Friday, September 11, 2015

Solving Miller v. Davis - Kevin Walsh - Mirror of Justice

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Kim Davis's response Rowan County Marriage License 
"issued pursuant to a federal court order"
Unlike some like  Catholic conservative Robert George who urges defiance of Obergefell v. Hodges, Prof. Kevin Walsh, a former Scalia law clerk, seeks a path to accommodation in the Rowan County, Kentucky confrontation.  I don't think that it is warranted to have a"different county clerk" sign a license if by that we mean the Clerk of another county.  
In my view the order to grant licenses should be addressed to Davis in her official capacity, directing that the Office of the Rowan County Clerk grant licenses to all who qualify.  If Davis refuses - she can again be held in contempt.  In that event the Deputy Clerks if permitted by Kentucky law, can issue the licenses.  If they refuse, or are not permitted to act by their superior, Judge Bunning can designate someone to issue licenses in Rowan County, charging the costs to the county.  Fed R CvP 70 (a). - gwc

Mirror of Justice

By Kevin C. Walsh
Different people have been dismayed by different aspects of the transition to same-sex marriage licensing in Rowan County, Kentucky. But just about everyone recognizes that there must have been, and still must be, a better way. So here's a shot at solving the case of Miller v. Davis
Here are the constraints/objectives: 
(1) Everyone who is eligible should be able to obtain a marriage license in Rowan County.
(2) Nobody should be forced to act in violation of his or her conscience.
(3) Nobody should act outside the law. 
This should not be terribly difficult. There is a statewide infrastructure in place for getting marriage licenses to eligible couples. Every county clerk's office has the same prescribed form. And any county clerk can issue a marriage license. That is, there is no requirement that a person obtain a license from the county where he or she lives. 
We also know from events on the ground that at least one deputy clerk in Rowan County is willing to accept license applications, fill out all the paperwork, and issue the licenses. According to the testimony at a preliminary injunction hearing, this process takes about five to seven minutes. 

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