I agree that Davis’s decision not issue marriage licenses at all
is not defensible under RFRA, and I agree that she should have gone to state
court first to seek an exception. I doubt that there’s much of an estoppel
argument available here, but I leave that to others.
But as to item 3, it seems to me that there is indeed a Kentucky
government act involved. Kentucky statute apparently requires her to issue
marriage licenses with her name on it. Federal law requires her to issue
marriage licenses, which I take it means that she must issue them consistently
with state law. Kentucky law thus puts her in a position where she must
violate a federal court order, violate Kentucky law, or violate her felt
religious beliefs (again, taking seriously her statement in the stay request
that her religious beliefs simply forbid her from allowing her office to issue
certificates and licenses with her name on them).
This is so even if Kentucky agencies haven’t yet enforced the
law against her. It seems to me that, unless I’m missing some Kentucky
remedies law objections, she would be able to go to Kentucky state court and
ask for an injunction or a declaratory judgment allowing her to issue the
licenses without her name on them. That means that state RFRA can indeed be of
help to her.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, September 05, 2015 3:24 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<mailto: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<mailto: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<mailto: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
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