Aren’t good faith inquiries the inevitable consequence if, in adjudicating claimed state or federal RFRA exemptions from compliance with generally applicable law, courts must:
1. Accept without review the claimant’s determination that compliance substantially burdens religious exercise; and 2. Hold that the government cannot satisfy strict scrutiny unless no possible administrative or legislative workaround is available? As arguments in this thread and in the many contraception mandate threads have shown, skilled counsel can always suggest a possible, albeit sometimes highly implausible administrative or legislative workaround. If a brief identifying what an unusually cooperative legislature or an administrator unconcerned with the practicality of implementation theoretically might do to alleviate a claimed burden is all it takes for a RFRA claimant to prevail, then the only meaningful defense available becomes bad faith or lack of sincerity. Mike Michael R. Masinter Professor of Law Nova Southeastern University 3305 College Avenue Fort Lauderdale, FL 33314 954.262.6151 masint...@nsu.law.nova.edu<mailto:masint...@nsu.law.nova.edu> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Sunday, September 13, 2015 2:47 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 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<mailto:paul.finkel...@yahoo.com> www.paulfinkelman.com<http://www.paulfinkelman.com/> ________________________________ From: "Kwall, Roberta" <rkw...@depaul.edu<mailto:rkw...@depaul.edu>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Sunday, September 13, 2015 8:20 AM Subject: RE: What's happening in the Kim Davis case 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 Tradition http://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<mailto: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 Finkelman Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, and Constitutionalism 518-439-7296 (w) 518-605-0296 (c) paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com> www.paulfinkelman.com<http://www.paulfinkelman.com/>
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