A few questions, and forgive me if they have been asked and answered on this or related threads on this listserv:
1) Why did Ms. Davis stop issuing all marriage licenses? God did not tell her that issuing licenses for different-sex couples was sinful or wrong. Was this full closure on advice of counsel (don't discriminate, that will be harder to defend than a shut down for everyone)? Was that sound advice, in light of the due process holding in Obergefell about the right to marry? Whatever the reasons, what seems obvious is that Kentucky law did not burden her religious exercise with respect to different sex couples, so her Kentucky RFRA claim for a right to withhold licenses from those couples must be worth zero. 2) Obergefell was decided in late June. Ms. Davis knew from then on that she eventually would be asked to issue a license for a same-sex couple. Could she have gone to state court, seeking a a declaratory judgment (against whom?) that RFRA gave her the right to remove her name from some marriage licenses? Who is the employer from whom she was seeking an accommodation? Is anyone her boss? If she is her own boss, she could grant herself an accommodation. (Let's take my name of some of those license forms. Done.) She didn't do any of these things. She just waited, and then she shut down her office to everyone, including couples whose marriages did not implicate her religious freedom. She wants equitable relief -- delay reopening my office until my religious concerns can be accommodated, even if that takes months. Would it be appropriate to impose some form of equitable estoppel on her state RFRA claims now -- after all, she imposed the costs of her objection on every marriage applicant in the County. 3) Substantial burden -- to what coercive choice is Kentucky putting Ms. Davis? Kentucky RFRA applies only to acts of Kentucky government, state or local. (Applying it fto ederal action would be an attempt at nullification, barred by the Supremacy Clause.) Has she been indicted, fired, impeached? (I know there was talk of a criminal prosecution, but it seems to have faded away.) If she faces no civil or criminal burden under Kentucky law, then the state (and the County) have not burdened her religious exercise. The burden all comes from enforcement of the federal Constitution, and state RFRA can't help her there. If and when the State or County come after her with threat of punishment or loss of job, RFRA might be her defense (but then she will be stuck with the issue of denying licenses to everyone; RFRA cannot help her with that.) 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. 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. >> > > > _______________________________________________ > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
