1. Modest or otherwise, there is still that authority. I'm suggesting that as the underlying reason that Title VII does not apply to elected officials.
2. The change isn't low cost at all. In the scenario where she simply stops signing one set of documents (for same sex couples) and not the other (for opposite sex couples), she's discriminating, and baking that discrimination into each document. Another way to think about it that, if the county was in instead Acme Widget Corporation and Davis a QA specialist, she's not requesting Acme's HR change their internal forms on which she signs off on QA so much as changing the widgets themselves so they no longer have a QA signature on them. Whatever the fiscal cost of such a change, it is a significant one impacting the corporation's whole line. In the situation where she has her deputy sign the other set of documents /can/ create that discrimination in a visible way, but even if it doesn't, it increases the burden on her deputy clerks significantly. Are they going to have to get more deputies? Are there now going to be worries for the deputies about currying disfavor for processing something their superior is so clearly against? I suppose I am begging the question of whether having /anyone/ sign any marriage license has a governmental purpose, but I don't imagine it'd be hard to find a good one. Kevin Chen, Esq. On Thu, Sep 3, 2015 at 1:06 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > 1. As best I can tell, County Clerk positions have quite > modest discretionary authority. The County Clerk’s job is mostly to > administer the office effectively. > > > > 2. But in any event, I’m not sure why the overall nature > of the elected position should affect much here. Without a doubt, Title > VII’s reasonable accommodation requirement doesn’t allow ordinary employees > to veto office policy generally; at most, it requires the employer to offer > low-cost accommodations that would still let the job get done. State RFRAs > might or might not require more, but probably not much more. The same, I > take it, would apply to policymaking employees, or to elected officials. > > > > The question then is the particular kind of accommodation > that is sought. I agree that Davis shouldn’t get an accommodation that > would involve shutting down marriage licenses in the county. But if Davis > sues under the Kentucky RFRA, asking simply that the form not include her > name, how is that “a veto”? Why wouldn’t that be precisely the sort of > low-cost accommodation that a state RFRA would authorize? > > > > Eugene > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *K Chen > *Sent:* Wednesday, September 02, 2015 9:57 PM > *To:* Paul Finkelman; Law & Religion issues for Law Academics > *Subject:* Re: Question about the Kentucky County Clerk controversy > > > > "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?" > > > > Fairly? It may be simple from a word processing stand point, but it bakes > an injury into every marriage license that the county issues from that > point forward by creating two separate classes of license, one which has > the approval of the appropriate minister and one that has > it conspicuously absent. This is unlike the individual governmental > employee in a large office who moves from one end of the office to the > other to avoid processing a particular kind of paperwork - the office as a > whole produces the same product, the burdens are simply shifted among the > various constituent parts of the entity. Here, the "product" if you will, > is altered significantly. Is it all that different than her demanding > an accommodation to have the county clerk's office issue civil union > licenses instead of marriage licenses? There is a distinct difference > between requesting an accommodation and overriding policy. KRS 402.100 > <http://www.lrc.ky.gov/statutes/statute.aspx?id=36475>requires clerks to "use > the form prescribed by the Department for Libraries and Archives". > > > > While I suppose one can be elected for a purely ministerial position, > there is a general assumption that elected positions have significant > discretionary and therefore policy making powers. Granting accommodations > to such persons does not grant them an accommodation so much as it grants > them a veto, as can be seen in Davis shutting down the office entirely. > > > > Kevin Chen, Esq. > > _______________________________________________ > 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.
