I agree with Roberta that generally it is not "necessarily a wise route to
investigate her good or bad faith in these types of matters." However, I think
is is also important to have some legal realism here.
Davis's arguments seem to be in flux and in motion because I think it is quite
clear that she does not want any accommodation. As others have pointed out,
her County does not have a religion but she thinks it does and the county
itself can get an exemption from the U.S. Constitution. Would anyone accept
this as a plausible theory of law? Or as an example of someone acting in good
faith.
That she made such arguments suggests that her goal is not merely to personally
remove herself from the process (which she could do), but to prevent people
from obtaining their constitutional rights in her county. This is not acting
in good faith and I think it is reasonable, as academics, for us to consider
motive and goals. We judge political figures all the time on the basis of
their motives and good or bad faith. She is a political actor, an elected
official, and her actions speak to that.
George Wallace lost his first bid to be governor because he was seen as too
moderate on race. He allegedly said he would never be "out Niggered" again,
and its pretty clear he achieved that goal during most of the rest of his
Alabama career (although late in life is moderated a little). No scholars I
know of think he acted in good faith while attempted to prevent integration in
the face of court orders.
Do we somehow elevate Ms. Davis's standing into courthouse door (or court
clerk's door) as more appropriate than George Wallace or Ross Barnett, because
she cloaks her refusal to give people their constitutional rights by claiming a
religious right to utterly prevent marriages from taking place.
As far as I can tell, everyone on this list agrees that 1) the licenses can be
issued by someone else; 2) she does not have to issue them; 3) that she only
has to step aside to let the people of her county obtain their constitutional
rights.
That she has done none of these things suggests bad faith.
******************
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com
From: "Kwall, Roberta" <rkw...@depaul.edu>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Sunday, September 13, 2015 8:20 AM
Subject: RE: What's happening in the Kim Davis case
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.yiv5707408652MsoChpDefault {} _filtered #yiv5707408652 {margin:1.0in 1.0in
1.0in 1.0in;}#yiv5707408652 The first paragraph of Paul's post about whether we
should entertain the possibility of bad faith on the part of Kim Davis (given
her past) particularly caught my eye. It made me think of Jews who can be
described as "Baal Tshuvot" (this term refers to those that were born Jewish
but who "return" to the faith at some point in their lives). There is a
phenomenon that often occurs with these Jews (and sometimes with those who
convert especially under more traditional authorities) in which they become
super-strict with all the rules and follow everything to what they understand
to be the letter of the law. Part of the issue here is that they lack growing
up in an observant climate in which they get a "feel" for how things operate in
practice and part of the issue is that they lack the years of education to make
judgments on applying the law to their everyday lives.
I had also heard that Kim Davis is relatively new to her faith and
perhaps--just perhaps--she is interpreting what she thinks is required of her
stringently because she thinks she must do so in order to "make heaven her
permanent home"--the quote is something I had read she said as to her reason.
But either way, I don't think it is necessarily a wise route to investigate her
good or bad faith in these types of matters because delving into the recesses
of someone's heart and mind for the purpose of crafting law and solutions is
going to always be problematic as a general matter (I do realize that there are
areas of the law in which intent is an operative factor but for those of you
who teach or recall the law of adverse possession, that is why most
jurisdictions use an "objective" test for motives on the part of the adverse
possessor which this post also made me think of).
For those of you on this list who celebrate the upcoming Jewish holidays, let
me extend my best wishes for a sweet, happy and healthy New Year.
