While I appreciate Kevin's efforts to identify an accommodation that will work here -- and I certainly try to look for acceptable accommodations in resolving religious liberty disputes -- I'm inclined to agree with Jim and Chip here. A public official's insistence that the government office she works for (or directs) has to stop performing its lawful functions because continuing to do so gives the official's stamp of approval to conduct the official finds religiously objectionable is an unacceptable demand for accommodation. If a religious individual working for the government is assigned a duty that conflicts with her religious obligations, she may request an accommodation. It is possible to argue that the accommodation should be granted -- particularly if the duties can be assigned to other workers at no cost to them or to members of the public. But she can't insist that her office stop performing the objectionable function. In essence, Ms. Davis is demanding that all the operations of the clerk's office that are identified as operating under the county clerk's authority must be consistent with her religious beliefs or assigned to another government office.
The solution to a conflict of that scope and nature is for the religious individual to resign from her position. It cannot be that the authorized functions of every government office must vary depending on the varying religious beliefs of the official directing its operation. Assume there are three counties: in County A, the clerk opposes same-sex marriage on religious grounds. In County B, the clerk opposes inter-faith marriages between Jews and non-Jews on religious grounds. In County C, the clerk opposes marriages by previously divorced individuals on religious grounds. Does our commitment to reasonable religious accommodations require us to accept a system in which same-sex couples living in County A have to have their marriage licenses authorized by the county clerk of County B or C. Inter-faith couples involving one Jewish partner living in County B must obtain a license authorized by clerks in County A or C. Divorced individuals living in County C who want to get married must obtain a license authorized by clerks in County A and B. And that's just the situation for marriage licenses. What about all the other functions identifiably authorized by the county clerk. Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Ira Lupu <icl...@law.gwu.edu> Sent: Sunday, September 13, 2015 6:34 AM To: Law & Religion issues for Law Academics Subject: Re: Assessing a Proposed Solution to the KY Case 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<mailto: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 _______________________________________________
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