Bevin, Terry Manuel as to 206 Memorandum Opinion & Order, Terminate Motions,,,, filed by Rowan County, Kentucky. (Mando, Jeffrey) (Entered: 09/08/2017)
215 CONSENT MOTION for Extension of Time to File Response/Reply as to 208 MOTION to Amend/Correct 206 Memorandum Opinion & Order, Terminate Motions,,,, by Matthew G. Bevin, Terry Manuel MOTION to Alter Judgment by Matthew G. Bevin, Terry Manuel as to 206 Memorandum Opinion & Order, Terminate Motions,,,, by Kim Davis, Kim Davis (Attachments: # 1 Proposed Order)(Gannam, Roger) (Entered: 09/14/2017)
***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 215 CONSENT MOTION for Extension of Time to File Response/Reply as to 208 MOTION to Amend/Correct 206 Memorandum Opinion & Order; MOTION to Alter Judgment by Matthew G. Bevin, Terry Manuel (KSS) (Entered: 09/15/2017)
216 ORDER: The motion 215 is GRANTED. Def/TPP shall file her response to Third Party Dfts' Motion to Amend Findings and Conclusions and Motion to Amend Judgment 208 on or before September 19, 2017. Signed by Judge David L. Bunning on 9/15/17.(KSS)cc: COR (Entered: 09/15/2017)
217 RESPONSE in Opposition re 208 MOTION to Amend/Correct 206 Memorandum Opinion & Order, Terminate Motions,,,, by Matthew G. Bevin, Terry Manuel MOTION to Alter Judgment by Matthew G. Bevin, Terry Manuel as to 206

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 35 of 36

09/20/2017 09/21/2017 09/21/2017 10/03/2017
10/04/2017 10/18/2017 10/23/2017 10/25/2017 11/21/2017 11/22/2017 11/22/2017 11/27/2017 11/28/2017

Memorandum Opinion & Order, Terminate Motions,,,, filed by Kim Davis, Kim Davis. (Gannam, Roger) (Entered: 09/19/2017)
218 Proposed Agreed Order/Stipulation Establishing Single Date to File Reply to Responses to Motion to Amend Findings and Conclusions and Motion to Amend Judgment by Matthew G. Bevin, Terry Manuel. (Vance, Palmer) Modified on 9/21/2017 to add filers (KSS). (Entered: 09/20/2017)
***PROPOSED AGREED ORDER SUBMITTED TO CHAMBERS of Bunning for review: re 218 Proposed Agreed Order/Stipulation Establishing Single Date to File Reply to Responses to Motion to Amend Findings and Conclusions and Motion to Amend Judgment by Matthew G. Bevin, Terry Manuel (KSS) (Entered: 09/21/2017)
219 ORDER: Third−Party Defendants shall submit their reply to all parties' responses to the Motion to Amend Findings and Conclusions and Motion to Amend Judgment DE 208 by or before October 3, 2017. Signed by Judge David L. Bunning on 9/21/17.(KSS)cc: COR (Entered: 09/21/2017)
220 REPLY to Response to Motion re 208 MOTION to Amend/Correct 206 Memorandum Opinion & Order, Terminate Motions,,,, by Matthew G. Bevin, Terry Manuel MOTION to Alter Judgment by Matthew G. Bevin, Terry Manuel as to 206 Memorandum Opinion & Order, Terminate Motions,,,, Reply in Support of Motion to Amend Findings and Conclusions and Motion to Amend Judgment of Third−Party Defendants filed by Matthew G. Bevin, Terry Manuel. (Vance, Palmer) (Entered: 10/03/2017)
***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 208 MOTION to Amend/Correct 206 Memorandum Opinion & Order, Terminate Motions by Matthew G. Bevin, Terry Manuel MOTION to Alter Judgment by Matthew G. Bevin, Terry Manuel as to 206 Memorandum Opinion & Order, Terminate Motions (SMT) (Entered: 10/04/2017)
221 NOTICE OF APPEARANCE by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman. (Cubbage, Amy) (Entered: 10/18/2017)
222 MEMORANDUM OPINION & ORDER: IT IS ORDERED that Third−Party Defendants Gov. Matthew G. Bevin and Commissioner of the Kentucky Dept. for Libraries and Archives Terry Manuel's Motion to Amend DE 208 be, and is hereby, DENIED. Signed by Judge David L. Bunning on 10/22/17.(KSS)cc: COR (Entered: 10/23/2017)
223 NOTICE of Change of Address by William Ellis Sharp (Sharp, William) (Entered: 10/25/2017)
224 NOTICE OF APPEAL as to 206 Memorandum Opinion & Order, Terminate Motions,,,, 222 Memorandum Opinion & Order, Terminate Motions,, by Matthew G. Bevin. (Filing Fee $505, Receipt No. 0643−3943805) (Vance, Palmer) Modified on 11/21/2017 (SCD). Modified on 11/22/2017 to add filer (KSS). (Entered: 11/21/2017)
225 USCA Case Number 17−6385 Case Manager Michelle Davis for 224 Notice of Appeal, filed by Matthew G. Bevin, Terry Manuel. (KSS) (Entered: 11/22/2017)
226 NOTICE OF APPEAL as to 206 Memorandum Opinion & Order, Terminate Motions by Kim Davis, Kim Davis. Filing fee $505, receipt number 0643−3945812. (Attachments: # 1 Exhibit A−Memorandum Opinion & Order 7/21/17)(Gannam, Roger) Modified on 11/27/2017 to describe exhibit (KSS). (Entered: 11/22/2017)
NOTICE OF DOCKET MODIFICATION TO Roger Gannam re 226 Notice of Appeal Error: Attachments were insufficiently described as "Exhibit A." Entry by attorney; Correction: the Clerk renamed the attachment. Attachments must be adequately described. Example: Exhibit A (incorrect); Exhibit A Affidavit of John Doe (correct). No further action required by counsel cc: COR (KSS) (Entered: 11/27/2017)
227 USCA Case Number 17−6404 Case Manager Michelle Davis for 226 Notice of Appeal, filed by Kim Davis. (KSS) (Entered: 11/28/2017)

Case 0:15-cv-44 As of: 12/07/2019 01:53 PM EST Page 36 of 36

08/23/2019 08/23/2019 08/23/2019 08/23/2019 09/16/2019 09/18/2019
09/19/2019
09/24/2019
10/11/2019 10/15/2019 11/04/2019 11/04/2019

228 INFORMATION COPY OF ORDER/JUDGMENT of USCA as to 226 Notice of Appeal, filed by Kim Davis − AFFIRM the district court's attorney's−fees award. (Attachments: # 1 Cover ltr)(JLS) (Entered: 08/23/2019)
229 INFORMATION COPY OF JUDGMENT of USCA as to 226 Notice of Appeal, filed by Kim Davis Affirm the district court's attorney's−fees award. (JLS) (Entered: 08/23/2019)
230 INFORMATION COPY OF ORDER of USCA as to 224 Notice of Appeal, filed by Matthew G. Bevin, Terry Manuel − AFFIRMED, mandate to issue. (Attachments: # 1 Cover ltr)(JLS) (Entered: 08/23/2019)
231 INFORMATION COPY OF JUDGMENT of USCA as to 224 Notice of Appeal, filed by Matthew G. Bevin, Terry Manuel − AFFIRMED (JLS) (Entered: 08/23/2019)
232 MANDATE of USCA as to 224 Notice of Appeal, filed by Matthew G. Bevin, Terry Manuel Appeal AFFIRMED (Attachments: # 1 6CCA cover letter)(JLS) (Entered: 09/16/2019)
233 CONSENT MOTION for Extension of Time by Steven L. Beshear, Matthew G. Bevin, Shantel Burke, Kim Davis, Kim Davis(Individually), Jody Fernandez, Kevin Holloway, Terry Manuel, April Miller, Stephen Napier, Wayne Onkst, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (Attachments: # 1 Proposed Order)(Sharp, William) (Entered: 09/18/2019)
***MOTION SUBMITTED TO CHAMBERS of Bunning for review: re 233 CONSENT MOTION for Extension of Time by Steven L. Beshear, Matthew G. Bevin, Shantel Burke, Kim Davis, Kim Davis(Individually), Jody Fernandez, Kevin Holloway, Terry Manuel, April Miller, Stephen Napier, Wayne Onkst, Karen Ann Roberts, L. Aaron Skaggs (JLS) (Entered: 09/19/2019)
234 ORDER: Pursuant to the Agreed Motion of the parties 233 , the Court orders as follows: Plf's shall have up to and incl 10/14/19 to file their motion for an award of atty's fees and costs, incl taxable costs, for all work performed subsequent to the Court's July 21, 2017 Order. Signed by Judge David L. Bunning on 9/24/19. (KSS)cc: COR (Entered: 09/24/2019)
235 JOINT MOTION for Extension of Time by Shantel Burke, Jody Fernandez, Kevin Holloway, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman (Attachments: # 1 Proposed Order)(Sharp, William) Modified on 10/15/2019 to add filers (JLS). (Entered: 10/11/2019)
236 ORDER: Plaintiffs shall have up to, and including, 11/4/2019, to file their motion for an award of attorney's fees and costs, including taxable costs, for all work performed subsequent to the Court's July 21, 2017 Order. Signed by Judge David L. Bunning on 10/15/19. (JLS)cc: COR (Entered: 10/15/2019)
237 NOTICE by Matthew G. Bevin, Shantel Burke, Jody Fernandez, Kevin Holloway, Terry Manuel, April Miller, Stephen Napier, Karen Ann Roberts, L. Aaron Skaggs, Barry W. Spartman re 236 Order on Motion for Extension of Time, NOTICE OF SATISFACTION OF FEE AWARD (Sharp, William) (Entered: 11/04/2019)
***FILE SUBMITTED TO CHAMBERS of Bunning for review: 237 Notice, (JLS) (Entered: 11/04/2019)

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CIVIL ACTION NO. 15-44-DLB
APRIL MILLER, et al.

PLAINTIFFS

vs.

MEMORANDUM OPINION AND ORDER

KIM DAVIS, individually and in her official capacity, et al.

DEFENDANTS

***********************

I. Introduction

This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction (Doc.

# 2). Plaintiffs are two same-sex and two opposite-sex couples seeking to enjoin Rowan

County Clerk Kim Davis from enforcing her own marriage licensing policy. On June 26,

2015, just hours after the U.S. Supreme Court held that states are constitutionally required

to recognize same-sex marriage, Davis announced that the Rowan County Clerk’s Office

would no longer issue marriage licenses to any couples. See Obergefell v. Hodges, 135

S. Ct. 2584 (2015). Davis, an Apostolic Christian with a sincere religious objection to

same-sex marriage, specifically sought to avoid issuing licenses to same-sex couples

without discriminating against them. Plaintiffs now allege that this “no marriage licenses”

policy substantially interferes with their right to marry because it effectively forecloses them

from obtaining a license in their home county. Davis insists that her policy poses only an

incidental burden on Plaintiffs’ right to marry, which is justified by the need to protect her

own free exercise rights.

1

The Court held preliminary injunction hearings on July 13, 2015 and July 20, 2015. Plaintiffs April Miller, Karen Roberts, Jody Fernandez, Kevin Holloway, Barry Spartman, Aaron Skaggs, Shantel Burke and Stephen Napier were represented by William Sharp of the Americans for Civil Liberties Union (“ACLU”) and Daniel Canon. Jonathan Christman and Roger Gannam, both of the Liberty Counsel, and A.C. Donahue appeared on behalf of Defendant Kim Davis. Rowan County Attorney Cecil Watkins and Jeff Mando represented Defendant Rowan County. Official Court Reporters Peggy Weber and Lisa Wiesman recorded the proceedings. At the conclusion of the second hearing, the Court submitted the Motion pending receipt of the parties’ response and reply briefs. The Court having received those filings (Docs. # 28, 29 and 36), this matter is now ripe for review.
At its core, this civil action presents a conflict between two individual liberties held sacrosanct in American jurisprudence. One is the fundamental right to marry implicitly recognized in the Due Process Clause of the Fourteenth Amendment. The other is the right to free exercise of religion explicitly guaranteed by the First Amendment. Each party seeks to exercise one of these rights, but in doing so, they threaten to infringe upon the opposing party’s rights. The tension between these constitutional concerns can be resolved by answering one simple question: Does the Free Exercise Clause likely excuse Kim Davis from issuing marriage licenses because she has a religious objection to samesex marriage? For reasons stated herein, the Court answers this question in the negative. II. Factual and Procedural Background
Plaintiffs April Miller and Karen Roberts have been in a committed same-sex relationship for eleven years. (Doc. # 21 at 25). After hearing about the Obergefell decision, they went to the Rowan County Clerk’s Office and requested a marriage license
2

from one of the deputy clerks. (Id. at 25-26). The clerk immediately excused herself and went to speak with Kim Davis. (Id. at 28). When she returned, she informed the couple that the Rowan County Clerk’s Office was not issuing any marriage licenses. (Id.). Plaintiffs Kevin Holloway and Jody Fernandez, a committed opposite-sex couple, had a similar experience when they tried to obtain a marriage license from the Rowan County Clerk’s Office. (Id. at 36).
Both couples went straight to Rowan County Judge Executive Walter Blevins and asked him to issue their marriage licenses. (Id. at 30-32, 36). Blevins explained that, under Kentucky law, a county judge executive can only issue licenses when the elected county clerk is absent. See Ky. Rev. Stat. Ann. § 402.240. Because Davis continued to perform her other duties as Rowan County Clerk, Blevins concluded that she was not “absent” within the meaning of the statute. (Id.). Therefore, he did not believe that he had the authority to issue their marriage licenses. (Id.).
Plaintiffs Barry Spartman and Aaron Skaggs also planned to solemnize their longterm relationship post-Obergefell. (Id. at 42-44). Before going to the Rowan County Clerk’s Office, they phoned ahead and asked for information about the marriage licensing process. (Id.). They wanted to make sure that they brought all necessary documentation with them. (Id.). One of the deputy clerks told the couple “not to bother coming down” because they would not be issued a license. (Id.).
Seven neighboring counties (Bath, Fleming, Lewis, Carter, Elliott, Morgan and Menifee) are currently issuing marriage licenses. (Doc. # 26 at 53). All are less than an hour away from the Rowan County seat of Morehead. (Id.). While Plaintiffs have the means to travel to any one of these counties, they have admittedly chosen not to do so.
3

(Doc. # 21 at 38, 48). They strongly prefer to have their licenses issued in Rowan County because they have significant ties to that community. (Id. at 28-29, 47). They live, work, socialize, vote, pay taxes and conduct other business in and around Morehead. (Id.). Quite simply, Rowan County is their home.
According to Kim Davis, the Rowan County Clerk’s Office serves as a “pass through collection agency” for the State of Kentucky. (Doc. # 26 at 24-25). She and her six deputy clerks regularly handle delinquent taxes, oversee elections, manage voter registration and issue hunting and fishing licenses. (Id.). A portion of the fees collected in exchange for these services is used to fund the Office’s activities throughout the year. (Id.). The remainder is remitted to the State. (Id.).
Under Kentucky law, county clerks are also responsible for issuing marriage licenses.1 See Ky. Rev. Stat. Ann. § 402.080. The process is quite simple. The couple must first go to the county clerk’s office and provide their biographical information to one of the clerks. See Ky. Rev. Stat. Ann. § 402.100. The clerk then enters the information into a computer-generated form, prints it and signs it. Id. This form signifies that the couple is licensed, or legally qualified, to marry.2 Id. At the appropriate time, the couple presents this form to their officiant, who must certify that he or she performed a valid marriage ceremony. Id. The couple then has thirty days to return the form to the clerk’s office for
1) This task requires relatively few resources, at least in Rowan County. (Doc. # 26 at 24-30). Davis testified that her Office issued 212 marriage licenses in 2014. Marriage licenses cost $35.50. (Id.). Of that sum, the Office retains $21.17, and remits the remaining $14.33 to the State. (Id.). Thus, Rowan County Clerk’s Office made about $4,500, or roughly 0.1% of its annual budget, from issuing marriage licenses in 2014. (Id.). Davis also estimated that the task of issuing marriage licenses occupies one hour of one deputy clerk’s time per week. (Id.). 2) A couple is “legally qualified” to marry if both individuals are over the age of eighteen, mentally competent, unrelated to each other and currently unmarried. See Ky. Rev. Stat. Ann. §§ 402.010, 402.020(a)-(d), (f).
4

recording. See Ky. Rev. Stat. Ann. §§ 402.220, 402.230. The State will not recognize
marriages entered into without a valid license therefor. See Ky. Rev. Stat. Ann. § 402.080.
The Kentucky Department of Libraries and Archives (“KDLA”) prescribes the abovementioned form, which must be used by all county clerks in issuing marriage licenses.3 Ky.
Rev. Stat. Ann. §§ 402.100, 402.110. It is composed of three sections, which correspond
to the steps detailed above: (1) a marriage license, to be completed by a county or deputy
clerk; (2) a marriage certificate, to be completed by a qualified officiant; and (3) a recording
statement, to be completed by a county or deputy clerk. The marriage license section has
the following components:
(a) An authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named;
(b) Vital information for each party, including the full name, date of birth, place of birth, race, condition (single, widowed, or divorced), number of previous marriages, occupation, current residence, relationship to the other party, and full names of parents; and
(c) The date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license.
See Ky. Rev. Stat. Ann. § 402.100(1) (emphasis added).
Davis does not want to issue marriage licenses to same-sex couples because they
will bear the above-mentioned authorization statement. She sees it as an endorsement of
same-sex marriage, which runs contrary to her Apostolic Christian beliefs. (Id. at 42). Four
of Davis’ deputy clerks share her religious objection to same-sex marriage, and another is
3) Only one aspect of the form has changed since Obergefell–whereas the marriage applicants were once referred to as “Bride” and “Groom,” they are now identified as “First Party” and “Second Party.”
5

undecided on the subject. (Id. at 49). The final deputy clerk is willing to issue the licenses,
but Davis will not allow it because her name and title still appear twice on licenses that she
does not personally sign. (Doc. # 29-3 at 7).
In the wake of Obergefell, Governor Beshear issued the following directive to all
county clerks:
Effective today, Kentucky will recognize as valid all same sex marriages performed in other states and in Kentucky. In accordance with my instruction, all executive branch agencies are already working to make any operational changes that will be necessary to implement the Supreme Court decision. Now that same-sex couples are entitled to the issuance of a marriage license, the Department of Libraries and Archives will be sending a gender-neutral form to you today, along with instructions for its use.
(Doc. # 29-3 at 11). He has since addressed some of the religious concerns expressed by
some county clerks:
You can continue to have your own personal beliefs but, you’re also taking an oath to fulfill the duties prescribed by law, and if you are at that point to where your personal convictions tell you that you simply cannot fulfill your duties that you were elected to do, th[e]n obviously an honorable course to take is to resign and let someone else step in who feels that they can fulfill those duties.
(Doc. # 29-11). Davis is well aware of these directives. Nevertheless, she plans to
implement her “no marriage licenses” policy for the remaining three and a half years of her
term as Rowan County Clerk. (Doc. # 26 at 67).
III. Standard of Review
A district court must consider four factors when entertaining a motion for preliminary
injunction:
(1) whether the movant has demonstrated a strong likelihood of success on the merits;
(2) whether the movant would suffer irreparable harm;
6

(3) whether an injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of such
an injunction. See Suster v. Marshall, 149 F.3d 523, 528 (6th Cir. 1998). These “are factors to be balanced, and not prerequisites that must be met.” In re Eagle Picher Indus., Inc., 963 F.3d 855, 859 (6th Cir. 1992) (stating further that these factors “simply guide the discretion of the court”).
IV. Analysis
A. Defendant Kim Davis in her official capacity
Plaintiffs are pursuing this civil rights action against Defendants Rowan County and Kim Davis, in her individual and official capacities, under 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
This statute “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal quotations omitted).
At this stage of the litigation, Plaintiffs seek to vindicate their constitutional rights by obtaining injunctive relief against Defendant Kim Davis, in her official capacity as Rowan County Clerk. Because official capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent,” one might assume that Plaintiffs are effectively pursuing injunctive relief against Rowan County. Monell v. New
7

York City Dep’t of Soc. Serv., 436 U.S. 658, 690 n. 55 (1978). However, Rowan County can only be held liable under § 1983 if its policy or custom caused the constitutional deprivation. Id. at 694.
A single decision made by an official with final policymaking authority in the relevant area may qualify as a policy attributable to the entity. Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83 (1986). Whether an official acted as a final policymaker is a question of state or local law. Id. However, courts must avoid categorizing an official as a state or municipal actor “in some categorical, ‘all or nothing’ manner.” McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 785 (1997). They key inquiry is whether an official is a “final policymaker [ ] for the local government in a particular area, or on a particular issue.” Id. Accordingly, the Court will focus on whether Davis likely acted as a final policymaker for Rowan County regarding the issuance of marriage licenses.
While Davis is the elected Rowan County Clerk, subject to very little oversight by the Rowan County Fiscal Court, there are no other facts in the record to suggest that she set marriage policy for Rowan County. After all, the State of Kentucky has “absolute jurisdiction over the regulation of the institution of marriage.” Pinkhasov v. Petocz, 331 S.W.3d 285, 291 (Ky. Ct. App. 2011). 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. Id.; see also Ky. Rev. Stat. Ann. §§ 402.080, 402.100. Thus, Davis likely acts for the State of Kentucky, and not as a final policymaker for Rowan County, when issuing marriage licenses.
This preliminary finding does not necessarily foreclose Plaintiffs from obtaining injunctive relief against Davis. While the Eleventh Amendment typically bars Plaintiffs from
8

bringing suit against a state or its officials, “official-capacity actions for prospective relief are not treated as actions against the state.” Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985). This narrow exception, known as the Ex Parte Young doctrine, permits a federal court to “enjoin state officials to conform their future conduct to the requirements of federal law.” Quern v. Jordan, 440 U.S. 332, 337 (1979) (citing Ex Parte Young, 209 U.S. 123 (1908)). “It rests on the premise–less delicately called a ‘fiction,’–that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign immunity purposes.” Va. Office for Prot. and Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011). Because Plaintiffs seek to enjoin Davis from violating their federal constitutional rights, this Court has the power to grant relief under Ex Parte Young.4
B. Plaintiffs’ Motion for Preliminary Injunction 1. Plaintiffs’ likelihood of success on the merits a. The fundamental right to marry
Under the Fourteenth Amendment, a state may not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. This “due process” clause has both a procedural component and a substantive component. See EJS Prop., LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012). Procedural due process simply requires that the government provide a fair procedure when depriving an individual of life, liberty or property. Id. By contrast, substantive due process “protects a narrow class
4) In their reply brief, Plaintiffs argued that the Court need not decide whether Davis is a state actor or municipal policymaker in order to grant injunctive relief. The Court’s preliminary finding on this matter does not necessarily foreclose Plaintiffs from arguing the “municipal policymaker” theory in the future. The Court simply seeks to ensure that it is indeed able to grant injunctive relief against Kim Davis in her official capacity.
9

of interests, including those enumerated in the Constitution, those so rooted in the traditions of the people as to be ranked fundamental, and the interest in freedom from government actions that ‘shock the conscience.’” Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014).
Although the Constitution makes no mention of the right to marry, the U.S. Supreme Court has identified it as a fundamental interest subject to Fourteenth Amendment protection. Loving v. Virginia, 388 U.S. 1, 12 (1967) (striking down Virginia’s antimiscegenation statutes as violative of the Equal Protection and Due Process Clauses of the Fourteenth Amendment). After all, “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Id. This right applies with equal force to different-sex and same-sex couples. Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015) (“[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment same-sex couples may not be deprived of that right and that liberty.”).
If a state law or policy “significantly interferes with the exercise of a fundamental right[, it] cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki v. Redhail, 434 U.S. 374, 388 (1978). A state substantially interferes with the right to marry when some members of the affected class “are absolutely prevented from getting married” and “[m]any others, able in theory to satisfy the statute’s requirements[,] will be sufficiently burdened by having to do so that they will in effect be coerced into forgoing their right to marry.” Id. at 387 (invalidating a Wisconsin statute that required individuals with child support obligations to
10

obtain a court order before marrying). However, “not every state action, ‘which relates in any way to the incidents of or the
prerequisites for marriage must be subjected to rigorous scrutiny.’” Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1134 (6th Cir. 1995) (quoting Zablocki, 434 U.S. at 386). States may impose “reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship.” Id. at 1135. If the statute does not create a “direct legal obstacle in the path of persons desiring to get married” or significantly discourage marriage, then it will be upheld so long as it is rationally related to a legitimate government interest. Id. (quoting Zablocki 434 U.S. at 387-88 n. 12); see also Califano v. Jobst, 434 U.S. 47, 54 n.11 (1977) (upholding a Social Security provision that terminated secondary benefits received by the disabled dependent child of a covered wage earner if that child married an individual who was not entitled to benefits).
The state action at issue in this case is Defendant Davis’ refusal to issue any marriage licenses. Plaintiffs contend that Davis’ “no marriage licenses” policy significantly interferes with their right to marry because they are unable to obtain a license in their home county. Davis insists that her policy does not significantly discourage Plaintiffs from marrying because they have several other options for obtaining licenses: (1) they may go to one of the seven neighboring counties that are issuing marriage licenses; (2) they may obtain licenses from Rowan County Judge Executive Walter Blevins; or (3) they may avail themselves of other alternatives being considered post-Obergefell.
Davis is correct in stating that Plaintiffs can obtain marriage licenses from one of the surrounding counties; thus, they are not totally precluded from marrying in Kentucky. However, this argument ignores the fact that Plaintiffs have strong ties to Rowan County.
11

They are long-time residents who live, work, pay taxes, vote and conduct other business
in Morehead. Under these circumstances, it is understandable that Plaintiffs would prefer
to obtain their marriage licenses in their home county. And for other Rowan County
residents, it may be more than a preference. The surrounding counties are only thirty
minutes to an hour away, but there are individuals in this rural region of the state who simply do not have the physical, financial or practical means to travel.5
This argument also presupposes that Rowan County will be the only Kentucky
county not issuing marriage licenses. While Davis may be the only clerk currently turning
away eligible couples, 57 of the state’s 120 elected county clerks have asked Governor
Beshear to call a special session of the state legislature to address religious concerns related to same-sex marriage licenses.6 (Doc. # 29-9). If this Court were to hold that
Davis’ policy did not significantly interfere with the right to marry, what would stop the other
56 clerks from following Davis’ approach? What might be viewed as an inconvenience for
residents of one or two counties quickly becomes a substantial interference when
applicable to approximately half of the state.
As for her assertion that Judge Blevins may issue marriage licenses, Davis is only
partially correct. KRS § 402.240 provides that, “[i]n the absence of the county clerk, or
5) The median household income in Rowan County is $35,236 and 28.6% of the population lives below the poverty line. See United States Census Bureau, http://quickfacts.census.gov/qfd/states/21/21205.html. For the entire state of Kentucky, the median household income is $43,036 and 18.8% of the population lives below the poverty line. Id. 6) See also Jack Brammer, 57 County Clerks Ask Governor for Special Session on Same-Sex Marriage Licenses, The Lexington Herald Leader (July 8, 2015), http://www.kentucky.com/2015/07/08/3936545_57-kentucky-county-clerks-ask.html?rh=1; Terry DeMio, Boone, Ky. Clerks Want Same-Sex License Law, Cincinnati Enquirer (July 9, 2015), http://www.cincinnati.com/story/news/local/northern-ky/2015/07/09/boone-clerk-wants-special-legislative-s ession-address-sex-marriage-issues-clerks/29919103/.
12

during a vacancy in the office, the county judge/executive may issue the license and, in so doing, he shall perform the duties and incur all the responsibilities of the clerk.” The statute does not explicitly define “absence,” suggesting that a traditional interpretation of the term is appropriate. See Merriam-Webster Online Dictionary, 2015, http://www.merriam-webster.com/, (describing “absence” as “a period of time when someone is not present at a place, job, etc.”). However, Davis asks the Court to deem her “absent,” for purposes of this statute, because she has a religious objection to issuing the licenses. While this is certainly a creative interpretation, Davis offers no legal precedent to support it.
This proposal also has adverse consequences for Judge Blevins. If he began issuing marriage licenses while Davis continued to perform her other duties as Rowan County Clerk, he would likely be exceeding the scope of his office. After all, KRS § 402.240 only authorizes him to issue marriage licenses when Davis is unable to do so; it does not permit him to assume responsibility for duties that Davis does not wish to perform. Such an arrangement not only has the potential to create tension between the next judge executive and county clerk, it sets the stage for further manipulation of statutorily defined duties.7 Under these circumstances, the Court simply cannot count this as a viable option for Plaintiffs to obtain their marriage licenses.
7) Even if the Court were inclined to accept Davis’ interpretation of the term “absence,” it would have doubts about the practicality of this approach. Judge Blevins is the highest elected official in Rowan County. (Doc. # 26 at 7). He is frequently out of the office on official business. (Id.). While Judge Blevins would not have to process a large number of marriage requests, he might not be regularly available for couples seeking licenses. Thus, the Court would be concerned about Judge Blevins’ ability to perform this function as efficiently as Davis and her six deputy clerks.
13

