Doug is probably correct that the absence of Ms. Davis’s name on the marriage license form sends a powerful statement of her beliefs. But in evaluating the merits of granting her an accommodation I would consider that an incidental consequence of her religious liberty claim – and in my judgment it is a negative consequence that counts against the granting of an accommodation.
Certainly, as a free speech matter, Ms. Davis has no constitutional right to use her office or its resources to proclaim her religious or political beliefs or to express views that are inconsistent with her official responsibilities. And as a public policy matter I see little reason to support public officials using their office and its resources to communicate their personal religious or political views to the community. Also, to the extent that the accommodation is based on a state RFRA law or a separate statute that only accommodates people in Ms. Davis’s position who assert religious claims of conscience, the fact that the accommodation only provides religious people this vehicle to project and magnify their message and denies it to non-religious people is problematic. This may be an unavoidable consequence of a religious accommodation, but it conflicts with our commitment to provide a regulatory environment that allows both religious and non-religious people an equal opportunity to influence the market place of ideas. I do not suggest that this incidental speech consequence, standing alone, justifies denying an accommodation in cases like this one. But I think it belongs on the “do not accommodate” side of the ledger. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock Sent: Wednesday, September 09, 2015 8:05 AM To: 'Law & Religion issues for Law Academics' Cc: 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman' Subject: RE: Davis doubles down I don’t know that the Attorney General analogy is particularly helpful one way or the other. But for what it’s worth, it very occasionally happens that high ranking lawyers in the Justice Department refuse to sign a brief because of principled disagreement with the position asserted. These are generally, probably always, legal objections, not religious objections. The others file the brief. Not only has the absence of the dissenter’s name been thought to sufficiently disassociate him, but if it’s a name that would normally be in the brief, it’s absence makes a powerful statement to a Court accustomed to seeing that name on every government brief. Similarly, the absence of Kim Davis’s name in a place where it would normally appear makes a powerful statement of her refusal to participate to anyone familiar with the forms. On the other hand, it may go entirely unnoticed by a couple unfamiliar with the forms. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Wednesday, September 09, 2015 12:12 AM To: Law & Religion issues for Law Academics Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman Subject: Re: Davis doubles down 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
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