But, Eugene, isn't your bearded sheriff different from a clerk refusing to do hers job. The analogy would not be to the beard but to the pacifist sheriff who refuses to carry a gun, or the animal rights sheriff who refuses to use police dogs, or even the person who believes saving the environment is a religious obligation and so as sheriff mothballs all the police cruisers. An accommodation could easily be made for a beard, or halal or kosher food, or different Sabbaths. It is hard do so when the official flat out refuses to do the job.
In this case it is beyond marriage equality. The clerk will not give marriage licenses to anyone. So much for being in favor of marriage, traditional or otherwise. Paul Finkelman Ariel F. Sallows Visiting Professor of Human Rights Law, University of Saskatchewan College of Law (2016) and Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, and Constitutionalism 518-439-7296 (w) 518-605-0296 (c) paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com> www.paulfinkelman.com<http://www.paulfinkelman.com/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, September 02, 2015 11:41 PM To: Law & Religion issues for Law Academics Subject: RE: Question about the Kentucky County Clerk controversy It seems to me that even government officials are sometimes acted upon by the government, and might get exemptions from government-imposed rules. That's certainly true for lower-level government employees, but I would think the same might be true of election officials, too. (Compare McDaniel v. Paty, which the plurality viewed as a Sherbert-based exemption case, though it has since been largely viewed as a discrimination case.) Say, for instance, that there is a statute or ordinance mandating a no-facial-hair rule for law enforcement officials, including elected sheriffs. A sheriff who belongs to a beard-wearing religion is elected to office. Why wouldn't he have a RFRA claim to an exemption from the no-facial-hair rule? Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Wednesday, September 02, 2015 7:10 PM To: Law & Religion issues for Law Academics Subject: RE: Question about the Kentucky County Clerk controversy Kentucky law requires the license to be signed by the clerk or deputy clerk. http://www.lrc.ky.gov/statutes/statute.aspx?id=36475 I have a different question though. State RFRAs protect against actions by the government that infringe religious liberty. Here Kim Davis "is" the government, i.e. she is objecting to actions she is required to take in her official capacity. Should RFRAs be read to protect government officials in that kind of situation? Howard Friedman ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman [paul.finkel...@yahoo.com] Sent: Wednesday, September 02, 2015 8:48 PM To: Law & Religion issues for Law Academics Subject: Re: Question about the Kentucky County Clerk controversy Quick question. Does anyone know if KY law requires the clerk to issue the license in the Clerk's name, as opposed to "the office of the Clerk" as Eugene suggests? ****************** Paul Finkelman, Ph.D. Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholars Advisory Panel National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (w) 518-605-0296 (c) paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com> www.paulfinkelman.com<http://www.paulfinkelman.com/> ________________________________ From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> To: "Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>)" <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Wednesday, September 2, 2015 6:31 PM Subject: Question about the Kentucky County Clerk controversy I was wondering what list members thought - as a legal matter - of this following issue that arises in the Kentucky County Clerk controversy. A federal judge issued an injunction ordering County Clerk Kim Davis to issue marriage licenses, including same-sex marriage licenses. See http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf (the application for stay from the Supreme Court, with the orders below attached). I think that's quite correct. But as I understand it, Kim Davis's stated objection is not to having any same-sex marriages be processed by her office, but only to authorizing the distribution of marriage license and certificate forms in which her name appears (see PDF p. 133 of the linked-to file above). In particular, she says that she would accept the option of "Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis' name, and thus to remove the personal nature of the authorization that Davis must provide on the current form" (PDF p. 40); presumably those forms might say "Clerk of Rowan County" or perhaps the name of a deputy clerk who is willing to have his or her name used for that (assuming there is one). Now I'm not sure this is a remedy that the federal courts could offer, or ought to offer. But say that Davis asks for an injunction or for declaratory judgment from a Kentucky state court, under the Kentucky RFRA, seeking to exempt her from the statutory requirement of having her name appear on the form. Should she prevail? Or stepping away from the same-sex marriage issue, say that every time a death warrant was issued in a county, the County Clerk was by statute required to sign off on it, as a purely ministerial task; but the County Clerk objected on religious grounds to the death penalty, and filed a RFRA claim asking to have that requirement waived, so that a deputy (who was willing to sign) would sign instead. Should she prevail, again under a state RFRA? Finally, say that the County Clerk was an employee rather than an elected officeholder, so that Title VII would apply (it doesn't apply to elected officeholders). Would the County Clerk have a right under Title VII's reasonable accommodation mandate to this sort of exemption? Compare, e.g., American Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 777 (9th Cir. 1986) (concluding that government employer had a duty to reasonably accommodate, by arranging transfers to other jobs, postal workers who had a religious objection to processing draft registration forms); McGinnis v. United States Postal Serv., 512 F. Supp. 517, 523 (N.D. Cal. 1980) (finding the government had a duty to reasonably accommodate, by offering a transfer to another window that wasn't used for registration materials); Haring v. Blumenthal, 471 F. Supp. 1172 (D.D.C. 1979) (concluding that the IRS had an obligation to exempt an employee from having to work on tax-exempt status applications from abortion clinics and other organizations that the employee thought it sinful to deal with); Best v. California Apprenticeship Council, 207 Cal. Rptr. 863, 868 (Ct. App. 1984) (concluding that an apprentice training organization--which was treated by state law as an employer--had an obligation to accommodate an apprentice's religious objection to working in a nuclear power plant); David Haldane, Panel Backs Fired Vegetarian Bus Driver, L.A. Times, Aug. 24, 1996, at A18 (discussing a case in which the EEOC concluded that a transportation agency must accommodate a vegetarian bus driver's religious objections to handing out hamburger coupons as part of the agency's promotion aimed at boosting ridership); Felhaber et al., Bits and Pieces, Minn. Employment L. Letter, Sept. 1997 (reporting that the case against the transportation agency was settled for $50,000). Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