Davis finally suggests that Plaintiffs will have other avenues for obtaining marriage licenses in the future. For example, county clerks have urged Governor Beshear to create an online marriage licensing system, which would be managed by the State of Kentucky. While these options may be available someday, they are not feasible alternatives at present. Thus, they have no impact on the Court’s “substantial interference” analysis.
Having considered Davis’ arguments in depth, the Court finds that Plaintiffs have one feasible avenue for obtaining their marriage licenses–they must go to another county. Davis makes much of the fact that Plaintiffs are able to travel, but she fails to address the one question that lingers in the Court’s mind. Even if Plaintiffs are able to obtain licenses elsewhere, why should they be required to? The state has long entrusted county clerks with the task of issuing marriage licenses. It does not seem unreasonable for Plaintiffs, as Rowan County voters, to expect their elected official to perform her statutorily assigned duties. And yet, that is precisely what Davis is refusing to do. Much like the statutes at issue in Loving and Zablocki, Davis’ “no marriage licenses” policy significantly discourages many Rowan County residents from exercising their right to marry and effectively disqualifies others from doing so. The Court must subject this policy apply heightened scrutiny.
b. The absence of a compelling state interest When pressed to articulate a compelling state interest served by her “no marriage licenses” policy, Davis responded that it serves the State’s interest in protecting her religious freedom. The State certainly has an obligation to “observe the basic free exercise rights of its employees,” but this is not the extent of its concerns. Marchi v. Bd. of Coop. Educ. Serv. of Albany, 173 F.3d 469, 476 (2d. Cir. 1999). In fact, the State has some
14

priorities that run contrary to Davis’ proffered state interest. Chief among these is its interest in preventing Establishment Clause violations. See U.S. Const. amend. I (declaring that “Congress shall make no law respecting the establishment of religion”). Davis has arguably committed such a violation by openly adopting a policy that promotes her own religious convictions at the expenses of others.8 In such situations, “the scope of the employees’ rights must [ ] yield to the legitimate interest of governmental employer in avoiding litigation.” Marchi, 173 F.3d at 476.
The State also has a countervailing interest in upholding the rule of law. See generally Papachristou v. City of Jacksonville, 405 U.S. 156, 171 (1972) (“The rule of law, evenly applied to minorities as well as majorities, . . . is the great mucilage that holds society together.”). Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions. Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent.
For these reasons, the Court concludes that Davis’ “no marriage licenses” policy likely infringes upon Plaintiffs’ rights without serving a compelling state interest. Because Plaintiffs have demonstrated a strong likelihood of success on the merits of their claim, this first factor weighs in favor of granting their request for relief.
2. Potential for irreparable harm to Plaintiffs When a plaintiff demonstrates a likelihood of success on the merits of a
8) Although it is not the focus of this opinion, Plaintiffs have already asserted such an Establishment Clause claim against Kim Davis in her official capacity. (Doc. # 1 at 13).
15

constitutional deprivation claim, it follows that he or she will suffer irreparable injury absent injunctive relief. See Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002) (“Courts have also held that a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional rights.”); see also Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir .1998) (finding that the loss of First Amendment rights for a minimal period of time results in irreparable harm); Ohio St. Conference of NAACP v. Husted, 43 F. Supp. 3d 808, 851 (S.D. Ohio 2014) (recognizing that a restriction on the fundamental right to vote constitutes irreparable injury).
The Court is not aware of any Sixth Circuit case law explicitly stating that a denial of the fundamental right to marry constitutes irreparable harm. However, the case law cited above suggests that the denial of constitutional rights, enumerated or unenumerated, results in irreparable harm. It follows that Plaintiffs will suffer irreparable harm from Davis’ “no marriage licenses” rule, absent injunctive relief. Therefore, this second factor also weighs in favor of granting Plaintiffs’ Motion.
3. Potential for substantial harm to Kim Davis a. The right to free exercise of religion
The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (applying the First Amendment to the states via the Fourteenth Amendment). This Free Exercise Clause “embraces two concepts,–freedom to believe and freedom to act.” Id. at 304. “The first is absolute but, in the nature of things, the second cannot be.” Id. Therefore, “[c]onduct remains subject to regulation for the
16

protection of society.” Id. Traditionally, a free exercise challenge to a particular law triggered strict scrutiny.
See, e.g., Sherbert v. Verner, 374 U.S. 398, 407 (1963). A statute would only be upheld if it served a compelling government interest and was narrowly tailored to effectuate that interest. Id. However, the U.S. Supreme Court has retreated slightly from this approach. See Emp’t Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). While laws targeting religious conduct remain subject to strict scrutiny, “[a] law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Babalu, 508 U.S. at 532; see also Smith, 494 U.S. at 880 (stating further that an individual’s religious beliefs do not “excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate”).
“Neutrality and general applicability are interrelated, and . . . failure to satisfy one requirement is a likely indication that the other has not been satisfied.” Babalu, 508 U.S. at 532. A law is not neutral if its object “is to infringe upon or restrict practices because of their religious motivation.” Id. at 533 (finding that a local ordinance forbidding animal sacrifice was not neutral because it focused on “rituals” and had built-in exemptions for most other animal killings). The Court has not yet “defined with precision the standard used to evaluate whether a prohibition is of general application.” Id. at 543. However, it has observed that “[t]he Free Exercise Clause ‘protect[s] religious observers against unequal treatment,’ and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious
17

motivation.” Id. at 542. While Smith and Babalu do not explicitly mention the term “rational basis,” lower
courts have interpreted them as imposing a similar standard of review on neutral laws of general applicability. See, e.g., Seger v. Ky. High Sch. Athletic Ass’n, 453 F. App’s 630, 634 (2011). Under rational basis review, laws will be upheld if they are “rationally related to furthering a legitimate state interest.” Id. at 635 (noting that “[a] law or regulation subject to rational basis review is accorded a strong presumption of validity”); see also F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (stating generally that laws subject to rational basis review must be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification”).
In response to Smith and Babalu, Congress enacted the Religious Freedom Restoration Act (“RFRA”). See 42 U.S.C. § 2000bb-1. It prohibits the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,” except when the government demonstrates that the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. Id. Although Congress intended RFRA to apply to the states as well as the federal government, the Court held that this was an unconstitutional exercise of Congress’ powers under Section Five of the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 512 (1997). Free exercise challenges to federal laws remain subject to RFRA, while similar challenges to state policies are governed by Smith. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
For purposes of this inquiry, the state action at issue is Governor Beshear’s postObergefell directive, which explicitly instructs county clerks to issue marriage licenses to
18

same-sex couples. Davis argues that the Beshear directive not only substantially burdens
her free exercise rights by requiring her to disregard sincerely-held religious beliefs, it does
not serve a compelling state interest. She further insists that Governor Beshear could
easily grant her a religious exemption without adversely affecting Kentucky’s marriage
licensing scheme, as there are readily available alternatives for obtaining licenses in and around Rowan County.9
This argument proceeds on the assumption that Governor Beshear’s policy is not neutral or generally applicable, and is therefore subject to strict scrutiny.10 However, the
text itself supports a contrary inference. Governor Beshear first describes the legal impact
of the Court’s decision in Obergefell, then provides guidance for all county clerks in
implementing this new law. His goal is simply to ensure that the activities of the
Commonwealth are consistent with U.S. Supreme Court jurisprudence.
While facial neutrality is not dispositive, Davis has done little to convince the Court
that Governor Beshear’s directive aims to suppress religious practice. She has only one
piece of anecdotal evidence to demonstrate that Governor Beshear “is picking and
choosing the conscience-based exemptions to marriage that he deems acceptable.” (Doc.
# 29 at 24). In 2014, Attorney General Jack Conway declined to appeal a federal district
9) Davis further develops this argument in her own Motion for Preliminary Injunction (Doc. # 39) against Governor Beshear and KDLA Librarian Wayne Onkst. That Motion is not yet ripe for review. 10) In Smith, the U.S. Supreme Court indicated that free exercise claims involving neutral and generally applicable laws may still be subject to heightened scrutiny if asserted alongside another constitutional right. If the Court concludes that the Beshear directive is neutral and generally applicable, Davis argues that strict scrutiny must still apply because her free exercise claim is coupled with a free speech claim. (Doc. # 29 at 23). However, this proposal fails because Davis’ free speech rights are qualified by virtue of her public employment. See Draper v. Logan Cnty. Pub. Library, 403 F. Supp. 2d 608, 621-22 (W.D. Ky. 2005) (applying the Pickering balancing test to a combined free exercise and free speech claim asserted by a public employee). The Court will discuss this concept further in the next section.
19

court decision striking down Kentucky’s constitutional and statutory prohibitions on same-
sex marriage. (Doc. # 29-12). He openly stated that he could not, in good conscience, defend discrimination and waste public resources on a weak case.11 (Id.). Instead of
directing Attorney General Conway to pursue the appeal, regardless of his religious beliefs,
Governor Beshear hired private attorneys for that purpose. (Doc. # 29-13). He has so far
refused to extend such an “exemption” to county clerks with religious objections to same-
sex marriage. (Doc. # 29-11).
However, Davis fails to establish that her current situation is comparable to Attorney
General Conway’s position in 2014. Both are elected officials who have voiced strong
opinions about same-sex marriage, but the comparison ends there. Governor Beshear did
not actually “exempt” Attorney General Conway from pursuing the same-sex marriage
appeal. Attorney General Conway’s decision stands as an exercise of prosecutorial
discretion on an unsettled legal question. By contrast, Davis is refusing to recognize the
legal force of U.S. Supreme Court jurisprudence in performing her duties as Rowan County
Clerk. Because the two are not similarly situated, the Court simply cannot conclude that
Governor Beshear treated them differently based upon their religious convictions. There
being no other evidence in the record to suggest that the Beshear directive is anything but
neutral and generally applicable, it will likely be upheld if it is rationally related to a
11) Davis refers to the U.S. District Court for the Western District of Kentucky’s decisions in Bourke v. Beshear, 996 F. Supp. 2d 542, 545 (W.D. Ky. 2014), and Love v. Beshear, 989 F. Supp. 2d 536, 539 (W.D. Ky. 2014). Judge John Heyburn held that Kentucky’s constitutional and statutory prohibitions on same-sex marriages “violate[ ] the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review.” Bourke, 996 F. Supp. 2d at 544. The Sixth Circuit Court of Appeals consolidated these cases with several similar matters originating from Ohio, Michigan and Tennessee and reversed them. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014). The Supreme Court of the United States then granted certiorari on these cases, now collectively known as Obergefell v. Hodges, 135 S. Ct. 1039 (2015).
20

legitimate government purpose. The Beshear directive certainly serves the State’s interest in upholding the rule of
law. However, it also rationally relates to several narrower interests identified in Obergefell. By issuing licenses to same-sex couples, the State allows them to enjoy “the right to personal choice regarding marriage [that] is inherent in the concept of individual autonomy” and enter into “a two-person union unlike any other in its importance to the committed individuals.” 135 S. Ct. at 2599-2600. It also allows same-sex couples to take advantage of the many societal benefits and fosters stability for their children. Id. at 2600-01. Therefore, the Court concludes that it likely does not infringe upon Davis’ free exercise rights.
b. The right to free speech The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Under the Free Speech Clause, an individual has the “right to utter or print, [as well as] the right to distribute, the right to receive and the right to read.” Griswold v. Connecticut, 381 U.S. 479, 483 (1965)(citing Martin v. City of Struthers, 319 U.S. 141, 143 (1943)). An individual also has the “right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977) (invalidating a state law that required New Hampshire drivers to display the state motto on their license plates). After all, “[a] system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts.” Id. While the Free Speech Clause protects citizens’ speech rights from government intrusion, it does not stretch so far as to bar the government “from determining the content of what it says.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239,
21

2245-46 (2015). “[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and carries out its duties on their behalf.” Id. That being said, the government’s ability to express itself is not unlimited. Id. “[T]he Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech.” Id. (stating further that “[c]onstitutional and statutory provisions outside of the Free Speech Clause may [also] limit government speech”).
This claim also implicates the Beshear directive. Davis contends that this directive violates her free speech rights by compelling her to express a message she finds objectionable. Specifically, Davis must issue marriage licenses bearing her “imprimatur and authority” as Rowan County Clerk to same-sex couples . Doc. # 29 at 27). Davis views such an act as an endorsement of same-sex marriage, which conflicts with her sincerely-held religious beliefs.
As a preliminary matter, the Court questions whether the act of issuing a marriage license constitutes speech. Davis repeatedly states that the act of issuing these licenses requires her to “authorize” same-sex marriage. A close inspection of the KDLA marriage licensing form refutes this assertion. The form does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds. It simply asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law. Davis’ religious convictions have no bearing on this purely legal inquiry.
The Court must also acknowledge the possibility that any such speech is attributable to the government, rather than Davis. See Walker, 135 S. Ct. at 2248 (finding that
22

specialty license plates are government speech because the government has exercised final approval over the designs, and thus, chosen “how to present itself and its constituency”). The State prescribes the form that Davis must use in issuing marriage licenses. She plays no role in composing the form, and she has no discretion to alter it. Moreover, county clerks’ offices issue marriage licenses on behalf of the State, not on behalf of a particular elected clerk.
Assuming arguendo that the act of issuing a marriage license is speech by Davis, the Court must further consider whether the State is infringing upon her free speech rights by compelling her to convey a message she finds disagreeable. However, the seminal “compelled speech” cases provide little guidance because they focus on private individuals who are forced to communicate a particular message on behalf of the government. See, e.g., W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (striking down a state law that required schoolchildren to recite the Pledge of Allegiance and salute the flag). Davis is a public employee, and therefore, her speech rights are different than those of a private citizen.12 Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
“[T]he government may not constitutionally compel persons to relinquish their First Amendment rights as a condition of public employment,” but it does have “a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large.” Connick v. Myers, 461 U.S. 138, 156 (1983); Waters v. Churchill, 511 U.S. 661, 671
12) Most free speech cases involving public employees center on compelled silence rather than compelled speech. See, e.g., Connick, 461 U.S. at 147-48 (focusing on a district attorney’s claim that she was fired in retaliation for exercising her free speech rights). “[I]n the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not to say.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796-97.
23

(1994). Accordingly, “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti, 547 U.S. at 418; see also U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, (1973) (stating that “neither the First Amendment nor any other provision of the Constitution” invalidates the Hatch Act’s bar on partisan political conduct by federal employees).
“[T]wo inquiries [ ] guide interpretation of the constitutional protections accorded to public employee speech.” Garcetti, 547 U.S. at 418 (citing Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 563 (1968)). First, a court must determine “whether the employee spoke as a citizen on a matter of public concern.” Id. (explaining further that this question often depends upon whether the employee’s speech was made pursuant to his or her official duties). Id. at 421. If the answer is no, then the employee’s speech is not entitled to First Amendment protection. Id. at 421 (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.”). If the answer is yes, a court must then consider “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Id. (stating further that the government’s restrictions “must be directed at speech that has some potential to affect the entity’s operations”).
The Court must adapt this test slightly because Davis’ claim focuses on her right not to speak. In this context, the first inquiry is whether Davis refused to speak (i.e. refused to issue marriage licenses) as a citizen on a matter of public concern. The logical answer to this question is no, as the average citizen has no authority to issue marriage licenses. Davis is only able to issue these licenses, or refuse to issue them, because she is the
24

Rowan County Clerk. Because her speech (in the form of her refusal to issue marriage licenses) is a product of her official duties, it likely is not entitled to First Amendment protection. The Court therefore concludes that Davis is unlikely to succeed on her compelled speech claim.
c. The prohibition on religious tests Article VI, § 3 of the U.S. Constitution provides as follows: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. Under this Clause, “[t]he fact [ ] that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution.” Torcaso v. Watkins, 367 U.S. 488 (1961) (striking down a state requirement that an individual declare his belief in God in order to become a notary public); see also McDaniel v. Paty, 435 U.S. 618 (1978) (invalidating a state law that prevented religious officials from serving in the state legislature). Davis contends that “[c]ompelling all individuals who have any connection with the issuance of marriage licenses . . . to authorize, approve, and participate in that act against their sincerely held religious beliefs about marriage, without providing accommodation, amounts to an improper religious test for holding (or maintaining) public office.” (Doc. # 29 at 20). The Court must again point out that the act of issuing a marriage license to a samesex couple merely signifies that the couple has met the legal requirements to marry. It is not a sign of moral or religious approval. The State is not requiring Davis to express a
25

particular religious belief as a condition of public employment, nor is it forcing her to
surrender her free exercise rights in order to perform her duties. Thus, it seems unlikely
that Davis will be able to establish a violation of the Religious Test Clause.
Although Davis focuses on the Religious Test Clause, the Court must draw her
attention to the first half of Article VI, Clause § 3. It requires all state officials to swear an
oath to defend the U.S. Constitution. Davis swore such an oath when she took office on
January 1, 2015. However, her actions have not been consistent with her words. Davis
has refused to comply with binding legal jurisprudence, and in doing so, she has likely
violated the constitutional rights of her constituents. When such “sincere, personal
opposition becomes enacted law and public policy, the necessary consequence is to put
the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those
whose own liberty is then denied. “ Obergefell, 135 S. Ct. at 2602. Such policies simply
cannot endure.
d. The Kentucky Religious Freedom Act
Kentucky Constitution § 1 broadly declares that “[a]ll men are, by nature, free and
equal, and have certain inherent and inalienable rights, among which may be reckoned .
. . [t]he right of worshiping Almighty God according to the dictates of their consciences.”
Kentucky Constitution § 5 gives content to this guarantee:
No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall,
26

in any case whatever, control or interfere with the rights of conscience.
Kentucky courts have held that Kentucky Constitution § 5 does not grant more protection to religious practice than the First Amendment. Gingerich v. Commonwealth, 382 S.W.3d 835, 839-40 (Ky. 2012). Such a finding would normally permit the Court to collapse its analysis of state and federal constitutional provisions. However, the Kentucky Religious Freedom Act, patterned after the federal RFRA, subjects state free exercise challenges to heightened scrutiny:
Government shall not substantially burden a person’s 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. A “burden” shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities. Ky. Rev. Stat. Ann. § 446.350. Davis again argues that the Beshear directive substantially burdens her religious freedom without serving a compelling state interest. The record in this case suggests that the burden is more slight. As the Court has already pointed out, Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she
27

took an oath to perform as Rowan County Clerk. The Court therefore concludes that Davis is unlikely to suffer a violation of her free exercise rights under Kentucky Constitution § 5.
4. Public interest “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F. 3d 1071, 1079 (6th Cir. 1994). Because Davis’ “no marriage licenses” policy likely infringes upon Plaintiffs’ fundamental right to marry, and because Davis herself is unlikely to suffer a violation of her free speech or free exercise rights if an injunction is issued, this fourth and final factor weighs in favor of granting Plaintiffs’ Motion. V. Conclusion District courts are directed to balance four factors when analyzing a motion for preliminary injunction. In this case, all four factors weigh in favor of granting the requested relief. Accordingly, for the reasons set forth herein, IT IS ORDERED that Plaintiffs’ Motion for Preliminary Injunction (Doc. # 2) against Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby granted. IT IS FURTHER ORDERED that Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby preliminarily enjoined from applying her “no marriage licenses” policy to future marriage license requests submitted by Plaintiffs. This 12th day of August, 2015.
G:\DATA\Opinions\Ashland\15-44 MOO Granting Mtn for Preliminary Injunction.wpd
28

 
 Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket
Multiple Documents
Part Description 1 3 pages 2 Memorandum in Support of Defendant/Third-Party Plaintiff Kim Davis' Motion 3 Proposed Order Granting Defendant/Third-Party Plaintiff Kim Davis' Motion
© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 1

Case: 0:15-cv-00044-DLB Doc #: 45 Filed: 08/13/15 Page: 1 of 3 - Page ID#: 1207

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION

APRIL MILLER, ET AL., Plaintiffs,
v. KIM DAVIS, ET AL.,
Defendants.

: : : CIVIL ACTION : : 0:15-CV-00044-DLB : : DISTRICT JUDGE : DAVID L. BUNNING : :

KIM DAVIS,

:

:

Third-Party Plaintiff,

:

:

v.

:

:

STEVEN L. BESHEAR, in his official

:

capacity as Governor of Kentucky, and :

WAYNE ONKST, in his official capacity :

as State Librarian and Commissioner,

:

Kentucky Department for Libraries and :

Archives,

:

:

Third-Party Defendants.

:

:

MOTION TO STAY THE AUGUST 12, 2015 INJUNCTION ORDER PENDING APPEAL Pursuant to Federal Rule of Civil Procedure 62(c) and Local Rule 7.1, Defendant/Third-
Party Plaintiff Kim Davis (“Davis”), by and through her undersigned counsel, hereby moves for an order from this Court staying the injunction entered against Davis in the Court’s August 12, 2015 Memorandum Opinion and Order (D.E. 43), pending a resolution of Davis’ appeal of said Order to the United States Court of Appeals for the Sixth Circuit (D.E. 44).

Case: 0:15-cv-00044-DLB Doc #: 45 Filed: 08/13/15 Page: 2 of 3 - Page ID#: 1208

As more fully described in Davis’ supporting memorandum of law, which is incorporated

by reference here, Davis is entitled to a stay of the injunction entered against her by this Court’s

August 12, 2015 Memorandum Opinion and Order pending her appeal of that ruling. Alternatively,

in the event this Court does not stay enforcement of the injunction entered against Davis in its

August 12, 2015 injunction order pending appeal, Davis requests that this Court grant, on an

emergency basis, a temporary stay of its injunction order dated August 12, 2015, so that Davis

may promptly apply to the Sixth Circuit Court of Appeals for a stay of this Court’s August 12,

2015 Order pending resolution of her appeal, pursuant to Fed. R. Civ. P. 8(a).

WHEREFORE, Defendant/Third-Party Plaintiff Kim Davis respectfully requests that this

Court grant Davis’ Motion to Stay The August 12, 2015 Injunction Order Pending Appeal, and

enter an order staying the injunction entered against her by this Court’s August 12, 2015

Memorandum Opinion and Order pending resolution of her appeal of that order to the United

States Court of Appeals for the Sixth Circuit, in the form of the proposed order attached hereto.

DATED: August 13, 2015
A.C. Donahue Donahue Law Group, P.S.C. P.O. Box 659 Somerset, Kentucky 42502 Tel: (606) 677-2741 Fax: (606) 678-2977 ACDonahue@DonahueLawGroup.com

Respectfully submitted:
/s/ Jonathan D. Christman Roger K. Gannam Jonathan D. Christman Liberty Counsel P.O. Box 540774 Orlando, Florida 32854 Tel: (800) 671-1776 Fax: (407) 875-0770 rgannam@lc.org jchristman@lc.org
Attorneys for Defendant/Third-Party Plaintiff Kim Davis

2

Case: 0:15-cv-00044-DLB Doc #: 45 Filed: 08/13/15 Page: 3 of 3 - Page ID#: 1209

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:

Daniel J. Canon L. Joe Dunman Laura E. Landenwich CLAY DANIEL WALTON ADAMS, PLC 462 S. Fourth Street, Suite 101 Louisville, KY 40202 dan@justiceky.com joe@justiceky.com laura@justiceky.com
William Ellis Sharp ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 sharp@aclu-ky.org

Jeffrey C. Mando Claire Parsons ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC 40 West Pike Street Covington, KY 41011 jmando@aswdlaw.com cparsons@aswdlaw.com
Attorneys for Rowan County

Attorneys for Plaintiffs

I also hereby certify that two (2) true and correct copies of the foregoing will be sent via
U.S.P.S. first class mail to the Attorney General of Kentucky on behalf of Third-Party
Defendants Steven L. Beshear, Governor of Kentucky, and Wayne Onkst, Commissioner of the
Kentucky Department for Libraries and Archives, at the following location:
Attorney General Jack Conway OFFICE OF THE ATTORNEY GENERAL
700 Capitol Avenue, Suite 118 Frankfort, KY 40601-3449

DATED: August 13, 2015

/s/ Jonathan D. Christman Jonathan D. Christman Attorney for Defendant/Third-Party Plaintiff Kim Davis

3

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 1 of 22 - Page ID#: 1210

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION

APRIL MILLER, ET AL., Plaintiffs,
v. KIM DAVIS, ET AL.,
Defendants.

: : : CIVIL ACTION : : 0:15-CV-00044-DLB : : DISTRICT JUDGE : DAVID L. BUNNING : :

KIM DAVIS,

:

:

Third-Party Plaintiff,

:

:

v.

:

:

STEVEN L. BESHEAR, in his official

:

capacity as Governor of Kentucky, and :

WAYNE ONKST, in his official capacity :

as State Librarian and Commissioner,

:

Kentucky Department for Libraries and :

Archives,

:

:

Third-Party Defendants. :

:

DEFENDANT/THIRD-PARTY PLAINTIFF KIM DAVIS’ MEMORANDUM OF LAW IN SUPPORT OF HER MOTION TO STAY THE AUGUST 12, 2015 INJUNCTION ORDER PENDING APPEAL

Roger K. Gannam Jonathan D. Christman LIBERTY COUNSEL P.O. Box 540774 Orlando, Florida 32854 Tel: (800) 671-1776 Fax: (407) 875-0770 rgannam@lc.org jchristman@lc.org

A.C. Donahue DONAHUE LAW GROUP, P.S.C. P.O. Box 659 Somerset, Kentucky 42502 Tel: (606) 677-2741 Fax: (606) 678-2977 ACDonahue@DonahueLawGroup.com

Attorneys for Defendant/Third-Party Plaintiff Kim Davis

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 2 of 22 - Page ID#: 1211
TABLE OF CONTENTS TABLE OF CONTENTS................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION .......................................................................................................................... 1 RELEVANT BACKGROUND ...................................................................................................... 3
A. Intertwined Motions For Preliminary Injunctive Relief Pending Before This Court At The Time Of Its August 12, 2015 Order .................................................................................... 3 1. Plaintiffs’ Motion for Preliminary Injunction To Force Davis To Violate Her Conscience................................................................................................................... 3 2. Davis’ Motion for Preliminary Injunction To Obtain Exemption From Governor Beshear’s SSM Mandate ............................................................................................. 4
B. This Court’s August 12, 2015 Memorandum Opinion And Order ..................................... 5 C. Davis’ Appeal To The Sixth Circuit ....................................................................................7 STANDARD OF REVIEW ............................................................................................................ 7 ARGUMENT .................................................................................................................................. 9 A. Davis Has A Sufficient Likelihood Of Success On The Merits Of Her Sixth Circuit
Appeal To Warrant A Stay ..................................................................................................9 B. Davis Is More Harmed Than Plaintiffs Without A Stay Pending Appeal ........................ 11 C. Public Interest Favors Granting A Stay ............................................................................ 14 D. Alternatively, This Court Should Grant A Temporary Stay To Allow Davis Time To Seek
Similar Relief From The Sixth Circuit...............................................................................15 CONCLUSION............................................................................................................................. 16
i

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 3 of 22 - Page ID#: 1212
TABLE OF AUTHORITIES
Cases
Appalachian Regional Healthcare, Inc. v. Kentucky Nurses Ass’n, No. 06-150, 2007 WL 38344 (E.D. Ky. Jan. 5, 2007) ...............................................................8
Baker v. Adams County, 310 F.3d 927 (6th Cir. 2002) ...................................................................................8, 10, 12, 15
Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. Mar. 19, 2014) ..................................................................9, 12
Brake Parts, Inc. v. Lewis, Nos. 09-132, 10-212, 2011 WL 93036 (E.D. Ky. Jan. 11, 2011) ..............................................8
Connection Distributing Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) ...................................................................................................12
Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474 (6th Cir. 1995) ...................................................................................................14
Elrod v. Burns, 427 U.S. 347 (1976).................................................................................................................12
Eubanks v. Wilkinson, No. 82-360, 1988 WL 167265 (E.D. Ky. Dec. 8, 1988)..........................................................15
G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) ...................................................................................................14
Grutter v. Bollinger, 247 F.3d 631 (6th Cir. 2001) .....................................................................................................9
In re: HNRC Distribution Co., 371 B.R. 210, 238 (E.D. Ky. 2007) ...........................................................................................8
McClendon v. City of Albuquerque, 79 F.3d 1014 (10th Cir. 1996) ...................................................................................................8
Mich. Coal. Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150 (6th Cir. 1991) ........................................................................................... passim
Newsom v. Norris, 888 F.2d 371 (6th Cir. 1989) ...................................................................................................12
ii

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 4 of 22 - Page ID#: 1213
Newton v. Consolidate Gas Co., 258 U.S. 165 (1992)...................................................................................................................8
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ..................................................................................................... passim
River Fields, Inc. v. Peters, No. 08-264, 2009 WL 2406250 (W.D. Ky. Aug. 3, 2009) ......................................................15
Russell v. Lundergan-Grimes, 769 F.3d 919 (6th Cir. 2014) .....................................................................................................8
Serv. Employees Int’l Union Local 1 v. Husted, 698 F.3d 341 (6th Cir. 2012) .....................................................................................................8
Simon Prop. Group, Inc. v. Taubman Ctrs., Inc., 262 F. Supp. 2d 794 (E.D. Mich. 2003)...................................................................................10
Southern Milk Sales, Inc. v. Martin, 924 F.2d 98 (6th Cir. 1991) .....................................................................................................14
St. Agnes Hosp. v. Riddick, 751 F. Supp. 75 (D. Md. 1990) ..................................................................................................8
State of Ohio v. Nuclear Regulatory Comm’n, 812 F.2d 288 (6th Cir. 1987) ...................................................................................................10
United States v. Coffman, No. 09-181, 2010 WL 4683761 (E.D. Ky. Nov. 12, 2010) .................................................8, 10
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Ind. & Serv. Workers Int’l Union v. Am. Standard Corp, No. 09-144, 2011 WL 4443121 (E.D. Ky. Sept. 22, 2011) ............8, 11
University of Texas v. Camenisch, 451 U.S. 390 (1981).................................................................................................................14
Constitutional Provisions U.S. CONST., amend. I ..........................................................................................................2, 12, 14 Statutes
State KY. REV. STAT. § 446.350 ...............................................................................................................6
iii

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 5 of 22 - Page ID#: 1214 Federal
28 U.S.C. § 1292(a) .........................................................................................................................7 Rules Fed. R. App. P. 8............................................................................................................................15 Fed. R. Civ. P. 62(c) ........................................................................................................................7
iv

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 6 of 22 - Page ID#: 1215
Defendant/Third-Party Plaintiff Kim Davis (“Davis”), by and through her undersigned counsel, respectfully submits this Memorandum of Law in Support of her Motion to Stay The August 12, 2015 Injunction Order Pending Appeal. I. INTRODUCTION
Late yesterday, this Court entered an order enjoining Davis to personally authorize samesex “marriage” (“SSM”) licenses to the same-sex couples named in this lawsuit when those couples re-apply, as they said they would, for a license from her. However, a SSM license issued on her authorization and bearing her name and imprimatur, substantially (and irreparably) burdens her conscience and religious freedom because it represents endorsement of, and participation in, a proposed union that is not marriage according to her sincere and deeply-held religious convictions. That searing act of validation would forever echo in her conscience—and, if it happened, there is no absolution or correction that any earthly court can provide to rectify it. If she is forced to authorize and approve a SSM license, no one (and no court) can unring that bell. Therefore, to protect her fundamental, inalienable, and inviolate religious liberties from such coercion, she has filed an immediate appeal of this Court’s injunction order to the United States Court of Appeals for the Sixth Circuit.
Before this Court entered its August 12, 2015 injunction order, Davis’ religious conscience was protected, and Plaintiffs were able to obtain Kentucky marriage licenses from more than 130 marriage licensing locations spread across Kentucky. No marriage licenses were being authorized by Davis pending her individualized requests for exemption and accommodation, but marriage licenses were being authorized in all of the counties surrounding Rowan County, Kentucky, as well as both counties in which Court hearings were previously held in this matter (and attended by Plaintiffs). Yet the Court’s August 12, 2015 Memorandum Opinion and Order has significantly
1

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 7 of 22 - Page ID#: 1216
changed the existing status quo between the parties, and before having fully considered Davis’ own pending Motion for Preliminary Injunction. Although Davis disagrees with this Court’s conclusions in its August 12, 2015 Order, a stay of the injunction entered in that Order will stymie the irreversible and condemning implications of that injunction on her conscience for the time being, while an appeal is taken.
This case is a matter of first impression following the nascent Obergefell v. Hodges, 135 S. Ct. 2584 (2015) decision from the United States Supreme Court, which, setting aside the majority opinion’s redefinition of marriage, nonetheless unanimously held that First Amendment protections remain despite same-sex “marriage.” Inasmuch as Davis disagrees with this Court’s August 12, 2015 Memorandum Opinion and Order (which will be fully addressed in her appellate filings), this Court nonetheless stated therein that “this civil action presents a conflict between two individual liberties held sacrosanct in American jurisprudence,” thereby acknowledging that Davis’ religious rights are, in fact, being both “threaten[ed]” and “infringe[d]” by Plaintiffs’ demands for her approval of their proposed unions and Governor Beshear’s SSM mandate to provide exactly that or resign. But, for Davis, unlike her counterparts in this dispute, her individual liberties are enumerated (not emanations) and they are natural liberties tied to religious beliefs that are measured in millennia (not weeks). In light of the foregoing, this Court should stay any enforcement of the August 12, 2015 injunction order against Davis pending the outcome of her already-filed appeal to the Sixth Circuit.
2

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 8 of 22 - Page ID#: 1217

II. RELEVANT BACKGROUND A. Intertwined Motions For Preliminary Injunctive Relief Pending Before This Court At The Time Of Its August 12, 2015 Order. 1. Plaintiffs’ Motion For Preliminary Injunction To Force Davis To Violate Her Conscience. Plaintiffs’ Complaint in this action was filed on July 2, 2015. See D.E. 1. This Complaint
named Davis and Rowan County, Kentucky as defendants in the lawsuit.1 In their Complaint, Plaintiffs also alleged claims on behalf of a proposed class of individuals.2
On the same day the Complaint was filed, Plaintiffs also filed a Motion for Preliminary Injunction seeking injunctive relief on behalf of the named Plaintiffs. See D.E. 2. Plaintiffs sought injunctive relief against Davis that prohibited her from “refusing to issue marriage licenses to any future marriage license applications submitted by the Named Plaintiffs.” See D.E. 2.2. Evidentiary hearings on Plaintiffs’ Motion for Preliminary Injunction were held before this Court on July 13, 2015 and July 20, 2015. See D.E. 21, 26. Defendants Davis and Rowan County their responses in opposition to Plaintiffs’ Motion for Preliminary Injunction on July 30, 2015. See D.E. 28, 29. Plaintiffs filed their Reply memorandum in further support of their Motion for Preliminary Injunction on August 6, 2015. See D.E. 36. Rowan County also filed a motion for leave to submit a supplemental memorandum on August 7, 2015, and attached thereto its supplemental

1

Rowan County was served with Plaintiffs’ Complaint on July 8, 2015. Rowan County filed an Answer to

Plaintiffs’ Complaint on July 29, 2015. See D.E. 27. Davis was served with Plaintiffs’ Complaint on July 14, 2015.

