May I suggest that the way we handle this in practice is something like the follows:
There is usually a lag between the time at which the law declares that no state shall discriminate against a particular group and the time in which it is recognized that no decent person could discriminate (this underlies Alito's desperate plea not to regard him as the bigot). We have entered that period with respect to same-sex couples. We are long past that period for race. Hence, a tendency exists as somewhat of a temporary matter (cert. denied may often be a wise policy) to admit of accommodations, while suspect that over time overt discrimination against same-sex couples will be as odious as over discrimination against interracial couples (and when that happens, the accommodation disappears). I am not sure, by the way, that Sandy's hypo works well giving there is no job requirement to shake hands, which means that our orthodox Jew might be able to a) claim that he/she offers friendly greetings to all people which is all that is required or b) simply refuse to shake hands with any one, assuming people can be greeted politely without touching. MAG ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Monday, September 07, 2015 10:59 AM To: Law & Religion issues for Law Academics Subject: Re: What's happening in KY? -- my differences with Eugene A hypothetical: an Orthodox Jew is elected to a public office that often requires meeting people. He puts up a sign explaining that he will gladly shake the hand of makes, but will not do the same for women. I assume that most of us would be "accommodating." Now imagine a member of Christian Identity who will refuse to shake the hand of any Jew, or a believer in the curse of Ham who similarly announces that he is theologically precluded from offering similar courtesies to anyone thought to be black. Indeed, as I think about this, perhaps we should simply imagine a receptionist at a public agency, one of whose duties is to introduce him/herself to visitors, shaking hands, and then accompanying them to the public official's office. Do we rank order the offensiveness if the discriminations, or instead rank order the degree to which we respect the overall theological system, or ...? Sandy Sent from my iPhone On Sep 7, 2015, at 9:03 AM, Levinson, Sanford V <slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote: With regard to Roberta Kwall's interesting post: what if the case being taught were Bob Jones? Would she (or the rest of us) teach that their animus against interracial dating wasn't "bigotry" but instead the result of a serious theological position. Ditto on a Christian a Identity group that refused to interact with Jews. And so on. I don't mean to suggest that all "discriminations" are equal, so to speak. I am genuinely curious as to how we decide which views we respect and which we reject re the way we present them in a classroom. (I have no problem, for example, defending Dred Scott as a plausible interpretation of a Garrisonian Constitution, but I don't go on to defend the plausibility of racialized chattel slavery as a way of organizing a labor system.) Sandy Sent from my iPhone On Sep 7, 2015, at 8:34 AM, Kwall, Roberta <rkw...@depaul.edu<mailto:rkw...@depaul.edu>> wrote: I don't know how many folks on this list have actually taught Obergefell yet given that it is so early in the semester but having done so just last week, I wanted to share my experience doing so. I was a bit surprised that one student strongly articulated the view that Davis is operating out of bigotry. This required me to think--very quickly--of how to respond. Instinctively, I redirected the conversation by 1) pushing back on the bigotry issue by articulating why she would feel as she does from a theological standpoint, assuming good faith and 2) refocusing the attention on the legal aspects of the case (by emphasizing many of the points folks on this list have made over the past several days). Given that I typically do not teach topics that are polarizing in this way, this was a pretty new experience for me (even though I am a veteran teacher!). After class, a student (who happens to be African American) emailed me saying she doesn't agree with same-sex marriage and she has learned to refrain from articulating her views given the negative reactions she has received in the past from others. She said she also felt somewhat uncomfortable. I invited her to come speak with me (which she will do tomorrow). My point here is that apart from the constitutional nuances of all of these fascinating discussions, as teachers we have the real world challenge of dealing with student bias (one way or the other) in the classroom. I am curious how others have handled such situations. One last point about bias--The Myth of the Cultural Jew which Sandy mentioned yesterday is essentially all about how bias of one sort of another works its way into the law (specifically there, Jewish law). Throughout this discussion, I have been pondering whether a Kim Davis type situation would arise with an observant Jew in her situation. I think it would be very different because according to Jewish law there is a principle stating "the law of the land is the law." In other words, if Kim Davis was an observant Jew, I think she would have a far less strong free exercise argument (although there may be some observant Jews who might disagree with that). In fact, many observant (even Orthodox) Jews draw a distinction concerning same-sex marriage when it comes to secular vs. Jewish