It's linked in my post, Mark On Sat, Sep 5, 2015 at 4:08 PM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote:
> It would also be helpful if someone could provide a link to an image of > the license. My understanding is that new gender neutral forms were in fact > issued by whatever state office is responsible for them. Perhaps it is the > application, rather than the license, that is preprinted. If we are going > to get into the facts, as Marty appropriately suggests, we should see what > the forms actually say. > > > > Mark S. Scarberry > > Professor of Law > > Pepperdine Univ. School of Law > > > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Saturday, September 05, 2015 12:55 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: What's happening in KY? -- my differences with Eugene > > > > The court reportedly told the deputies that they'd better issue the > licenses, and they did so *without *including her name. (It's not > pre-printed.) The judge is reported to have said at the hearing that he > wasn't sure whether such licenses would be valid, but it seems to be what > he has "permitted" the deputies to do. A transcript might clarify some of > this. Can you obtain one from the ACLU lawyers, Art? Thanks > > > > On Sat, Sep 5, 2015 at 3:42 PM, Arthur Spitzer <artspit...@gmail.com> > wrote: > > 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. 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