Davis filed a Motion to Dismiss Plaintiffs’ Complaint on July 31, 2015. See D.E. 32. In her proposed order

accompanying this Motion, Davis has requested dismissal of Plaintiffs’ Complaint in its entirety. See D.E. 32-2.

Plaintiffs’ response to this Motion is currently due no later than August 28, 2015.

2

On August 2, 2015, Plaintiffs filed their Motion for Class Certification. See D.E. 31. Plaintiffs are seeking to

certify a class of persons consisting of “all present and future individuals who, though legally eligible to marry in

Kentucky, will be denied a marriage license pursuant to the Defendants’ policy.” See D.E. 31-1 at 1-2; see also D.E.

1 at ¶ 38; D.E. 21, Hr’g Tr. (7/13/15), at 74-75. Any response to Plaintiffs’ Motion for Class Certification by

Defendants Davis and/or Rowan County is currently due no later than August 26, 2015. On August 11, 2015, Davis,

with agreement from Defendant Rowan County, filed a motion to extend the time to respond to Plaintiffs’ Motion for

Class Certification until this Court ruled on all of the motions then pending before this Court. See D.E. 42.

3

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 9 of 22 - Page ID#: 1218
memorandum. See D.E. 37, 37-2. The Court held an additional telephonic hearing on Plaintiffs’ Motion for Preliminary Injunction on August 10, 2015. See D.E. 41.
2. Davis’ Motion For Preliminary Injunction To Obtain Exemption From Governor Beshear’s SSM Mandate.
More than one week before this Court entered its injunction order against Davis, on August 4, 2015, Davis filed a Verified Third-Party Complaint against Third-Party Defendants Steven L. Beshear, Governor of Kentucky (“Gov. Beshear”) and Wayne Onkst, Commissioner of Kentucky Department for Libraries and Archives (“Commr. Onkst”) (together, “Third-Party Defendants”). See D.E. 34. The Third-Party Defendants were served with this Complaint on August 10, 2015. See, e.g., D.E. 40. Answers to the Verified Third-Party Complaint are due no later than August 31, 2015.
On August 7, 2015, Davis filed a Motion for Preliminary Injunction against Third-Party Defendants Gov. Beshear and Commr. Onkst, and requested a preliminary injunction hearing on that motion. See D.E. 39. In her proposed order accompanying this Motion, Davis requested that the Third-Party Defendants are “preliminarily enjoined from enforcing Governor Beshear’s mandate directing Kim Davis to authorize the issuance of Kentucky marriage licenses” and that Davis be “preliminarily exempted from having to authorize the issuance of Kentucky marriage licenses.” See D.E. 39-7. No preliminary injunction hearing date has yet been established by this Court on Davis’ Motion for Preliminary Injunction, despite Davis’ request for same.3 Any response to this Motion for Preliminary Injunction from Plaintiffs and/or Rowan County is currently due no later than August 31, 2015. Although the Kentucky Attorney General’s Office has received copies

3

In comparison, only four days after Plaintiffs filed their motion for preliminary injunction this Court

scheduled a preliminary injunction hearing on Plaintiffs’ motion, to occur only eleven (11) days after Plaintiffs filed

their Complaint. See D.E. 5. This hearing was scheduled before Davis was served with the Plaintiffs’ Complaint.

4

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 10 of 22 - Page ID#: 1219
of Davis’ Verified Third-Party Complaint and Motion for Preliminary Injunction, no appearances have yet been entered on behalf of the Third-Party Defendants.
The grounds on which Davis seeks preliminary injunctive relief against Gov. Beshear and Commr. Onkst are necessarily intertwined with the grounds on which she opposed Plaintiffs’ request for preliminary injunction against her. Notwithstanding, the Court entered its ruling on Plaintiffs’ Motion for Preliminary Injunction with Davis’ Motion for Preliminary Injunction and its “further develop[ment]” of Davis’ religious exemption request, see D.E. 43 at 19, n. 9, rather than considering Davis’ and Plaintiffs’ requests together and allowing Davis to develop a further evidentiary record, as requested, on her own religious exemption request.
B. This Court’s August 12, 2015 Memorandum Opinion And Order. On August 12, 2015, this Court granted Plaintiffs’ Motion for Preliminary Injunction and preliminary enjoined Davis in her official capacity as Rowan County Clerk “from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by Plaintiffs.” See D.E. 43 at 28. In this Order, the Court stated that “this civil action presents a conflict between two individual liberties held sacrosanct in American jurisprudence,” thereby admitting that Davis’ religious rights are, in fact, being both “threaten[ed]” and “infringe[d]” by Plaintiffs’ demands for her approval of their proposed unions and Gov. Beshear’s SSM mandate to provide exactly that or resign. Id. at 2. Notwithstanding, rather than keeping the status quo in place to allow this case and the evidentiary record to develop further (including with respect to Davis’ own Motion for Preliminary Injunction), this Court granted Plaintiffs’ Motion for Preliminary Injunction in its entirety and found that “all four factors” typically considered on a motion for preliminary injunction “weigh in favor of granting the requested relief.” Id. at 28.
5

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 11 of 22 - Page ID#: 1220
Even though the specific Named Plaintiffs were able to obtain a Kentucky marriage license from more than 130 marriage licensing locations, including all nearby and surrounding counties, the Court held that Plaintiffs were likely to succeed on the merits of their purported right to marry claims. See id. at 9-14. In reaching this decision, however, the Court considered “other Rowan County residents” not before the Court and speculated about other County Clerks who were not before this Court. Id. at 12. Moreover, the Court rejected the notion that these specific individuals may have to “go to another county” to obtain a marriage license because “[i]t does not seem unreasonable for Plaintiffs, as Rowan County voters, to expect their elected official to perform her statutorily assigned duties,” without considering the implications of the Kentucky Religious Freedom Restoration Act (“Kentucky RFRA”), KY. REV. STAT. § 446.350 on Kentucky marriage law, and despite the fact that Plaintiffs raised no state law claims against Davis. Id. at 14. The Court also concluded that Davis, as a person, may “disagree” with Obergefell but her individual disagreement “does not excuse her from complying with it.” Id. at 15. This Court also found that these Named Plaintiffs were being irreparably harmed even though they could readily obtain marriage licenses elsewhere. Id. at 15-16.
Additionally, this Court rejected Davis’ claims and defenses arising under the Kentucky RFRA, the Free Exercise Clause, the Free Speech Clause, and the Religious Test Clause of the United States Constitution, and similar Kentucky Constitution provisions. See id. at 16-28. In rejecting Davis’ religious liberty, conscience, and speech claims, this Court concluded that the Kentucky marriage license form “does not require the county clerk to condone or endorse samesex marriage” and instead merely “asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law.” See D.E. 43 at 22; see also id. at 25 (“[T]he act of issuing a marriage license to a same-sex couple merely signifies that the
6

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 12 of 22 - Page ID#: 1221

couple has met the legal requirements to marry. It is not a sign of moral or religious approval.”) (emphasis in original); id. at 27 (“Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities.”). According to this Court, the burden on Davis’ religious freedom is “more slight,” and she “remains free to practice her Apostolic Christian beliefs.” Id. at 27. Continuing, this Court concluded that Davis “may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County jail,” and “[s]he is even free to believe that marriage is a union between one man and one woman,” but “her religious convictions cannot excuse her” from authorizing SSM licenses. See id. at 27-28.
C. Davis’ Appeal To The Sixth Circuit. Following entry of the Court’s August 12, 2015 Memorandum Opinion and Order, Davis filed, pursuant to 28 U.S.C. § 1292(a), a Notice of Appeal of this Court’s August 12, 2015 Order enjoining Davis to issue Kentucky marriage licenses in derogation of her religious conscience. See D.E. 44.4 Accordingly, Davis now timely files this Motion to Stay The August 12, 2015 Injunction Order Pending Appeal to the United States Court of Appeals for the Sixth Circuit. III. STANDARD OF REVIEW Federal Rule of Civil Procedure 62(c) provides that “[w]hile an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(c). The purpose of a stay pending appeal is to preserve

4

Section 1292(a) provides that the “courts of appeal shall have jurisdiction of appeals” from “[i]nterlocutory

orders of the district courts of the United States . . . granting, continuing, modifying, refusing, or dissolving

injunctions[.]” 28 U.S.C. § 1292(a).

7

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 13 of 22 - Page ID#: 1222
the status quo among the parties. See McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996); see also Brake Parts, Inc. v. Lewis, Nos. 09-132, 10-212, 2011 WL 93036, at *2 (E.D. Ky. Jan. 11, 2011) (“The district court retains jurisdiction during the pendency of an appeal to act to preserve the status quo.”) (Forester, J.) (citing Newton v. Consolidate Gas Co., 258 U.S. 165, 177 (1992)).
In deciding a motion for stay pending appeal, Sixth Circuit courts consider the same four factors that are traditionally considered in evaluating a motion for preliminary injunction: “(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).5 These factors are to be balanced in deciding whether to issue a stay. See Baker v. Adams County, 310 F.3d 927, 928 (6th Cir. 2002). Although the four factors are the same as the factors considered on a preliminary injunction motion (which this Court granted and Davis is now appealing), the “balancing process is not identical due to the different procedural posture in which each judicial determination arises.” Mich. Coal., 945 F.2d at 153. Indeed, a motion for stay pending appeal does not “require the trial court to change its mind or conclude that is determination on the merits was erroneous” before concluding that a stay pending appeal is appropriate. See St. Agnes Hosp. v. Riddick, 751 F. Supp. 75, 76 (D. Md. 1990) (citations omitted).

5

See also Russell v. Lundergan-Grimes, 769 F.3d 919, 920-21 (6th Cir. 2014); Serv. Employees Int’l Union

Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012); United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied

Ind. & Serv. Workers Int’l Union v. Am. Standard Corp., No. 09-144, 2011 WL 4443121, at *2 (E.D. Ky. Sept. 22,

2011) (Caldwell, J.); United States v. Coffman, No. 09-181, 2010 WL 4683761, at *1 (E.D. Ky. Nov. 12, 2010)

(Caldwell, J.); In re: HNRC Distribution Co., 371 B.R. 210, 238 (E.D. Ky. 2007) (Bunning, J.); Appalachian Regional

Healthcare, Inc. v. Kentucky Nurses Ass’n, No. 06-150, 2007 WL 38344, at *1 (E.D. Ky. Jan. 5, 2007) (Hood, J.).

8

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 14 of 22 - Page ID#: 1223
In granting a stay pending appeal, this Court will act consistently with the conclusion of
the Honorable John G. Heyburn of the United States District Court for the Western District of
Kentucky who, after holding invalid Kentucky’s natural, democratically-approved, and
constitutionally-enacted definition of marriage in Bourke v. Beshear, nonetheless stayed
enforcement of that order pending an appeal to the United States Court of Appeals for the Sixth
Circuit. In reaching this conclusion, Judge Heyburn stated:
Perhaps it is difficult for Plaintiffs to understand how rights won can be delayed. It is a truth that our judicial system can act with stunning quickness, as this Court has; and then with sometimes maddening slowness. One judge may decide a case, but ultimately others have a final say. It is the entire process, however, which gives our judicial system and our judges such high credibility and acceptance. This is the way of our Constitution. It is that belief which ultimately informs the Court’s decision to grant a stay. It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well. Bourke v. Beshear, 996 F. Supp. 2d 542, 558 (W.D. Ky. Mar. 19, 2014) (order continuing stay of
enforcement of prior ruling). That conclusion is only further warranted here, where Plaintiffs may
actually obtain Kentucky marriage licenses elsewhere (they are just choosing not to), and Davis is
claiming protections of Constitutional and statutory rights that predate and survive Obergefell.
IV. ARGUMENT
A. Davis Has A Sufficient Likelihood Of Success On The Merits Of Her Sixth Circuit Appeal To Warrant A Stay.
To support a motion for stay pending appeal, the moving party “need not always establish
a high probability of success on the merits.” Mich. Coal., 945 F.2d at 153; see also Grutter v.
Bollinger, 247 F.3d 631, 632-33 (6th Cir. 2001). Instead, “[t]he probability of success that must
be demonstrated is inversely proportional to the amount of irreparable injury [the moving party]
will suffer absent the say. Simply stated, more of one excuses less of the other.” Mich. Coal., 945
9

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 15 of 22 - Page ID#: 1224
F.2d at 153 (internal citation omitted). In other words, “a stay may be granted with either a high probability of success and some injury or vice versa.” State of Ohio v. Nuclear Regulatory Comm’n, 812 F.2d 288, 290 (6th Cir. 1987). The moving party must still show “more than the mere ‘possibility’ of success on the merits,” which can be done by identifying “serious questions going to the merits.” Mich. Coal., 945 F.2d at 153-54 (internal quotations omitted); see also Baker, 310 F.3d at 928. Thus, Davis “can satisfy this element where substantial legal questions or matters of first impression are at issue and the equities favor maintaining the status quo.” Simon Prop. Group, Inc. v. Taubman Ctrs., Inc., 262 F. Supp. 2d 794, 798 (E.D. Mich. 2003).
This case presents substantial legal matters of first impression for this (or any other) federal appeals court following the Obergefell decision from the United States Supreme Court. See Coffman, 2010 WL 4683761, at *2 (granting motion to stay pending appeal after finding that “this case will present the Sixth Circuit with an issue of first impression”). Indeed, in this Court’s own words, it presents a “conflict” between “two individual liberties held sacrosanct in American jurisprudence”—one enumerated and express (Davis’ religious freedom), and the other unenumerated (right to marry). See D.E. 43 at 2, 16. This Court has now issued its decision on the constitutional “tension” at issue in this dispute—but it need not force that answer upon Davis when she has already taken an appeal of this Court’s ruling. In fact, as this Court previously noted during a hearing on Plaintiffs’ Motion for Preliminary Injunction, it does not have the “final say” on what the United States Constitution means. See D.E. 26, Hr’g Tr. (7/20/15), at 72:10-14. This conclusion is only further compelled here, where Davis’ own Motion for Preliminary Injunction is pending before the Court, includes further development of the protections afforded to her under the Kentucky RFRA, and specifically requests an injunction from Gov. Beshear’s SSM mandate and
10

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 16 of 22 - Page ID#: 1225
to be “preliminarily exempted from having to authorize the issuance of Kentucky marriage licenses.” See D.E. 39-7.
To obtain a stay of the injunction, this Court need not reverse itself nor even conclude that Davis has a “high probability of success” on the merits of her appeal to the Sixth Circuit. Instead, all this Court need conclude to grant a stay of its injunction is that Davis has identified “serious questions going to the merits.” See Mich. Coal., 945 F.2d at 153-54. In prior statements, this Court repeatedly acknowledged that fundamental rights (of Davis) are implicated in this case. See, e.g., D.E. 21, Hr’g Tr. (7/13/15), at 84:3-4, 85:20-22, 98:19-22, 99:19-21, 103:15-18, 104:8-9. As noted above, this Court concedes a constitutional “conflict” or “tension” at issue in this case. To ensure Davis’ fundamental and “sacrosanct” rights remain protected while the Sixth Circuit resolves the “conflict” and “tension” identified by this Court, a stay of the August 12, 2015 injunction order is appropriate.
B. Davis Is More Harmed Than Plaintiffs Without A Stay Pending Appeal. In weighing the harm that will occur as a result of granting or denying a stay, Sixth Circuit courts generally consider three factors: “(1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided.” Mich. Coal., 945 F.2d at 154. The “key word” in this consideration is “irreparable,” and the harm must be “both certain and immediate, rather than speculative or theoretical.” Mich. Coal., 945 F.2d at 154. As is clear from the record in this case, nothing is physically or economically preventing the actual Named Plaintiffs in this case from obtaining a marriage license elsewhere. Indeed, as noted above, and conceded by Plaintiffs, they can obtain Kentucky marriage licenses from someone other than Davis. They simply chose (and choose) not to. As such, Plaintiffs will not suffer irreparable and irreversible injury “if resolution of this matter is postponed a relatively short amount of time to await the Sixth Circuit’s decision.” See United Steel, 2011 WL 4443121,at *2.
11

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 17 of 22 - Page ID#: 1226
This conclusion comports with Judge Heyburn’s stay order pending appeal in Bourke, cited above, which was ultimately overturned by the Sixth Circuit, which was then reversed by the “five lawyer” majority opinion in Obergefell, 135 S.Ct. at 2612, 2624 (Roberts, C.J., dissenting). Judge Heyburn noted that “One judge may decide a case, but ultimately others have a final say. It is the entire process, however, which gives our judicial system and our judges such high credibility and acceptance. This is the way of our Constitution.” Bourke, 996 F. Supp. 2d at 558.
In stark contrast to the narrow harm facing Plaintiffs if this Court stays enforcement of its injunction order pending appeal (they can always obtain a Kentucky marriage license elsewhere while it is pending), Davis stands to face significant, irrevocable, and irreversible harm if she is forced to authorize and approve a SSM license against her religious conscience. Davis faces irreparable harm that “decidedly outweighs” the purported harm to Plaintiffs if a stay is granted. See Baker, 310 F.3d at 928. “[I]t is well-settled that ‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)). In fact, the Sixth Circuit has expressly found that “[t]he Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury[.]” Newsom v. Norris, 888 F.2d 371, 378 (6th Cir. 1989). “‘One reason for such stringent protection of First Amendment rights certainly is the intangible nature of the benefits flowing from the exercise of those rights; and the fear that, if these rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future.’” Id. (citation omitted).
Moreover, there is no “adequate compensatory or other corrective relief” that “will be available at a later date, in the ordinary course of litigation” if Davis is forced to violate her
12

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 18 of 22 - Page ID#: 1227
religious conscience now. See Mich. Coal., 945 F.2d at 153. No one, and not even a permanent injunction in her favor, can reverse that action if she is compelled to violate her conscience. It is comparable to forcing the religious objecting nurse to perform an abortion, the religious objecting company or non-profit to pay for abortions or abortion-related insurance coverage, the religious objecting non-combatant to fire on an enemy soldier, or the religious objecting state official to participate in or attend the execution of a convicted prisoner. Ordering Davis to issue, authorize, and approve a SSM license is the act that violates her conscience and substantially burdens her religious freedom.
Although this Court found that the burden on Davis is “more slight” and not worthy of legal protection at this early stage of litigation, that conclusion is out-of-step with Supreme Court precedent analyzing substantial burdens on religious freedom and also reaches a different conclusion than at least one proposed Kentucky legislative act. This bill, crafted by legislators balancing religious liberty and SSM, expressly protects clerks such as Davis from having to issue SSM licenses. This bill amends the Kentucky RFRA to state expressly that “[i]ssuing or recording a marriage license, or solemnizing a marriage, to which a person holds a sincere religious objection or which is contrary to that person’s faith tradition due to the marriage being between persons of the same sex shall be considered a substantial burden for which there is no compelling government interest, and that person shall additionally be immune from any civil or criminal liability for declining to solemnize such a marriage.” See D.E. 39-6, Ex. E to Davis’ Motion for Preliminary Injunction, An Act Relating to Marriage, Ky. House Bill 101 (2016 Reg. Sess.) (emphasis added).
Finally, the harm to Davis is not speculative but impending. As discussed above, and extensively in Davis’ prior filings, the searing act of her conscience is authorizing a SSM license
13

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 19 of 22 - Page ID#: 1228
bearing her imprimatur (see, e.g., D.E. 29 at 14-15, 18-20 (discussing substantial burden on Davis and citing testimony and evidence supporting same), and D.E. 39-1 at 15-18, 21-25 (same)), this Court has ordered her to do just that in its August 12, 2015 Order (see D.E. 43 at 28), and Plaintiffs have indicated an intent to seek a marriage license from her (see D.E. 21, Hr’g Tr. (7/13/15), Miller Direct, at 29:9-12; id., Spartman Direct, at 47:8-10). Accordingly, Davis has shown sufficient evidence of the harm she is facing absent a stay of the August 12, 2015 injunction order against her. This harm outweighs any mere travel inconveniences placed upon the Plaintiffs.
C. Public Interest Favors Granting A Stay. An essential purpose of a preliminary injunction is “to preserve the relative positions of the parties until a trial on the merits can be held.” Southern Milk Sales, Inc. v. Martin, 924 F.2d 98, 102 (6th Cir. 1991) (citing University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). But this Court’s August 12, 2015 Order significantly changes the relative position of the parties and, in fact, completely alters the status quo existing between the parties. And the Court’s Order does so with Davis’ own Motion for Preliminary Injunction still pending. Thus, a stay is necessary to restore the balance and relative positions of the parties pending Davis’ appeal to the Sixth Circuit. Additionally, it is well-settled law that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994). In fact, when it comes to the “protection of First Amendment liberties,” the public has a “significant interest.” Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995). This Court admitted the presence of Davis’ rights but nonetheless determined that Davis’ First Amendment and other Constitutional and statutory claims were trumped by Plaintiffs’ desire to have Davis authorize and approve their proposed unions. However, the Sixth Circuit will have a chance to review this Court’s constitutional and statutory determinations. Accordingly, to ensure that Davis’ constitutional rights are not violated while the
14

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 20 of 22 - Page ID#: 1229
Sixth Circuit reviews this Court’s choice of the SSM mandate over religious liberty while there is ongoing public debate and interest on that exact issue in Kentucky, this Court should stay its injunction order pending a final determination on appeal.
D. Alternatively, This Court Should Grant A Temporary Stay To Allow Davis Time To Seek Similar Relief From The Sixth Circuit.
Alternatively, in the event this Court does not completely stay its injunction order against Davis pending resolution of her appeal, Davis requests that this Court grant, on an emergency basis, a temporary stay of its injunction order dated August 12, 2015, so that Davis may promptly apply to the Sixth Circuit Court of Appeals for a stay pending appeal, pursuant to Fed. R. Civ. P. 8(a).6 Courts that have denied a complete stay pending appeal have nonetheless granted a temporary stay to allow the Court of Appeals to rule on the appellant’s stay request. See, e.g., River Fields, Inc. v. Peters, No. 08-264, 2009 WL 2406250, at *3 (W.D. Ky. Aug. 3, 2009); Eubanks v. Wilkinson, No. 82-360, 1988 WL 167265, at *3 (E.D. Ky. Dec. 8, 1988) (Allen, J.). As discussed above, the circumstances of this case support granting a complete stay of the August 12, 2015 injunction. But, at a minimum, this Court should immediately enter a temporary stay of its August 12, 2015 order to permit Davis time to seek similar relief from the Sixth Circuit.

6

Federal Rule of Appellate Procedure 8(a)(1) states that a party “must ordinarily move first in the district

court” for an order staying “the judgment or order of a district court pending appeal” or an order suspending,

modifying, restoring or granting an injunction while an appeal is pending.” Fed. R. App. P. 8(a)(1). This is considered

“[t]he cardinal principle of stay applications.” See Baker, 310 F.3d at 930 (citation and internal quotations omitted).

Accordingly, if a motion for stay pending appeal is denied by the district court, the moving party may seek a stay from

the Court of Appeals. See Fed. R. App. P. 8(a)(2).

15

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 21 of 22 - Page ID#: 1230

V. CONCLUSION

For all the foregoing reasons, Davis’ Motion to Stay The August 12, 2015 Injunction Order

Pending Appeal should be granted.

DATED: August 13, 2015
A.C. Donahue Donahue Law Group, P.S.C. P.O. Box 659 Somerset, Kentucky 42502 Tel: (606) 677-2741 Fax: (606) 678-2977 ACDonahue@DonahueLawGroup.com

Respectfully submitted:
/s/ Jonathan D. Christman Roger K. Gannam Jonathan D. Christman Liberty Counsel P.O. Box 540774 Orlando, Florida 32854 Tel: (800) 671-1776 Fax: (407) 875-0770 rgannam@lc.org jchristman@lc.org
Attorneys for Defendant/Third-Party Plaintiff Kim Davis

16

Case: 0:15-cv-00044-DLB Doc #: 45-1 Filed: 08/13/15 Page: 22 of 22 - Page ID#: 1231

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 the following counsel or parties of record:

Daniel J. Canon L. Joe Dunman Laura E. Landenwich CLAY DANIEL WALTON ADAMS, PLC 462 S. Fourth Street, Suite 101 Louisville, KY 40202 dan@justiceky.com joe@justiceky.com laura@justiceky.com
William Ellis Sharp ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 sharp@aclu-ky.org

Jeffrey C. Mando Claire Parsons ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC 40 West Pike Street Covington, KY 41011 jmando@aswdlaw.com cparsons@aswdlaw.com
Attorneys for Rowan County

Attorneys for Plaintiffs

I also hereby certify that two (2) true and correct copies of the foregoing will be sent via

U.S.P.S. first class mail to the Attorney General of Kentucky on behalf of Third-Party

Defendants Steven L. Beshear, Governor of Kentucky, and Wayne Onkst, Commissioner of the

Kentucky Department for Libraries and Archives, at the following location:

Attorney General Jack Conway OFFICE OF THE ATTORNEY GENERAL
700 Capitol Avenue, Suite 118 Frankfort, KY 40601-3449

DATED: August 13, 2015

/s/ Jonathan D. Christman Jonathan D. Christman Attorney for Defendant/Third-Party Plaintiff Kim Davis

Case: 0:15-cv-00044-DLB Doc #: 45-2 Filed: 08/13/15 Page: 1 of 2 - Page ID#: 1232

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION

APRIL MILLER, ET AL., Plaintiffs,
v. KIM DAVIS, ET AL.,
Defendants.

: : : CIVIL ACTION : : 0:15-CV-00044-DLB : : DISTRICT JUDGE : DAVID L. BUNNING : :

KIM DAVIS,

:

:

Third-Party Plaintiff,

:

:

v.

:

:

STEVEN L. BESHEAR, in his official

:

capacity as Governor of Kentucky, and :

WAYNE ONKST, in his official capacity :

as State Librarian and Commissioner,

:

Kentucky Department for Libraries and :

Archives,

:

:

Third-Party Defendants.

