Kevin writes: "It would have been odd, for example, if Kentucky's Attorney General had said that he would not be defending Kentucky's marriage law, but that his office would continue to do so through his deputy. It made sense that the state hired private counsel instead."
I'm not sure this analogy works. It's one thing for an AG to refuse to have their office defend a law based on the AG's conclusion that a district judge correctly found the law to be unconstitutional and that the Supreme Court is likely to agree. It is quite another for an AG to refuse to have their office defend a law based solely on the AG's religious objection to the law. The idea that we wouldn't have state lawyers defend state laws based on state AGs' religious objections to those laws strikes me as extremely odd. Back to Davis, my point was not that she hasn't preserved the "on her authority" argument for objecting to the issuance of "Rowan County Clerk's Office" licenses. It appears that she has preserved that argument. But given Marty's comparison of that argument to the complicity arguments in the contraception case, I thought it was worth noting that her lawyers specifically argued in their latest filing that her claim should be viewed as more modest than the claims in the contraception cases and they framed that argument by emphasizing (their emphasis, not mine) the phrase "devoid of her name." Finally, in judging the burden a claimed accommodation imposes on the government, I'm inclined to think that we need to look at more than the logistical issue of whether "the government could easily substitute another official." It seems to me that requiring the government to modify the use of government office names to satisfy the religious beliefs of government employees imposes a burden (and raises concerns) beyond logistics. (Alternatively, perhaps this is all best approached not by focusing on the burden on government, but instead, the lack of a cognizable burden on plaintiff per Roy and Lyng). - Jim On Tue, Sep 8, 2015 at 7:21 PM, Walsh, Kevin <kwa...@richmond.edu> wrote: > Based on a quick review of the filings, I don't see how Davis's position > has shifted. > > Davis's opposition to the preliminary injunction motion from July 30 says: > "Even though one of her deputy clerks (and perhaps two) is (or are) willing > to issue a SSM license, she instructed all deputy clerks to stop issuing > marriage licenses because licenses are issued with her authority (not the > deputy clerkâs) and every license requires her name to appear on the > license (even if signed by a deputy clerk)." > > The idea that licenses issued from the Rowan County Clerk's Office are > issued under the authority of the Rowan County Clerk makes sense. And it > also makes sense that if Davis does not wish her authority to be used to > authorize marriages, then she would not wish her office to issue > authorizations to marry. It would have been odd, for example, if Kentucky's > Attorney General had said that he would not be defending Kentucky's > marriage law, but that his office would continue to do so through his > deputy. It made sense that the state hired private counsel instead. > > It is not "no big deal" to let a marriage licensing official take his or > her office out of the business of doing something the official's religious > conscience forbids. But neither is doing so "terribly burdensome" if the > government could easily substitute another official to carry out the > state's duty so that nobody's right to marry is burdened. > ________________________________________ > From: religionlaw-boun...@lists.ucla.edu [ > religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [ > jole...@lclark.edu] > Sent: Tuesday, September 08, 2015 7:28 PM > To: Law & Religion issues for Law Academics > Cc: Michael Dorf; Dellinger, Walter; conlawp...@lists.ucla.edu; Howard > Wasserman > Subject: Re: Davis doubles down > > 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 > <mailto: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 > <mailto: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<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. >
_______________________________________________ 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.
