Constitutional Law: Due Process & Business Licenses Where does Due Process come from?

Constitutional Law:Due Process & Business

LicensesWhere does Due Process come from?

Originates from Magna Carta: First drafted by the Archbishop of Canterbury to make peace

between the unpopular King and a group of rebel barons, it promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons.

Lord Denning (English Jurist) described it as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”

Essentially became cornerstone of all legal protections enshrining principle of process. https://en.wikipedia.org/wiki/Magna_Carta

Due Process

Limits the Federal Government 5th Amendment - No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. “[N]or shall any person . . . be deprived of life, liberty, or property,

without due process of law”

Due Process

Limits the State Government 14th Amendment - Section 1. All persons born or

naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

“[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”

Due Process

“[A] State [has the] power to impose higher standards… than required by the Federal Constitution if it chooses to do so. And when such state standards alone have been violated, the State is free, without

review by us, to apply its own state harmless error rule to such errors of state law.”-Cooper v. California 386 U.S. 58 (1967)

Article I, Section 7. No person shall be deprived of life, liberty or property, without due process of law. For example, Utah has an arguably expanded view of parental

rights. See Jensen ex rel. Jensen v. Cunningham, 250 P.3d 465, 2011 UT 17 (Utah 2011)

Under Utah Due Process Clause, " notice and opportunity to be heard ... must be observed in order to have a valid proceeding affecting life, liberty, or property." Wells v. Children's Aid Soc'y of Utah, 681 P.2d 199, 204 (Utah 1984). Additionally, " [t]o be considered a meaningful hearing, the concerns of the affected parties should be heard by an impartial decision maker." Chen v. Stewart, 2004 UT 82, ¶ 68, 100 P.3d 1177 (internal quotation marks omitted).

Due Process Under State Constitution

Cons: Much more efficient to have speedy resolution

(Due Process is slow) Due Process is costly Power over life, liberty, and property is rarely

abused (no sarcasm)

https://www.youtube.com/watch?v=Xa6c3OTr6yA

Why do we have Due Process?



Pros: We care about individual rights Governmental actors are human (not always right or

fair) Taking of life, liberty, or property should be slow

because it must be done right “The history of liberty has largely been the history of

the observance of procedural safeguards.” McNabb v. United States, 318 U.S. 332 (1943) (Justice Frankfurter)

https://www.youtube.com/watch?v=hYvlhHPLzCA

Why do we have Due Process?

https://www.youtube.com/watch?v=hYvlhHPLzCA

Substantive v.s Procedural: 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 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).

What is Due Process?Substantive & Procedural

Substantive:

The Courts have viewed the Due Process Clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are “implicit in the concept of ordered liberty.” Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights are “deeply rooted” in American history and tradition; this specific phrase was used with respect to rights related to the institution of the family.

Many rights that are not explicitly described in constitution are protected. (I.e.. recent SCOTUS decision on gay marriage).

Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment,[citation needed] which originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. Those three types of rights are:

the rights enumerated in and derived from the first eight amendments in the Bill of Rights e.g., the Eighth Amendment;

the right to participate in the political process e.g., the rights of voting, association, and free speech; and the rights of “discrete and insular minorities.” The Court usually looks first to see if there is a fundamental right, by examining if the right can be found

deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. Strict scrutiny asks whether the law is justified by a compelling state interest, and whether the law is narrowly tailored to address the state interest.


Substantive:

The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid.

If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. Strict scrutiny asks whether the law is justified by a compelling state interest, and whether the law is narrowly tailored to address the state interest.


Substantive: Traditionally recognized fundamental rights:

The right to marry and the right to procreate The right to purchase and use birth control The right to custody of one’s own children and to

raise them as one sees fit The right to refuse medical treatment The right to freedom of speech The right to travel freely among the states The right the vote The right to freedom of association The right to freedom of religion


Substantive: Traditionally recognized fundamental rights:

The right to marry and the right to procreate The right to purchase and use birth control The right to custody of one’s own children and to

raise them as one sees fit The right to refuse medical treatment The right to freedom of speech The right to travel freely among the states The right the vote The right to freedom of association The right to freedom of religion


Substantive: Examples of infringement of fundamental

rights: Preventing interracial couples from marrying.