:

:

[PROPOSED] ORDER This Court, having reviewed Defendant/Third-Party Plaintiff Kim Davis’ Motion to Stay The August 12, 2015 Injunction Order Pending Appeal, and any responses thereto, and for good cause shown, GRANTS Kim Davis’ Motion to Stay The August 12, 2015 Injunction Order Pending Appeal. IT IS HEREBY ORDERED that the injunction entered by this Court against Kim Davis in its August 12, 2015 Memorandum Opinion and Order (D.E. 43) is hereby stayed until Kim Davis’

Case: 0:15-cv-00044-DLB Doc #: 45-2 Filed: 08/13/15 Page: 2 of 2 - Page ID#: 1233 appeal of that ruling to the United States Court of Appeals for the Sixth Circuit is finally adjudged and resolved on appeal.
IT IS FURTHER ORDERED that no person may attempt to enforce this Court’s August 12, 2015 injunction and order against Kim Davis pending final resolution of her appeal of this Court’s August 12, 2015 Memorandum Opinion and Order to the United States Court of Appeals for the Sixth Circuit.
_____________________________ HON. DAVID L. BUNNING DISTRICT JUDGE
2

Miller et al v. Davis et al, Docket No. 0:15-cv-00044 (E.D. Ky. Jul 02, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Eastern District of Kentucky; United States District Court for the Eastern District of Kentucky
Civil Rights - Other[440]
0:15-cv-00044

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 29

 
 Case: 0:15-cv-00044-DLB Doc #: 52 Filed: 08/17/15 Page: 1 of 7 - Page ID#: 1264

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CIVIL ACTION NO. 15-44-DLB
APRIL MILLER, et al.

PLAINTIFFS

vs.

ORDER

KIM DAVIS, both individually and in her official capacity, et al.

DEFENDANTS

***********************

I. Introduction

This matter is before the Court on Defendant Kim Davis’ Motion to Stay (Doc. # 45)

the Court’s Memorandum Opinion and Order of August 12, 2015 (Doc. # 43), in which it

enjoined her from enforcing her “no marriage licenses” policy against Plaintiffs. Davis

argues that a stay is necessary to protect her constitutional rights while the Sixth Circuit

Court of Appeals entertains her interlocutory appeal of the Court’s decision (Doc. # 44).

Plaintiffs having submitted a Response in Opposition to the Motion (Doc. # 46), and Davis

having filed her Reply (Doc. # 51), this matter is now ripe for the Court’s review. After

considering the record, the controlling law, and the parties' arguments, the Court concludes

that a stay pending appeal is not warranted. Defendant Kim Davis’ Motion to Stay (Doc.

# 45) is therefore denied.

However, in recognition of the constitutional issues involved, and realizing that

emotions are running high on both sides of the debate, the Court finds it appropriate to

1

Case: 0:15-cv-00044-DLB Doc #: 52 Filed: 08/17/15 Page: 2 of 7 - Page ID#: 1265
temporarily stay this Order pending review of Defendant Davis’ Motion to Stay (Doc. # 45) by the Sixth Circuit Court of Appeals.
II. Analysis “While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(c); see also Fed. R. App. P. 8(a)(1) (providing that “[a] party must ordinarily move first in the district court for . . . an order suspending modifying, restoring, or granting an injunction while an appeal is pending). To determine whether a stay is warranted, district courts must consider the following four factors: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991) (noting that “the factors to be considered are the same for both a preliminary injunction and a stay pending appeal”). A movant “need not always establish a high probability of success on the merits” to justify the granting of a stay. Id. The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay. Simply stated, more of one excuses less of the other. This relationship however, is not without its limits; the movant is always required to demonstrate more than the mere “possibility” of success on the merits. For example, even if a movant demonstrates irreparable harm that decidedly outweighs any potential harm to the defendant if a stay is granted, he is still required to show, at a minium, “serious questions going to the merits.”
2

Case: 0:15-cv-00044-DLB Doc #: 52 Filed: 08/17/15 Page: 3 of 7 - Page ID#: 1266
Id. at 153-54 (internal citations omitted). Courts generally look to three factors in evaluating the harm that will occur absent
a stay: (1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided. Id. at 154. A movant must not only demonstrate that the harm alleged is “both certain and immediate, rather than speculative or theoretical,” he or she “must provide some evidence that the harm has occurred in the past and is likely to occur again.” Id.
In its Memorandum Opinion and Order, the Court held that Davis’ “no marriage licenses” policy likely infringed upon Plaintiffs’ fundamental right to marry, thus warranting injunctive relief. (Doc. # 43 at 28). The Court further found that Davis was unlikely to suffer a violation of her free exercise rights if an injunction was issued. (Id.). Although these findings suggest that Davis is unlikely to prevail on appeal, she insists that “[t]his case presents substantial legal matters of first impression for this (or any other) federal appeals court following the Obergefell decision from the United States Supreme Court.” (Doc. # 451 at 10).
Davis cites to United States v. Coffman for the proposition that matters of first impression create serious questions going to the merits. See Civ. A. No. 5:09-181-KKC, 2010 WL 4683761 (E.D. Ky. Nov. 12, 2010). In that case, the Government moved the court to stay its previous order, which “requir[ed] the Government to remove lis pendens notices it placed on property listed in the superseding indictment as substitute assets, pending an appeal to the United States Court of Appeals for the Sixth Circuit.” Id. at *1. Because the court was not aware of any precedent addressing “whether the Government has authority under Kentucky law to place lis pendens notices on a criminal defendant’s substitute assets
3

Case: 0:15-cv-00044-DLB Doc #: 52 Filed: 08/17/15 Page: 4 of 7 - Page ID#: 1267

prior to trial,” it determined that the Government had more than a mere possibility of

success on the merits on appeal. Id. at *2.

In this case, by contrast, the Court is not tasked with resolving an unsettled issue

of state law. It is being asked to apply clearly established federal law, as enunciated in

Obergefell. 135 S. Ct. 2584 (2015). Although the U.S. Supreme Court did not consider the

more narrow issue before this Court–whether requiring a county clerk to issue marriage

licenses to same-sex couples violates her free exercise rights–it was not silent as to the

likely impact of its holding on religious freedom.

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. The rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choice and diminish their personhood to deny them this right.

*

*

*

*

*

[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

4

Case: 0:15-cv-00044-DLB Doc #: 52 Filed: 08/17/15 Page: 5 of 7 - Page ID#: 1268
Id. at 2602-03, 2607. These passages strongly suggest that Davis’ “religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.” (Doc. # 43 at 27-28). With this guidance at hand, the Court finds that Davis has not established a likelihood of success on the merits on appeal. This factor weighs against staying the case.
Davis next argues that she is highly likely to suffer irreparable harm absent a stay, which compensates for the low likelihood of her success on appeal. Specifically, Davis contends that she will incur “significant, irrevocable, and irreversible harm if she is forced to authorize and approve a [same-sex marriage] license against her religious conscience.” (Doc. # 45-1 at 12). She also points out that “[n]o one, and not even a permanent injunction in her favor, can reverse that action if she is compelled to violate her conscience.” (Id. at 13).
While Davis is correct in stating that a violation of her free exercise rights would constitute irreparable harm, she has failed to show that she is likely to suffer a violation of her free exercise rights in the first place. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir .1998). As the Court pointed out in its Memorandum Opinion and Order, Davis is only being required to certify that couples meet the legal requirements to marry. She does not have to authorize or approve any unions on moral or religious grounds. Absent a likely constitutional violation, Davis is unlikely to suffer irreparable harm absent a stay.
The Court having found that Davis is unlikely to prevail on appeal or suffer irreparable harm absent a stay, it follows that Plaintiffs are likely to suffer harm if a stay is granted. The Court has already held that Plaintiffs are likely to succeed on the merits of
5

Case: 0:15-cv-00044-DLB Doc #: 52 Filed: 08/17/15 Page: 6 of 7 - Page ID#: 1269
their claim and enjoined Davis from enforcing her “no marriage licenses” policy against them. If the Court decided to delay enforcement of its Order while Davis pursues an unpromising appeal, it would essentially give Plaintiffs a favorable legal ruling with no teeth and prolong the likely violation of their constitutional rights. Thus, this third factor also weighs against staying the Order.
Finally, the Court notes that it is in the public interest to prevent the violation of a party’s constitutional rights. G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F. 3d 1071, 1079 (6th Cir. 1994). Because Davis’ “no marriage licenses” policy likely infringes upon Plaintiffs’ fundamental right to marry, and because Davis herself is unlikely to suffer a violation of her free exercise rights if compelled to issue marriage licenses, the Court concludes that the public interest is not served by granting a stay.
III. Conclusion District courts are directed to balance four factors when analyzing a motion to stay. In this case, all four factors weigh in favor of denying the requested relief. Accordingly, for the reasons set forth herein, IT IS ORDERED that Defendant Kim Davis’ Motion to Stay (Doc. # 45) be, and is, hereby DENIED. IT IS FURTHER ORDERED that this Order denying Kim Davis’ Motion to Stay be, and is, hereby TEMPORARILY STAYED pending review of Defendant Davis’ Motion to Stay (Doc. # 45) by the Sixth Circuit Court of Appeals.
6

Case: 0:15-cv-00044-DLB Doc #: 52 Filed: 08/17/15 Page: 7 of 7 - Page ID#: 1270 This 17th day of August, 2015.
G:\DATA\ORDERS\Ashland Civil\2015\15-44 Order re Mtn to Stay.wpd
7

 
 Case: 0:15-cv-00044-DLB Doc #: 55 Filed: 08/19/15 Page: 1 of 2 - Page ID#: 1283

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CIVIL ACTION NO. 15-44-DLB
APRIL MILLER, et al.

PLAINTIFFS

vs.

ORDER

KIM DAVIS, both individually and in her official capacity, et al.

DEFENDANTS

***********************

On August 17, 2015, this Court entered an Order (Doc. # 52) denying Defendant

Kim Davis’ motion to stay the Court’s August 12, 2015 Order (Doc. # 43) granting Plaintiffs

a preliminary injunction enjoining Defendant Davis from enforcing her “no marriage

licenses” policy against Plaintiffs. However, in deference to the Sixth Circuit Court of

Appeals, the Court temporarily stayed its August 12, 2015 Order to give the appellate court

an opportunity to review, on an expedited basis, the August 17, 2015 Order denying the

motion to stay.

Upon review of Federal Rule of Appellate Procedure 8(a)(2), governing stays of

injunctions pending appeal, the Court finds it necessary to set an expiration date for the

temporary stay. Accordingly,

IT IS ORDERED that the Court’s temporary stay of its August 17, 2015 Order shall

expire on August 31, 2015, absent an Order to the contrary by the Sixth Circuit Court of

Appeals.

1

Case: 0:15-cv-00044-DLB Doc #: 55 Filed: 08/19/15 Page: 2 of 2 - Page ID#: 1284 This 19th day of August, 2015.
G:\DATA\ORDERS\Ashland Civil\2015\15-44 Order re Temporary Stay.wpd
2

 
 Case: 0:15-cv-00044-DLB Doc #: 75 Filed: 09/03/15 Page: 1 of 2 - Page ID#: 1558

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CIVIL MINUTES-GENERAL

Case No.:0:15-cv-44-DLB At: ASHLAND,KENTUCKY Date: Thursday, September 3, 2015

Style: APRIL MILLER, et al v. KIM DAVIS, et al.

DOCKET ENTRY:

PRESENT:

HON. DAVID L. BUNNING, DISTRICT JUDGE

KELLY SMITH Deputy Clerk

SANDY WILDER Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:
DANIEL J. CANON WILLIAM ELLIS SHARP LAURA E. LANDENWICH

ATTORNEYS PRESENT FOR DEFENDANT KIM DAVIS:
JONATHAN D. CHRISTMAN ROGER K. GANNAM ANTHONY CHARLES DONAHUE

ATTORNEYS PRESENT FOR DEFENDANT ROWAN CO., KY: CECIL R. WATKINS CLAIRE E. PARSONS

ATTORNEYS PRESENT FOR THIRD PARTY DEFENDANTS: PALMER G. VANCE, II

ATTORNEY PRESENT AND APPOINTED FOR DEPUTY CLERKS: MICHAEL R. CAMPBELL for Deputy Clerk Nathaniel Davis MICHAEL B. FOX for Deputy Clerk Chrissy Plank RICHARD A. HUGHES for Deputy Clerk Brian Mason SEBASTIAN JOY for Deputy Clerk Kim Russell ANDY MARKELONIS for Deputy Clerk Melissa Thompson JEREMY CLARK for Deputy Roberta Earley

PROCEEDINGS: HEARING ON MOTION

This matter was called for a hearing on the Plaintiff’s Motion to Hold Defendant Kim Davis in Contempt of Court (DE # 67) in Ashland, Kentucky, with parties present, by counsel, as noted above. Having heard arguments from counsel and testimony of witnesses, and the Court being otherwise sufficiently advised, IT IS ORDERED AS FOLLOWS:

1) There being no objection from the parties, Kentucky Senate President Robert Stivers’ Motion for Leave to File a Brief as Amicus Curiae in support of Defendants (DE # 73) is GRANTED.

1

Case: 0:15-cv-00044-DLB Doc #: 75 Filed: 09/03/15 Page: 2 of 2 - Page ID#: 1559
2) By agreement of the parties, Third Party Defendants shall have until close of business on Tuesday, September 8, 2015 to respond to Defendant Davis’ Motion for Injunction Pending Appeal (Doc. # 70). Defendant Davis shall have until close of business on Thursday, September 10, 2015 to file her reply brief. The parties are advised that these deadlines have been expedited.
3) The Court appoints MICHAEL R. CAMPBELL as counsel for Rowan County Deputy Clerk Nathaniel Davis. MICHAEL B. FOX is appointed as counsel for Rowan County Deputy Clerk Chrissy Plank. RICHARD A. HUGHES is appointed as counsel for Rowan County Deputy Clerk Brian Mason. SEBASTIAN JOY is appointed as counsel for Rowan County Deputy Clerk Kim Russell. ANDY MARKELONIS is appointed as counsel for Rowan County Deputy Clerk Melissa Thompson. JEREMY CLARK is appointed as counsel for Rowan County Chief Deputy Clerk Roberta Earley.
4) After hearing arguments from counsel and testimony from witnesses, the Court finds Defendant Davis in contempt of the Court’s Order of August 12, 2015, for reasons stated on the record. Accordingly, Plaintiffs’ Motion to Hold Defendant Kim Davis in Contempt of Court (DE # 67) is GRANTED. Defendant Davis shall be remanded to the custody of the United States Marshal pending compliance of the Court’s Order of August 12, 2015, or until such time as the Court vacates the contempt Order.
5) Defendant Davis’ oral motion to stay enforcement of the Court’s contempt order pending review of the Court’s August 12, 2015 Order by the Sixth Circuit Court of Appeals is DENIED. Defendant Davis’ oral motion to certify the contempt order for appeal is DENIED.
6) Defendant Davis’ oral motion to suspend any sentence until the Kentucky Legislature convenes is DENIED.
TIC: 3 39
G:\DATA\ORDERS\Ashland Civil\2015\15-44 Minutes from Sept 3rd contempt hearing.wpd
2

 
 Case: 0:15-cv-00044-DLB Doc #: 89 Filed: 09/08/15 Page: 1 of 2 - Page ID#: 1827

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CIVIL ACTION NO. 15-44-DLB
APRIL MILLER, et al.

PLAINTIFFS

vs.

ORDER

KIM DAVIS, both individually and in her official capacity, et al.

DEFENDANTS

***********************

On September 3, 2015, the Court held Defendant Kim Davis in contempt and jailed

her for her refusal to issue marriage licenses, directly or through her deputy clerks, in

accordance with the U.S. Supreme Court’s decision in Obergefell v. Hodges and this

Court’s Memorandum Opinion and Order of August 12, 2015. After remanding Defendant

Davis to the custody of the U.S. Marshal, five of her six deputy clerks stated under oath that

they would comply with the Court’s Order and issue marriage licenses to all legally eligible

couples. (Docs. # 75; 78 at 121-170).

On September 8, 2015, Plaintiffs filed a Status Report at the Court’s behest.

According to the Report, Plaintiffs have obtained marriage licenses from the Rowan County

Clerk’s Office.1 The Court is therefore satisfied that the Rowan County Clerk’s Office is

fulfilling its obligation to issue marriage licenses to all legally eligible couples, consistent

1) While the Status Report reflects that Plaintiffs’ marriage licenses have been altered so that “Rowan County” rather than “Kim Davis” appears on the line reserved for the name of the county clerk, Plaintiffs have not alleged that the alterations affect the validity of the licenses. Nor do the alterations impact the Court’s finding that the deputy clerks have complied with the Court’s Order.
1

Case: 0:15-cv-00044-DLB Doc #: 89 Filed: 09/08/15 Page: 2 of 2 - Page ID#: 1828
with the U.S. Supreme Court’s holding in Obergefell and this Court’s August 12, 2015 Order. For these reasons, the Court’s prior contempt sanction against Defendant Davis is hereby lifted.
Accordingly, IT IS ORDERED as follows: 1. Defendant Davis shall be released from the custody of the U.S. Marshal forthwith. Defendant 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. If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered. 2. CJA counsel for the five (5) deputy clerks who indicated they would comply with the Court’s Order shall file a Status Report every fourteen (14) days from the date of entry of this Order unless otherwise excused by the Court. Within those reports Counsel shall report on their clients’ respective compliance with the Court’s August 12, 2015 Order enjoining the Rowan County Clerk from enforcing her “no marriage licenses” policy, as well as its Order of September 3, 2015 requiring them to issue marriage licenses to all eligible couples in compliance with the Court’s prior Order. This 8th day of September, 2015.
G:\DATA\ORDERS\Ashland Civil\2015\15-44 Order lifting contempt sanction.wpd
2

 
 Case: 0:15-cv-00044-DLB Doc #: 103 Filed: 09/11/15 Page: 1 of 6 - Page ID#: 2175

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CIVIL ACTION NO. 15-44-DLB
APRIL MILLER, et al.

PLAINTIFFS

vs.

KIM DAVIS, individually and in her official capacity, et al.

DEFENDANTS

and

MEMORANDUM ORDER

KIM DAVIS, individually and in her official capacity

THIRD-PARTY PLAINTIFF

vs.

STEVEN L. BESHEAR, in his official capacity as Governor of Kentucky and WAYNE ONKST, in his official capacity as Commissioner of the Kentucky Department of Libraries and Archives

THIRD-PARTY DEFENDANT

***********************

I. Introduction

This matter is before the Court on Third-Party Plaintiff Kim Davis’ Emergency Motion

for Injunction Pending Appeal (Doc. # 70). Davis seeks to enjoin Third-Party Defendants

Steve Beshear and Wayne Onkst, in their respective official capacities as Governor of

Kentucky and Commissioner of the Kentucky Department of Libraries and Archives, from

1

Case: 0:15-cv-00044-DLB Doc #: 103 Filed: 09/11/15 Page: 2 of 6 - Page ID#: 2176
directing her to authorize the issuance of marriage licenses while her appeal of the Court’s August 25, 2015 Order is pending at the Sixth Circuit Court of Appeals.1 She also asks the Court to “preliminarily exempt[ ] [her] from having to authorize the issuance of marriage licenses” while her appeal is pending.2 (Doc. # 70-2). Governor Beshear and Commissioner Onkst having submitted a Response in Opposition (Doc. # 91), and Davis having filed her Reply (Doc. # 97), this matter is now ripe for the Court’s review. At Davis’ request, the Court has expedited its decision. For reasons stated herein, Davis’ Emergency Motion for Injunctive Relief (Doc. # 70) is DENIED. II. Analysis
When entertaining a motion for preliminary injunction, courts must balance the following four factors: (1) whether the movant has demonstrated a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable harm; (3) whether an injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of such an injunction. See In re Eagle Picher Indus., Inc., 963 F.3d 855, 859 (6th Cir. 1992).
In its Memorandum Opinion and Order of August 12, 2015 (Doc. # 43), the Court held that all four factors weighed in favor of granting Plaintiffs’ Motion for Preliminary Injunction (Doc. # 2) against Davis in her official capacity as Rowan County Clerk. The
1) The Court’s Order of August 25, 2015 (Doc. # 58) simply stayed briefing of Davis’ Motion to Dismiss (Doc. # 32) and Motion for Preliminary Injunction (Doc. # 39) pending review of its Memorandum Opinion and Order of August 12, 2015 (Doc. # 43) by the Sixth Circuit Court of Appeals. See 6th Cir. Case No. 15-5961. Davis has separately appealed the Court’s Memorandum Opinion and Order of August 12, 2015. See 6th Cir. Case No. 15-5880. 2) This is the same relief Davis sought when she moved to stay the Court’s August 12, 2015 Memorandum Opinion and Order, in which it granted Plaintiffs’ Motion for Preliminary Injunction. (Doc. # 45).
2

Case: 0:15-cv-00044-DLB Doc #: 103 Filed: 09/11/15 Page: 3 of 6 - Page ID#: 2177
Court first found that Plaintiffs were likely to succeed on the merits of their constitutional deprivation claim because Davis’ “no marriage licenses” policy substantially burdened their fundamental right to marry without serving a compelling state interest. Because even a temporary deprivation of constitutional rights results in irreparable harm, the Court further concluded that Plaintiffs were likely to suffer irreparable harm, absent injunctive relief. See Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 556, 578 (6th Cir. 2002). The Court then rejected Davis’ attempt to argue that granting Plaintiffs’ request for injunctive relief would infringe upon her own free exercise and free speech rights. Finally, it noted that the public always has an interest in preventing the violation of a party’s constitutional rights. See G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994). The Court then preliminarily enjoined Davis from applying her “no marriage licenses” policy to future marriage license requests submitted by Plaintiffs.3
Davis relies upon these same four factors in her current Motion. The crux of her argument is that Governor Beshear and Commissioner Onkst cannot enforce their postObergefell mandate, in which they instructed all county clerks to issue marriage licenses to same-sex couples, without violating her rights under the U.S. Constitution, the Kentucky Constitution and the Kentucky Religious Freedom Act. Thus, Davis essentially reasserts arguments first raised in her Response in Opposition (Doc. # 29) to Plaintiffs’ Motion for Preliminary Injunction (Doc. # 2).
3) On September 3, 2015, the Court granted Plaintiffs’ Motion Pursuant to Rule 62(c) to Clarify the Preliminary Injunction Pending Appeal and expanded its ruling to include other individuals who are legally eligible to marry in Kentucky. (Docs. # 68 and 74).
3

Case: 0:15-cv-00044-DLB Doc #: 103 Filed: 09/11/15 Page: 4 of 6 - Page ID#: 2178
The Court will first address Davis’ request for injunctive relief against Governor Beshear and Commissioner Onkst for violation of her federal constitutional rights. The Eleventh Amendment typically bars suits against the state and its officials. Hans v. Louisiana, 134 U.S. 1, 15-18 (1890). Ex Parte Young carves out an important exception to this rule. See 209 U.S. 123 (1908). The Eleventh Amendment does not preclude federal courts from “enjoin[ing] state officials to conform their future conduct to the requirements of federal law.” Quern v. Jordan, 440 U.S. 332, 337 (1979). The Court therefore has the ability to grant Davis’ Motion, but only to the extent that she seeks to compel enforcement of her free exercise and free speech rights under the First Amendment. However, Davis has failed to convince the Court that such relief is appropriate.
In its prior Memorandum Opinion and Order, the Court concluded that Davis was unlikely to suffer a violation of her federal constitutional rights. The Court stands upon that same analysis today, and finds that Davis is unlikely to succeed on the merits of her constitutional deprivation claim. Absent such a constitutional violation, the Court cannot conclude that Davis is likely to suffer irreparable harm, nor can it find that the public interest would be served by granting Davis’ request for relief. Thus, to the extent that Davis seeks injunctive relief against Governor Beshear and Commissioner Onkst under Ex Parte Young for violation of her federal constitutional rights, her request must is denied.
The Court now turns to Davis’ request for injunctive relief against Governor Beshear and Commissioner Onkst for violation of her rights under the Kentucky Constitution and the Kentucky Religious Freedom Act (“Ky. RFRA”). Davis’ arguments proceed on the assumption that Ex Parte Young allows this Court to enjoin state officials for alleged violations of state law. However, the U.S. Supreme Court has explicitly held to the
4

Case: 0:15-cv-00044-DLB Doc #: 103 Filed: 09/11/15 Page: 5 of 6 - Page ID#: 2179
contrary: A federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment. We conclude that Young . . . [is] inapplicable in a suit against state officials on the basis of state law.
Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). “[T]his principle applies as well to state-law claims brought into federal court under pendent jurisdiction.” Id. Thus, the Court will not delve into the merits of Davis’ Motion, to the extent that it is predicated on alleged violations of state law, because the Eleventh Amendment precludes such relief. See Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 520-21 (6th Cir. 2007) (“The federal courts are simply not open to such state law challenges to official state action, absent explicit state waiver of the federal court immunity found in the Eleventh Amendment.”).
In her Motion, Davis suggests that the Court could easily stem the tide of litigation by simply ordering Governor Beshear and Commissioner Onkst to remove her name and authorization from the marriage license form. While this is a seemingly simple request, it is not consistent with principles of federalism. Under the Eleventh Amendment, as interpreted by Pennhurst, the Court simply does not have the authority to order Governor Beshear or Commissioner Onkst to alter the marriage license form or amend KRS § 402.100 based on alleged violations of Davis’ rights under the Kentucky Constitution and Ky. RFRA. Davis’ claims brought under state law should therefore be brought in Kentucky state court. To the extent that she seeks relief in the form of such an accommodation for
5

Case: 0:15-cv-00044-DLB Doc #: 103 Filed: 09/11/15 Page: 6 of 6 - Page ID#: 2180 violations of Kentucky state law, only the state court can grant such relief. III. Conclusion
Accordingly, for the reasons stated herein, IT IS ORDERED that Davis’ Motion for Injunctive Relief (Doc. # 70) be, and is, hereby DENIED. Davis retains the right to reassert her claim for injunctive relief on state law grounds in the appropriate state court. This 11th day of September, 2015.
G:\DATA\ORDERS\Ashland Civil\2015\15-44 Memorandum Order re 3PP Mtn for ER Injunction.wpd
6

 
 Case: 0:15-cv-00044-DLB Doc #: 112 Filed: 09/17/15 Page: 1 of 2 - Page ID#: 2195

No. 15-5880

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

APRIL MILLER, et al.,

)

)

Plaintiffs-Appellees,

)

)

v.

)

)

KIM DAVIS, in her individual and official capacity )

as Rowan County Clerk,

)

)

Defendant-Appellant,

)

)

v.

)

)

STEVEN L. BESHEAR, in his official capacity as )

Governor of Ky.; WAYNE ONKST, in his official )

capacity as State Librarian and Commissioner,

)

Kentucky Department of Libraries and Archives,

)

)

Third Party Defendants-Appellees.

)

)

FILED
Sep 17, 2015 DEBORAH S. HUNT, Clerk
O R D E R

Before: KEITH, ROGERS, and DONALD, Circuit Judges.
Defendant Kim Davis is before this court seeking review of a preliminary injunction entered on August 12, 2015, enjoining her, in her official capacity, “from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by the Plaintiffs.” She also appeals the September 3, 2015 order modifying the preliminary injunction to enjoin her from applying her no-marriage-license policy to future marriage license requests submitted by individuals who are eligible to marry in Kentucky. On August 28, 2015, we denied Davis’s

Case: 0:15-cv-00044-DLB Doc #: 112 Filed: 09/17/15 Page: 2 of 2 - Page ID#: 2196 No. 15-5880 -2-
motion for a stay of the August 12 preliminary injunction pending appeal. She now moves for a stay pending appeal of the September 3 preliminary injunction. The plaintiffs and the third-party defendants oppose the motion for a stay.
Davis has not sought a stay pending appeal in the district court as required by Federal Rule of Appellate Procedure 8(a)(1). Davis argues that it would be impracticable to seek a stay pending appeal because of the “extraordinary doggedness of the district court to expand the Injunction, without jurisdiction or fair notice and opportunity to be heard.” This is not valid reason to excuse moving the district court for a stay pending appeal in the context of this case.
Davis’s motion for a stay of the September 3 preliminary injunction pending appeal is DENIED for failure to comply with Rule 8(a)(1).
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

 
 Case: 0:15-cv-00044-DLB Doc #: 161 Filed: 02/09/16 Page: 1 of 3 - Page ID#: 2657

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CIVIL ACTION NO. 15-44-DLB
APRIL MILLER, et al.

PLAINTIFFS

vs.

ORDER

KIM DAVIS, both individually and in her official capacity, et al.

DEFENDANTS

*******************

This matter is before the Court upon Plaintiffs’ Motion to Enforce (Doc. # 120) the

Orders of September 3, 2015 (Doc. # 75) and September 8, 2015 (Doc. # 89). On

September 3, 2015, the Court held Defendant Kim Davis in contempt for failing to comply

with its Memorandum Opinion and Order (Doc. # 43), in which it preliminarily enjoined her

from applying her “no marriage licenses” policy to future marriage license requests

submitted by Plaintiffs.1 After remanding Davis to the custody of the United States

Marshal’s Service, five of six Rowan County Deputy Clerks told the Court that they would

issue marriage licenses in her absence. The next day, multiple same-sex and opposite-sex

couples obtained marriage licenses from the Rowan County Clerk’s Office. (Doc. # 89).

Because Davis’ Office issued these licenses, the Court found that she had purged herself

of the contempt and ordered her release from custody on September 8, 2015. (Id.).

