I think Greg is too pessimistic. What is really at issue is what "accommodation" requires. Even in these parlous times, I suspect that most people, elite and non-elite, would agree that a Jewish postal worker should be allowed not to work on Yom Kippur and that a non-Jewish worker should agree to fill in, in part because the Jewish worker will gladly reciprocate on, say, Good Friday. Similarly, I'd be truly shocked if anyone on this list disapproves of the defacto DOJ policy.
But "accommodation," for me, does not extend to a postal worker's unwillingness to deliver mail to a Planned Parenthood office or to the Sons of the Confederacy. And so on... Sandy Sent from my iPhone On Sep 9, 2015, at 5:17 PM, Sisk, Gregory C. <gcs...@stthomas.edu<mailto:gcs...@stthomas.edu>> wrote: I wonder how long the DOJ policy will survive, though, in an era in which accommodating the values of others with which one strongly disagrees appears to be no longer in favor, especially among the elites, and accusations of malice or bad faith or bigotry are so quick to be made in so many circles. The present scorched earth approach to political and legal policymaking, from both sides of the political spectrum when they take power, is depressing. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu<mailto:gcs...@stthomas.edu> http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Wednesday, September 09, 2015 12:52 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Davis doubles down Fortunately, this very sensible policy is the result of political prudence and not adversarial litigation. Sandy Sent from my iPhone On Sep 9, 2015, at 1:49 PM, Brian Landsberg <blandsb...@pacific.edu<mailto:blandsb...@pacific.edu>> wrote: Yes, the policy, though unstated, dates back at least to the early 1970’s. I was excused from processing Vietnam war protestors, at a time when most of the Department’s lawyers were needed because of the large number detained at RFK Stadium. In addition to various briefs that I was excused from signing, I recall that even Solicitor General Griswold refused to sign a Supreme Court paper in a busing case; only Attorney General Kleindienst’s name appeared, a strong signal that the Court should pay little attention to the filing. [Of course, Griswold was fired as part of a general house-cleaning after Pres. Nixon was re-elected]. From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C. Sent: Wednesday, September 09, 2015 10:31 AM To: 'Law & Religion issues for Law Academics' Cc: 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman' Subject: RE: Davis doubles down The Department of Justice long had (and I hope still has) a policy of accommodating the religious and civil consciences of its lower-level lawyers as well when possible in terms of assignments. During my time at DOJ many years ago, a lawyer who objected to the “don’t-ask-don’t-tell” policy of the military was respected in asking not to be assigned those cases. I exercised the option to request reassignment once in an appeal where the government was insisting that a Jewish seminary reinstate an individual who had taken leave for military service, which I thought (on religious and moral, beyond legal grounds) was an improper intrusion of the state into the operation of a theological institution. Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of this accommodation: With changes in administrations, many government counsel understand that, at least in DOJ, lawyers are not required, at the peril of ending their careers, to represent government policy that collides with their most fundamental beliefs. . . . This kind of leeway is wise policy for an agency; given that the government is a vast enterprise required to take on a multitude of subjects, the possibilities of both conflict and substitution are greater. It is also wise for government counsel to take their employer up on the offer: Their discomfort is often discernible to the court, and no government counsel should be asked to ignore deeply felt convictions (so long as he does not have too many). Patricia M. Wald, “For the United States”: Government Lawyers in Court, 61 Law & Contemp. Probs. 107, 121 (Winter 1998). Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu<mailto:gcs...@stthomas.edu> http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock Sent: Wednesday, September 09, 2015 10:05 AM To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Cc: 'Michael Dorf' <miked...@gmail.com<mailto:miked...@gmail.com>>; 'Dellinger, Walter' <wdellin...@omm.com<mailto:wdellin...@omm.com>>; 'Howard Wasserman' <wasse...@fiu.edu<mailto:wasse...@fiu.edu>> 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 _______________________________________________ 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. 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