I'm not sure the distinction would affect the analysis of the hypothetical Kentucky RFRA claim you posit. I think if we still had a federal constitutional exemption regime, the Court might utilize the distinction to disallow certain free exercise claims by government employees, analogizing to the speech context. And some state courts might do likewise with state constitutional free exercise claims. But to the extent Congress or state legislatures give government employees additional protections statutorily, whether through Title VII, RFRA, or other similar measures, the distinction might not be a barrier, especially given the examples you've found from the Title VII context.
As for the reasonableness of providing the requested accommodation, telling one group of citizens that they don't get the certification that state law requires all other citizens of their county to receive has a separate-but-equal feel to me that I don't think is implicated in any of the Title VII cases cited below. - Jim On Wed, Sep 2, 2015 at 9:17 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > I agree in general, but how would that affect the analysis > here? For example, processing draft registration forms is official > government conduct, as is the IRS’s working on tax-exempt status > applications from various groups. But the cases I cited show that Title > VII’s religious accommodation mandate apply to that, too. Likewise, if a > County Clerk simply wants an exemption from the requirement that her own > name appear on marriage certificates – or death warrants – and a deputy is > fine with having his name appear instead, why wouldn’t that be a reasonable > accommodation, and thus mandated by the Kentucky RFRA? > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Wednesday, September 02, 2015 9:09 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Question about the Kentucky County Clerk controversy > > > > I agree with Eugene that being elected doesn't disqualify one from getting > exemptions that lower-level officials might get, but I read Howard's email > to be raising a different distinction that might have an analog in the free > speech context. > > > > Some speech by a government employee is the employee's speech, and > potentially protected, but other speech by a government employee is on > behalf of the government, and not protected. See Garcetti. Likewise, a > police officer's conduct in growing a beard may qualify as his religious > conduct, while a police officer's conduct in issuing tickets may qualify as > official government conduct (even if the police officer signs his name to > the tickets, as he's doing so in his government capacity). > > > > This might not resolve the RFRA issue, but I do think its a distinction > worth thinking about. > > > > - Jim > > > > On Wed, Sep 2, 2015 at 8:41 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > > 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] *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 [ > 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 > www.paulfinkelman.com > > > ------------------------------ > > *From:* "Volokh, Eugene" <vol...@law.ucla.edu> > *To:* "Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)" > <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 > 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. > > > > _______________________________________________ > 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. >
_______________________________________________ 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.