1) The Court later clarified that this preliminary injunction applied to “future marriage license requests submitted by Plaintiffs or by other individuals who are legally eligible to marry in Kentucky.” (Doc. # 74) (emphasis added).
1

Case: 0:15-cv-00044-DLB Doc #: 161 Filed: 02/09/16 Page: 2 of 3 - Page ID#: 2658
However, the Court warned Davis not to interfere with the issuance of marriage licenses.
(Id.).
On September 14, 2015, Davis returned to work at the Rowan County Clerk’s Office.
(Doc. # 120). According to Deputy Clerk Brian Mason, Davis promptly “confiscated all the
original forms, and provided a changed form which deletes all mentions of the County, fills
in one of the blanks that would otherwise be the County with the Court’s styling, deletes her
name, deletes all of the deputy clerk references, and in place of deputy clerk types in the
name of Brian Mason, and has him initial rather than sign.” (Doc. # 114). On September
20, 2015, Plaintiffs to filed the instant Motion, expressing concerns about the validity of
these altered marriage licenses. (Doc. # 120). Specifically, Plaintiffs request that the Court
order the Rowan County Deputy Clerks to do the following:
(1) issue marriage licenses in the same form and manner as those that were issued on or before September 8, 2015;
(2) 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;
(3) continue to file status reports that address their compliance with the Court’s Orders and detail any attempt by Davis to interfere with their issuance of marriage licenses in the same form or manner as those that were issued on or before September 8, 2015; and
(4) 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.
(Doc. # 120 at 1-2).
Since Plaintiffs filed this Motion, the Court has received numerous Status Reports
from the Rowan County Deputy Clerks. (Docs. # 125, 126, 127, 128, 129, 141, 143, 144, 2

Case: 0:15-cv-00044-DLB Doc #: 161 Filed: 02/09/16 Page: 3 of 3 - Page ID#: 2659 145, 146, 150, 151, 152, 153 and 154). These Reports state that the Rowan County Clerk’s Office is issuing marriage licenses to individuals eligible to marry as needed. (Id.). There has been no indication that Davis has continued to interfere with the issuance of marriage licenses since September 20, 2015. (Id.). Moreover, there is every reason to believe that any altered licenses issued between September 14, 2015 and September 20, 2015 would be recognized as valid under Kentucky law, making re-issuance unnecessary. (Doc. # 148). Under these circumstances, the Court finds that Plaintiffs’ request for relief is now moot. The Court will continue to monitor Davis and the Rowan County Clerk’s Office to ensure compliance with its Orders. Accordingly, for the reasons stated herein,
IT IS ORDERED that Plaintiffs’ Motion to Enforce (Doc. # 120) be, and is, hereby DENIED AS MOOT.
This 9th day of February, 2016.
G:\DATA\ORDERS\Ashland Civil\2015\15-44 Order Denying Motion to Enforce.wpd
3

 
 Case: 0:15-cv-00044-DLB Doc #: 181 Filed: 08/18/16 Page: 1 of 2 - Page ID#: 2706

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CIVIL ACTION NO. 15-44-DLB
APRIL MILLER, et al.

PLAINTIFFS

vs.

ORDER

KIM DAVIS, individually and in her official capacity, et al.

DEFENDANTS

***********************

On July 13, 2015, the United States Court of Appeals for the Sixth Circuit entered

an Order granting Appellant Kim Davis’ Motion to Dismiss for Lack of Jurisdiction (Doc. #

179). In that Motion, Davis noted that Kentucky Senate Bill 216 (“SB 216"), which removes

the name of the County Clerk from marriage license forms, would take effect before the

Sixth Circuit was scheduled to hear oral argument in the case. Davis suggested, and

Appellees agreed, that the implementation of SB 216 would render the consolidated

appeals moot. Accordingly, the Sixth Circuit dismissed the appeal and remanded the

matter to the Court “with instructions to vacate its August 12, 2015 preliminary injunction

order and its September 3, 2015 order modifying that injunction.”1 (Id.). The mandate

having now issued (Doc. # 180), and the Court being otherwise sufficiently advised,

IT IS ORDERED that the Court’s Order of August 12, 2015 (Doc. # 43), granting

Plaintiffs’ Motion for Preliminary Injunction, and the Court’s Order of September 3, 2015,

1) The Sixth Circuit noted that the Court’s September 3, 2015 contempt order “does not meet the requirements for vacatur under Munsingwear and its progeny, and it is therefore not vacated.” (Doc. # 179).
1

Case: 0:15-cv-00044-DLB Doc #: 181 Filed: 08/18/16 Page: 2 of 2 - Page ID#: 2707 modifying the injunction (Doc. # 74) be, and are, hereby VACATED.
This 18th day of August, 2016.
K:\DATA\ORDERS\Ashland Civil\2015\15-44 Order Vacating Injunction Post 6CCA Remand.wpd
2

 
 Miller v. Davis, Not Reported in F.3d (2015)

2015 WL 10692640 Only the Westlaw citation is currently available.
United States Court of Appeals, Sixth Circuit.
April MILLER, et al., Plaintiffs–Appellees, v.
Kim DAVIS, in her individual and official capacity as Rowan County Clerk, Defendant–Appellant.
No. 15–5880. |
Aug. 26, 2015.
Before KEITH, ROGERS, and DONALD, Circuit Judges.
ORDER
*1 Defendant Kim Davis appeals the August 12, 2015 preliminary injunction enjoining her, in her official capacity, “from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by the Plaintiffs.” She moves for a stay of the preliminary injunction pending appeal. The district court denied a similar motion for a stay pending appeal on August 17, 2015. The plaintiffs oppose the motion for a stay pending appeal. Eagle Forum Education & Legal Defense Fund (“Eagle Forum”) moves for leave to file an amicus curiae brief in support of the issuance of a stay pending appeal. We grant the motion to file the amicus brief, but deny the motion for a stay.
Davis “bears the burden of showing that the circumstances justify” the exercise of discretion to grant a stay pending appeal. Nken v. Holder, 556 U.S. 418, 433–34 (2009). Four factors guide our consideration of her motion for a stay: (1) whether Davis has a strong likelihood of success on the merits; (2) whether she will suffer irreparable harm in the absence of a stay; (3) whether the requested injunctive relief will substantially injure other interested parties; and (4) where the public interest lies. Id. at 434; see also Ohio St. Conference of N.A.A.C.P. v. Husted, 769 F.3d 385, 387 (6th Cir.2014);
1

Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir.2012). “The first two factors of the traditional standard are the most critical.” Nken, 556 U.S. at 434. And the four “factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.” Husted, 698 F.3d at 343 (internal quotation marks omitted).
As the County Clerk for Rowan County, Kentucky, Davis’s official duties include the issuance of marriage licenses. In response to the Supreme Court’s holding in Obergefell v. Hodges, 135 S.Ct. 2584, 2607 (2015), that a state is not permitted “to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex,” Davis unilaterally decided that her office would no longer issue any marriage licenses. According to Davis, the issuance of licenses to same-sex marriage couples infringes on her rights under the United States and Kentucky Constitutions as well as the Kentucky Freedom Restoration Act, KY.Rev.Stat. Ann. § 446.350. The Rowan County Clerk’s office has since refused to issue marriage licenses to the plaintiffs, and this action ensued.
The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court. There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal. Cf. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Evans–Marshall v. Bd. of Educ. of Tipp City Exempted Vill. School Dist., 624 F.3d 332, 338 (6th Cir.2010) (where a public employee’s speech is made pursuant to his duties, “the relevant speaker [is] the government entity, not the individual”).
*2 Eagle Forum’s motion for leave to file a brief in support of the motion for stay as amicus curiae is GRANTED. Davis’s motion for a stay of the preliminary injunction pending appeal is DENIED.
All Citations
Not Reported in F.3d, 2015 WL 10692640
1

Miller v. Davis, Not Reported in F.3d (2015)

2

2

 
 Case: 0:15-cv-00044-DLB Doc #: 147 Filed: 11/05/15 Page: 1 of 2 - Page ID#: 2546

Nos. 15-5880/5961/5978

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

APRIL MILLER, et al.,

)

)

Plaintiffs-Appellees,

)

)

v.

)

)

KIM DAVIS, in her individual and official capacity as )

Rowan County Clerk,

)

)

Defendant-Appellant,

)

)

v.

)

)

STEVEN L. BESHEAR, in his official capacity as

)

Governor of Ky.; WAYNE ONKST, in his official

)

capacity as State Librarian and Commissioner, Kentucky )

Department of Libraries and Archives,

)

)

Third Party Defendants-Appellees.

)

)

FILED
Nov 05, 2015 DEBORAH S. HUNT, Clerk
O R D E R

Before: KEITH, ROGERS, and DONALD, Circuit Judges.

Kim Davis, the Rowan County Clerk, appeals a preliminary injunction entered on August 12, 2015, enjoining her, in her official capacity, “from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by the Plaintiffs.” She also appeals the September 3, 2015 order modifying the preliminary injunction to enjoin her from applying her no-marriage-license policy to future marriage license requests submitted by individuals who are eligible to marry in Kentucky. On August 28, 2015, we denied Davis’s motion for a stay of the August 12 preliminary injunction. She now seeks a stay pending appeal of the September 3 order. The plaintiffs and the third-party defendants oppose a stay. On September 23, 2015, the district court denied a stay of the September 3 order.

Case: 0:15-cv-00044-DLB Doc #: 147 Filed: 11/05/15 Page: 2 of 2 - Page ID#: 2547 Nos. 15-5880/5961/5978 -2-
Davis “bears the burden of showing that the circumstances justify” the exercise of discretion to grant a stay pending appeal. Nken v. Holder, 556 U.S. 418, 433–34 (2009). Four factors guide our consideration of the renewed motion for a stay: (1) whether Davis has a strong likelihood of success on the merits; (2) whether she will suffer irreparable harm in the absence of a stay; (3) whether the requested injunctive relief will substantially injure other interested parties; and (4) where the public interest lies. Id. at 434; see also Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012). “The first two factors of the traditional standard are the most critical.” Nken, 556 U.S. at 434. “These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
Davis argues that because the August 12 preliminary injunction was on appeal to this court, the district court lacked jurisdiction to issue the September 3 order modifying the terms of the injunctive relief granted. As a general rule, the filing of a notice of appeal divests the district court of jurisdiction to act, except in the aid of the appeal. But Federal Rule of Civil Procedure 62(c) provides that while an appeal from a ruling on injunctive relief is pending, “the court may suspend, modify, restore, or grant an injunction[.]”
The district court’s order denying a stay shows that plaintiffs’ likelihood of success on the merits of this appeal is not sufficiently strong to outweigh the remaining equitable factors at this stage of the appeal.
Davis’s renewed motion for a stay of the September 3 order pending appeal is DENIED. ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

 
 Miller v. Davis, 667 Fed.Appx. 537 (2016)

667 Fed.Appx. 537 (Mem) This case was not selected for publication in West’s
Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 6th Cir.
Rule 32.1. United States Court of Appeals,
Sixth Circuit.
April MILLER, Ph.D., et al., Plaintiffs–Appellee, v.
Kim DAVIS, individually, Defendant–Appellant.
Nos. 15–5880 |
15–5978 |
July 13, 2016
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
Attorneys and Law Firms
William E. Sharp, American Civil Liberties Union of Kentucky, Louisville, KY, Daniel Mach, Heather L. Weaver, American Civil Liberties Union, Washington, DC, Daniel J. Canon, Law Offices, Louisville, KY, Leonard Joe Dunman, Laura E. Landenwich, Clay, Daniel, Walton & Adams, Louisville, KY, James D. Esseks, Ria Tabacco Mar, ACLU, New York, NY, for Plaintiffs–Appellees.
Horatio Gabriel Mihet, Liberty Counsel, Maitland, FL, Mathew D. Staver, Roger K. Gannam, Liberty Counsel, Orlando, FL, Anthony Charles Donahue, Donahue Law Group, Somerset, KY, for Defendant–Appellant.
Lawrence John Joseph, Law Office, Washington, DC, Amicus Curiae Eagle Forum Education & Legal Defense

Fund.
Richard Brian Katskee, Americans United for Separation of Church and State, *538 Washington, DC, Amicus Curiae Americans United for Separation of Church and State. BEFORE: BATCHELDER and KETHLEDGE, Circuit Judges; LEVY, District Judge.*
ORDER
This matter is before the Court on a Motion to Dismiss for Lack of Jurisdiction filed by Appellant Kim Davis. The motion has been fully briefed, and the parties agree that Kentucky Senate Bill 216, which will go into effect before we are scheduled to hear oral argument in this case, will render these consolidated appeals moot. We therefore dismiss these appeals and remand this matter to the district court with instructions to vacate its August 12, 2015 preliminary injunction order [DE 43] and its September 3, 2015 order modifying that injunction [DE 74]. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950). The district court’s September 3, 2015 order holding Davis in contempt of court [DE 75] does not meet the requirements for vacatur under Munsingwear and its progeny, and it is therefore not vacated.
ENTERED BY ORDER OF THE COURT
All Citations
667 Fed.Appx. 537 (Mem)

Footnotes

*

The Honorable Judith E. Levy, United States District Judge for the Eastern District of Michigan, sitting by designation.

1

Miller v. Davis, 667 Fed.Appx. 537 (2016) 2

 
 Case: 0:15-cv-00044-DLB Doc #: 121 Filed: 09/23/15 Page: 1 of 5 - Page ID#: 2329

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CIVIL ACTION NO. 15-44-DLB
APRIL MILLER, et al.

PLAINTIFFS

vs.

MEMORANDUM ORDER

KIM DAVIS, both individually and in her official capacity, et al.

DEFENDANTS

***********************

This matter is before the Court on Defendant Kim Davis’ Emergency Motion to Stay

the Court’s Injunction Order of September 3, 2015 Pending Appeal (Doc. # 113). In that

Order (Doc. # 74), the Court granted Plaintiffs’ Motion to Clarify (Doc. # 68) the preliminary

injunction entered against Davis, enjoining her, in her official capacity as Rowan County

Clerk, “from applying her ‘no marriage licenses’ policy to future marriage license requests

submitted by Plaintiffs” (Doc. # 43 at 28). The modified injunction simply clarifies that Davis

may not enforce her policy against other “individuals who are legally eligible to marry in

Kentucky” (Doc. # 74). Davis has appealed this issue to the Sixth Circuit Court of Appeals

(Doc. # 82) and asked it to stay enforcement of the modified injunction while the appeal is

pending (Doc. # 112). The Sixth Circuit denied Davis’ Motion to Stay for failure to comply

with Federal Rule of Appellate Procedure 8(a)(1), which requires her to first seek such relief

from this Court. Davis immediately filed the Motion before this Court. Because the issues

raised therein have already been exhaustively briefed, the Court considers Davis’ Motion

1

Case: 0:15-cv-00044-DLB Doc #: 121 Filed: 09/23/15 Page: 2 of 5 - Page ID#: 2330
ripe for review. For reasons stated herein, Davis’ Motion (Doc. # 113) is DENIED. “While an appeal is pending from an interlocutory order or final judgment that grants,
dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(c); see also Fed. R. App. P. 8(a)(1) (requiring a party to move first in the district court for an order suspending modifying, restoring, or granting an injunction while an appeal is pending). To determine whether a stay is warranted, district courts rely on the following four factors: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
Davis argues that she is entitled to a stay because she has established a strong likelihood of success on the merits of her appeal of the Court’s September 3, 2015 Order. Specifically, she contends that the Order is null and void because the Court entered it after she appealed the initial preliminary injunction to the Sixth Circuit. Davis further insists that the Order does not fit within the confines of Federal Rule of Civil Procedure 62(c), which permits a district court to modify a preliminary injunction during the pendency of an interlocutory appeal. Rather, she characterizes the Court’s Order as an impermissible “expan[sion of] the class of persons entitled to licenses pursuant to the [i]njunction.” (Doc. # 113-1 at 12).
“The filing of a notice of appeal is an event of jurisdictional significance–it confers jurisdiction on the court of appeals and divests the district court of its control over those
2

Case: 0:15-cv-00044-DLB Doc #: 121 Filed: 09/23/15 Page: 3 of 5 - Page ID#: 2331
aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). However, Federal Rule of Civil Procedure 62(c) creates an exception to this general rule:
While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights. A circuit split has developed as to the proper interpretation of Rule 62(c). Basicomputer Corp. v. Scott, 973 F.2d 507, 513 (6th Cir. 1992). “At least three circuits provide that a trial court’s power to modify a preliminary injunction during the pendency of an interlocutory appeal is limited to modifications that preserve the status quo.” Id. (citing case law from the 2nd, 5th and 9th Circuits). Two other circuits “have concluded that, in some circumstances, a district court may alter the status quo by modifying an injunction during the pendency of an appeal.” Id. (citing cases from the 3rd and 8th Circuits). The Sixth Circuit has not endorsed either one of these tests. Id. (stating that “[w]e need not weigh in on this controversy in order to resolve this case”). The Court believes that its decision to grant Plaintiffs’ Motion to Clarify is consistent with both interpretations of Rule 62(c). In its initial injunction order, the Court simply granted Plaintiffs’ request for relief and enjoined Davis from applying her “no marriage licenses” policy to Plaintiffs. However, it soon became apparent that Davis denied marriage license requests submitted by other couples, including, but not limited to, Plaintiffs in two companion cases before this Court. See Ermold et al. v. Davis et al., 0:15-cv-46-DLB; Yates et al. v. Davis et al., 0:15-cv-62-DLB. Had the Court declined to clarify that its ruling applied to all eligible couples seeking a marriage license in Rowan County, it would have
3

Case: 0:15-cv-00044-DLB Doc #: 121 Filed: 09/23/15 Page: 4 of 5 - Page ID#: 2332
effectively granted Plaintiffs’ request for injunctive relief and left other eligible couples at the mercy of Davis’ “no marriage licenses” policy, which the Court found to be in violation of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Such an approach would not only create piecemeal litigation, it would be inconsistent with basic principles of justice and fairness. Thus, when the need arose, the Court clarified that its ruling applied with equal force to all marriage license applicants in Rowan County, regardless of their involvement in this litigation. Because its actions simply preserved the status quo, the Court finds that Davis is unlikely to succeed on the merits of her appeal.
The Court will provide only a brief analysis of the remaining factors, as Davis has failed to show substantial questions going to the merits of her appeal. Davis contends that she is likely suffer irreparable harm, in the form of incarceration for contempt of court, absent a stay. This argument is unpersuasive because Davis has created her own risk of harm by violating a valid Order issued by this Court. The Court also disagrees with Davis’ assertion that there is little likelihood of harm to others if a stay is granted. Although Plaintiffs have obtained their marriage licenses, other eligible couples have and will most certainly continue to seek licenses in Rowan County going forward. If the Court granted Davis’ Motion to Stay at this juncture, it would essentially allow her to reinstate her “no marriage licenses” policy during the pendency of the appeal and likely violate the constitutional rights of eligible couples. As for the public interest, the Court simply notes that the public has an interest in the enforcement of valid court orders. Thus, all four factors weigh in favor of denying the requested relief.
Accordingly, for the reasons stated herein,
4

Case: 0:15-cv-00044-DLB Doc #: 121 Filed: 09/23/15 Page: 5 of 5 - Page ID#: 2333 IT IS ORDERED that Defendant Kim Davis’ Emergency Motion to Stay the Court’s
Injunction Order of September 3, 2015 Pending Appeal (Doc. # 113) be, and is, hereby DENIED.
This 23rd day of September, 2015.
J:\DATA\ORDERS\Ashland Civil\2015\15-44 Order re Mtn to Stay 9-3-15 Order.wpd
5

 
 Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 1 of 50 - Page ID#: 2943

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
CIVIL ACTION NO. 15-44-DLB
APRIL MILLER, et al.

PLAINTIFFS

vs.

MEMORANDUM OPINION AND ORDER

KIM DAVIS, individually and in her official capacity, et al.

DEFENDANTS

** ** ** ** ** ** ** **

I. INTRODUCTION In the summer of 2015, the Supreme Court put the national debate concerning
same-sex marriage to bed. The Court determined that same-sex couples need not “await further legislation, litigation, and debate,” and held that the Constitution’s fundamental right to marry extended to same-sex couples. Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015). The dissenting justices warned that there would be “consequences to shutting down the political process on an issue of such profound public significance.” Id. at 2625 (Roberts, J., dissenting). At least in some respects, the dissenting justices’ concerns proved correct. Obergefell’s watershed decision floated downstream to district courts, including this one.
Less than one week after the Supreme Court’s decision in Obergefell, the instant case landed on the Court’s docket when Kim Davis, the Rowan County Clerk, refused to issue marriage licenses. This litigation has produced many appeals, a jailing for contempt, at least two marriages, and legislative action. Now, this protracted case has

1

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 2 of 50 - Page ID#: 2944
boiled down to a single remaining issue: attorneys’ fees. Pursuant to this Court’s September 21, 2016 Order (Doc. # 184), Plaintiffs’ Motion
for Attorneys’ Fees and Costs (Doc. # 183) was referred to Magistrate Judge Edward B. Atkins for a Report and Recommendation (“R&R”). Judge Atkins recommended that the Court deny Plaintiffs’ Motion for Attorneys’ Fees and Costs. (Doc. # 199). The Plaintiffs having objected to the R&R (Doc. # 201), the Defendants having filed their Responses (Docs. # 203 and 204), and the Plaintiffs having filed a Reply (Doc. # 205), the R&R is ripe for review. For the reasons set forth herein, Plaintiffs’ Objections are sustained, the R&R is rejected as the findings of fact and conclusions of law of the Court, and the Plaintiffs’ Motion for Attorneys’ Fees and Costs is granted as set forth herein. II. FACTUAL AND PROCEDURAL BACKGROUND
On June 26, 2015, the Supreme Court issued its landmark decision in Obergefell, reaffirming that the right to marry is a fundamental right under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and holding that same-sex couples may not be deprived of that right. Obergefell, 135 S. Ct. 2584. Accordingly, Kentucky’s constitutional amendment defining marriage as a union between one man and one woman violated the Constitution, and Kentucky could no longer “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Id. at 2605.
Just hours after the Supreme Court’s decision in Obergefell, Defendant Kim Davis, the Rowan County Clerk, unilaterally decided that her office would no longer issue marriage licenses to any couples, same-sex or otherwise. (Doc. # 43 at 1). That same day, Plaintiffs April Miller and Karen Roberts, who had been in a committed same-sex
2

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 3 of 50 - Page ID#: 2945
relationship for eleven years, decided to get married. (Doc. # 21 at 25). Four days later, Ms. Miller and Ms. Roberts went to the Rowan County Clerk’s Office and requested a marriage license. Id. at 26. The couple’s request was denied and they were informed of the Rowan County Clerk’s “no marriage license” policy. Id. Two opposite-sex couples— Kevin Holloway and Jody Fernandez and Shantel Burke and Stephen Napier—as well as another same-sex couple—Barry Spartman and Aaron Skaggs—claimed to have suffered a similar fate when they requested marriage licenses from the Rowan County Clerk’s Office. Id. at 36, 42-44.
On July 2, 2015, Plaintiffs April Miller, Karen Roberts, Shantel Burke, Stephen Napier, Jody Fernandez, Kevin Holloway, Aaron Skaggs, and Barry Spartman (collectively “Plaintiffs”) filed a civil-rights complaint pursuant to 42 U.S.C. § 1983 against Defendants Rowan County, Kentucky and Kim Davis, individually and in her official capacity as Rowan County Clerk (collectively “Defendants”). (Doc. # 1). Plaintiffs also filed a Motion for Preliminary Injunction. (Doc. # 2). In their Complaint, Plaintiffs claimed their constitutional rights were violated by the Rowan County Clerk’s “no marriage license” policy, which refused marriage licenses to couples who were otherwise legally entitled to marry. (Doc. # 1 at ¶ 1). Specifically, Plaintiffs brought claims against Defendants for violations of the First and Fourteenth Amendments and requested seven specific types of relief: (1) class certification under Federal Rule of Civil Procedure 23, (2) a preliminary injunction, (3) a permanent injunction, (4) a declaratory judgment, (5) damages, (6) attorneys’ fees and costs, and (7) a trial by jury. (Doc. # 1 at pp. 10-14).
In response, Davis filed a Motion to Dismiss Plaintiffs’ Complaint (Doc. # 32), opposed Plaintiffs’ Motion for Preliminary Injunction (Doc. # 29), and filed a Third-Party
3

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 4 of 50 - Page ID#: 2946
Complaint (Doc. # 34) and Motion for Preliminary Injunction (Doc. # 39) against thenGovernor of Kentucky, Steven Beshear, and the Commissioner of the Kentucky Department for Libraries and Archives, Wayne Onkst1 (collectively “the State Defendants”).2 In her Third-Party Complaint, Davis claimed that the “Commonwealth of Kentucky, acting through Governor Beshear, deprived [her] of her religious conscience rights guaranteed by the United States and Kentucky Constitutions and laws, by insisting that [she] issue marriage licenses to same-sex couples contrary to her … sincerely held religious beliefs.” (Doc. # 34 at ¶ 1). Davis further claimed that Governor Beshear was “not only liable to Davis for Plaintiffs’ claims,” but “also obligated to effect Kentucky marriage licensing policies that uphold Davis’s rights of religious conscience.” Id.
On August 12, 2015, the Court granted Plaintiffs’ Motion for Preliminary Injunction (Doc. # 2), and preliminarily enjoined Davis, in her official capacity as Rowan County Clerk, from applying her “no marriage licenses” policy to future marriage license requests submitted by Plaintiffs. (Doc. # 43). Davis appealed that ruling to the United States Court of Appeals for the Sixth Circuit. (Docs. # 66, 82, and 83). The Sixth Circuit denied Davis’s request to stay the preliminary injunction pending appeal and held that “[i]n light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s Office … may decline to act in conformity with the United States

1

The State Defendants filed two Motions to Dismiss Davis’s Third-Party Complaint. (Docs.

# 92 and 157). Those motions were denied as moot, in accordance with the Sixth Circuit’s

Remand Order. (Doc. # 182).

2

After the 2015 Kentucky gubernatorial election, newly elected Governor Matthew Bevin,

in his official capacity as Governor of Kentucky, was substituted as Third-Party Defendant in place

of former Governor Steven Beshear. (Doc. # 155). Similarly, Terry Manuel, in his official capacity

as Commissioner of the Kentucky Department for Libraries and Archives, was substituted as

Third-Party Defendant in place of Wayne Onkst. (Doc. # 170).

4

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 5 of 50 - Page ID#: 2947

Constitution as interpreted by a dispositive holding of the United States Supreme Court.” Miller v. Davis, No. 15-5880, 2015 WL 10692640, at *1 (6th Cir. Aug. 26, 2015) (Doc. # 28-1 therein). Davis further appealed to the United States Supreme Court, which also denied her application for stay. Davis v. Miller, 136 S.Ct. 23 (2015).
Despite this Court’s directive and her failed appeals, Davis refused to comply with the Court’s Order. (Doc. # 67). Therefore, the Court ordered Davis, as well as her deputy clerks,3 to appear for a contempt hearing. (Doc. # 69). On September 3, 2015, the Court found Davis to be in contempt of the Court’s Order and remanded her to the custody of the United States Marshal pending compliance. (Doc. # 75). That same day, the Court modified the preliminary injunction and clarified that Davis, in her official capacity as Rowan County Clerk, was “preliminarily enjoined from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by Plaintiffs or by other individuals who are legally eligible to marry in Kentucky.” (Doc. # 74) (emphasis added).4
Five days later, on September 8, 2015, the Plaintiffs filed a Status Report indicating that they had obtained marriage licenses from the Rowan County Clerk’s Office without incident. (Doc. # 84). Accordingly, the Court lifted the contempt sanction, released Davis from custody, and ordered her not to interfere with her deputy clerks’ efforts to issue marriage licenses to all legally eligible couples. (Doc. # 89). On September 14, 2015, Davis returned to work at the Rowan County Clerk’s Office. (Doc. # 120). However, the

3

The Court appointed CJA Attorneys to represent the deputy clerks. (Doc. # 75).

4

Davis also attempted to appeal those Orders, but to no avail. (Doc. # 112) (Sixth Circuit

Order denying Davis’s motion to stay the September 3, 2015 Modified Preliminary Injunction

Order for failure to comply with the Federal Rules of Appellate Procedure); (Doc. # 140) (Sixth

Circuit Order denying Davis’s appeal of the September 3, 2015 Contempt Order as moot); (Doc.

# 147) (Sixth Circuit Order denying Davis’s renewed motion for a stay of the September 3, 2015

Preliminary Injunction Order).

5

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 6 of 50 - Page ID#: 2948

Court continued to monitor compliance with its Orders and required the deputy clerks to file Status Reports regarding their compliance and the issuance of marriage licenses. (Doc. # 89) (requiring Status Reports every fourteen days); (Doc. # 130) (limiting required Status Reports to every thirty days); (Doc. # 163) (requiring Status Reports every ninety days).
While multiple appeals were pending before the Sixth Circuit, the Kentucky General Assembly passed Senate Bill 216,5 which removed county clerks’ names from the prescribed marriage license forms. Ky. Rev. Stat. Ann. § 402.100.6 Because the parties agreed that the change in the law rendered the consolidated appeals7 moot, the Sixth Circuit granted Davis’s Motion to Dismiss for Lack of Jurisdiction and dismissed the appeals.8 (Doc. # 179). In its July 13, 2016 Order, the Sixth Circuit remanded the matter to this Court, “with instructions to vacate” the August 12, 2015 and September 3, 2015 Preliminary Injunction Orders.9 Id. After the mandate issued (Doc. # 180), this Court

5

Senate Bill 216 also amended Ky. Rev. Stat. Ann. §§ 402.100 and 402.110 to require that

the Department for Libraries and Archives issue one marriage license form that includes “bride,”

“groom,” or the gender-neutral “spouse.”

6

Ky. Rev. Stat. Ann. § 402.100 has been further amended by subsequent legislation. HB

469, Pt. A, § 1(6); 2017 Ky. Laws Ch. 177. However, House Bill 469 only amends “an incomplete,

and therefore, incorrect” citation. Id. Therefore, the substance of the statute remains the same.

7

The Sixth Circuit consolidated three appeals (Nos. 15-5880; 15-5961; 15-5978) for briefing

and submission at Davis’s request. Order Consolidating Appeals, Miller v. Davis, No. 15-5880

(6th Cir. Oct. 1, 2015), (Doc # 54-1 therein).

8

The Sixth Circuit also dismissed the State Defendants as parties in Davis’s appeal from

this Court’s Order delaying consideration of her Motion for Preliminary Injunction against them.

