For what it's worth, in their filing to the Sixth Circuit yesterday, Davis's attorneys insisted that she was *not* making a complicity claim akin to that being made in the contraception cases, and they emphasized that her concern was the appearance of her name on the forms (emphasis in original):
"Importantly, Davis is not claiming a substantial burden on her religious freedom if *someone else authorizes* and approves a SSM license *devoid of her name*. For example, Davis is not claiming that her religious freedom is substantially burdened if she must complete an opt-out form to be exempted from issuing SSM licenses. Davis is also not claiming that a SSM license authorized by the Rowan County Judge/Executive and devoid of her name and authority substantially burdens her religious freedom. Davis is also not claiming that her religious freedom is substantially burdened if the license were issued by someone else in Rowan County (*e.g.*, a deputy clerk), so long as that license is not issued under her name or on her authority." I gather that the last phrase -- "on her authority" -- is what her attorneys are now emphasizing. As long as she is the County Clerk, the issuance of marriage licenses in the name of the County Clerk's office, even without her name, is on her authority and a violation of her RFRA rights. In his post, Eugene notes that this claim may go beyond what the Kentucky RFRA guarantees, but he also opines that "the accommodation doesn't seem terribly burdensome." Do others feel similarly? Is it really just no big deal to require the government to alter the use of government names (Rowan County Clerk's Office) to accommodate the religious beliefs of individual government officials, even after their names have been removed from the equation? If the U.S. Attorney for the District of Massachusetts opposed the death penalty on religious grounds, and was allowed to take his name off of all filings in capital cases, would we really entertain a claim that it would not be terribly burdensome to require the government to take the office's name off of all such filings? - Jim On Tue, Sep 8, 2015 at 3:28 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > Eugene reports, pursuant to a phone conversation with Davis's attorneys, > that she will continue to press her RFRA claim, and insist that the > licenses not be issued, because, even though her name is no longer on the > licenses, the name of her *office *is! > > > https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/ > > It's just like the contraception cases -- whenever the government > accommodates even the most implausible theories of complicity by > eliminating the aspects of the scheme that the plaintiff asserted made her > morally complicit, the plaintiff then unveils a new (and even more > attenuated) theory of responsibility that is said not to be left > unaddressed by the accommodation. In this way, the plaintiffs effectively > exploit the fact that the governments in question (admirably) do not choose > to challenge the sincerity of the ever-evolving theories of complicity. > > On Mon, Sep 7, 2015 at 6:14 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > >> I'm pressed for time, so this is only a preliminary take, but thought >> it'd be worth throwing it out there for reactions: >> >> >> http://balkin.blogspot.com/2015/09/further-strangeness-in-kim-davis-case.html >> > > > _______________________________________________ > 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.
