I agree that the key question is how hard it is to provide an
accommodation. But as I understand the claim, here the accommodation would be
easy: She doesn't demand that marriage licenses be unavailable from her
office, or even that same-sex marriage licenses be unavailable from her office.
She just wants a deputy's name (or perhaps even the generic "Court Clerk") to
appear on the form instead of hers. How hard is that?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Wednesday, September 02, 2015 9:02 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy
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>
[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.
