I would tend to agree with Eugene here, but for two things. First, Davis only took office as County Clerk seven months ago, when it was quite foreseeable that her office would be required to issue same-sex marriage licenses and certificates. As we discussed in an earlier thread, I doubt the prospect of losing this new job would place a substantial burden on her religious exercise, assuming she could then go back to her longtime position as Deputy Clerk.
But let's put aside that debate, which we ran to ground last time. Let's assume, for instance, that she'd have to resign from the Clerk's office altogether if she does not comply with Kentucky law, thereby forfeiting her vocation of 30 years. In that case, I might agree with Eugene about Kentucky's RFRA *if *the facts were as Davis alleges. That is to say: If Kentucky law otherwise required her, as County Clerk, to (as her brief alleges) "authoriz[e] and approv[e] a proposed union to be a 'marriage,' which, in her sincerely-held religious beliefs, is not a marriage," then perhaps the Kentucky RFRA should be construed to permit her deputy clerk, rather than herself, to sign all marriage certificates and licenses in her county (same-sex and opposite-sex alike). (One of her deputy clerks does not share her religious objection and has agreed to do so.) Here's the catch, however: Even apart from RFRA, Kentucky law *already* allows the wiling deputy clerk to sign the certificate and license, in lieu of Davis. (The license authorizes the officiant to perform the marriage; the certificate records the marriage itself.) Davis does not have to sign or approve them. So why is she instructing her deputies not to issue such certificates and licenses? Because, she claims, even if a deputy signs the forms, her name will continue to appear in one place on each of them. And she's right about that: Her name will continue to appear. However, I believe Davis is mistaken when she argues that "every license requires her name to appear on the license *as the authorizing person*." As you can see from the forms themselves -- on page 139 of the pdf -- the authorizing person will be the deputy clerk who signs the forms, *not *Davis. Her name would appear on each form only to identify *in* *which clerk's office* the license was issued and the certificate recorded. E.g.: "Issued this 3 September 2015 in the office of Kim Davis, Rowan County County Clerk, Morehead, Kentucky *by Brian Mason, Deputy Clerk*." Her petition suggests that even this factual statement -- that the license was issued in her office -- will be seen as her endorsement of the marriage, thereby making her complicit in it. But that's simply wrong, isn't it?: Particularly since it will be her deputy's signature, rather than Davis's, that appears on the forms, no reasonable observer, with any modicum of knowledge about the views of Kentucky County Clerks in the wake of *Obergefell*, would possibly think that Davis herself has endorsed or approved a same-sex marriage. And therefore, her basic claim about complicity-by-approval or complicity-by-perceived-endorsement, is premised on a mistake of fact . . . and thus there's no substantial burden on her religious exercise, even accepting her religious beliefs. Now, I agree that, if only to end this whole unfortunate dispute in a way that will apparently make Davis feel even further removed from the marriages, it would be wise and magnanimous of the Governor to allow Davis to leave her name off the documents for all marriages in Cowan county, even if the law does not require that accommodation. E.g.: "Issued this 3 September 2015 in the office of the Rowan County County Clerk, Morehead, Kentucky *by Brian Mason, Deputy Clerk*." But the Governor can and should do so *only *if such an omission of Davis's name would in no way affect the validity of the documents under Kentucky law. On Wed, Sep 2, 2015 at 6:31 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > 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.