(Doc. # 171) (“The State Defendants’ [Motion to Dismiss Appeal as Moot] is GRANTED, and Case

No. 15-5961 is dismissed for lack of jurisdiction. The clerk is directed to remove the State

Defendants as appellees in Case Nos. 15-5880 and 5978.”).

9

The Sixth Circuit determined that the Court’s September 3, 2015 Order holding Davis in

contempt of court (Doc. # 75) did not meet the requirements for vacatur under United States v.

Munsingwear, Inc., 340 U.S. 36 (1950). (Doc. # 179).

6

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 7 of 50 - Page ID#: 2949
complied with the Sixth Circuit’s instructions and vacated the Preliminary Injunction Orders (Doc. # 181), denied all pending motions as moot, and dismissed and struck this matter from the Court’s active docket. (Doc. # 182). Shortly thereafter, the Plaintiffs filed a Motion for Attorneys’ Fees and Costs pursuant to 42 U.S.C. § 1988. (Doc. # 183). III. ANALYSIS
A. Standard of Review Although a magistrate judge is not permitted to determine costs or fees, the district court may refer the matter to a magistrate judge for the preparation of a report and recommendation. McCombs v. Meijer, Inc., 395 F.3d 346, 360 (6th Cir. 2005) (citing Massey v. City of Ferndale, 7 F.3d 506, 510-11 (6th Cir. 1993)); see also Fed. R. Civ. P. 72. A party may file written objections to the R&R within fourteen days. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). The objections must be specific; “vague, general or conclusory objections … [are] tantamount to a complete failure to object.” Cole v. Yukins, 7 F. App’x 354, 356 (6th Cir. 2001). “The district court cannot simply ‘concur’ in the magistrate’s findings.” McCombs, 395 F.3d at 360. Instead, the Court must review the entire record and “conduct its own review” to determine whether the recommendation should be adopted. Id. Judge Atkins found that Plaintiffs were not entitled to attorneys’ fees under § 1988 and recommended that Plaintiffs’ Motion for Attorneys’ Fees and Costs be denied. (Doc. # 199). The Plaintiffs object to Judge Atkins’s R&R, claiming the recommendation misapplied the relevant law. (Doc. # 201). The Court will consider the Plaintiffs’ objections and conduct a de novo review.
7

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 8 of 50 - Page ID#: 2950

B. Attorneys’ Fees under § 1988 “Our legal system generally requires each party to bear his own litigation expenses, including attorney’s fees, regardless whether he wins or loses.” Fox v. Vice, 563 U.S. 826, 832 (2011). Thus, courts do not award “fees to a prevailing party absent explicit statutory authority.” Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602 (2001) (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)). Under 42 U.S.C. § 1988, Congress “explicitly empowered the courts to grant fees to parties who win § 1983 actions.” Id. Accordingly, a “court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee as part of the costs.”10 42 U.S.C. § 1988(b). Therefore, the pending motion requires the Court to answer a critical threshold question: Did the Plaintiffs prevail? “Prevailing party” is a “legal term of art.” Buckhannon, 532 U.S. at 603. “The Supreme Court has stated that in providing for fees under § 1988, ‘Congress intended to permit the … award of counsel fees only when a party has prevailed on the merits.’” Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 620 (6th Cir. 2013) (quoting Hanrahan v. Hampton, 446 U.S. 754, 758 (1980)). “Over time, ‘prevailing on the merits’ has been distilled to succeeding on any significant issue which achieves some of the benefit the parties sought in bringing suit, the settling of some dispute which affects the behavior of the defendant towards the plaintiff, and resolution of the dispute in a way that … alters

10

“Although § 1988 uses permissive language regarding fee awards, ‘the Supreme Court

has read [§ 1988] as mandatory where the plaintiff prevails and special circumstances are

absent.’” Hescott v. City of Saginaw, 757 F.3d 518, 523 (6th Cir. 2014) (citing Déjà Vu v. Metro.

Gov’t of Nashville & Davidson Cty., 421 F.3d 417, 420 (6th Cir. 2005); Indep. Fed’n of Flight

Attendants v. Zipes, 491 U.S. 754, 761 (1989)).

8

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 9 of 50 - Page ID#: 2951
the legal relationship of the parties.” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Hewitt v. Helms, 482 U.S. 755, 761 (1987); Tex. State Teachers Ass’n v. Harland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)).
However, not just any change in the legal relationship between the plaintiff and the defendant is sufficient to establish prevailing-party status. “The touchstone of the prevailing party inquiry … is the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Sole v. Wyner, 551 U.S. 74, 82 (2007) (emphasis added) (internal citations and quotation marks omitted). “A material change ‘directly benefits’ a plaintiff by modifying the defendant’s behavior toward him.” McQueary v. Conway, 614 F.3d 591, 598 (6th Cir. 2010) (quoting Farrar v. Hobby, 506 U.S. 103, 111 (1992)).
Moreover, the modification in the defendant’s behavior must be “judicially sanctioned.” Buckhannon, 532 U.S. at 605. “A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Id. Therefore, if the plaintiff is successful because the defendant voluntarily elected to change course, even if the litigation was the “catalyst” for the change, the plaintiff did not “prevail.” McQueary, 614 F.3d at 597.
The “court-ordered change in the legal relationship” between the parties must also be “enduring and irrevocable.” Id. Thus, “a plaintiff who achieves a transient victory at the threshold of an action can gain no award under [§ 1988’s] fee-shifting provision if, at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded.” Sole, 551 U.S. at 78.
9

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 10 of 50 - Page ID#: 2952
Satisfying this standard is a tall order for preliminary-injunction winners. In Sole, the Supreme Court held that a “plaintiff who secures a preliminary injunction, then loses on the merits as the case plays out and judgment is entered against her, has won a battle but lost the war,” and is not entitled to attorneys’ fees. Id. at 86 (internal citations and quotation marks omitted). However, the Court limited its holding to those particular facts and expressly declined to consider “whether, in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel fees.” Id. (emphasis added).
Recently, the Sixth Circuit addressed the very issue left open in Sole. McQueary, 614 F.3d 591. To answer that difficult question, McQueary considered and rejected a variety of approaches. The first one—preliminary-injunction success never establishes prevailing-party status—was too harsh. Id. at 599. The “never” approach “fails to account for fact patterns in which the claimant receives everything it asked for in the lawsuit, and all that moots the case is court-ordered success and the passage of time.” Id. The next one—preliminary-injunction winners are always eligible for fees—was too generous. The "always” approach awards parties with successful preliminary injunctions that had “nothing to do with the merits” and “turn[ed] more on the grave risks of irreparable harm … than on the legal virtues of the parties’ positions.” Id. at 600. Finally, McQueary’s “Goldilocks”11 analysis arrived at an approach that fit “just right”: district courts are to engage in a contextual and case-specific inquiry to determine whether a preliminaryinjunction winner “prevailed” within the meaning of § 1988.

11

Robert Southey, The Story of the Three Bears in “The Doctor” (Longman 1837).

10

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 11 of 50 - Page ID#: 2953
Although the Sixth Circuit declined to say that preliminary-injunction winners always are, or never are, “prevailing parties,” McQueary provided a cautionary tale: “the ‘preliminary’ nature of the relief—together with the requirement that a prevailing party victory must create a lasting change in the legal relationship between the parties and not merely ‘catalyze’ the defendant to voluntary action—will generally counsel against fees in the context of preliminary injunctions.” Id. at 601.
Therefore, the Court must engage in “a contextual and case-specific inquiry” to determine if this case is one of the rare instances where preliminary-injunction winners are entitled to attorneys’ fees. Id. However, the Court is mindful that “the idea behind § 1988 is to award fees to deserving parties, not to generate ‘satellite’ disputes over fees” and will conduct its analysis accordingly. Id. at 598 (citing City of Burlington v. Dague, 505 U.S. 557, 566 (1992)).
C. Did Plaintiffs Prevail? Although McQueary “generally counsel[s] against fees in the context of preliminary injunctions,” that rule gives way when a preliminary-injunction winner receives “everything [that he or she] asked for in the lawsuit, and all that moots the case is court-ordered success and the passage of time.” McQueary, 614 F.3d at 599. In those scenarios, the preliminary injunction does establish prevailing-party status. For example, “[w]hen protesters seek an injunction to exercise their First Amendment rights at a specific time and place—say to demonstrate at a Saturday parade—a preliminary injunction will give them all the court-ordered relief they need and the end of the parade will moot the case.” Id. Such claimants are prevailing parties. Id. (citing Young v. City of Chicago, 202 F.3d 1000 (7th Cir. 2000)). Likewise, “a government
11

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 12 of 50 - Page ID#: 2954
employee who seeks to exclude an unconstitutionally obtained report from an administrative hearing and obtains a preliminary injunction that irrevocably excludes the report” is a “prevailing party.” Id. (citing Watson v. Cty. of Riverside, 300 F.3d 1092 (9th Cir. 2002)). So too is “a plaintiff who seeks to delay enforcement of a statute until a certain event occurs—say a public referendum—and the preliminary injunction brings about that result.” Id. (relying on Grano v. Barry, 783 F.2d 1104, 1108-09 (D.C. Cir. 1986)).
On the other hand, a protestor who seeks and obtains a preliminary injunction enjoining government officials from enforcing laws, which prevented him from protesting at military funerals, is not entitled to attorneys’ fees if his claim becomes moot because the government-defendants voluntarily repealed the challenged laws. McQueary v. Conway (McQueary Remand), No. 06-cv-24-KKC, 2012 WL 3149344, *3 (E.D. Ky. Aug. 1, 2012), aff’d, McQueary v. Conway (McQueary II), 508 F. App’x 522 (6th Cir. 2012). In such a case, the plaintiff’s claim for relief did not become “moot because the preliminary injunction granted him all the relief he sought and there was nothing more [the] Court could do.” Id. at *2. Instead, his “claim for permanent injunctive relief became moot because the Defendant voluntarily repealed the challenged” laws. Id.
Plaintiffs liken their case to Young, Watson, and Grano, and claim that this case provides the rare circumstances that entitle preliminary-injunction winners to attorneys’ fees under § 1988. (Doc. # 183). Defendants rely heavily on McQueary and argue that Plaintiffs have no path to prevailing-party status. (Docs. # 193 & 203). Specifically, Defendants argue that Plaintiffs are not entitled to attorneys’ fees because Kentucky voluntarily changed its laws, because the preliminary relief Plaintiffs obtained was not “enduring” or “irrevocable,” and because Plaintiffs did not receive “everything they wanted
12

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 13 of 50 - Page ID#: 2955
from” the preliminary injunction. (Doc. # 193 at 17-20). Furthermore, Defendants claim that “conferring prevailing party status on Plaintiffs would contradict and frustrate the vacatur remedy awarded by the Sixth Circuit.” Id. at 21-23.
In the R&R, Judge Atkins found that two factors prevented Plaintiffs from establishing prevailing-party status. First, the R&R reasons that Plaintiffs did not receive “the full and final relief they sought” because they were only granted a preliminary injunction; they did not obtain the permanent injunction, class certification, declaratory judgment, trial by jury, or damages they sought. (Doc. # 199 at 6). And second, the R&R concluded that the case became moot because of the Kentucky General Assembly’s “voluntary conduct” in “changing the marriage license forms,” and therefore, Plaintiffs did not “prevail.” Id. Accordingly, Judge Atkins recommended that the Court deny Plaintiffs’ Motion for Attorneys’ Fees and Costs. Id.
In their Objections, Plaintiffs argue that the R&R’s application of McQueary’s contextual and case-specific analysis is flawed because it “fails to adequately address the central inquiry … whether the merits-based preliminary injunction materially altered the parties’ legal relationship.” (Doc. # 201 at 2). Plaintiffs also claim that the R&R “adopts a construction” of McQueary that “would effectively preclude” preliminaryinjunction winners from ever attaining prevailing-party status. (Doc. # 201 at 2). The Court agrees. The R&R misapplies McQueary.
1. Plaintiffs’ unsuccessful claims for relief do not prevent them from “prevailing.”
In addition to a preliminary injunction, Plaintiffs also sought permanent injunctive relief, class certification, a declaratory judgment, trial by jury, and damages. (Doc. # 1 at pp. 10-14). Because Plaintiffs only obtained a preliminary injunction, the R&R reasons
13

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 14 of 50 - Page ID#: 2956
that Plaintiffs did not “prevail.” (Doc. # 199 at 5-6). This conclusion turns McQueary on its head. McQueary specifically held that a party who obtained a preliminary injunction on the merits, which materially altered the parties’ legal relationship, can establish prevailing-party status without succeeding on every claim. McQueary, 614 F.3d at 598.
A plaintiff “crosses the threshold to ‘prevailing party’ status by succeeding on a single claim, even if he loses on several others and even if that limited success does not grant him the ‘primary relief’ he sought.” Id. at 603 (quoting Tex. State Teachers Ass’n, 489 U.S. at 790-91); see also Green Party of Tenn. v. Hargett, 767 F.3d 533, 552 (6th Cir. 2014). “[C]ourts do not look to the number of claims on which the plaintiff succeeded, the magnitude of the relief obtained, or whether the plaintiff obtained the primary relief sought; the question is simply whether the plaintiff has won on at least one claim.” Woods v. Willis, 631 F. App’x 359, 364 (6th Cir. 2015). “The significance of the relief obtained goes only to the amount of fees” a prevailing party may recover, not to whether the party in fact “prevailed.” McQueary, 614 F.3d at 603 (citing Eckerhart, 461 U.S. at 434-35).
Although McQueary advises courts to “measure the plaintiff’s gain based on the relief requested in his complaint” and “not based on the practical significance of the relief obtained,” context clarifies that this inquiry is directed at determining whether the relief obtained materially altered the parties’ legal relationship. Id. at 602 (citing Farrar, 506 U.S. at 111-12). The Sixth Circuit did not instruct courts to score plaintiffs on the total number of successful requests for relief in their complaints, which often include boilerplate language. Rather, McQueary prohibits courts from relying on extraneous practicalities to undermine a party’s legal success. For example, courts cannot refuse to conclude that a plaintiff “prevailed” because “statutes he never challenged” would have prevented him
14

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 15 of 50 - Page ID#: 2957

from protesting, despite his preliminary-injunction success. Id. Therefore, Plaintiffs’ “unsuccessful” requests for permanent injunctive relief, class
certification, a declaratory judgment, trial by jury, and damages do not prevent them from establishing prevailing-party status.12 Plaintiffs sought and obtained a preliminary injunction; they have cleared the threshold hurdle of succeeding on a single claim. If the preliminary injunction effected an enduring and material change in the parties’ legal relationship, Plaintiffs can establish prevailing-party status.
2. The vacatur of the preliminary injunctions does not prevent Plaintiffs from “prevailing.”
Awarding Plaintiffs attorneys’ fees does not contradict or frustrate the Sixth Circuit’s Order instructing this Court to vacate the preliminary injunctions. “When a case becomes moot, courts often vacate their earlier rulings on the theory that a ruling should not stand when the party opposing it is deprived of a chance to obtain a final ruling on the issue or to seek appellate review of it—due to events outside of the party’s control.” McQueary, 614 F.3d at 600. Therefore, vacatur serves the interests of justice by “clear[ing] the path for future relitigation of the issues between the parties.” United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950). It does not, however, prevent a preliminaryinjunction winner from “prevailing” or preclude an award of attorneys’ fees.
If it did, the Sixth Circuit could have said so in McQueary. Instead, McQueary specifically addressed vacatur when discussing the “never” approach, and acknowledged that vacatur under Munsingwear would provide a “straightforward approach to the fees

12

The Court characterizes these requests for relief as “unsuccessful” for simplicity’s sake.

However, the Court notes that although the Plaintiffs’ request for class certification was ultimately

denied as moot (Doc. # 182), the preliminary injunction applied class-wide, to all legally eligible

couples. (Doc. # 74).

15

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 16 of 50 - Page ID#: 2958
question.” McQueary, 614 F.3d at 600. However, the Sixth Circuit explicitly rejected such an approach because it “fails to account for the instances in which a party has prevailed by every measure of victory.” Id. Therefore, awarding attorneys’ fees to the Plaintiffs does not “contradict [or] entirely frustrate the purpose of the Sixth Circuit’s decision to apply the equitable doctrine of vacatur” to the preliminary injunctions, as Davis suggests. (Doc. # 193 at 23). Instead, permitting vacatur to prevent Plaintiffs from establishing prevailing-party status would be most inequitable. Accordingly, the Court must examine the context and specific facts of this case, and if Plaintiffs have “prevailed,” award attorneys’ fees under § 1988. McQueary, 614 F.3d at 600.
3. The preliminary injunction materially altered the parties’ legal relationship, and that court-ordered change was enduring and irrevocable.
The contextual and case-specific inquiry required by McQueary is at odds with the R&R’s rigid prevailing-party analysis. Although preliminary-injunction winners must fit within precise parameters to establish prevailing-party status, there are many sets of facts that can fall within those boundaries. Therefore, this case need not be exactly like another case where a court held attorneys’ fees were warranted. Rather, the Court views McQueary and the cases awarding attorneys’ fees to preliminary-injunction winners on a spectrum—with Young, Watson, and Grano on one side—and the McQueary Remand on the other. These cases provide examples, not rules. McQueary, 614 F.3d at 599. Any other interpretation is incompatible with McQueary’s contextual and case-specific inquiry. Therefore, the question is: Where does this case fall on that spectrum?
The unique facts of this case fall somewhere in between Young, Watson, and Grano, and McQueary. The Plaintiffs obtained a preliminary injunction on the merits that
16

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 17 of 50 - Page ID#: 2959

materially changed the relationship between the parties, and that court-ordered change gave Plaintiffs what they asked for – marriage licenses.13 However, like McQueary, the Sixth Circuit held that a subsequent legislative change mooted the case, not Plaintiffs’ “court-ordered success and the passage of time.” Id.
In the McQueary Remand, the district court concluded, and the Sixth Circuit agreed, that the defendants’ “voluntary conduct” in repealing the statutes that the plaintiffprotester challenged prevented him from “prevailing” within the meaning of § 1988. McQueary II, 508 F. App’x at 524. But not every legislative change strips a plaintiff of their prevailing-party status. See Hargett, 767 F.3d at 553 (Sixth Circuit held “plaintiffs qualif[ied] as prevailing parties” despite a legislative change). “When plaintiffs clearly succeeded in obtaining the relief sought before the district court and an intervening event rendered the case moot on appeal, plaintiffs are still prevailing parties.” Id. at 552. Thus, despite the eventual legislative change that mooted this case, if Plaintiffs prevailed, they will not be “stripped of their prevailing party status by the legislature’s decision to amend the relevant statutes … months after the district court issued its order but before the defendants’ appeal was heard.” Id. at 553. Accordingly, the Sixth Circuit’s determination that the legislative change rendered this case moot does not prevent Plaintiffs from “prevailing,” nor does it extinguish the relief the preliminary injunction afforded to Plaintiffs.

13

Plaintiffs April Miller and Karen Roberts obtained their marriage license on September 4,

2015, and were married on September 10, 2015. (Doc. # 183-2). Plaintiffs Aaron Skaggs and

Barry Spartman obtained their marriage license on September 4, 2015, and were married on

September 9, 2015. (Doc. # 183-3).

The Court recognizes that not all of the plaintiff-couples are currently married. One of the

plaintiff-couples, Shantel Burke and Stephen Napier, did not obtain a marriage license after the

preliminary injunction. Plaintiffs Jody Fernandez and Kevin Holloway obtained a marriage license

on September 8, 2015, but for personal reasons, decided to let that marriage license expire and

marry in 2016. (Doc. # 183-1 at 9 n.4). If relevant at all, these facts bear on the amount and the

reasonableness of the attorneys’ fees, not on whether the Plaintiffs “prevailed.”

17

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 18 of 50 - Page ID#: 2960

Here, the context and specific facts of this case establish that Plaintiffs “prevailed” within the meaning of § 1988. Plaintiffs’ preliminary-injunction success materially altered the legal relationship between Plaintiffs and Davis. Plaintiffs did not achieve “only a symbolic victory.” McQueary, 614 F.3d at 598. The preliminary injunction “directly benefited” Plaintiffs by modifying Davis’s behavior towards them. Id. at 601-02. And the material change in the legal relationship between Plaintiffs and Davis was judicially sanctioned. “No one [can] dispute” that Davis refused to issue marriage licenses “in the absence of an injunction.” Id. at 601. The preliminary injunction enjoined Davis from applying her unconstitutional “no marriage licenses” policy and “materially changed [Davis’s] behavior toward [Plaintiffs]—at least [eventually].” Id. at 602.
The R&R relied exclusively on McQueary, and found that the Kentucky General Assembly’s voluntary conduct in changing the law in 2016 prevented Plaintiffs from obtaining prevailing-party status. (Doc. # 199). But this case resembles McQueary only at a 30,000-foot view, where the lines between Plaintiffs’ Motion for Preliminary Injunction, Defendant/Third Party Plaintiff Davis’s unsuccessful Motion for Preliminary Injunction against the State Defendants,14 and the eventual change in the law are blurred. This case, through third-party pleading, combined two distinct cases into one. To determine whether Plaintiffs “prevailed,” the Court must focus exclusively on Plaintiffs’ claims.
Plaintiffs asked the Court to enjoin Davis, in her official capacity, from refusing to issue marriage licenses in violation of their constitutional rights, and the Court did so.

14

Initially, the Court stayed briefing on Davis’s Motion for Preliminary Injunction. (Doc. #

58). Later, the Court denied Davis’s Emergency Motion for Preliminary Injunction against the

State Defendants, concluding that she was unlikely to suffer a violation of her First Amendment

free exercise or free speech rights and refusing to order the State Defendants to “remove her

name and authorization from the marriage license forms” under Kentucky’s Religious Freedom

Restoration Act. (Doc. # 103).

18

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 19 of 50 - Page ID#: 2961

(Docs. # 2, 43, and 74). Plaintiffs did not challenge any law, nor did they request changes to the marriage license form.15 It was Davis who had an issue with the law, which required her to issue marriage licenses, and Davis who sought modification of the marriage license form. (Doc. # 39). Therefore, it is Davis’s claims, and not Plaintiffs’, that resemble McQueary.
Davis did not voluntarily change her conduct; “[a]n immediately enforceable preliminary injunction compelled [her] to.” McQueary, 614 F.3d at 599. In fact, Davis refused to change her conduct even after the Court ordered her to, and she was held in contempt and briefly jailed. (Doc. # 75). In her absence, the deputy clerks in the Rowan County Clerk’s Office issued marriage licenses to all legally eligible couples in compliance with the preliminary injunction. (Docs. # 84 and 89). After her release from custody, Davis made minor changes to the license forms, but continued to issue marriage licenses. (Doc. # 161). There are no voluntary actions by Davis that would suggest the material alteration of the parties’ legal relationship was anything other than court-ordered.
Even assuming the General Assembly’s voluntary conduct in changing the law could be attributed to Davis,16 the legislative change does not preclude Plaintiffs from

15

Nor would Plaintiffs need to challenge any law or seek modification of the marriage license

form. The state law that prohibited same-sex couples from marrying was held unconstitutional by

the Supreme Court. See Ky. Const. § 233A held unconstitutional and preempted by Obergefell,

135 S. Ct. at 2605 (“[T]he State laws challenged … are now held invalid to the extent they exclude

same-sex couples from civil marriage on the same terms and conditions as opposite sex

couples.”). And on the day the Supreme Court issued its opinion in Obergefell, then-Governor

Beshear “instructed the Kentucky Department [for] Libraries and Archives to provide revised

marriage license forms to [Kentucky’s] county clerks for immediate use, beginning [that day].”

(Doc. # 29-6).

16

Despite Davis’s admission that the “appeals were rendered moot by the intervening and

independent actions of the General Assembly, not the voluntary action of Davis,” (Doc. # 193 at

22), the Court extends Davis the benefit of this further analysis because it has found her to be a

state actor with respect to issuing, or refusing to issue, marriage licenses. See infra pp. 23-38.

19

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 20 of 50 - Page ID#: 2962

“prevailing” within the meaning of § 1988. In McQueary, the defendants voluntarily repealed the laws the plaintiff had challenged, and the legislative change benefited the plaintiff. Put another way, the preliminary injunction prohibited the Commonwealth from enforcing the challenged laws, and “merely catalyze[d] the defendant[s]” into voluntarily repealing the challenged laws. McQueary Remand, 2012 WL 3149344, at *1. In this case, the preliminary injunctions did not merely “catalyze” the Kentucky General Assembly into voluntary legislative action. Buckhannon, 532 U.S. at 602. The preliminary injunction did not require any modification, or prohibit enforcement, of the law; it compelled Davis to comply with the law.
Moreover, the legislative change did not affect or benefit Plaintiffs in any way; it simply afforded Davis an alternative (and to her, more appeasing) method of complying with the Court’s order and the Constitution. The Court recognizes that it must reject any invitation to engage in a “fact-based and speculative inquir[y] into why government bodies altered their conduct.” Tex. State Teachers Ass’n, 489 U.S. at 791. However, the Court is not prevented from examining the substance and the effect of the legislative change.
The legislative change in McQueary simply “changed the form of [plaintiff’s] relief”—a repeal of the challenged laws, as opposed to an injunction prohibiting the enforcement of the laws. O’Neil v. Coughlan, 490 F. App’x 733, 737 (6th Cir. 2012). By contrast, Plaintiffs’ action sought to force Davis to comply with the law, obey the Constitution, and cease violating Plaintiffs’ fundamental rights. The preliminary injunction accomplished that goal. The legislative change did not render Plaintiffs’ legal success unnecessary; it provided Davis an accommodation,17 mooted the case, and rendered

17

Davis herself refers to Senate Bill 216 as an “accommodation” for her. (Doc. # 193 at 10).

20

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 21 of 50 - Page ID#: 2963

Davis’s requested relief unnecessary. Therefore, this case is factually distinguishable from McQueary. Accordingly, the legislative change does not prevent Plaintiffs from “prevailing.”18
Further, the court-ordered change in the parties’ legal relationship was enduring and irrevocable. A “preliminary injunction … does not establish prevailing party status if it is ‘reversed, dissolved, or otherwise undone by the final decision in the same case.’” McQueary, 614 F.3d at 597 (quoting Sole, 551 U.S. at 83). Therefore, an adverse decision on the merits would dispose of Plaintiffs’ attorneys’ fees claim. See Sole, 551 U.S. 74. But here, Plaintiffs’ preliminary success was not undermined by a later decision on the merits. This case became moot, which prevented a final decision on the merits. In the absence of a final decision, a preliminary injunction may establish prevailing-party status. McQueary, 614 F.3d at 597. Likewise, the vacation of the preliminary injunction due to mootness does not revoke Plaintiffs’ legal relief. Id. at 600. If the Plaintiffs have “prevailed by every measure of victory,” they can obtain attorneys’ fees, even in the face of their vacated preliminary injunction. Id.
Davis claims the relief Plaintiffs obtained is not permanent because “[r]eality counsels that a substantial number of marriages end, whether by death or divorce, despite the best of intentions.” (Doc. # 193 at 18). Her argument is too clever by half. Every marriage, even the most abiding, will eventually end by death or divorce. That fact does not minimize the permanency of the relief obtained. Under Davis’s flawed logic, prevailing-party status would never be obtainable in the marriage context, even if Plaintiffs

18

The accuracy of this analysis is revealed by considering the time period between the

Court’s issuance of the preliminary injunction (and Davis’s release from custody) and the passage

of Senate Bill 216. During that time, the Rowan County Clerk’s Office issued marriage licenses.

21

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 22 of 50 - Page ID#: 2964

had been granted a permanent injunction. In this case, the Plaintiffs “prevailed by every measure of victory.” The relief
Plaintiffs obtained—the ability to secure marriage licenses and marry—was “preliminary” in name only. It is not the “fleeting” success that fails to establish prevailing-party status. After the Court obtained compliance with the Preliminary Injunction Orders, Plaintiffs received marriage licenses.19 And once the plaintiff-couples received their marriage licenses, their rights were not subject to revocation. A benefit is irrevocable when it cannot be taken away. Plaintiffs obtained marriage licenses that could not be revoked. And two of the plaintiff-couples married on those licenses. That is enduring relief. There is nothing more the Court could do.
Nor can it be said that Plaintiffs “won a battle but lost the war.” Sole, 551 U.S. at 86. Plaintiffs won the war. Legally eligible couples, whether same-sex or not, received marriage licenses in Rowan County after the Court enjoined Davis from continuing her “no marriage licenses” policy. Couples continued to receive marriage licenses after the Kentucky General Assembly amended the law – albeit, on a form Davis felt more comfortable with. Therefore, Plaintiffs’ preliminary-injunction success materially altered their legal relationship with Davis, and that court-ordered change was enduring and irrevocable. Accordingly, the Court concludes that the Plaintiffs “prevailed” within the meaning of § 1988 and are entitled to attorneys’ fees.20

19

Again, the Court recognizes that not all of the plaintiff-couples are currently married. See

supra note 13.

20

For completeness, the Court quickly notes that “special circumstances” do not exist to

justify the denial of attorneys’ fees. Hensley, 461 U.S. at 446. Although the Sixth Circuit has

acknowledged that the “special circumstances” doctrine exists, a non-prevailing party must make

a “strong showing” to establish such special circumstances. Déjà Vu, 421 F.3d at 422. In fact,

the Sixth Circuit “has never … found a ‘special circumstance’ justifying the denial of fees.

