Marty says: "Davis is not seeking for the *court *to give her a just-not-with-my-name-on-them accommodation --- something he has in fact just given her!"
Perhaps I missed this detail in one of your earlier posts, Marty. Can you fill me in on just how the court has already provided this relief? I thought the forms were pre-printed with her name and title. Did the court authorize her to print new forms? Or to black out her name with a magic marker? Thanks, Art Spitzer *Warning: This email is subject to monitoring by the NSA.* On Sat, Sep 5, 2015 at 3:33 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > 1. I *don't *understand Kim Davis to claim "that God would view her > issuing such licenses with her name on them as authorization." I can't > even imagine what that would mean: That God has a view of when the > appearance of a name on the "issued in" line of a state licensing form > constitutes one human being "authorizing" another to perform a marriage? > That God has a view about the actual legal operation of Kentucky law? Of > course not. Davis instead argues that she would be sinning because her > name would provide* legal *authorization to the minister, under KY law. > That's a secular question. > > 2. As I understand it, Davis is not seeking for the *court *to give her > a just-not-with-my-name-on-them accommodation --- something he has in fact > just given her! -- but instead is asking the court to grant her the right > to prevent all licenses from being issued in the county, on the theory that > *the > legislature* could, in theory, create the just-not-with-my-name-on-them > accommodation. > > 3. Most importantly, you seem to agree, Eugene, that the very possibility > of such a legislative fix is not sufficient to give Davis a RFRA right to > cessation of all issuance of marriage licenses in her county. Does this > mean that you disagree with the Alito view of "least restrictive means" -- > to include all possible legislative alternatives -- which the plaintiffs > are pressing hard in the contraception cases? > > On Sat, Sep 5, 2015 at 3:17 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > >> Marty doesn’t view her issuance of the licenses as >> authorization. He may well be right that Kentucky law doesn’t view it as >> authorization. But, as I understand it, Kim Davis claims that God would >> view her issuing such licenses with her name on them as authorization. If >> that is indeed Kim Davis’s claim, which it seems to be, then I don’t think >> it matters that Kentucky’s view is not Kim Davis’s view of God’s view. >> >> >> >> Now I agree that Davis is not entitled to the cessation of >> all issuance of marriage licenses in her county as an accommodation – that >> would unduly interfere with the state’s interest in providing marriage >> licenses to its citizens (and possibly the citizens’ federal constitutional >> right in having licenses issued by their county of residence, though that’s >> a somewhat more contested question). But *if* she continues to seek a >> just-not-with-my-name-on-them accommodation, which she indeed said in her >> stay application would be adequate, then the Kentucky RFRA would entitle >> her to that exemption. >> >> >> >> Eugene >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman >> *Sent:* Saturday, September 05, 2015 11:47 AM >> *To:* Law & Religion issues for Law Academics >> >> *Subject:* Re: What's happening in KY? -- my differences with Eugene >> >> >> >> 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. >> >> >> >> _______________________________________________ >> 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. >
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