Bobbi
Roberta Rosenthal Kwall
Raymond P. Niro Professor
Founding Director, DePaul University College of Law
Center for Intellectual Property Law & Information Technology Author of The
Myth of the Cultural Jew: Culture and Law in Jewish
Traditionhttp://amzn.to/15f7bLH You can view my papers on the Social Science
Research Network (SSRN) at the following
URL: http://ssrn.com/author=345249
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of Finkelman, Paul [paul.finkel...@albanylaw.edu]
Sent: Saturday, September 12, 2015 10:44 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in the Kim Davis case
The legal analysis in all of our posts have been mostly based on “good faith”
legal arguments. But we try to figure it out as Ms. Davis’s arguments and
claims seem to evolve. Most of the people on this list assume that a
reasonable accommodation is possible to protect her “religious freedom.” Does
anyone want to entertain the possibility of the following? There is no good
faith here. Ms. Davis is taking steps to enhance her political career and her
ability earn money speaking around the country. In addition, some people in
Morehead (where I was this week) suggest that she is trying to compensate for
her less than “Christian” lifestyle in the past, including two or three
divorces, multiple marriages, children born from one father while she was
married to someone else – all of this I was told by multiple people on
Morehead, I have not done any independent research to verify it). Thus people
suggested she is taking this position to shore up her political strength with
evangelicals in eastern Kentucky. Alternatively, as some have suggested on
this list, she simply does not want to have people marry who they love unless
she approves of their lifestyle and so her actions are not about religious
values at all but just old fashioned homophobia and bigotry,)and she is doing
everything possible to obstruct the law. She can’t close the courts or even
any other clerk’s offices She can’t stand in the school house door, but she is
following in the steps of Govs. Orville Faubus, Ross Barnett, and George
Wallace. As such, any attempt to negotiate or accommodate is rebuffed with new
arguments and new claims. I would add that her supporters are doubtless sending
fundraising email blasts to everyone on their email lists begging for money to
save Kim Davis for the Godless heathens (like Judge Bunning???) who are out to
get her. I suspect they are hoping she will be back in jail next week so they
can raise more money. My assumption, by the way, is that when she took her oath
of office she did it on a Bible and said so help me God, that she would enforce
the law (and perhaps even uphold the Constitution). I would be interesting to
see what oath she took. (see Matthew 22:21 and Mark 12:17). I have not heard
anyone raise this issue, and while it is not relevant in constitutional law,
perhaps it is significant for the discussion of constitutional politics. I
could be wrong about all this, and overly cynical. Perhaps we will know in a
few months or a little longer, if and when we know what her speaking fees are
after this is over. ============= Paul FinkelmanSenior Fellow, University of
Pennsylvania Program on Democracy, Citizenship, and
Constitutionalism518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Marty Lederman
Sent: Saturday, September 12, 2015 10:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in the Kim Davis case Yes, but that same statute
also says that the Deputy Clerk can issue the license, in addition to the
Clerk. Ky. Rev. Stat. 402.100(1)(c). In such cases, obviously, the
"authorization statement" in question becomes that of the Deputy Clerk -- which
the State's official form acknowledges when it providesin the statement for the
prospect that the Deputy Clerk, rather than the Clerk, might issue the license.
Another way to look at it: Because KRS § 61.035 states that “[a]ny duty
enjoined by law . . . upon a ministerial officer, and any act permitted to be
done by him, may be performed by his lawful deputy,” references in the Code to
duties imposed upon the Clerk can all be read to add the implicit "or the
Deputy." I very much doubt that Kevin, or any other reasonable person,
believes that Kim Davis actually authorized the licenses issued on Friday, or
that any member of the public understands her to have done so. Assuming that's
right, I'm really not sure why we're still debating it. On Sat, Sep 12, 2015
at 8:44 PM, Walsh, Kevin <kwa...@richmond.edu> wrote:
David,
Sure. The two most pertinent provisions are Ky. Rev. Stat. 402.100(1)(a)
(requiring the prescribed form for marriage licenses to include "an
authorization statement of the county clerk issuing the license") and Ky. Rev.
Stat. 402.100(3)(a) (requiring the prescribed form to include a marriage
certificate stating "the name of the county clerk under whose authority the
license was issued").
Kevin
________________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of David Cruz [dc...@law.usc.edu]
Sent: Saturday, September 12, 2015 8:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in the Kim Davis case
Kevin, before I attempt any elaboration of your first follow-up question below,
can you say what provision of Kentucky law you would cite as at least seeming
to contain a requirement that a marriage license must be issued “under the
authority of” some county clerk? I apologize if I’m being obtuse about that,
but please do walk me through it slowly. Thank you.
David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.
From:
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>>
on behalf of "Walsh, Kevin" <kwa...@richmond.edu<mailto:kwa...@richmond.edu>>
Reply-To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Saturday, September 12, 2015 at 4:56 PM
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: What's happening in the Kim Davis case
I asked "Is there a county clerk under whose authority these licenses were
issued, or not?"
If the answer is "no, but it doesn't matter to the validity of the licenses
because ...," I am asking because I don't understand what comes after "because."
If the answer is "yes," I am wondering what the name of the county clerk is, if
not Kim Davis.
David's premise seems to be that the answer is in Ky. Rev. Stat. 61.035, but I
don't see it.
On Sep 12, 2015, at 7:33 PM, David Cruz
<dc...@law.usc.edu<mailto:dc...@law.usc.edu>> wrote:
Why is it relevant, given the Kentucky law already aptly quoted by Marty,
whether or not there is “a county clerk [as distinguished, I guess Kevin Walsh
is asking, from a deputy county clerk] under whose authority these licenses
were issued”?
David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.
From:
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>>
on behalf of "Walsh, Kevin" <kwa...@richmond.edu<mailto:kwa...@richmond.edu>>
Reply-To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Saturday, September 12, 2015 at 4:06 PM
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: RE: What's happening in the Kim Davis case
Brian Mason is a deputy county clerk. Is there a county clerk under whose
authority these licenses were issued, or not?
[Note: I originally sent this before ND threw a touchdown pass to pull ahead of
UVA a few minutes ago, but am resending now after being notified it was too
long. Go Irish.]_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
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_______________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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_______________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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