Loving v. Virginia, 388 U.S. 1 (1967) Poll taxes

Unfairly infringed on right to vote.


Strict Scrutiny vs. Rational Basis Strict Scrutiny is triggered when there is

infringement of a fundamental liberty right. Rational Basis = everything else (Intermediate Scrutiny)

Not used in due process cases very often – comes up in equal protection cases (14th Amendment – “nor deny to any person

within its jurisdiction the equal protection of the laws.”).


Strict Scrutiny Test It must be justified by a compelling governmental interest. While the Courts have

never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.

The law or policy must be the least restrictive means for achieving that interest. That is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately.

Burden of Proof is on governmental entity or actor


Suspect Classification The Supreme Court has established standards for determining whether a

statute or policy's classification requires the use of strict scrutiny. The class must have experienced a history of discrimination, must be definable as a group based on "obvious, immutable, or distinguishing characteristics," be a minority or "politically powerless," and its characteristics must have little relationship to the government's policy aims or the ability of the group's members to contribute to society.

The Court has consistently found that classifications based on race, national origin, and alienage require strict scrutiny review. The Supreme Court held that all race-based classifications must be subjected to strict scrutiny in Adarand Constructors v. Peña, 515 U.S. 200 (1995), overruling Metro Broadcasting, Inc. v. FCC (89-453), 497 U.S. 547 (1990), which had briefly allowed the use of intermediate scrutiny to analyze the Equal Protection implications of race-based classifications in the narrow category of affirmative-action programs established by the federal government in the broadcasting field.


Rational Basis The rational basis test prohibits the government from

imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end. While a "law enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons", it must nevertheless, at least, "bear a rational relationship to a legitimate governmental purpose.“

Essentially, any plausible basis will suffice.


Procedural Due Process: Utah Courts have summed up procedural due

process very well: "notice and opportunity to be heard ... must be

observed in order to have a valid proceeding affecting life, liberty, or property." Wells v. Children's Aid Soc'y of Utah, 681 P.2d 199, 204 (Utah 1984). Additionally, " [t]o be considered a meaningful hearing, the concerns of the affected parties should be heard by an impartial decision maker." Chen v. Stewart, 2004 UT 82, ¶ 68, 100 P.3d 1177 (internal quotation marks omitted).


Board of Regents v. Roth, 408 U.S. 564 (1972) Clear Entitlement Test

“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.”

Hence, when a business license is denied, suspended, or revoked, the business applicant is entitled to a due process hearing.


Legislative Decisions vs. Adjudicative Decisions Legislative – setting policy of a general application

— for example, by enacting a zoning ordinance or by designating an historic district. The exercise of “legislative” functions is usually not subject to the detailed hearing, notice, and public participation requirements imposed on “adjudicative” functions.

Adjudicative - body sitting in a permitting capacity applies adopted policies or regulations to specific individuals and circumstances. In other words, when the body is acting in an “adjudicative” manner.


Based on Utah Supreme Court requirement discussed earlier ("notice and opportunity to be heard ... must be observed in order to have a valid proceeding affecting life, liberty, or property." Wells v. Children's Aid Soc'y of Utah, 681 P.2d 199, 204 (Utah 1984). Additionally, " [t]o be considered a meaningful hearing, the concerns of the affected parties should be heard by an impartial decision maker." Chen v. Stewart, 2004 UT 82, ¶ 68, 100 P.3d 1177 (internal quotation marks omitted)). -Notice -Opportunity to be Heard -Impartial Decision Maker


Procedural Due Process Fundamentals:1. Adequate Notice.

Courts generally consider these requirements as mandatory and jurisdictional, which means that a failure to comply will invalidate the action taken. The person whose license is at issue and the person who has applied for a permit (usually the same person) ordinarily must get notice.

Basic Procedural Due Process Requirements

Procedural Due Process Fundamentals:2. An Unbiased Decision-Maker.Commission members must be free from conflicts of interest and bias. At the least, such behavior can lead to a crisis of confidence in the commission’s ability to deal fairly with applicants. But bias and conflict of interest can also result in a court invalidating the commission’s decision.