22

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 23 of 50 - Page ID#: 2965
D. Who Pays? Because the Court has concluded that Plaintiffs are entitled to attorneys’ fees, another question must be answered: Who pays? There are three possible answers: Kim Davis, Rowan County, or the Commonwealth of Kentucky. The first of these answers—Kim Davis—can easily be rejected. The Plaintiffs “prevailed” by obtaining a preliminary injunction against Davis in her official capacity. “While personal capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law, individuals sued in their official capacities stand in the shoes of the entity they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (internal citations and quotation marks omitted). Therefore, “an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). “As long as the governmental entity receives notice and an opportunity to respond, an official-capacity suit imposes liability on the entity that he represents.” Alkire, 330 F.3d at 810. Therefore, in official-capacity actions, “a plaintiff who prevails [is] entitled to look for relief, both on the merits and for fees, to the governmental entity.” Graham, 473 U.S. at 171. Accordingly, the entity Davis represents is liable for Plaintiffs’ attorneys’ fees. But which government entity did Davis represent and with whom does the buck stop? Rowan County or the Commonwealth of Kentucky?
McQueary, 614 F.3d at 604. A prevailing party’s “bad acts” during the course of litigation are not a special circumstance. Wikol v. Birmingham Pub. Schs. Bd. of Educ., 360 F.3d 604, 611 (6th Cir. 2004). Nor is a defendant’s good faith. Morscott, Inc. v. City of Cleveland, 936 F.2d 271, 273 (6th Cir. 1991)). Thus, there are no special circumstances that would render an attorneys’ fee award unjust.
23

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 24 of 50 - Page ID#: 2966
Defendant Rowan County claims they are not liable for attorneys’ fees, regardless of whether the Plaintiffs “prevailed.” (Docs. # 192, 196 and 203). Specifically, Rowan County claims that the County cannot be liable for Plaintiffs’ attorneys’ fees because Davis was acting for the Commonwealth of Kentucky when she refused to issue marriage licenses. Davis agrees.21 Plaintiffs, however, challenge the County’s denial of liability and argue that “Davis, in her official capacity, acted as a county official with final policymaking authority when she adopted the ‘no marriage licenses’ policy.” (Doc. # 194 at 4-11). Third-Party State Defendants, the Governor of Kentucky and the Commissioner of the Kentucky Department for Libraries and Archives, elected not to participate in the briefing of Plaintiffs’ Motion for Attorneys’ Fees.22
As the Sixth Circuit has recognized, county officials “sometimes wear multiple hats, acting on behalf of the county and the State.” Crabbs v. Scott, 786 F.3d 426, 429 (6th Cir. 2015); see also Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir. 1993) (A local “official pursues her duties as a state agent when enforcing state law or policy.”).

21

In her attorneys-fee briefing, Davis offered little input on this particular issue, aside from

reminding the Court that the preliminary injunction was issued against her in her official capacity,

as opposed to her personal capacity. (Doc. # 193 at 24 n.13). However, in recently filed briefing

in the two companion cases before this Court, Davis affirmatively argues that she was a state

actor when she refused to issue marriage licenses. See Ermold v. Davis, No. 0:15-cv-46-DLB

(Doc. # 29-1 at 17 therein) (“Kentucky law leaves no doubt that, in issuing and declining to issue

marriage licenses, Davis is a state official.”); see also Yates v. Davis, No. 0:15-cv-62-DLB (Doc.

# 29-1 at 17-20 therein).

22

The State Defendants’ lack of participation in the attorney’s-fee briefing does not preclude

them from being liable for those fees. “As long as the governmental entity receives notice and an

opportunity to respond, an official-capacity suit imposes liability on the entity that he represents.”

Alkire, 330 F.3d at 810. The Commonwealth of Kentucky certainly had notice and an opportunity

to respond. The Commonwealth, via the fiction of Ex Parte Young, was made a party to this

action because of Davis’s third-party pleading. (Docs. # 34 and 39). Moreover, the Court’s

Preliminary Injunction Order further put the Commonwealth on notice of its potential liability for

Davis’s actions. (Doc. # 43 at 8) (“Thus, Davis likely acts for the State of Kentucky, and not as a

final policymaker for Rowan County, when issuing marriage licenses.”).

24

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 25 of 50 - Page ID#: 2967
“In that setting,” the “question is not whether the officer acts for the State or the county in some categorical, ‘all or nothing’ manner.” Id. (citing McMillian v. Monroe Cty., 520 U.S. 781, 785 (1997)). Rather, the inquiry “hinges on whether the officer represents the State in the ‘particular area’ or on the ‘particular issue’ in question.” Id. (citing McMillian, 520 U.S. at 785 n.2). “And that depends on how state and local law treat the officer in that setting.” Id. “Relevant factors include: (1) the State’s potential liability for a judgment; (2) how state statutes and courts refer to the officer; (3) who appoints the officer; (4) who pays the officer; (5) the degree of state control over the officer; and (6) whether the functions involved fall within the traditional purview of state or local government.” Id. (citing Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005) (en banc)).
In the August 12, 2015 Preliminary Injunction Order, the Court found that Davis likely represented the Commonwealth of Kentucky, and not Rowan County, when issuing marriage licenses. (Doc. # 43 at 8). Nothing in the record has altered that preliminary decision. Consideration of the six factors compels the Court to conclude that Davis acted as a state official and represented the Commonwealth when she refused to issue marriage licenses.23
1. The Commonwealth has “potential legal liability.” “The state’s potential legal liability for a judgment against the defendant ‘is the foremost factor’ to consider” in this analysis. Lowe v. Hamilton Cty. Dep’t of Job & Family

23

Another case in this district also concluded that a county clerk, with an unconstitutional

marriage-license policy, was a state official. See Jones v. Perry, 215 F. Supp. 3d 563, 568 n.3

(E.D. Ky. 2016) (reasoning that the Shelby County Clerk was subject to suit under the doctrine of

Ex Parte Young). Because Ex Parte Young’s fiction is only necessary for state officials, the Court

necessarily concluded that the County Clerk was acting as a state official, as opposed to a county

official. See Crabbs, 786 F.3d at 429 (If defendant is “an officer of the county, not the State …

he may not invoke the State’s sovereign immunity.”).

25

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 26 of 50 - Page ID#: 2968
Servs., 610 F.3d 321, 325 (6th Cir. 2010) (citing Ernst, 427 F.3d at 359). “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 (quoting Ernst, 427 F.3d at 359) (cautioning courts to focus on the legal consequences of a judgment, not the practicalities of reimbursement or indemnification requirements). Therefore, the Court must examine the State’s sovereign immunity and evaluate whether the judgment against Davis would be enforceable against the Commonwealth.24 See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430 (1997).
Typically, courts undertake this analysis at the beginning stages of litigation, when attempting to determine whether the government entity is shielded by sovereign immunity. See, e.g., Crabbs, 786 F.3d 426 (affirming denial of summary judgment and concluding sheriff was county official); McMillian, 520 U.S. 781 (affirming dismissal of § 1983 claims and concluding sheriff was state official). And often, courts are grappling with the request for money damages against a State or state official. This case, however, is in the

24

Under this factor, courts also look to state law for statutes that expressly require the State

to pay the judgment. See Kreipke v. Wayne State Univ., 807 F.3d 768, 776 (6th Cir. 2015) (relying

on state statute that required “any judgment against [Wayne State University] to be paid out of

the state’s tax revenues.”); see also Ernst, 427 F.3d at 360 (discussing state statute that required

legislature to “annually appropriate to the retirement system the amount of money needed”).

There are no similar statutes to guide the Court in this case.

Plaintiffs attempt to rely on a statute that requires county clerks to remit surplus monies to

their County, and a 1993 Kentucky Attorney General Opinion that opines “the fiscal court could,

and probably would have a duty to, pay” the County Clerk’s Office’s necessary expenses if the

Office failed to generate sufficient fees, in support of the proposition that Rowan County would be

obligated to pay a judgment against the Rowan County Clerk’s Office. (Doc. # 194 at 6) (citing

Ky. Rev. Stat. Ann. §§ 64.152, 64.530(3); Ky. OAG 93-4, 1993 WL 443708 (Jan. 27, 1993)). This

argument is untenable. First, “[t]he proper focus is not on the use of profits or surplus, but rather

is on losses and debts.” Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 51 (1994).

Moreover, neither the statute nor the Attorney General Opinion state that the County is liable for

judgments rendered against the County Clerk’s Office. And similarly, there is no statute requiring

the Commonwealth to pay. Therefore, the Court’s discussion of the first factor will focus

exclusively on sovereign immunity.

26

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 27 of 50 - Page ID#: 2969
homestretch, and Plaintiffs are not seeking monetary damages against the Commonwealth. Nevertheless, to answer the “who pays” question, the Court must circle back and determine which government entity Davis represented when she refused to issue marriage licenses.
In the present case, sovereign immunity is not an issue regardless of whether Davis represented Rowan County or the Commonwealth of Kentucky. If Rowan County is the government entity Davis represented, sovereign immunity provides no refuge. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (Sovereign immunity “does not extend to counties and similar municipal corporations,” or their officers.). States and state officials, on the other hand, are protected by sovereign immunity. Id. (“The bar of the Eleventh Amendment … extends to States and state officials in appropriate circumstances.”). This protection also extends to “arms” of the state. Id.; see also Doe, 519 U.S. 425. However, sovereign immunity fails to provide a defense for the Commonwealth in this case.
The Eleventh Amendment bars damages actions against a State in federal court. Graham, 473 U.S. at 169; see also Cady v. Arenac Cty., 574 F.3d 334, 342 (6th Cir. 2009). “And this bar remains in effect when State officials are sued for damages in their official capacity.” Id. However, an action “for prospective relief,” like the injunctive relief Plaintiffs sought and obtained, is “not treated as [an] action[ ] against the State.” Id. at 167 n.14 (citing Ex parte Young, 209 U.S. 123 (1908)). Therefore, the Commonwealth could not rely on sovereign immunity to protect itself from Plaintiffs’ preliminary injunction.
Sovereign immunity also fails to shield the Commonwealth from attorneys’ fee liability. Although attorneys’ fees and costs may bear resemblance to monetary relief, the
27

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 28 of 50 - Page ID#: 2970

Supreme Court has held that attorneys’ fees and costs are “awarded without regard for the States’ Eleventh Amendment immunity.” Hutto v. Finney, 437 U.S. 678 (1978); see also Tenn. Dep’t of Human Servs. v. U.S. Dep’t of Educ., 979 F.2d 1162, 1169 (6th Cir. 1992). “Unlike ordinary ‘retroactive’ relief, such as damages or restitution, an award of costs does not compensate the plaintiff for the injury that first brought him into court.” Hutto, 437 U.S. at 695 n.24. “Instead, the award reimburses him for a portion of the expenses he incurred in seeking prospective relief.” 25 Id. Accordingly, “when a State in a § 1983 action has been prevailed against for relief on the merits, either because the State was a proper party defendant or because state officials properly were sued in their official capacity, fees may … be available from the State under § 1988.” Graham, 473 U.S. at 170.
Plaintiffs “prevailed” against Kim Davis, in her official capacity, by obtaining prospective, injunctive relief. 26 Therefore, the Commonwealth of Kentucky has potential legal liability for the attorneys’ fees that Plaintiffs seek, and the first factor “weighs heavily” in this analysis and “creates a strong presumption” that Davis is a state official with respect to issuing marriage licenses.27 Kreipke v. Wayne State Univ., 807 F.3d 768, 777

25

An “award of costs will almost invariably be incidental to an award of prospective relief, for

costs are generally awarded only to prevailing parties … and only prospective relief can be

successfully pursued by an individual in a suit against a State.” Hutto, 437 U.S. at 695 n.24.

26

A court can award attorneys’ fees against a state “only if it already has jurisdiction over

some other part of the award.” Tenn. Dep’t of Human Servs., 979 F.2d at 1170. Therefore,

“attorneys’ fees can be awarded against the state if the plaintiff prevailed on a request for

prospective relief, but not if the defendant was immune” because plaintiff only sought money

damages. Id.

27

The Court recognizes that the result in this case runs counter to the conclusion that usually

follows a determination that the State has potential liability. Typically, a conclusion that an official

is representing the state (or that an entity is an arm of the state) would result in the entity being

protected by sovereign immunity. However, in this case, sovereign immunity does not shield the

Commonwealth from liability for attorneys’ fees.

28

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 29 of 50 - Page ID#: 2971
(6th Cir. 2015). 2. Kentucky law generally classifies county clerks as “county officials.”
Whether Davis represents the Commonwealth or Rowan County is “dependent on an analysis of state law.” McMillian, 520 U.S. at 786. The Kentucky Constitution describes county clerks as constitutional county officers. Ky. Const. § 99.28 Kentucky courts have also generally characterized county clerks as county officials. See St. Matthews Fire Prot. Dist. v. Aubrey, 304 S.W.3d 56, 60 (Ky. Ct. App. 2009) (holding county clerk sued in official capacity was entitled to the immunity the county enjoyed); see also Carroll v. Reed, 425 S.W.3d 921, 924 (Ky. Ct. App. 2014) (finding that because county clerks “are subject to the code of ethics adopted by local government” and “are considered local officials subject to a measure of control by the fiscal court”).
However, the Supreme Court has cautioned that this inquiry’s focus on state law “is not to say that state law can answer the question … by, for example, simply labeling” Davis as a state or county official. McMillian, 520 U.S. at 786. Instead, an “understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official’s functions under relevant state law.” Id. Accordingly, the categorical characterization of county clerks as county officials in the Kentucky Constitution and by Kentucky courts weighs only slightly in favor of finding that Davis represented Rowan County.

28

The Constitution actually provides for the election of a “County Court Clerk.” However,

since the creation of a unified court system in 1975, county courts have ceased to function as

judicial courts. Ky. Const. § 109. Accordingly, the office is now commonly referred to as “County

Clerk.”

29

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 30 of 50 - Page ID#: 2972
3. County clerks are elected by the voters of each county. Davis is a constitutional county officer, elected by the constituents of Rowan County. Ky. Const. § 99. In the case of a vacancy, the Rowan County Judge/Executive has the responsibility of filling the vacancy, until a successor is elected, as provided under Section 152 of the Kentucky Constitution. Ky. Rev. Stat. Ann. § 63.220. Therefore, this factor weighs in favor of finding that Davis is a county official.
4. County clerks’ salaries are not paid by either the Commonwealth or the County.
An examination of Kentucky law presents confusion, rather than clarity, regarding county clerks’ funding and pay structure. County clerks are “compensated … partly from fees and partly by salary.” Ky. Rev. Stat. Ann. § 64.530(3). The Commonwealth sets county clerks’ maximum salary.29 Ky. Rev. Stat. Ann. §§ 64.535, 64.5275. The Rowan County Fiscal Court has no authority to affect or alter the Rowan County Clerk’s salary.30
Although the Commonwealth sets Davis’s salary, that does not answer the question of who pays her salary. If a clear answer existed, the Court would simply say:

29

“The General Assembly of the Commonwealth of Kentucky” has found and determined

that county clerks “are officers whose duties or jurisdictions are coextensive with that of the

Commonwealth” and has set county clerks’ maximum salary and annual incentives. Ky. Rev.

Stat. Ann. §§ 64.5275, 64.535; see also Ky. Const. § 246.

30

There is one exception to the Rowan County Fiscal Court’s lack of authority regarding the

Rowan County Clerk’s salary. County clerks have the option to serve as the clerk of the Fiscal

Court. Ky. Rev. Stat. Ann. § 67.120. If she chooses to do so, the Fiscal Court must set an annual

salary for that duty and pay such salary in monthly installments from the County Treasury. Id.

However, this does not permit Fiscal Courts to alter county clerks’ statutory salaries.

The Court also recognizes that Fiscal Courts have the authority to “fix annually the

reasonable maximum amount, including fringe benefits, which the [county clerk] may expend for

deputies and assistants;” however, only county clerks have the authority to “determine the number

of [deputy clerks] to be hired and the individual compensation of each deputy.” Ky. Rev. Stat.

Ann. § 64.530(3). Therefore, not only does the Rowan County Fiscal Court lack authority to set

the Rowan County Clerk’s salary, it also lacks authority to set the deputy clerks’ salaries.

30

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 31 of 50 - Page ID#: 2973

The Commonwealth—or Rowan County—pays Davis’s salary. Alas, that is not the case. Instead, county clerks pay their own salaries. 31
In Kentucky, County Clerks’ Offices are funded by the fees generated from the services the Office provides. (Doc. # 26 at 17-18; 25-27). Davis described the Rowan County Clerk’s Office as “a pass-through collection agency for many [state] departments.” (Doc. # 26 at 24; 58). The Rowan County Clerk’s Office funds itself by collecting fees; therefore, “[e]very year, starting on January 1, [the County Clerk’s Office] start[s] out with zero dollars.” Id. at 25. The fees the Rowan County Clerk’s Office can charge and collect, including the fee for issuing marriage licenses, are set by state law. Ky. Rev. Stat. Ann. §§ 64.012(19). Therefore, Davis pays her own salary and expenses, from the fees the County Clerk’s Office collects. Neither the Commonwealth nor Rowan County pay Davis’s salary or fund the Rowan County Clerk’s Office. Accordingly, this factor is neutral.
5. The Commonwealth exercises substantial control over county clerks with respect to marriage licenses.
The fifth factor—control—weighs heavily in favor of finding Davis represented the Commonwealth. With respect to the issuance of marriage licenses, the Commonwealth

31

To ensure a clear answer to this question did not exist, the Court attempted to follow the

fees’ path to the county clerks’ pockets, but arrived at a dead-end. Fees collected by a County

Clerk’s Office chart different courses, depending on the size of the county. In counties with a

population that equals or exceeds 70,000, the county clerk’s salary and office expenses are paid

out of the fees the County Clerk’s Office collects, which are funneled through the State Treasury.

Ky. Rev. Stat. Ann. § 64.350(1). At first glance, one may incorrectly conclude that the

Commonwealth pays county clerks’ salaries. However, a careful reading of the statute clarifies

that county clerks’ salaries are dependent upon and derived from the fees collected. See Ky.

Rev. Stat. Ann. §§ 64.345(4) (discussing potential that the fees collected are insufficient to pay

salaries and expenses and allowing the county clerk to make up the deficit, but prohibiting

payment for salaries and expenses that exceeds 75% of the amount the county clerk has paid

the Commonwealth during her term). For county clerks in counties with a population less than

70,000, like Rowan County, the fees collected appear to be retained by the County Clerk’s Office,

with only the required portions of fees remitted to the Commonwealth. Therefore, every county

clerk’s salary is paid by the fees her Office collects.

31

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 32 of 50 - Page ID#: 2974
exercises a substantial degree of control over county clerks. In the August 12, 2015 Preliminary Injunction Order, the Court relied heavily on that control and found that “Davis likely acts” as a state official, “and not as a final policymaker for Rowan County, when issuing marriage licenses.” (Doc. # 43 at 8). For the following reasons, the Court again concludes that the Commonwealth exercises a great deal of control over county clerks in this particular area.
First, the Commonwealth completely controls marriage as an institution – defining marriage and the requirements for valid marriages, as well as the dissolution of marriage. Kentucky law vests county clerks with the ministerial duty of issuing marriage licenses,32 recording marriage certificates after the union is solemnized,33 and reporting marriages to the Commonwealth.34 Ky. Rev. Stat. Ann. § 402.080. This duty is mandatory, not discretionary, and state statutes dictate every procedure for county clerks to follow when carrying out those laws, right down to the form they must use in issuing marriage licenses. Ky. Rev. Stat. Ann. § 402.100 (“Each county clerk shall make available to the public the form prescribed by the Department for Libraries and Archives for the issuance of a marriage license.”). Counties, on the other hand, have no authority to regulate

32

In fact, Kentucky law only permits another county officer to issue marriage licenses in the

“absence” of the county clerk. Ky. Rev. Stat. Ann. § 402.240. And when a county judge/executive

exercises these duties, he or she is required to “return a memorandum” to the county clerk. Id.

33

Ky. Rev. Stat. Ann. § 402.230 (“The county clerk shall keep in a record book a fair register

of the parties’ names, the person by whom, or the religious society by which, the marriage was

solemnized, the date when the marriage was solemnized, and shall keep an index to the book in

which the register is made.”).

34

Davis testified at the preliminary-injunction hearing that she is required to report to the

Kentucky Department of Vital Statistics, which gathers and publishes information about marriages

state-wide. (Doc. # 26 at 57).

32

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 33 of 50 - Page ID#: 2975

marriage.35 Thus, county clerks are subject to state control and supervision with respect to issuing, or refusing to issue, marriage licenses.
The Commonwealth also exercises fiscal control over Davis. In addition to setting her maximum salary, the Commonwealth exercises total control over Davis’s ability to collect fees for issuing marriage licenses. As discussed above, the Rowan County Clerk’s Office is “a pass-through collection agency for many [state] departments.” (Doc. # 26 at 24; 58). The fee that Davis can charge and collect for issuing marriage licenses is set by state law. Ky. Rev. Stat. Ann. §§ 64.012(19). Accordingly, the Rowan County Clerk’s Office charges $35.50 for issuing marriage licenses. (Doc. # 26 at 26). And after collecting the license fee, Davis remits $14.33 to the Commonwealth and retains $21.17 for the Rowan County Clerk’s Office. Id. The County exercises no control, fiscal or otherwise, over Davis’s duty to issue marriage licenses.36

35

Plaintiffs acknowledge that “Kentucky law does not vest county clerks with discretionary

authority to adopt new or additional requirements on the issuance of marriage licenses.” (Doc. #

194 at 9). However, Plaintiffs argue that Davis’s deviation from statutory mandates should be

“considered an internal operating policy.” Id. This argument is illogical. Rowan County has no

authority to adopt policies regarding marriage licenses, as Plaintiffs concede; therefore, Davis

possessed no authority or discretion to adopt her unconstitutional “no marriage licenses” policy.

Davis’s non-compliance with state law does not transform her statutorily-required duties into

discretionary county policies.

36

In their attempt to hold Rowan County liable for attorneys’ fees, Plaintiffs urge the Court

to consider the Rowan County Fiscal Court’s authority to approve the Rowan County Clerk’s

Office’s budget, and Davis’s obligation to remit the Rowan County Clerk’s Office revenue surplus

to the County. (Doc. # 194). Although this may support the conclusion that the Rowan County

Fiscal Court exercises some fiscal control over the Rowan County Clerk’s Office, these facts are

largely irrelevant to the narrow marriage-license inquiry. Moreover, Davis must submit her budget

and remit surplus funds to Rowan County because the Commonwealth has imposed those duties

on her. See Ky. Rev. Stat. Ann. §§ 64.152, 64.530(3).

The Court recognizes that the Rowan County Clerk’s surplus monies may be substantial.

At the time of the preliminary-injunction hearing, Davis testified that the Rowan County Clerk’s

Office had a surplus of $733,000.00. (Doc. # 26 at 27). However, the marriage-license

component of the Rowan County Clerk’s Office is relatively small. In 2014, for example, Davis

testified that her Office took in $4,500.00 for the 212 marriage licenses issued. Id. Therefore,

even assuming Davis remitted a surplus to the Rowan County Fiscal Court, the monies derived

33

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 34 of 50 - Page ID#: 2976
And lastly, the Commonwealth is the only entity with recourse against recalcitrant county clerks. The Commonwealth appears to have three avenues for addressing county clerks’ dereliction of duties. First, the Commonwealth, through the General Assembly, can impeach and remove county clerks. Ky. Const. § 68; see also Lowe v. Commonwealth, 60 Ky. 237 (Ky. 1860).37 Counties do not have any authority to remove county clerks from office.38 Therefore, county clerks “share the same impeachment procedures as” the Commonwealth’s executive officials, rather than the less-demanding removal procedures for other county officers. McMillian, 520 U.S. at 788. Whether this result was intentional or not,39 this fact is critical and fortifies the Commonwealth’s control over county clerks.

from marriage licenses would be negligible. More importantly, the Fiscal Court’s approval of the

budget and receipt of surplus monies would allow the Fiscal Court to “exert an attenuated and

indirect influence” over the Rowan County Clerk’s operations, at most. McMillian, 520 U.S. at

792. Therefore, the Court concludes that the County’s fiscal control is insubstantial and irrelevant.

37

The Constitution provides for another method of removing certain county officers –

indictment or presentment for misfeasance, malfeasance, and nonfeasance. Ky. Const. § 227.

However, only county judges, justices of the peace, sheriffs, coroners, surveyors, jailers,

assessors, county attorneys, and constables can be removed in that manner. Id. Therefore, this

less demanding option is not available for county clerks.

It is worth noting that the Commonwealth’s highest court had the authority to remove the

clerks of all courts, including county clerks, for good cause until 1975. See Third Const. of Ky.

(1850) Art. IV, § 39 (repealed). However, after the creation of the Kentucky Supreme Court and

adoption of the unified court system in 1975, the need for a provision for removing county clerks

appears to have been overlooked. Ky. Const. § 114 (providing the process and requirements for

removal for Clerks of the Supreme Court, Court of Appeals, and Circuit Courts).

38

For completeness, the Court notes that it did find a Kentucky Supreme Court case

affirming the issuance of an “injunction preventing [the newly-elected Powell County Clerk] from

acting as county clerk” and “an order declaring the office of the county clerk to be vacant.” Bowen

v. Commonwealth ex rel. Stidham, 887 S.W.2d 350 (Ky. 1994). However, the facts of that case

support the conclusion that county governments are without authority to remove county clerks.

Id. at 351 (“At the instance of the Powell County Judge-Executive,” the Commonwealth’s Attorney

“filed this action in Powell Circuit Court.”).

39

See supra note 37 and accompanying text.

34

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 35 of 50 - Page ID#: 2977

Second, the Commonwealth has the ability to criminally penalize county clerks. See Ky. Rev. Stat. Ann. §§ 522.020-030;40 see also Ky. Rev. Stat. Ann. § 402.990.41 And third, county clerks are required by statute to execute performance bonds to the Commonwealth. 42 Ky. Const. § 103; Ky. Rev. Stat. Ann. § 62.055. These performance bonds act as a “covenant to the Commonwealth of Kentucky … that the [county clerk] will faithfully discharge his duties.” Ky. Rev. Stat. Ann. § 62.060. Actions may be brought on these bonds “for the discharge or performance of any public or fiducial office … in the name of the Commonwealth, for its benefit or for that of any person injured by a breach of the covenant or condition.” Ky. Rev. Stat. Ann. § 62.070. Each of these avenues allow the Commonwealth to wield authority over county clerks, and their duty to issue marriage licenses. Notably missing are any analogues for Rowan County.43 Accordingly, the Commonwealth exercises a substantial degree of control over county clerks.

40

“A public servant is guilty of official misconduct in the first degree when, with intent to

obtain or confer a benefit or to injure another person or to deprive another person of a benefit, he

knowingly: (a) commits an act relating to his office which constitutes an unauthorized exercise of

his official functions; or (b) refrains from performing a duty imposed upon him by law or clearly

inherent in the nature of his office; or (c) violates any statute or lawfully adopted rule or regulation

relation to his office.” Ky. Rev. Stat. Ann. § 522.020(1). “Official misconduct in the first degree is

a Class A misdemeanor.” Ky. Rev. Stat. Ann. § 522.020(2). Official misconduct in the second

degree is a Class B misdemeanor. Ky. Rev. Stat. Ann. § 522.030.

41

Ky. Rev. Stat. Ann. § 402.990(6), (7), and (10) penalize a County Clerk for knowingly

issuing marriage licenses in violation of state law.

42

County Clerk’s Offices are also “liable for the acts or omissions of deputy clerks.” Ky. Rev.

Stat. Ann. § 62.210. However, in this situation “if a deputy clerk omits to act or acts in such a way

as to render the clerk responsible, and the clerk discharges such responsibility, the deputy clerk

shall be liable to the clerk for all damages and costs caused by the deputy’s act or omission.” Ky.

Rev. Stat. Ann. § 62.210.

43

The Court assumes that the Rowan County Fiscal Court has complied with Ky. Rev. Stat.

Ann. § 65.003 and enacted a Code of Ethics that applies to the Rowan County Clerk. However,

whatever “measure of control” fiscal courts can exercise over county clerks under the Code of

Ethics is insufficient to tip this analysis in favor of finding Davis acted as a county official, and

irrelevant to an inquiry focused on marriage licenses. Carroll, 425 S.W.3d at 924 (Ky. Ct. App.

2014).

