Constitutional Law: Due Process & Business Licenses Where does Due Process come from?
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Transcript of Constitutional Law: Due Process & Business Licenses Where 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?
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.
What is Due Process?Substantive & Procedural
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.
What is Due Process?Substantive & Procedural
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
What is Due Process?Substantive & Procedural
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
What is Due Process?Substantive & Procedural
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.
What is Due Process?Substantive & Procedural
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.”).
What is Due Process?Substantive & Procedural
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
What is Due Process?Substantive & Procedural
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.
What is Due Process?Substantive & Procedural
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.
What is Due Process?Substantive & Procedural
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).
What is Due Process?Substantive & Procedural
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.
What is Due Process?Substantive & Procedural
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.
What is Due Process?Substantive & Procedural
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
What is Due Process?Substantive & Procedural
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.
Basic Procedural Due Process Requirements
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”
Basic Procedural Due Process Requirements
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.
Basic Procedural Due Process Requirements
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.
Basic Procedural Due Process Requirements
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.
Basic Procedural Due Process Requirements
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.
Basic Procedural Due Process Requirements
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.
Basic Procedural Due Process Requirements
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.
Basic Procedural Due Process Requirements
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.’”)
Basic Procedural Due Process Requirements
Speed & Efficiency
Protection of Individual Rights
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.
Due Process in ActionDairy Product Services, Inc. v. City of
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.
Due Process in ActionDairy Product Services, Inc. v. City of
Wellsville
Wellsville tells DPSI it can: Appear and present case/objections Have Counsel Hear Wellsville’s Evidence Cross-examine witnesses Present Evidence
Due Process in ActionDairy Product Services, Inc. v. City of
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.
Due Process in ActionDairy Product Services, Inc. v. City of
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.
Due Process in ActionDairy Product Services, Inc. v. City of
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.").
Due Process in ActionDairy Product Services, Inc. v. City of
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.
Due Process in ActionDairy Product Services, Inc. v. City of
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).
Due Process in ActionDairy Product Services, Inc. v. City of
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).”
Due Process in ActionDairy Product Services, Inc. v. City of
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.
Due Process in ActionDairy Product Services, Inc. v. City of
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.
Due Process in ActionDairy Product Services, Inc. v. City of
Wellsville
Final Decision – In Favor of Wellsville. Injunctions against DPSI upheld and business license revocation upheld.
Due Process in ActionDairy Product Services, Inc. v. City of
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.
Equitable Relief & Denying a business license on personal beliefs or religious
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.”
Equitable Relief & Denying a business license on personal beliefs or religious
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
Equitable Relief & Denying a business license on personal beliefs or religious
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.”
Equitable Relief & Denying a business license on personal beliefs or religious
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.
Equitable Relief & Denying a business license on personal beliefs or religious
grounds
Court analyzed four factors for a preliminary injunction: Plaintiffs’ likelihood of success on the merits
(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.
Equitable Relief & Denying a business license on personal beliefs or religious
grounds
Court analyzed four factors for a preliminary injunction: Plaintiffs’ likelihood of success on the merits
(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.
Equitable Relief & Denying a business license on personal beliefs or religious
grounds