Procedural Due Process Fundamentals:3. No Ex-Parte Contacts.Related to the previous point, it is fundamentally unfair to engage in exparte contacts — contacts outside of the public hearing process with a party involved or potentially involved in a matter before your commission. These are “one-sided” conversations because you are allowing one party to have a discussion with you in the absence of other parties. Should avoid these conversations. UTAH CODE § 52-4-101 – "Open and Public Meetings Act”


Procedural Due Process Fundamentals:4. Opportunity to be Heard.Every hearing, formal or informal, must allow all interested parties a fair and reasonable opportunity to present arguments and evidence supporting their position. This does not mean that there cannot be reasonable time restrictions on presentations and testimony. In general, courts weigh an individual’s interest in an opportunity to be heard against the public interest in fair but efficient hearings.Important in the case of Dairy Product Services, Inc. v. City of Wellsville, 2000 UT 81, 13 P.3d 581, which involved a revoked business license.


Procedural Due Process Fundamentals:5. The Right to Present EvidenceA commission must reach its decision after hearing all of the evidence and after permitting the evidence to be examined and commented upon by all interested parties. Each side must be allowed to rebut the other’s arguments and evidence.


Procedural Due Process Fundamentals:6. Prompt Decision-Making. The right to be heard includes the right to a prompt decision. Common sense dictates that you should make your decision within a reasonable time in light of the substantial financial and personal capital expended by all sides in certain applications.


Procedural Due Process Fundamentals:7. A Record of the Proceeding. The record is the basis for your decision. The court often relies on this record when it reviews an action; you must build a meticulous record at every hearing in these jurisdictions. Sometimes the court holds its own hearing as if a decision was not previously rendered. The record of the proceedings is a compilation of testimony from the hearings, written information provided by witnesses, staff reports and recommendations, and any other information used to form the basis for the decision.


Procedural Due Process Fundamentals:8. A Written Decision Based on the Record and Supported by Reasons and Findings of FactCourts will generally uphold decisions so long as they are supported by facts contained in the record. However, courts will overturn decisions if they are “arbitrary and capricious;” when they are the product of insufficient fact-finding. The best way to avoid a charge of arbitrary and capricious action is to ensure that the reasons you give for your decision are supported by facts. If on appeal, that the decision is supported by the record of the hearing.


Procedural Due Process Fundamentals:9. Allow Legal Counsel to be Present.Not necessary in all situations but Courts will generally uphold decisions in which legal counsel was present or specifically told they could be present to assist and advise the party.Another way to shift blame. I.e., attorney does bad job = decision upheld. No attorney present = may look like municipality violated due process in denying license for poor Grandma Betty’s Sewer Cookies.

See Dairy Product Services, Inc. v. City of Wellsville, 2000 UT 81, 13 P.3d 581.


Municipalities that have hearing and appeal officers usually have some or all Due Process Requirements in place. If not, might be worth speaking with your local legislative authorities and putting in place.

Due Process Requirements are a sliding scale and depend on the situation. Not every situation and infringement of a property right needs maximum due process. Sometimes, simply having a few of the process requirements is acceptable.

However, Due Process Requirements are a way to cover your decision. Chance of being remanded or overturned by court go down with the more Due Process Requirement protections.

Dairy Product Services, Inc. v. City of Wellsville, 2000 UT 81, 13 P.3d 581, (“due process is not a technical conception with a fixed content unrelated to time, place, and circumstances… [D]ue process is flexible and, being based on the concept of fairness, should afford the ‘procedural protections that the given situation demands.’”)


Speed & Efficiency

Protection of Individual Rights

DUE PROCESS IN ACTIONDairy Product Services, Inc. v. City of Wellsville,

2000 UT 81, 13 P.3d 581.

Case Background: Dairy Product Services, Inc. (DPSI) operated a

dairy processing facility within Wellsville city limits.

Began operating in 1989. Two issues:

DPSI wastewater was burdening the wastewater treatment facility.

(Likely real reason) Citizens began complaining of “offensive odors.”

Due Process in ActionDairy Product Services, Inc. v. City of

Wellsville

Case Background: Wellsville began collecting a water service

penalty. 1994 - DPSI gets injunction to stop the

penalty tax and discontinuing water service. 1995 - After negotiation, DPSI constructed an

onsite water treatment plant. Problem: Odors continue.