35

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 36 of 50 - Page ID#: 2978
The Commonwealth’s primacy over counties with respect to the issuance of marriage licenses became increasingly evident as this litigation played out. On the day the decision in Obergefell was issued, then-Governor Beshear issued a “Same-Sex Marriage Mandate” to all government entities involved in the marriage process, instructing them to take all necessary steps to implement the Supreme Court’s decision and permit same-sex marriage. (Doc. # 29-6). Thereafter, then-Governor Beshear issued several other press releases discussing county clerks, like Davis, who “refus[ed] to perform their duties” and indicated the “courts and voters” would “deal” with those county clerks “appropriately.” (Docs. # 26-9; 26-10). Therefore, the Commonwealth, rather than the County, had authority over county clerks’ issuance of marriage licenses – and ultimately, the General Assembly decided to exercise that authority and modified the marriage license form to appease Davis.
6. County clerks’ marriage license functions fall within the traditional purview of state government.
Finally, Davis’s marriage-license functions fall squarely within the traditional purview of state government. After all, the Commonwealth has “absolute jurisdiction over the regulation of the institution of marriage.” Pinkhasov v. Petocz, 331 S.W.3d 285, 291 (Ky. Ct. App. 2011) (citing Rowley v. Lampe, 331 S.W.2d887, 890 (Ky. 1960)). Therefore, the Commonwealth has the “absolute legislative authority … over the establishment of legally valid marriages.” Id. (citing Reynolds v. United States, 98 U.S. 145, 164 (1878)). Accordingly, the last factor also weighs heavily in favor of finding Davis was representing the Commonwealth.
36

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 37 of 50 - Page ID#: 2979
7. The balance of these factors weighs in favor of finding that Davis represented the Commonwealth in this particular area.
Although Davis is elected locally by the voters of Rowan County, and Kentucky law generally classifies county clerks as “county officials,” the balance of the factors weighs heavily in favor of finding Davis was a state official and represented the Commonwealth with respect to the issuance of marriage licenses. The significant control the Commonwealth wields over county clerks with respect to their marriage license functions, which fall within the traditional purview of state government, cannot be mitigated by county elections and categorical labels. At most, the Rowan County Fiscal Court can “exert an attenuated and indirect influence over the [Rowan County Clerk’s Office] operations.” McMillian, 520 U.S. at 792. None of that control, however, can be exerted in the marriage-license context.
Although some of the factors support a finding that Davis represented Rowan County, those factors focus on the generalities of the Rowan County Clerk’s Office, rather than a particular function. The bulk of the evidence weighs heavily in favor of finding that county clerks, when issuing—or refusing to issue—marriage licenses, represent the Commonwealth of Kentucky, not their counties.
This conclusion insulates Rowan County from liability for Plaintiffs’ attorneys’ fees and costs. “There is no cause of action against a defendant for fees absent that defendant’s liability for relief on the merits.” Graham, 473 U.S. at 170. Where a local official acts as an agent of the state, her actions cannot be attributed to a local municipality. Pusey, 11 F.3d at 659; see also Williams v. Leslie, 28 F. App’x 387, 389 (6th Cir. 2002). As explained above, when Davis made the unilateral decision to adopt a “no marriage licenses” policy, she was acting as an agent of the Commonwealth, not
37

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 38 of 50 - Page ID#: 2980
Rowan County. Therefore, Rowan County is not liable for Davis’s actions or Plaintiffs’ attorneys’ fees.44 Davis represented the Commonwealth of Kentucky when she refused to issue marriage licenses to legally eligible couples. The buck stops there.
E. How Much? Now that the Court has determined that the Plaintiffs are entitled to attorneys’ fees, and the Commonwealth of Kentucky is liable for Davis’s acts in her official capacity, the Court must determine a reasonable amount of attorneys’ fees and costs. Plaintiffs seek $231,050.00 in attorneys’ fees and $2,008.08 in costs. (Doc. # 183).
1. Costs “As part of an attorneys’ fee award, § 1988 allows district courts to award ‘those incidental and necessary expenses incurred in furnishing effective and competent representation.’” Ohio Right to Life Soc’y, Inc. v. Ohio Elections Comm’n, 590 F. App’x 597, 605 (6th Cir. 2014) (quoting Waldo v. Consumers Energy Co., 726 F.3d 802, 827 (6th Cir. 2013)). “It is the responsibility of the prevailing party to document and provide evidence regarding the reasonableness of the costs and expenses for which it is seeking an award.” Id. Plaintiffs have carried their burden, and Defendants do not challenge the costs requested. (Doc. # 183-1 at 26; Doc. # 183-5 at 10). Accordingly, Plaintiffs’ Motion for Attorneys’ Fees and Costs (Doc. # 183) is granted in full with respect to the costs. The Commonwealth of Kentucky is ordered to pay Plaintiffs $2,008.08 in costs.45

44

Plaintiffs have not alleged any Rowan County policy or custom, apart from Davis’s actions,

that violated their rights. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

45

The “term ‘prevailing party’ in fee statutes is a ‘term of art’ that refers to the prevailing

litigant.” Astrue v. Ratliff, 560 U.S. 586, 591 (2010). Therefore, “the party, rather than the lawyer,

is entitle[d] to receive the fees under § 1988(b).” Id.; see also Ohio Right to Life Soc’y, Inc., 590

F. App’x at 602.

38

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 39 of 50 - Page ID#: 2981
2. Attorneys’ Fees If a party has prevailed in a § 1983 action, the Court may award the prevailing party “a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). Plaintiffs prevailed and “remed[ied] a civil rights violation,” and in doing so, “serve[d] as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority.” Fox, 563 U.S. at 833 (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)). “Fee-shifting in such a case … reimburses a plaintiff for what it cost him to vindicate civil rights … and holds to account a violator of federal law.” Id. (internal citations and quotation marks omitted). However, “a request for attorney’s fees should not result in a second major litigation.” Hensley, 461 U.S. at 437. “The primary concern in an attorney fee case is that the fee awarded be reasonable, that is, one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citing Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)).
a. The Lodestar Amount “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433. This two-step calculation, known as the lodestar amount, provides an “initial estimate of the value of a lawyer’s services.” Id. “The product of reasonable hours times a reasonable rate does not end the inquiry.” Hensley, 461 U.S. at 434. After determining the lodestar amount, the court can adjust the fee upward or downward “to reflect relevant considerations peculiar to the subject litigation.” Adcock-
39

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 40 of 50 - Page ID#: 2982
Ladd, 227 F.3d at 349. However, “trial courts need not, and should not, become greeneyeshade accountants.” Fox, 563 U.S. at 838. “The essential goal in shifting fees is to do rough justice, not to achieve auditing perfection.” Id. Therefore, “trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.” Id.
“The party seeking attorneys’ fees bears the burden of documenting his entitlement to the award.” Reed, 179 F.3d at 472. “The fee applicant ‘should submit evidence supporting the hours worked and rates claimed.’” Id. (quoting Hensley, 461 U.S. at 433). Defendants have not challenged the reasonableness of the hourly rates that Plaintiffs seek, instead focusing on the reasonableness of the hours. Nevertheless, the Court is required to “provide a concise but clear explanation of its reasons for” awarding a certain amount of fees. Hensley, 461 U.S. at 437. Therefore, the Court will address the reasonableness of both the hourly rates and the hours expended.
i. Reasonable Rate “A trial court, in calculating the ‘reasonable hourly rate’ component of the lodestar computation, should initially assess the ‘prevailing market rate in the relevant community.” Adcock-Ladd, 227 F.3d at 350. The “prevailing market rate” is “the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.” Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686, 715 (6th Cir. 2016) (citing Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir, 2004)). Therefore, “the appropriate rate is … the market rate in the venue sufficient to encourage competent lawyers in the relevant community to undertake legal representation.” Id. at 716. “A district court may look to ‘a party’s submissions, awards in analogous cases, state bar
40

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 41 of 50 - Page ID#: 2983
association guidelines, and its own knowledge and experience in handling similar fee requests.’” Id. (quoting Van Horn v. Nationwide Prop. & Cas. Ins., 436 F. App’x 496, 499 (6th Cir. 2011)). “Furthermore, while the district court may take into consideration an attorney’s skill level in identifying the market rate, [the Sixth] Circuit holds that ‘reasonable’ fees need not be ‘liberal fees.’” Id.
Four local attorneys represented Plaintiffs in this action—William Sharp, Daniel Canon, Laura Landenwich, and L. Joe Dunman. The rates sought for local counsel range from $250.00 to $350.00 per hour. (Doc. # 183 at 25). Considering the record and the applicable law, including awards in analogous cases and the Court’s own knowledge and experience in handling similar fee requests, these hourly rates are reasonable and proper for attorneys in this geographic area possessing similar skills and experience. Therefore, local counsels’ hourly rates will be as follows: $350.00 for William Sharp, $300.00 for Daniel Canon, $300.00 for Lara Landenwich, and $250.00 for L. Joe Dunman.
Plaintiffs were also represented by four out-of-town attorneys—James Esseks, Ria Tabacco Mar, Dan Mach, and Heather Weaver. The rates sought for out-of-town counsel range from $350.00 to $700.00 per hour. Id. Clearly, the requested hourly rates for outof-town counsel are significantly higher than local counsel. Typically, out-of-town counsel are not entitled to the prevailing market rates in their home venue. When an attorney “has voluntarily agreed to represent a plaintiff in an out-of-town lawsuit … the court should deem the ‘relevant community’ for fee purposes to constitute the legal community within that court’s territorial jurisdiction.” Adcock-Ladd, 227 F.3d at 350. The “prevailing market rate” is not the “foreign counsel’s typical charge for work performed” in the foreign venue, “at least where the lawyer’s reasonable ‘home’ rate exceeds the reasonable ‘local’
41

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 42 of 50 - Page ID#: 2984
charge.” Id. (quoting Hudson v. Reno, 130 F.3d 1193, 1208 (6th Cir. 1997)). However, if the out-of-town counsel is a “specialist,” a higher hourly rate may be
permitted. “Where a fee applicant seeks to recover fees for an out-of-town specialist, the district court must determine ‘(1) whether hiring the out-of-town specialist was reasonable in the first instance, and (2) whether the rates sought by the out-of-town specialist are reasonable for an attorney of his or her degree of skill, experience, and reputation.’” Ne. Ohio Coal. for the Homeless, 831 F.3d at 716 (quoting Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995)). “If competent counsel was readily available locally at a lower charge or rate, the district court may apply local market rates to the services provided by the outof-town specialist.” Id. After all, § 1988 “does not guarantee civil rights plaintiffs the best counsel in the country; it guarantees them competent counsel.” Id. (internal citations omitted).
The rates for out-of-town counsel, although “clearly … out of step with the local market,” are reasonable. Id. at 719. First, Defendants have not challenged these attorneys’ qualifications or the need for out-of-town specialists in this case. Moreover, the Court finds that consulting and working with James Esseks and Ria Tabacco Mar— specialists in constitutional litigation concerning the rights of lesbian, gay, bisexual, and transgender people—as well as Daniel Mach and Heather Weaver—specialists in constitutional litigation pertaining to religious-freedom rights—was reasonable.
And, the rates sought by each of the out-of-town specialists are reasonable for an attorney of his or her degree of skill, experience, and reputation. In fact, Mr. Esseks and Ms. Mar have declared that two other ACLU attorneys—Steven R. Simpson and Louise Melling—who practiced on this case have decided not to seek payment for their 70 hours
42

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 43 of 50 - Page ID#: 2985
of time. (Doc. # 183-7 at 6). And Mr. Mach and Ms. Weaver have sought hourly rates lower than the hourly rates received by lawyers of their skill and experience who practice in Washington, D.C. (Doc. # 183-9); see also Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58, 62 (D.C. Cir. 2015). Accordingly, out-of-town counsels’ hourly rates will be as follows: $700.00 for James Esseks, $350.00 for Ria Tabacco Mar, $675.00 for Daniel Mach, and $500.00 for Heather Weaver.46
ii. Reasonable Hours “In calculating a fee applicant’s lodestar, a district court should exclude hours that were not ‘reasonably expended’ by counsel.” Ohio Right to Life Soc’y, Inc., 590 F. App’x at 602 (quoting Hensley, 461 U.S. at 434). It is the burden of the party seeking attorneys’ fees to adequately document “and submit evidence supporting the hours worked.” Hensley, 461 U.S. at 433. “Where the documentation of hours is inadequate, the district court may reduce the award accordingly.’” Id. Furthermore, the “documentation offered in support of the hours charged must be of sufficient detail and probative value to enable the court to determine with a high degree of certainty that such hours were actually and reasonably expended in the prosecution of the litigation.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 533 (6th Cir. 2008). “There is no precise rule or formula for making these determinations.” Hensley, 461 U.S. at 436. “The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award.” Id. at 436-37.

46

The Western District of Kentucky awarded similar hourly rates for out-of-town specialists,

and specifically awarded Mr. Esseks the same hourly rate of $700.00 in Bourke v. Beshear, a

case that was consolidated with Obergefell before the Supreme Court. Bourke v. Beshear, No.

3:13-cv-750-CRS, 2016 WL 164626, at *5 (W.D. Ky. Jan. 13, 2016).

43

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 44 of 50 - Page ID#: 2986
“Purely clerical or secretarial” tasks are not compensable. Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). Clerical work involves tasks that do not require legal knowledge, such as filing motions, preparing or reviewing summons, and receiving and filing correspondence. Lay v. Astrue, No. 5:10-cv-346-DLB, 2012 WL 5988822, at * 5 (E.D. Ky. Nov. 29, 2012) (citing B&G Mining, Inc. v. Office of Workers’ Comp. Programs, 522 F.3d 657, 666 (6th Cir. 2008) (“receiving and filing correspondence presumably constitutes clerical work”)).
Defendants claim that a portion of the fees requested by Plaintiffs are not compensable. Specifically, Defendants claim that that “many of the entries by Sharp, Mar, and Weaver include billing for clerical tasks.” (Doc. # 192 at 9). Defendants also accuse Plaintiffs’ counsel of “block billing.” Id. The Court agrees. Examples include converting and filing papers (Doc. # 183-5 at 5 (7/2/2015 Entry)), submitting a check (Doc. # 183-5 at 5 (7/23/15 Entry)), filing notices of appearance (Doc. # 183-7 at 10 (8/21/15 Entry)), circulating motions (Doc. # 183-7 at 11 (10/19/15 Entry)), and filing motions (Doc. # 183-9 at 12 (9/18/15 and 9/21/15 Entries)).
Moreover, several of the billing entries that involve clerical tasks can be characterized as “block billing.” “Block billing involves identifying more than one task in a single billing entry.” Gibson v. Scott, No. 2:12-cv-1128-GCS, 2014 WL 661716, at *4 (S.D. Ohio Feb. 19, 2014). Block billing is not per se improper; it ‘can be sufficient’ if the description of the work performed is adequate.” Ne. Ohio Coal. for the Homeless, 831 F.3d at 705 n.7. However, the use of block billing in entries that contain clerical work render it impossible for the Court to determine the exact amount of non-compensable time included in the requested hours. For illustrative example only, one billing entry by
44

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 45 of 50 - Page ID#: 2987

Ms. Weaver describes 5.5 hours of work as follows: “Revise and edit motion to

enforce/clarify; consult with team re draft; reconcile edits; file.” (Doc. # 183-9 at 12

(9/21/15 Entry)). The Court is unable to decipher what percentage of the 5.5 hours was

expended on filing the motion, which is a non-compensable clerical task. Accordingly,

the Court has identified specific billing entries that encompass non-compensable clerical

tasks and excluded those hours before calculating the lodestar amount, which is as

follows:

Attorney William Sharp Daniel Canon Laura Landenwich L. Joe Dunman Ria Tabacco Mar James Esseks Daniel Mach Heather Weaver

Rate $350.00 $300.00 $300.00 $250.00 $350.00 $700.00 $675.00 $500.00

Hours 224.147 128.248
38.6 30.349 65.350 21.1 26.4 62.451
Total:

Lodestar $78,435.00 $38,460.00 $11,580.00 $7,575.00 $22,855.00 $14,770.00 $17,820.00 $31,200.00 $222,695.00

47

Attorney Sharp’s total requested hours are reduced by 6.4 hours. The following billing

entries contain non-compensable clerical tasks: 7/2/15, 7/23/15, 7/27/15, 8/6/15, 8/13/15,

8/17/15, 8/23/15, 8/24/15, 8/23/15, 8/25/15, 8/28/15, 9/1/15, 9/2/15, 9/11/15, 9/15/15, 9/21/15,

10/18/15, 10/20/15, 11/3/15, 12/16/15, 6/2/16, 6/17/16. (Doc. # 183-5 at 5-9).

48

Attorney Canon’s total requested hours are reduced by 5.8 hours. The billing entries on

9/8/15 and 9/18/15 constitute block-billing entries which include non-compensable clerical tasks.

(Doc. # 183-6 at 12-13) (“Review and file revised status update; correspond w clients and legal

team; review orders from DLB, enter appearance in yet another appeal;” “Draft, finalize and file

response in 5978”).

49

Attorney Dunman’s total requested hours are reduced by 0.1 hour. The billing entry on

8/20/15 is a non-compensable clerical task. (Doc. # 183-6 at 10) (“File notice of appearance in

CA6”).

50

Attorney Mar’s total requested hours are reduced by 1 hour. The following billing entries

contain non-compensable clerical tasks: 8/21/15, 8/21/15, 10/19/15, 1/15/15. (Doc. # 183-7 at

10-11).

51

Attorney Weaver’s total requested hours are reduced by 8 hours. The billing entries on

9/18/15 and 9/21/15 constitute block-billing entries which include non-compensable clerical tasks.

(Doc. # 183-9 at 11-12) (“Consultation with co-counsel re motion to expedite; revise motion; file;”

“Revise and edit motion to enforce/clarify; consult with team re draft; reconcile edits; file”).

45

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 46 of 50 - Page ID#: 2988
b. Fee Adjustment “The product of reasonable hours times a reasonable rate does not end the inquiry.” Hensley, 461 U.S. at 434. After determining the lodestar amount, the court can adjust the fee upward or downward “to reflect relevant considerations peculiar to the subject litigation.” Adcock-Ladd, 227 F.3d at 349. However, “a ‘strong presumption’ favors the prevailing lawyer’s entitlement to his lodestar fee.” Id. at 350. Thus, “modifications to the lodestar are proper only in certain ‘rare’ and ‘exceptional’ circumstances, supported by both ‘specific evidence’ on the record and detailed findings.” Id. (quoting Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546, 565 (1986)). Defendants claim that a reduction of Plaintiffs’ attorneys’ fees are warranted in this case. First, “Davis suggests that the Court should reduce Plaintiffs’ requested fee by at least half to account for the numerous claims on which Plaintiff did not recover.” (Doc. # 193 at 25). Specifically, Davis challenges the hours expended on Plaintiffs’ unsuccessful Motion for Class Certification. Id. at 26. Davis further suggests that Plaintiffs’ attorneys’ fees should be reduced by “half again to account for the half of Plaintiffs who abstained from participating in the limited relief Plaintiffs did obtain.” Id. Both of these suggestions, which are unaccompanied by any legal support, are rejected. The lodestar amount will not be reduced. A “partially prevailing plaintiff may recover an attorney’s fee for legal services on unsuccessful claims.” Hensley, 461 U.S. at 426. And the Sixth Circuit has “repeatedly rejected mechanical reductions in fees based on the number of issues on which a plaintiff has prevailed.” Déjà Vu, 421 F.3d at 423. However, the “extent of a plaintiff’s success is
46

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 47 of 50 - Page ID#: 2989
a crucial factor in determining the proper amount of an award of attorney’s fees.” Hensley, 461 U.S. at 440 (emphasis added). Especially “where a plaintiff is deemed ‘prevailing’ even though he succeeded on only some of his claims for relief.” Id. at 434.
Because Plaintiffs prevailed only on their request for a preliminary injunction, “two questions must be addressed.” Id. “First, did the [Plaintiffs] fail to prevail on claims that were unrelated to the claims on which he succeeded?” Id. If a “plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee.” Id. at 440. But, if the “lawsuit consists of related claims, a plaintiff who was won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised.” Id. Instead, the “result is what matters.” Id. at 435.
Plaintiffs’ “unsuccessful” claims for relief—their requests for a permanent injunction, class certification, declaratory judgment, trial by jury, and damages—were not distinct from Plaintiffs’ successful request for a preliminary injunction. Each of Plaintiffs’ requests for relief “involve[d] a common core of facts” and were “based on related legal theories”—that their constitutional rights were violated by the Rowan County Clerk’s “no marriage license” policy. Id. at 435. Characterizing Plaintiffs’ other “unsuccessful” requests for relief as “distinct claims,” would elevate form over substance. A preliminary injunction, a permanent injunction, and a declaratory judgment asking the Court to make the same finding are not distinct claims. Nor is a request for class certification, damages, or a jury trial. Rather, Plaintiffs brought one successful claim in the form of seven different requests for relief. Therefore, the Court will not reduce Plaintiffs attorneys’ fees because
47

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 48 of 50 - Page ID#: 2990
they did not obtain the permanent injunction, declaratory judgment, class certification, jury trial, or damages they sought.
Accordingly, the Court must consider the second question: “Did the [Plaintiffs] achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?” Id. at 434. “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee,” which will typically “encompass all hours reasonably expended on the litigation.” Id. at 435. However, if the “plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.” Id. at 436. In that situation, “the district court should award only that amount of fees that is reasonable in relation to the results obtained.” Id. at 440. “There is no precise rule or formula for making these determinations.” Id. at 436. “The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.” Id. at 436-37.
Here, Plaintiffs obtained “excellent” results. Id. at 435. They sought to enjoin Davis from enforcing her “no marriage licenses” policy, vindicate their fundamental right to marry, and obtain marriage licenses; and they did so. Focusing on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation,” the Court finds that the lodestar amount is a reasonable attorneys’ fee. Id. at 435. Although two of the plaintiff-couples did not take advantage of their preliminaryinjunction success by obtaining marriage licenses from the Rowan County Clerk’s Office, a downward adjustment of the lodestar is not warranted. Davis was “preliminarily enjoined from applying her ‘no marriage licenses’ policy” to all “individuals who are legally
48

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 49 of 50 - Page ID#: 2991

eligible to marry in Kentucky,” not just Plaintiffs. (Doc. # 74).52 Thus, it is unknown how many couples obtained marriage licenses because of Plaintiffs’ preliminary-injunction success.53 There are no “rare” or “exceptional” circumstances which support a reduction of the lodestar amount. and Plaintiffs are entitled to a fully compensatory attorneys’ fee. Adcock-Ladd, 227 F.3d at 350.
Considering the relief obtained by the Plaintiffs, a fully compensatory attorneys’ fee award is warranted. Accordingly, Plaintiffs’ Motion for Attorneys’ Fees and Costs (Doc. # 183) is granted in part with respect to the attorneys’ fees, and the Commonwealth of Kentucky is ordered to pay Plaintiffs $222,695.00 in attorneys’ fees.54 IV. CONCLUSION
Accordingly, for the reasons stated herein, IT IS ORDERED as follows: (1) The Report and Recommendation of the United States Magistrate Judge (Doc. # 199) is hereby REJECTED as the findings of fact and conclusions of law of the Court; (2) Plaintiffs’ Objections (Doc. # 201) are hereby SUSTAINED as set forth herein;

52

The scope of the preliminary injunction serves as an additional basis for rejecting Davis’s

argument that the Court should exclude all hours expended on work associated with Plaintiffs’

Motion for Class Certification as excessive. (Doc. # 193 at 26).

53

The Court does know, however, that at least two other couples received marriage licenses

because of the preliminary injunction. David Ermold and David Moore, plaintiffs in a companion

case, received a marriage license from the Rowan County Clerk’s Office on September 4, 2015,

and married on September 26, 2015. Ermold v. Davis, No. 0:15-cv-46-DLB (Docs. # 27-2 and

27-3 therein). James Yates and Will Smith, plaintiffs in another companion case, also received a

marriage license on September 4, 2015. Yates v. Davis, No. 0:15-cv-62-DLB (Doc. # 17-1 at 4

therein).

54

See supra note 45 and accompanying text.

49

Case: 0:15-cv-00044-DLB Doc #: 206 Filed: 07/21/17 Page: 50 of 50 - Page ID#: 2992 (3) Plaintiffs’ Motion for Attorneys’ Fees and Costs (Doc. # 183) is hereby
GRANTED as follows: (a) Plaintiffs are awarded $222,695.00 in attorneys’ fees; and (b) Plaintiffs are awarded $2,008.08 in costs; and
(4) This matter is hereby STRICKEN from the Court’s active docket. This 21st day of July, 2017.
K:\DATA\ORDERS\Ashland Civil\2015\15-44 1988 Attys Fees Order.docx
50

 
 Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 1 of 13 - Page ID#: 3169

PRIL TEPHEN
,
.
,

,

,

ERRY

No. 0:15 00044—

┐ │ │ ,│ │

│

│

│

│

│

p ,│

│

│

│

│ ,│

│

│

│

│

│

.

│ ┘

_________________

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 2 of 13 - Page ID#: 3170 2

Amy D. Cubbage, ACLU OF KENTUCKY, Louisville, Ken

_________________

GRIFFIN, Circuit Judge.

_________________

Under the “American Rule,” parties typically pay their own attorney’s fees. Congress

who oversaw marriage licensing for Rowan County, Kentucky, wouldn’t issue them. So they

chose not to pursue the lawsuit any further. But they did pursue attorney’s fees, which the

didn’t win and thus can’t recover attorney’s fees. They also dispute who must pay the fee award. And Davis’s successor challenges the amount of the award. We reject all the issues the partie

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 3 of 13 - Page ID#: 3171 3
hands. didn’t discriminate against same — —sought marriage licenses from the Clerk’s Office,
couldn’t get them.
rt to stay the injunction, but she didn’t prevail.
n and to expand the injunction’s both. And after Davis’s deputy clerks told the court they would issue marriage licenses, the
if she would agree not to interfere with her deputy clerks’ compliance with the injunction, she wouldn’t be sent to jail. Davis chose jail.
plaintiffs’ successes, the district court lifted the contempt sanction and released Davis from y issued

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 4 of 13 - Page ID#: 3172 4

Commissioner of Kentucky’s Department of Libraries and Archives, Wayne Onskt (“Kentucky

Officials”). She opposed same

—

issued had her name on them, and she felt that her name’s appearance was the equivalent of her

—

In response to Davis’s lawsuit, Governor Matthew Bevin, who had succeeded Beshear, icense that didn’t contain the names of
clerks weren’t required to sign marriage licenses.

, 667 F. App’x 537, 538 (6th Cir. district court followed our instructions and also dismissed plaintiffs’ damages claims sua sponte.
attorney’s fees under 42 U.S.C. § 1988. The d imposed liability on the Commonwealth, not the Clerk’s Office or Rowan County. That prompted the Kentucky Officials, who hadn’t responded to plaintiffs’ motion for fees, to ask the
nd its ruling to assess fees against the Clerk’s Office. The district court

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 5 of 13 - Page ID#: 3173 5
The common law contains no right to attorney’s fees for the winning party to a lawsuit. , 614 F.3d 591, 596 (6th
“American Rule,” each party pays his, her, or its own fees unless a statute explicitly provides Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health and Human Res.
reasonable attorney’s fee . . . .
Whether plaintiffs may obtain attorney’s fees, then, hinges on whether they prevailed. Caudill and the Kentucky Officials say they didn’t; plaintiffs say they did. And if they did,
—

court’s determination of whether a party is a “prevailing party” under § 1988. Sometimes we’ve

,

imes we’ve reviewed de novo.

,

, 496

normally controls because one panel can’t overturn another’s decision.

.

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 6 of 13 - Page ID#: 3174

6

.

Court considered whether a party was a “prevailing” one under §

–

’s approach, which means

s.

Applying

he “‘preliminary’ nature of the relief . . . generally counsel[s] against fees in the context of preliminary injunctions.”
–98.
, the preliminary injunction must have caused it; it can’t stem from Davis’s ,

Some examples help make the abstract concrete. “When protesters seek an injunction to —
— and the end of the parade will moot the case.” . at 599. “The same is true of a government

hearing and obtains a preliminary injunction that irrevocably excludes the report.” . “So also

—

—

brings about that result.” .

–

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 7 of 13 - Page ID#: 3175 7
Here, what happened doesn’t fit neatly into those examples. Plaintiffs, unlike the referendum enthusiast, didn’t seek
t’s a distinction without a difference because §
—
unpersuasive. They contend that plaintiffs didn’t prev doesn’t transform victory into defeat. Consider the first
— Another argument the Kentucky Officials advance rests on the preliminary injunction’s fleeting existence. After the district court vacated the injunction, they argue, Davis could’ve

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 8 of 13 - Page ID#: 3176 8
reinstated her policy, so the change plaintiffs secured wasn’t enduring. But Davis couldn’t have
ture’s alteration of the marriage

—

—

therefore stemmed from the preliminary injunction, not from the legislature’s or Davis’s later

,

614

. The parade’s end moots the

. And that’s true regardless of whether the enjoined party (perhaps a local government

ficials point to the complaint’s broad prayer for
— ut everything they sought arose from Davis’s refusal to issue marriage
— prevail, then, plaintiffs didn’t need to obtain duplicative relief in every form that they

ict court put it, “[p]laintiffs did not achieve ‘only a symbolic victory”; “[they] won the war.” They prevailed, and because they prevailed, they’re eligible to recover attorney’s
1988.

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 9 of 13 - Page ID#: 3177 9

So plaintiffs should recover their attorney’s fees.

he or the Clerk’s Office controls? Not necessarily.
, when determining who had to pay an attorney’s § 1988, the Supreme Court adopted a binary choice: either “the official, in his official capacity,” pays the fees “from funds of his agency or under his control” or “the State or local government”

to the lawsuit because “suits brought against individual officers for injuncti

practical purposes suits against the State itself.” . Thus,

’s binary tells us that liability

for the fees here could fall to the Rowan County Clerk’s Office, Rowan County, or the

doesn’t

.

— State’s potentia
, 437 U.S. at 700,

at 429. Those six factors are: “(1) the purview of state or local government.”

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 10 of 13 - Page ID#: 3178
10
referential: it asks about the State’s liability
—one that doesn’t include the first facto test shows that Davis acted on Kentucky’s
Rowan County pays Davis’s salary; the Clerk’s Office pays its own expenses—including Davis’s — factors, to be sure, suggest that Davis acted on the County’s 99. , , 425 S.W.3d 921, 924 (Ky. Ct. App. 2014);

—

402.990(6), 522.020–

, 60 Ky. 237 (Ky. 1860). And Kentucky has “absolute jurisdiction over

of the institution of marriage.”

, 331 S.W.3d 285, 291 (Ky. Ct.

§§ §§ 402.100–
§§ 402.080, 402.220,

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 11 of 13 - Page ID#: 3179 11

lity on the Clerk’s Office—

—

402.100

(“Each county clerk

a marriage license.”) (emphasis added);

§ 402.110 (“In issuing the license the clerk

it in its entirety to the licensee.”

402.080 (2017) (“The license

her, in which case it may be issued by any county clerk.”) (emphasis added). Th cited no authority suggesting that if a county official acting on the State’s behalf fails to do a job
Davis’s refusal to issue licenses, then, doesn’t mean she acted on behalf of the Clerk’s Office. And that means that Caudill, in his official capacity, isn’t liable for the fee award.
The Kentucky Officials also argue that “special circumstances” warrant not holding the
, however, acting in good faith isn’t a
acted on Kentucky’s behalf when issuing and refusing to issue

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 12 of 13 - Page ID#: 3180 12
Caudill, alone, also challenges the attorney’s district court’s ruling for an abuse of discretion,
To calculate how much an award should be, courts in our Circuit use the “lodestar”

—

—

evaluates the case’s unique aspects to determine whether to adjust the award. Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th

, 46 .
reasonableness of plaintiffs’ counsel’s billing rates, but the district court

In response to Davis’s argument that plaintiffs’ failure to obtain more than a preliminary

Case: 0:15-cv-00044-DLB Doc #: 230 Filed: 08/23/19 Page: 13 of 13 - Page ID#: 3181 13
their fees; if not, they couldn’t. Because a common core of facts—Davis’s refusal to issue —
On appeal, Caudill claims as Davis did below that plaintiffs’ failure to obtain more than a —
ns, we affirm the district court’s attorney’s