Correction to my message from a few minutes ago -- it was Michael Masinter (not Marty Lederman) who invoked, on a related thread on this list, the quotation "l'etat c'est moi" in reference to Kim Davis.
On Mon, Sep 14, 2015 at 10:09 AM, Ira Lupu <icl...@law.gwu.edu> wrote: > Why would Judge Bunning (not) order the work-around that Kevin suggests? > It would reasonably accommodate Kim Davis, Kevin says, with no harm to > others. > > With respect, Kevin -- > > 1. Davis' position seems to be that her Office (not just her person) is a > "person" protected by Kentucky RFRA (the only legal basis for accommodating > her at all). But her Office may not exercise religion. THAT represents an > Establishment Clause violation, whether or not anyone is harmed by it. (I > took this to be the basis for Marty's reference to Louis Quatorze, "L'etat > c'est moi). You have not addressed this point whatsoever. > > 2. If Ms. Davis refuses to allow any marriage licenses to issue under her > name or the authority of her Office, her claim to accommodation seems > fatally overbroad. She has no religious objection to different-sex > marriage. What ground or judicial authority is there to arrange for the > Clerks of other counties to take responsibility for those? > > 3. Her religious objection is to same sex marriages. But if she withholds > her name only from those licenses, she is giving the imprimatur of her > Office to some marriages and not others. And she is doing so under an > explicit claim that same sex marriages are invalid (because Obergefell is > "lawless," or because God says so, or some combination). Such a > discrimination in her treatment of and official stance toward same sex > marriages is the equal protection violation. > > 4. If she does withhold her name and authority of Office from all > marriages, we're back in the Palmer v. Thompson problem. We've been over > that. Reasonable people can differ, but it's not obvious that this move > avoids an equal protection problem of seemingly equal treatment motivated > by discriminatory reasons (reasons, grounded in religion or defiance of > Supreme Court rulings, on which government agencies may not act). > > 5. A practical problem -- if County Clerks play this round robin game, > what does a deputy do when a license application presents uncertainties > about eligibility (proof of age, question of consanguinity, validity of > prior divorce, etc.) Deputy must now check with the other County, where > protocols may be different, access to Clerk not immediate, etc. I take > this to be the least of the problems, but not zero. > > That looks like a long list of reasons not to accommodate Ms. Davis in the > way you suggest -- with reason #1 (Establishment Clause violation) leading > the pack. > > On Sun, Sep 13, 2015 at 9:45 PM, Walsh, Kevin <kwa...@richmond.edu> wrote: > >> Thanks to Jim, Chip, Alan, and Marty for putting sharper points on >> objections to my proposed arrangement to get marriage licenses to couples >> by having the state operate around rather than through county clerks who >> hold Davis's beliefs. >> >> Jim says that my reference to school desegregation was a non sequitur. >> School desegregation is an example of something that could not have been >> practicably accomplished without operating through rather than around >> objecting state officials. By contrast, getting a piece of paper from the >> state to eligible couples is. The comparison is admittedly not good for all >> purposes, but at least there's that. >> >> Even though going around objecting state officials _can_ be done, it is a >> separate question whether this _should_ be done, whether as a matter of >> political morality or as a matter of constitutional law. And that is what I >> take Jim's questions and comments to go to. >> >> Jim's implied legal claim, asserted more explicitly by Chip and Alan, is >> that the "solution" I proposed would be unconstitutional. It would violate >> the Equal Protection Clause and the Establishment Clause. >> >> Having followed the supporting arguments on this list and elsewhere as >> best I can, I still don't see how. As I recall, the EP arguments have been >> met with counterarguments, and there has been no knock-down win. I don't >> recall a clearly winning EC argument, either. >> >> I get, though, that if I want to persuade anyone who disagrees with me >> about the acceptability of my proposal, then I need to persuade them why >> it's *not unconstitutional.* Reasonable people say it is unconstitutional, >> and it's not enough to say I'm unpersuaded. I don't know that I can make a >> knock-down case for "not unconstitutional," though, because this is an area >> where the life of the law is less logic than experience, and competing >> narratives about ongoing experience are still vying to become part of the >> required logic. >> >> Yet I won't throw in the towel completely, either. Maybe we can still >> make some headway even if we don't know precisely which new insights will >> make themselves known in current years. >> >> Instead of starting with why race-based prohibitions of marriage are >> different from man-woman definitions of marriage, and why people who want >> the government to adopt and act on the former should be treated differently >> from people who want the government to adhere to and act on the latter, >> perhaps a better place to start is with Marty's disagreement with Davis >> about how state law operates. >> >> Davis's position is that licenses issued in the absence of county clerk >> authority are invalid. Marty's position is that licenses issued with deputy >> county clerk authority are valid--even if unauthorized by any county >> clerk--because deputy county clerks count as county clerks for purposes of >> issuing licenses. (I simplify both positions, but hopefully fairly.) >> >> Suppose Marty is right about state law. Does the status quo in Rowan >> County right now violate the Equal Protection Clause or the Establishment >> Clause? As Marty describes it, "the function of issuing licenses has, in >> effect, been delegated to Mason." And he says about this arrangement, >> "fortunately ... [it] both allows couples to marry in Rowan County and ... >> avoids Davis having to approve or authorize such marriages (even only in >> her official capacity) -- and, conveniently, [this] accommodation is the >> very solution currently in play." Marty does not opine whether this >> arrangement is constitutional under the Equal Protection Clause and the >> Establishment