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The American Civil Liberties Union on Monday filed a motion in Kentucky District Court accusing Rowan County Clerk Kim Davis of flouting a judge’s order not to interfere with her deputies when they issue marriage licenses to same-sex couples.
At issue is the alteration of licenses by Davis to remove her name, official title, and all references to Rowan County from the licenses. Davis also removed a space for her deputy clerks to sign, instead leaving only a place for them to initial them as a notary public. The license also states that it is being issued pursuant to a federal court order. The ACLU, which represented two straight and two gay couples who sued Davis to receive marriage licenses after she stopped issuing them, argues that Davis’ latest actions violate Judge David Bunning’s order that Davis not interfere with the process of issuing same-sex marriage licenses.
In its motion, the ACLU asks that the court force Davis into compliance through sanctions, which would include fines or the placement of the Rowan County Clerk’s Office into receivership for the purpose of issuing marriage licenses. That means that a judge could appoint an outside person for the purpose of overseeing the issuance of marriage licenses, in order to ensure the licenses being issued are valid. Such a move would also provide protection for the deputy clerks by protecting them from retaliation by Davis for complying with Bunning’s previous court order.
“When faced with state actors who persist in violations of federal law, courts have appointed receivers ‘to coerce public officials to comply with legal mandates in a number of factual settings, including public schools, housing, highways, nursing homes, and prisons,'” the ACLU writes in its motion. “Because the imposition of a receivership is an equitable remedy, it is available only when there is no adequate legal remedy. Thus, the primary consideration is ‘whether any other remedy is likely to be successful.’ Should Davis again violate this Court’s order, she will have unfailingly demonstrated that the usual remedies for securing compliance are simply inadequate and that a receivership is an appropriate remedy pending her obedience, which may be induced via coercive civil monetary fines as appropriate and necessary.”
The ACLU and the court were previously alerted to Davis’ possible noncompliance on Friday, after Richard Hughes, the lawyer representing Deputy Clerk Brian Mason, informed the court in writing of the changes Davis had made to the marriage licenses in what he said was an “attempt to circumvent the court’s order.” Because Kentucky law specifies requirements for the form that county clerks use for marriage licenses, the changes implemented by Davis potentially threaten the validity of any licenses issued since Sept. 14, the day on which she returned to work.
“The clerk’s office needs to issue valid licenses that comply with the court’s orders,” said James Esseks, the director of the ACLU’s Lesbian, Gay, Bisexual and Transgender Project. “It’s sad that Ms. Davis has continued to interfere with the basic constitutional right of all loving couples to marry and that the plaintiff couples have to ask the court to intervene once again.”
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