I don't quite understand why she needs to affirmatively seek relief under the Kentucky RFRA. It's part of Kentucky law. The state legislature didn't exclude this law from the reach of the state RFRA. If the Kentucky statute -- that would otherwise require her to authorize the issuance of licenses -- substantially burdens her religious exercise, and if the legislature has an alternative means of advancing an interest that it may or may not consider compelling, then she need not comply with it. As a state official, I think she has the right in the first instance to decide what Kentucky law requires. She also has the right (and obligation) to take into account the concern that if she doesn't authorize issuance of the licenses, then they may not be valid; that could be a basis for instructing deputies not to issue them. If someone in the Kentucky government with authority over her requires her to authorize the issuance of licenses do so, then she would interpose the state RFRA, and a Kentucky court would decide who is right as a matter of Kentucky law. Or a Kentucky court might determine that licenses issued by deputies without her authorization are valid under Kentucky law.
Of course the Kentucky RFRA can't override the 14th Amendment, but that may miss much of the point. What business does a federal court have in telling her that Kentucky law requires her to authorize issuance of licenses, or in enforcing against her Kentucky law, or in saying that licenses signed by deputies are valid under Kentucky law despite her refusal to authorize issuance? The only real questions for the federal court should be whether her even-handed refusal to authorize issuance of any licenses violates the 14th Amendment's equal protection clause and whether her refusal impermissibly burdens the right of all couples to marry (when they can get licenses from other counties by driving an hour). Perhaps if one of those issues is decided against her, then the federal court could exercise jurisdiction to decide the state law issue, but otherwise it seems to me that the federal court should leave the issues to state officials and state courts. If I were her, I would issue the licenses. Nevertheless, on both of those constitutional issues I think she has the better argument. As for Steve's claim that her refusal can only be based on animus (and his rather outrageous invocation of the trail of tears, which was the path of some of my ancestors), there is this statement in the majority opinion in Obergefell (sincerely stated or not): "Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world." As Eugene has pointed out, the Court in Palmer v. Thompson refused to hold that the closing of swimming pools in response to a desegregation order was a violation of equal protection. We can argue about how that case should apply here, but it's hardly obvious that her claim of a right under the Kentucky RFRA is an impermissible basis for her action. As for Sandy's question whether political views control the positions of list members, I'd suggest that opposition to Obergefell is not necessarily political, and neither is a strong desire to protect religious conscience. Are we all influenced by our substantive views (political or not)? Yes. But there is also what I hope is an attempt to reach a principled position. I certainly wouldn't encourage anyone to become a member of the Santeria Church or to drink hoasca tea as part of a religious ritual, but I support the Court's decision in both cases. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law -----Original Message----- From: Douglas Laycock [mailto:dlayc...@virginia.edu] Sent: Sunday, September 06, 2015 9:29 AM To: Law & Religion issues for Law Academics; Scarberry, Mark Subject: What's happening in KY? -- wrong case, wrong parties If state law requires her to personally authorize the marriage, she should be able to get an exemption under Kentucky RFRA. But not in litigation against same-sex couples, and not by refusing to issue any licenses at all. It is not clear who enforces the requirement Mark quotes, but the proper defendant might be the head of the Department of Libraries and Archives. As several others have noted, her lawyers seem more intent on generating publicity and raising money than on representing their client. Most or at least much of the confusion, on this list and in the press, flows from the fact that she has asserted her claim in the wrong case against the wrong opposing parties. The bottom line still is that the county has no religion and no claim to an exemption. Someone has to issue licenses. The couples had a clear legal entitlement, they got a judgment to enforce it, and she was in contempt. There is no good reason, and certainly no compelling reason, why she has to issue those licenses personally. But the plaintiffs cannot be refused licenses while she works out her accommodation with Kentucky. On Sat, 5 Sep 2015 21:09:18 -0700 "Scarberry, Mark" <mark.scarbe...@pepperdine.edu> wrote: >Section 402.100 appears to require that the license include “[a]n >authorization statement of the county clerk issuing the license.” The section >allows the license to be signed by the clerk or deputy clerk (which shows that >the legislature knew how to include the deputies where it wanted to include >them) but the authorization statement authorizing the appropriate celebrants >to perform the marriage and unite the couple in marriage must be a statement >of the county clerk. The county clerk must authorize the uniting of the couple >in marriage. Here is the relevant language: > >“Each county clerk shall use the form prescribed by the Department for >Libraries and Archives when issuing a marriage license. This form shall >provide for the entering of all of the information required in this section, >and may also provide for the entering of additional information prescribed by >the Department for Libraries and Archives. The form shall consist of: > >(1) A marriage license which provides for the entering of: > (a) An authorization statement of the county clerk issuing the >license for any person or religious society authorized to perform >marriage ceremonies to unite in marriage the persons named; > (b) Vital information for each party, including the full name, date >of birth, place of birth, race, condition (single, widowed, or >divorced), number of previous marriages, occupation, current residence, >relationship to the other party, and full names of parents; and > (c) The date and place the license is issued, and the signature of >the county clerk or deputy clerk issuing the license > >It would seem to me that if the form does not include an authorization >statement of the clerk (not a deputy clerk), then the form will not have been >filled out as required by section 402.100. The second reference to issuance of >the license by the county clerk or deputy clerk may muddy the waters. I >certainly don’t think a federal court has the expertise to instruct the county >clerk, who is charged with complying with 402.100 and 402.110, on the meaning >of the section, or on the consequences of a potential failure to comply with >it. If Davis believes a license without an authorization from her by name >(indicating that she has authorized the performance of the marriage) does not >comport with Kentucky law, then she either must authorize the marriages or >instruct persons seeking licenses to drive an hour to another county. > >It also is a bit ironic that same-sex marriage proponents who cheered when >officials issued licenses in violation of the explicit terms of state law (not >necessarily any members of this list), now think it’s improper for Davis to >act on the basis of her understanding of state law, which of course includes >the state RFRA. > >Mark > >Mark S. Scarberry >Professor of Law >Pepperdine Univ. School of Law _______________________________________________ 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.
