Howard: As the Deputy Clerk is implementing the licenses, the form of the license *is *the same as that throughout the state, and every license blank *does* contain the identical words and figures provided in the form prescribed by section 402.100. The only difference is that the Clerk's name *is not written in *on the blank where it would ordinarily appear. That doesn't in any way transgress 402.110.
On Sat, Sep 5, 2015 at 6:55 PM, Friedman, Howard M. < howard.fried...@utoledo.edu> wrote: > 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 >>>> >>>> >>>> >>>> *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. >
_______________________________________________ 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.