Wellsville

December 1995 – Wellsville informs DPSI that it is not renewing business license because of nuisance violations (offensive smells).

Usually, in these types of situations the municipality does not become involved and leaves it up to the citizens to bring a private cause of action.

Here, Wellsville decided not to bring a nuisance action but to simply not renew business license = risky but paid off.


Wellsville

Wellsville tells DPSI it can: Appear and present case/objections Have Counsel Hear Wellsville’s Evidence Cross-examine witnesses Present Evidence


Wellsville

Wellsville & DPSI create committee to investigate and find a solution. DPSI hires environmental engineer.

Later that year, Wellsville decides to move forward with revoking business license.

Open meeting. DPSI representative and attorney are present, can cross-examine witnesses, can provide evidence = important to the Supreme Court.

DPSI attorney questions only one witness = waiver or missed opportunity, Supreme Court has no sympathy.

City council votes unanimously to revoke business license DPSI continues to operate and claims that business license was

property interest unfairly deprived without due process.


Wellsville

District court (3 tiers of court in Utah = District, Appellate, & Supreme Court) grants summary judgment to Wellsville that there was no violation of due process.

Nuisance law – difference between moving to the nuisance and the nuisance moving to the public. Court finds that the nuisance moved to the public.


Wellsville

Supreme Court went into lengthy explanations of business licensing authority:

“City councils have been granted the authority to regulate businesses within the city limits through business licensing and ordinances. See Utah Code Ann. § 10-1-203(2) (Supp.2000); see also id. § 10-3-702 (1999); Consolidation Coal Co., 702 P.2d at 123 (licensing may be imposed "primarily as a means of regulating businesses[ ] as an exercise of [a city's] police powers"); 9 Beth A. Buday & Julie Rozwadowski, McQuillen Municipal Corporations § 26.84, at 273 (3d ed. rev.1995) ("[G]rounds for revocation are ... violations of ordinances or law authorizing or regulating the license...."); 2 Sandra M. Stevenson, Antieau on Local Government Law § 27.16, at 27-61 (2d ed. 1999) ("Local governments generally may refuse to renew licenses ... whenever such action is reasonably necessary to protect the public health, safety or the general welfare.").


Wellsville

Decision must be based on an ordinance. (This gives individuals the ability to conform their actions to a public code.)

Ordinance can be general and must not be overly-specific. See Thurston v. Cache Cty., 626 P.2d 440 (Utah 1981) (“A generalized exposition of overall standards or policy goals suffices.”).

But, there must be an ordinance.


Wellsville

Wellsville City Ordinance § 5.04.100(A). Any license issued pursuant to the provisions of this code or of

any ordinance of the city may be revoked and any application denied by the governing body because of: 1. The failure of the licensee or applicant to comply with the conditions and requirements of this code or any ordinance of the city....

Wellsville defined nuisance as "whatever renders soil, air, water, or food impure or unwholesome," Wellsville City Ordinance § 8.28.010(A), and a public nuisance as "unlawfully doing any act ... which act ... [a]nnoys, injures, or endangers the comfort, repose, health or safety of three or more persons," id. § 8.28.210(A).


Wellsville

Supreme Court: “Cities in Utah have been granted the specific authority to

regulate businesses within their city limits through licensing. In addition, Utah cities have been granted the specific authority to define nuisances and to regulate the management of, or even prohibit, dairies and other offensive businesses in or within one mile of the city limits. It follows, therefore, that cities have been granted the specific authority to pass ordinances to regulate, by means of business licensing, offensive businesses that have become nuisances. Cf. Ogden City v. Eagle Books, Inc., 586 P.2d 436, 437 (Utah 1978) (recognizing Ogden City's authority to pass ordinance that revokes business license upon conviction of licensee).”


