But doesn't that beg Kevin's very good point (like Jim's) that anyone married
in that County would have a special license. And, without legislation in
Kentucky, would 1) these be valid in Kentucky and would the 2) be valid for
full faith an credit or just old fashioned comity in other states? Would it
raise issues of identity (which have now post-9-11 become federal issues) if
someone has a marriage license that does not look like the official license for
the state? Imagine suits over someone's estate (or over an insurance policy)
with the claim being made that there was no valid marriage because the license
does not conform to the state law?
I find it odd that a collection of law professors and mostly lawyers are
working so hard to provide a method for a public official to ignore the U.S.
Supreme Court, violate pretty clear state law, and refuse to do her job.
Would anyone be making these RFRA arguments if the clerk refused to issue
licenses for interracial marriages (say a graduate of Bob Jones University)?
Or, if the clerk were a devout Catholic and refused to issue licenses to fellow
Catholics who had previously had a civil divorce? Or perhaps an Orthodox Jew
who would not give licenses for Jews marrying non-Jews.
******************
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>
Sent: Thursday, September 3, 2015 1:12 AM
Subject: RE: Question about the Kentucky County Clerk controversy
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I appreciate Jim’s “separate-but-equal feel” point; but as I
understand it, the County Clerk would want her name removed fromall 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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