On Points 1 and 2 of Eugene's post, Davis's religious objection is not, as Eugene suggests, *independent *of whether her name serves to provide her "authorization" of a same-sex marriage; instead, she claims that it violates her religion *because *it in fact serves as an authorization. And thus, understandably, she cites Kentucky law for that proposition, because it's a question not of religious doctrine but of the legal affect of the appearance of her name. Her reading of that law is, I suggest, mistaken if not tendentious. And since her religious objection is predicated on a mistake of fact/law that civil authorities can assess, rather than on a disputed religious tenet, there's no substantial burden on her religious exercise. (Obviously, this same issue is now front and center in the contraception cases--most or all of the theories of complicity are, I've argued, based upon mistakes of law or fact that the courts need not accept.)
The more important point for present purposes, however, is No. 3: And on that, I basically *agree *with Eugene that if there were a substantial burden here (but see above), then perhaps Kentucky law, viewed as a whole (including RFRA), could be read to provide that the issuance of a license by Deputy Clerk Mason, *without *Davis's name, is both permissible and results in a valid marriage license. The problem, however, is that Davis herself is strongly *resisting* this reading of Kentucky law. If she agreed with that reading, she would be thrilled, satisfied, with the current outcome -- Mason issuing licenses without Davis's name. Win-win! Indeed, before she was held in contempt she would not have prohibited Mason from doing just that--citing Kentucky RFRA--and thereby avoided prison. But her attorney instead insists that such licenses are invalid, and Davis contends that, under Kentucky law, Mason may *not *issue them. The outcome she is seeking is not for the court to rule that the issuance of such name-of-Davis-free licenses are lawful, but instead that there are to be *no marriage licenses in Rowan County* unless and until the Kentucky legislature amends Kentucky law to allow the omission of her name. (This all assumes that Kentucky law does, even apart from RFRA, require that Davis's name be on the license. For reasons I explain in my post, I have doubts whether that's even correct.) On Sat, Sep 5, 2015 at 1:50 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > 1. I think the substantial burden question turns on > whether an objector sincerely believes that what she is ordered to is > against her religion. If she sincerely believes that distributing licenses > with her name is, in God’s eyes, putting her name to an authorization of > sinful conduct and therefore against God’s will, that’s what matters for > substantial burden purposes – not that this doesn’t count as > “authorization” for purposes of secular law or secular reason. > > > > 2. Davis’s stay petition, filed in the Supreme Court, > says, among other things, “In this matter, even if the ‘desired goal’ is > providing Plaintiffs with Kentucky marriage licenses in Rowan County, > numerous less restrictive means are available to accomplish it without > substantially burdening Davis’ religious freedom and conscience, such as > ... 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.” > http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf > (PDF pp. 39-40). To be sure, we might not view the presence of her name as > “personal nature of the authorization,” or the removal of her name as at > all morally or religiously significant under our understanding of a > rational theory of complicity in sin. But of course religious exemption > rules apply even to people who don’t operate in ways that we think are > rational or sensible. > > > > 3. It seems to me that the Kentucky Legislature has > *already* potentially authorized religious exemptions from the statute > that requires that marriage certificates and licenses bear the clerk’s name > – as well as from virtually all other Kentucky statute. It did so by > enacting the Kentucky RFRA. The very point of a RFRA (right or wrong) is > that religious objectors shouldn’t have to wait for the Legislature to > expressly amend statutes to include religious exemptions; instead, they > could go to court to ask for an exemption, and the court could grant such > an exemption if it concludes that the law substantially burdens religious > practice and denying the exemption isn’t the least restrictive means of > serving a compelling government interest. (The legislature could of course > then overrule the court decision, if it thinks the court got the strict > scrutiny or substantial burden analysis wrong, by expressly exempting the > statute from the RFRA.) > > > > A simple analogy: Say someone objects to having a > photograph of her face on a driver’s license, whether because she thinks > that’s an impermissible graven image, or because she thinks she must always > appear veiled in front of men who aren’t family members. A court applying > a RFRA might be able to reject the exemption request on strict scrutiny > grounds related to the need for visual identification as a means of > protecting public safety. (Back in the Sherbert/Yoder era, courts > considering this question were split, and the Court split 4-4 on it in *Jensen > v. Quaring*.) But if a court concludes that not having a photo wouldn’t > materially undermine public safety, and thus that strict scrutiny isn’t > satisfied, it wouldn’t have to wait for the legislature to amend the > statute that requires photographs on driver’s licenses: the state RFRA > would itself authorize the court to require that the license be issued > without the photograph, as a less restrictive means of serving the broader > interest in making sure that drivers have at least some sort of license. > Again, state RFRA has potentially authorized religious exemptions from the > driver’s license photo requirement just as it has potentially authorized > religious exemptions from peyote bans, the duty to serve as a juror, and so > on. Likewise for the requirement that marriage licenses and certificates > contain the county clerk’s name. > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Saturday, September 05, 2015 10:32 AM > *To:* Cohen,David; Law & Religion issues for Law Academics; > conlawp...@lists.ucla.edu > *Subject:* Re: What's happening in KY? -- my differences with Eugene > > > > Sorry, I had not previously seen Eugene's post on the VC: > > > > > https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/ > > > > Eugene argues that perhaps Davis is entitled under the Kentucky RFRA to > have her office (that is, her deputies) issue licenses without her name > appearing on them. For reasons I've already offered, I don't think this is > right, because I don't think there's a substantial burden on her religious > exercise. > > > > But more to the point, and even if I'm wrong about the substantial burden > point: Davis doesn't think the Kentucky RFRA permits that resolution, > either. She is not trying to have her office issue licenses without her > name--to the contrary, she has tried to *forbid her deputies *to issue > licenses without her name, because she thinks that Kentucky law, as a whole > (even including its RFRA), does not allow it (i.e., such licenses would not > be valid). Her argument, instead, is that the Kentucky RFRA should afford > her the authority to *prohibit the office from issuing licenses > altogether*, because the Kentucky legislature *could* amend the marriage > licensing law to provide that the Clerk's name can be omitted, i.e., > because a lesser restrictive alternative law is in some sense available to > the Commonwealth -- albeit one it has not yet enacted. > > > > On Sat, Sep 5, 2015 at 10:50 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 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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