I think Jim Oleske's analysis is spot on, and completely of a piece with Doug Laycock's point, offered early in this discussion, that Rowan County cannot assert a religious identity. Accommodations can be made for Davis personally, but not for the County. The 6th Circuit might wisely put an end to the overstated claims for accommodation by ruling that Kentucky RFRA, whatever its legitimate scope, cannot be construed and applied in ways that violate the Equal Protection Clause or the Establishment Clause. Any construction of KRFRA that denied same sex couples access (physical or symbolic) to the authority of Rowan County would constitute such a dual violation.
On Sun, Sep 13, 2015 at 1:07 AM, James Oleske <jole...@lclark.edu> wrote: > Stepping back from the detailed discussion Kevin, Marty, and others have > been having today about the intricacies and proper interpretation of > Kentucky law, I wanted to address more broadly Kevin's suggested solution > to the Davis situation. > > Here's the key testimony from Kim Davis that Kevin quotes in his earlier > message to the list and in a blog post at Mirror of Justice: > > THE COURT: All right. You just object to your name being on the license? > > THE WITNESS: My name and my county, yeah. > > THE COURT: Well, your county, you're elected by the county. But if it said > Rowan County and listed a deputy clerk -- let's say the deputy clerk that > would be permitted to, or has agreed that he or she would not be > religiously opposed to issuing the license, if it just was the deputy > clerk's name with Rowan County and not your name, would you object to that? > > THE WITNESS: It is still my authority as county clerk that issues it > through my deputy. > > THE COURT: All right. Very well. You may step down. Thank you. > > > To address Davis's concerns, Kevin's proposed solution is to have deputy > clerks working in Rowan County issue marriage licenses on the authority of > clerks from other counties. Thus, the resulting license issued in Rowan > County would say something like "issued by the office of Bobbie Holsclaw, > Jefferson County Clerk, by [insert name of Rowan County deputy clerk]." > > In a message to list earlier today, Kevin reports that some of the > resistance he has gotten to this idea has come from people who raise the > race analogy. But arguing that "particulars matter," Kevin notes that > "the transition in marriage licensing is not remotely as complicated as > desegregating schools" and concludes, "I'm unpersuaded that there are > unacceptable harms to the interests of plaintiffs and others similarly > situated." > > The reference to school desegregation strikes me as a non-sequitur. In the > wake of Loving, there were clerks and magistrates who refused to issue > marriage licenses to interracial couples. That phenomenon, not resistance > to school desegregation, seems like the relevant race analogy. Which leads > to the following question: If the clerk of Rowan County had religious > objections to interracial marriage, would it be an acceptable solution to > say that the authority of the Rowan County Clerk's Office won't be used to > license interracial marriages? Alternatively, would we allow the > marriage-licensing authority of Rowan County to be put on the shelf because > the clerk religiously opposed the remarriage of divorced people and didn't > want to facilitate what she sincerely believed to be adultery? Can the use > or nonuse of county authority really be determined by the religious beliefs > of county officeholders? > > Both from an establishment perspective and an equal protection > perspective, I'm having a hard time seeing how it's acceptable to let Kim > Davis's religious beliefs preclude the Rowan County Clerk's Office's from > authorizing same-sex marriages, regardless of whether there is a way to > deliver Jefferson County licenses to Rowan County residents with no > additional delay. > > - Jim > > > > > > > > > > _______________________________________________ > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