Wellsville

Supreme Court: Review of municipality's action is based on whether, in light of evidence before

municipality, reasonable minds could reach same conclusion); 2 Antieau, supra ¶ 32, § 29.07[2], at 29-59 (majority of courts presume that local government legislation is valid and constitutional). "Judicial review of license revocations by municipalities is limited to a determination whether the municipality acted within its lawful authority and in a manner that is not arbitrary or capricious." Whiting v. Clayton, 617 P.2d 362, 364 (Utah 1980); see also Triangle Oil, Inc. v. North Salt Lake Corp., 609 P.2d 1338, 1340 (Utah 1980) (holding that courts will not interfere with action of city council unless action is outside authority or deemed capricious or arbitrary); Peatross v. Board of Comm'rs, 555 P.2d 281, 284 (Utah 1976) (holding that reviewing court will not interfere unless lower tribunal's action was outside scope of authority or deemed capricious and arbitrary and thus licensee was not entitled to trial de novo). In its review, the district court must not weigh the evidence anew but, instead, must determine whether the record discloses a reasonable basis for the municipality's decision.


Wellsville

Supreme Court analyzed some of the Due Process Requirements at issue: Adequate Notice? = Was Given Bias? = Okay to have preconceived notions going in. Closed mind = bad. (If you

do have a closed mind, at least be smart enough to not put it on the record.) Attorney Present? = Was Given Cross-examine? = Attorney waived it (or messed up). Open Meeting? = Okay to have a closed meeting for portion of meeting dealing

with litigation matters. “A closed meeting described under Section 52-4-204 may only be held for… (c)“strategy sessions to discuss pending or reasonably imminent litigation.” UTAH CODE 52-4-205(1). Supreme Court: So long as the "information obtaining" procedures are conducted in

the open and any final or formal action is announced or issued in the open, the "decision making" or deliberation of a public body during a judicial process may be held in private

Records? = Information gathering portion must be recorded but deliberations between decision makers may be private.


Wellsville

Final Decision – In Favor of Wellsville. Injunctions against DPSI upheld and business license revocation upheld.


Wellsville

Questions about this case?


Wellsville

APRIL MILLER, et al. vs. KIM DAVIS, individually and in her official capacity, et al.

When can you refuse to issue a license on personal or religious grounds?

I’m not going to provide an answer, but will try to share some background material so you are aware of your rights and the potential for conflict.

Writs of Mandamus & Denying a business license on personal beliefs or

religious grounds

First, what is a Writ of Mandamus? A (writ of) mandamus is an order from a court to an

inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion. (See, e.g. Cheney v. United States Dist.

Second, what is an injunction (equitable relief)? An injunction is an equitable remedy in the form of a court

order that compels a party to do or refrain from specific acts. A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment.

Equitable Relief & Denying a business license on personal beliefs or religious

grounds

Conflict: Two Fundamental Rights “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.

Won’t get into marriage debate, but it’s we can propose a hypothetical situation in which this might arise: Recent post-term abortions are found to be a fundamental right vs.

sincerely held religious belief that such would be murder. = 14th Amendment vs. 1st Amendment.


grounds

Issue: “Davis does not want to issue marriage licenses to

same-sex couples because they will bear [her] authorization statement. She sees it as an endorsement of same-sex marriage, which runs contrary to her Apostolic Christian beliefs. Four of Davis’ deputy clerks share her religious objection to same-sex marriage, and another is undecided on the subject. 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.”


grounds

Court analyzed four factors for a preliminary injunction: Plaintiffs’ likelihood of success on the merits

(fundamental right to marry) 1. The absence of a compelling state interest

upholding clerk’s freedom of religion was not compelling enough; Rule of law and not violating separation of church & state

2. Potential for irreparable harm to Plaintiffs Denial of constitutional right for even a short period is

sufficient


grounds

Court analyzed four factors for a preliminary injunction: Plaintiffs’ likelihood of success on the merits (fundamental right

to marry) 3. Potential for substantial harm to Kim Davis (clerk)

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”).

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 protection of society.”


grounds

Court analyzed four factors for a preliminary injunction: Plaintiffs’ likelihood of success on the merits (fundamental right to

marry) 3. Potential for substantial harm to Kim Davis (clerk)

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 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.


grounds


(fundamental right to marry) 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.


grounds


(fundamental right to marry) Conclusion:

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.


grounds

Questions?

Due Process

Constitutional Law: Due Process & Business Licenses Where does Due Process come from?

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