Eugene: I mentioned the "reasonable observer" question only to anticipate the argument that Davis might make that she wants her name removed from the form so that she is not *misperceived* to have endorsed the marriage. As I wrote, however, her actual argument, thus far, has been that if her name appears on the form, she will be "authorizing" the marriage, and thereby complicit in. And that's simply mistaken as a matter of fact (and of Kentucky law).
On Sat, Sep 5, 2015 at 11:15 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > Sandy: Why would the standards be the same for the > Establishment Clause endorsement test and the religious exemption > substantial burden test? The endorsement test is supposed to be > “objective” in the sense of asking how a reasonable observer would perceive > an action. The substantial burden test is supposed to be subjective in the > sense of what the religious adherent sincerely believes is religiously > forbidden (among other things) to her. How a “reasonable observer” would > perceive things seems to me as irrelevant as whether a “reasonable > observer” would read the Torah as forbidding the eating of chicken with > cream sauce. > > > > Indeed, let’s work with the religious symbolism cases. A > government employer puts up a Christmas tree – no Establishment Clause > violation, says the majority in *Allegheny* (and correctly so, I think, > since a reasonable observer wouldn’t perceive the Christmas tree as having > a religious message. But now the employer asks the employees to decorate > the tree, and one of them objects, saying that she perceives the Christmas > tree as a religious symbol of a religion to which she doesn’t subscribe, > and the decoration ritual as conveying her endorsement of the symbol, which > she believes to be religiously forbidden to her. Would there be any basis > for rejecting her Title VII reasonable accommodation claim on the grounds > that a * reasonable* person wouldn’t view the decoration of a Christmas > tree that way? I would think not, right? (I say this as a non-Christian > of Jewish ancestry who loves to have a Christmas tree.) > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V > *Sent:* Saturday, September 05, 2015 8:02 AM > *To:* Marty Lederman > *Cc:* Cohen, David; Law & Religion issues for Law Academics; > conlawp...@lists.ucla.edu > *Subject:* Re: What's happening in KY? > > > > Marty's Balkanization post is, as usual, remarkably illuminating on the > legal issues under Kentucky law. As I read it, I found myself thinking of > the statues on public property cases, where the claim, as in the Texas Ten > Commandments case is that the observer will attribute to the state the > speech of the private parties who put it up. (There's also the Texas > license plate case, of course.). Davis' argument is that here name (which > is different from her physical signature) constitutes her personal > endorsement of same-sex marriage. But all reasonable observers who find > O'Connor's arguments remotely plausible know that is a mistake. To have her > name on the license is simply and exclusively stating a fact: she is the > clerk. It's like having a sign saying Rowan County Courthouse and Grounds > and then seeing an Eagles Ten Commandments statue. > > > > Sandy > > Sent from my iPhone > > > On Sep 5, 2015, at 7:52 AM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > > FWIW, my effort to make sense (?) of the mess; please let me know if I've > gotten anything wrong (or if anyone has a transcript of the contempt > hearing on Thursday, which might help explain things). Thanks > > > > http://balkin.blogspot.com/2015/09/does-anyone-have-any-idea-whats.html > > > > On Thu, Sep 3, 2015 at 5:49 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > > The reports I've seen (e.g., > http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) do > not make clear exactly what's happening, other than that Davis is > incarcerated. > > > > 1. Is the County Executive Judge now issuing certificates and licenses > (which might ironically eliminate the grounds for Davis's contempt > incarceration . . . until she refuses to allow the documents to be issued > to the next couple that appears)? > > > > 2. What was the deal the judge offered her, regarding her deputies > issuing the documents? Did she refuse it because her name would continue > to appear on the two lines? Or did the judge say that she could omit her > name and she still refused? > > > > Thanks in advance for any info, or, better yet, links to actual documents. > > > > On Thu, Sep 3, 2015 at 2:14 PM, Cohen,David <ds...@drexel.edu> wrote: > > Hi all - a mootness question for you. In the case of the KY clerk who was > jailed today for refusing to comply with a district court order that > required her to issue a marriage license to a gay couple (and stay denied > from the 6th Circuit or Supremes), according to some news reports, now that > she is in jail and not able to serve, state law allows a county’s executive > judge to now issue licenses. So, presumably that will happen relatively > quickly, and the plaintiffs will get their licenses. > > > > Is the case now moot and the clerk can get out of jail because she’d no > longer be in contempt of a court order, since the case is vacated as moot? > And the issue isn’t capable of repetition at this point for the plaintiffs, > as they now have a license and can’t get another (until divorced, which may > never happen). It certainly is capable of repetition for other people, but > not these plaintiffs (and they haven’t filed a class action, to the best of > my knowledge). We’ve been around this issue before, and to the best of my > recollection, most people believe the cases say that the “capable of > repetition” part has to be for the particular plaintiffs, not for someone > else. > > > > In other words, is she in jail for an hour, maybe a day, and then back at > it shortly to deny someone else a license (when that eventually happens) > only to repeat the whole thing again? > > > > David > > > > *David S. Cohen* > > *Professor of Law* > > > Thomas R. Kline School of Law > > *Drexel University * > > 3320 Market St. > > Philadelphia, PA 19104 > > Tel: 215.571.4714 > > drexel.edu <http://drexel.edu/law/faculty/fulltime_fac/David%20Cohen/> | > facebook <https://www.facebook.com/dsc250> | twitter > <https://twitter.com/dsc250> > > Available NOW <http://www.livinginthecrosshairs.com/>: *Living in the > Crosshairs: The Untold Stories of Anti-Abortion Terrorism *(Oxford) > > > > > _______________________________________________ > To post, send message to conlawp...@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof > > 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 conlawp...@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof > > 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. >
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