She is motivated by prejudice against same sex couples. Her motivation for that is not relevant under what I thought to be well settled and noncontroversial equal protection jurisprudence. She has no rational reason to treat same sex couples differently from opposite sex couples under the law. Obergefell says such differing treatment is not rational. How can a state RFRA undo this constitutional norm and obligation? The federal RFRA does not apply (Boerne). So how does the issue of substantial burden even arise? (Smith) The claim is not title VII, it is the 14th amendment directly. If smith and Reynolds stand for anything anymore it is that the religious base unit veto does not work.
Sent from Steve's iPhone > On Sep 5, 2015, at 9:27 PM, Scarberry, Mark <mark.scarbe...@pepperdine.edu> > wrote: > > I think Howard’s point cuts the other way, as I’ll note in a moment. > > A few quick thoughts: > > It seems at the very least odd to me that a federal judge would decide what > Kentucky thinks is a compelling interest for purposes of the Kentucky RFRA. > If Kentucky thinks that having every clerk in every county issue marriage > licenses is a compelling interest, perhaps we might let the state take > action, rather than having a federal judge do so. > > It also seems odd to me that a federal judge would decide that state law > requires a state official to take an action. So far, it’s hard to see the > federal question that would justify the federal judge in deciding these state > law issues as a matter of pendent (or ancillary, I can’t keep them straight) > jurisdiction. Indeed, to decide what state law requires Davis to do requires > an application of Kentucky’s RFRA, which in turn, as noted above, requires a > federal judge to determine what the state of Kentucky considers to be a > compelling interest (and what, as a matter of Kentucky law, may be an > appropriate alternative means of advancing any such interest). > > At least one list member seems to argue that the Kentucky RFRA doesn’t > protect Davis, with regard to her obligations under state law, because the > state legislature would have to act in order to provide an alternative means > for the state to advance its compelling interest. Set aside for a moment how > to define that interest and whether it is compelling. By enacting its RFRA, > the Kentucky legislature bound itself not to substantially burden a person’s > religious exercise by way of its legislation, if the legislature has, but > chooses not to implement, an alternative way of advancing interests it deems > compelling. The Kentucky legislature has put the burden on itself: it can act > to implement an alternative means, or it can act to exempt the particular > state obligation from the reach of the Kentucky RFRA. If it chooses to do > neither, then it has chosen not to burden the person’s religious exercise. > That is not a bug; it is a feature of a state RFRA, and an intended feature. > > It appears to me – as I think Howard’s point suggests – that Kentucky law > requires or at least may well require that Davis’s name be on the license, > and that the license be issued pursuant to Davis’s authority as clerk. The > deputy clerk can’t, if I understand Howard’s point correctly, issue a license > in any other way. The issuance of the license under Davis’s authority with > her name on it would appear to create a relatively close relationship between > Davis and the wedding that she, in order to be true to her sincere religious > beliefs, cannot facilitate (let alone be responsible for the authorizing of > the wedding). Again, what is the federal judge’s role in determining the > meaning of state statutes? > > Davis has a duty under Kentucky law – she can certainly say she has a duty, > it seems plain that she does, and it would seem strange for a federal judge > to hold otherwise – to make sure that licenses issued through her office be > valid licenses under Kentucky law. If she believes that an altered form of > license is not valid, she has every reason to prohibit a deputy clerk from > issuing such a license. > > That brings us back them to whether she is entitled to an exemption under the > KY RFRA from her statutory duty to issue licenses. If so, then her actions > make perfect sense. > > Then the remaining question is whether she is obligated under the US > Constitution to issue licenses. I don’t think the swimming pool closure cases > clearly lead to the conclusion that she has an obligation to issue licenses, > though I need to go back and review them; I disagree with Steve on that point > if I understand him correctly. Assuming her treatment of all couples the same > is not unconstitutional discrimination against same-sex couples, then the > issue would be whether it is an unconstitutional burden on the right to marry > for a state to ask couples to drive an hour to another office to get a > license. That seems unlikely. > > With regard to Steve’s argument that only animus could be behind Davis’s > actions, the majority in Obergefell rejected the notion that opposition to > same-sex marriage was necessarily motivated by animus. Of course, the dissent > said that the majority didn’t really mean that, and perhaps we are now seeing > that people think the majority didn’t mean it. > > Mark > > 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 Volokh, Eugene > Sent: Saturday, September 05, 2015 4:21 PM > To: Law & Religion issues for Law Academics > Subject: RE: What's happening in KY? -- my differences with Eugene > > It would depend on whether there’s a compelling government > interest in maintaining this particular aspect of uniformity; I doubt that > there would be. Many religious exemptions, after all, undermine the > uniformity of a legal rule that is generally uniform (e.g., no peyote) or at > least uniform. If uniformity is really critical (as it has been held to be > with taxes), then exemptions could be denied on those grounds. But there > really would have to be a compelling interest in uniformity, and not just a > general desire for uniformity. > > Eugene > > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. > Sent: Saturday, September 05, 2015 3:56 PM > To: Law & Religion issues for Law Academics > Subject: RE: What's happening in KY? -- my differences with Eugene > > In discussing the changes that Ms. Davis might have made in the license form > to accommodate her religious beliefs, I don't believe anyone on this list has > discussed this provision in Kentucky Rev. Stat. Sec. 402.110: > > "The form of marriage license prescribed in KRS 402.100 shall be uniform > throughout this state, and every license blank shall contain the identical > words and figures provided in the form prescribed by that section. In issuing > the license the clerk shall deliver it in its entirety to the licensee. The > clerk shall see to it that every blank space required to be filled by the > applicants is so filled before delivering it to the licensee." > > Changes by her office would prevent the license from being uniform throughout > the state. Do her state RFRA rights trump this? > > Howard Friedman > From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] > on behalf of Ira Lupu [icl...@law.gwu.edu] > Sent: Saturday, September 05, 2015 6:24 PM > To: Law & Religion issues for Law Academics > Subject: Re: What's happening in KY? -- my differences with Eugene > > 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 > > _______________________________________________ > 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.