marriage (although again, there is a range on this point as well). On a related point, Michael Helfand just published a very interesting piece in Mosaic Magazine which discusses RFRA and some of the issues related to these posts. Roberta Rosenthal Kwall Raymond P. Niro Professor Founding Director, DePaul University College of Law Center for Intellectual Property Law & Information Technology Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition http://amzn.to/15f7bLH You can view my papers on the Social Science Research Network (SSRN) at the following URL: http://ssrn.com/author=345249 ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>] Sent: Sunday, September 06, 2015 3:36 PM To: Law & Religion issues for Law Academics Subject: Re: What's happening in KY? -- my differences with Eugene I think Steve gets it exactly right. Sent from my iPhone On Sep 6, 2015, at 12:42 PM, Steven Jamar <stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote: I don’t know that anyone can really know the extent of their biases influencing their thinking. Deep things like being a trained historian vs. an engineer can infect how we view the law. Life experiences — poor or rich, elite or marginal, black, white or other, etc. surely impact how we view things. But on this one, I am in favor of reasonable accommodations that favor religious exercise. I’m even in favor of finding an accommodation for Ms. Davis. But the propriety of finding/making an accommodation does not excuse her flouting of clear constitutional requirements. If she plays MLK Jr or Gandhi and says “I will not follow your unjust law but I recognize your right to jail me for failing to follow it” — well that would be one thing. But she is not. She is claiming to above the law, not merely that she is acting according to the dictates of her conscience or her religion — but that this higher law excuses her refusal to do her job. It does not. She is taking a stand and witnesses for her beliefs by becoming a martyr for her cause. But she is not a private citizen in a private job. She is an elected official elected to do a ministerial job. She is not rendering unto Ceasar that which is his. She is denying the validity of Ceasar’s power. She is not walking the extra mile, shouldering the Centurian’s burden; she is dropping the load on the road and demanding to be applauded for it. She is placing her personal religious beliefs above the requirements of We the People acting through our Supreme Court and federal government. Disliking that is not a matter of political stance on same sex marriage or the morality of homosexuals. One can claim as the dissenters in Obergefell did and still do with respect to abortion rights that the court got it wrong. But even so that does not give one the right to play President Jackson and send thousands to their death along the trail of tears. The magnitude is different; the principle is the same. Steve Jamar On Sep 6, 2015, at 10:57 AM, Levinson, Sanford V <slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote: I do find myself wondering how much the reaction to Ms. Davis is simply a proxy for our politics. Consider, eg, the efforts by some of the conservative pols who support Ms. Davis (like Ted Cruz) to go after "sanctuary cities). I suspect that many of us support such sanctuaries against our Draconian immigration policies, and one might recall that the leader of an earlier sanctuary movement was Los Angeles' Cardinal McIntyre. As someone who has long criticized extravagant theories of judicial supremacy and still (weakly) supports RFRA, I do find it challenging to figure out exactly why I'm so hostile to Ms. Davis. Part of it, of course, is my own support for same-sex marriage and Obergefell. But another, I'm afraid is my animus against the absurdity of her claim. I know I shouldn't take that into account, but I can't help it. Catholic arguments are deeply reason-oriented, and I can disagree with them, as I do on same-sex marriage, on the basis of what I'd like to think are equally reasoned arguments. Ms. Davis takes us out of the realm of reason into sheer subjective "sincerity." Tertullian is famous for defending Christian belief precisely because it was "absurd." As Eugene reminded us, one can easily say the same thing about the purported revelation at Sinai. I apologize if this is too rambling. Some of you might be interested in a recent symposium on Balkinization on Roberta Kwall's The Myth of the Cultural Jew. Sandy Sent from my iPhone On Sep 6, 2015, at 12:11 AM, Scarberry, Mark <mark.scarbe...@pepperdine.edu<mailto: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 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Saturday, September 05, 2015 7:59 PM To: Law & Religion issues for Law Academics Subject: Re: What's happening in KY? -- my differences with Eugene 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 nameis 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<mailto: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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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<mailto: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. -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org “There are no wrong notes in jazz: only notes in the wrong places.” Miles Davis _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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<mailto: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<mailto: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.