Clause, but why wouldn't it be? >> >> Now suppose Marty is wrong about state law. Suppose that the status quo >> in Rowan County gets licenses to couples through the clerk's office, but >> the licenses are invalid because not authorized by any county clerk as >> required by state law. Now suppose Judge Bunning orders the deputy clerk to >> obtain authorization from a different county clerk before issuing a >> license. Would that be unconstitutional? If so, why? If not, why would the >> same state of affairs be unconstitutional when brought about through >> decisions made by responsible state officials instead? >> >> Alan argues: "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." Under >> the accommodation I propose, Davis's office would still be accepting, >> processing, and issuing marriage licenses. These licenses would not be >> authorized by Davis, but in this respect they are the same as those issued >> by Mason under Marty's view of state law. The difference is that they are >> explicitly authorized by a different county clerk so as to ensure their >> validity under state law. >> >> My suggestion is that this proposal is constitutional. The obligation to >> issue marriage licenses is a state obligation, not a county obligation. >> (Read the county's papers in Miller v. Davis on this point.) If the state >> provides agents in every county to issue marriage licenses and no couple >> that seeks a marriage license from a county clerk's office is denied one, >> what constitutional entitlement of the couple's is denied when the license >> is authorized by State Actor X instead of State Actor Y? (In case it's not >> clear, I should add that this proposal would apply with respect to all >> marriage licenses sought in a particular county, not just those sought by >> same-sex couples, as it's a work-around for Davis's blanket policy of not >> issuing any licenses.) >> >> Apart from recognizing that the right to marry includes a right to marry >> someone of the same sex, what does Obergefell v. Hodges say about how >> states are to design their marriage-licensing systems that would make my >> proposed approach unconstitutional? Its statement about the reasonableness >> of people who believe marriage requires a man and a woman is far removed >> from the Loving Court's statement about Virginia's interracial marriage >> prohibition as having "no legitimate overriding purpose independent of >> invidious racial discrimination." >> >> Jim asks: "[I]f 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?" I answer no, that would not be an acceptable >> solution, not for me. As a matter of political morality, I don't want the >> state to let the racial views of its officials into the design of its >> system for distributing marriage licenses, whether those views are based in >> religion or otherwise. If I were someone responsible for designing a system >> for marriage licensing, I would not permit this. That is different from >> taking account of the views of a state official who believes that marriage >> is "a gender-differentiated union of man and woman." I agree with Justice >> Kennedy's statement in Obergefell v. Hodges recognizing this as a view that >> "long has been held--and continues to be held--in good faith by reasonable >> and sincere people here and throughout ! >> the world." I would not seek to force the resignation of people who hold >> this view simply on the basis that they hold this view. I'd worry about >> interference with the rights of people who deal with such government >> officials. And I'd seek out an acceptable way for such a person to keep >> doing her job with personal integrity without violating the rights of >> people who come into her office. If I could figure out such a way, I would >> try to implement it. The racist I would treat differently, or at least try >> to. >> >> Jim further asks: ""[W]ould 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?" I answer that I'm not sure who the "we" >> is, but I wouldn't allow it. If I were a county clerk, for example, I would >> refuse to hire a deputy who would need an accommodation for this kind of >> view. Among other problems, implementing an accommodation for such a view >> could involve turning people away after they start filling out the form >> (which calls for information about prior marriages). That is not the kind >> of office I would want to run. (It is also not the nature of Davis's >> objection.) >> >> Finally, Jim asks: "Can the use or nonuse of county authority really be >> determined by the religious beliefs of county officeholders?" I answer >> sometimes yes and sometimes no, as what I've said up to this point reveals. >> >> Kevin >> >> ________________________________________ >> From: religionlaw-boun...@lists.ucla.edu [ >> religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [ >> lederman.ma...@gmail.com] >> Sent: Sunday, September 13, 2015 2:10 PM >> To: Law & Religion issues for Law Academics >> Subject: Re: Assessing a Proposed Solution to the KY Case >> >> Fortunately, there is an accommodation available here that both allows >> couples to marry in Rowan County and that avoids Davis having to approve or >> authorize such marriages (even only in her official capacity) -- and, >> conveniently, that accommodation is the very solution currently in play, >> namely, that the function of issuing licenses has, in effect, been >> delegated to Mason, something Davis herself would have done earlier had she >> been genuinely interested in finding an accommodation. It's as if she's >> recused from the marriage-license-issuing function. >> >> On Sun, Sep 13, 2015 at 1:42 PM, Alan E Brownstein < >> aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote: >> >> 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 marr! >> ied 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<mailto: >> religionlaw-boun...@lists.ucla.edu> <religionlaw-boun...@lists.ucla.edu >> <mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of Ira Lupu < >> icl...@law.gwu.edu<mailto: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 >> >> >> >> >> >> >> >> >> >> _______________________________________________ >> >> >> _______________________________________________ >> 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. 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. >> >> _______________________________________________ >> 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 > -- 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.
