I appreciate Jim’s “separate-but-equal feel” point; but as I
understand it, the County Clerk would want her name removed from all marriage
licenses and certificates, not just same-sex ones. The reason for that, to be
sure, will be known to be her opposition to same-sex marriage. But the
certificates would be the same for all married couples in Rowan County, under
the accommodation she is suggesting.
Eugene
Jim Oleske writes:
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
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