Chip et al. — Perhaps events on the ground have overtaken all of this. Still worth thinking about to figure out how better to deal with similar events in the future. For responsive points, see comments below in brackets. The gist is that if “Davis to Mason” is constitutional, then “Davis to Mason with authorization from someone else with state-law authority" is also constitutional. Perhaps the “with authorization” part is unnecessary; depends on the content of state law. But its addition should not make a difference of constitutional magnitude. Kevin
From: Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> Reply-To: Law & Religion List <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Monday, September 14, 2015 at 10:29 AM To: Law & Religion List <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Assessing a Proposed Solution to the KY Case 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<mailto: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. [KCW: This isn’t Davis’s position. The accommodation goes to her personally and does not rest on recognizing an “Office” exercise of religion. (As an aside, the county has nothing to do with this, as their filings make clear. With respect to marriage licensing, the county clerk is a pass-through agent for the state.) Under Davis's understanding of state law, there is nobody else in her office who is able to issue a valid license apart from her authorization; only a county clerk possesses authority to issue a license (though deputy county clerks can sign them). Marty has suggested Davis is wrong about her understanding of state law. If Marty’s right, then the universe of other officials the state can use to satisfy its constitutional obligations is bigger than Davis or I thought. My proposed workaround would then be unnecessary. But if a county clerk’s authorization is necessary, then my proposed workaround secures the validity of licenses issued by someone other than Davis. This no more involves recognizing an “Office" exercise of religion than Marty’s solution of shifting from Davis to Mason. The point of both is to move from one person with state-law authority to another person with state-law authority, and to do so in a way that makes the experience of federal right-bearers the same.] 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? [KCW: See your next point. When all the requirements of the law, including Equal Protection, are included, shifting all marriage licensing is not fatally overbroad, but a way of avoiding a constitutional violation. In terms of authority to order this, I’ve been assuming other clerks would happily go along with it. These clerk offices are mostly self-funded by revenues from their licensing, tax collection, and other functions. Every license issued by a county clerk’s office brings in revenue for the office. In terms of how a judge could bring it about, it would go something like this: “Ms. Davis: Go find a way to get marriage licenses issued from behind your counter in the county clerk’s office. You have at least one deputy clerk willing to do all the paperwork and you’ve already said you have no problem with the deputy clerk issuing a license as long as it’s not under your authority. So make it happen. If that requires the deputy clerk getting authorization from another county clerk, don’t get in the way of that.” If Judge Bunning had said that and marriage licenses for everyone had started flowing again in Rowan County under a system like I’ve suggested, should plaintiffs have continued with their litigation?] 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. [KCW: This is a very good reason why she should not engage in different treatment and why she is not proposing to do so.] 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). [KCW: I agree. It’s too bad the constitutional law is not clearer, as uncertainty here results in potentially overblown expectations on both sides. All I’ll add is that if issuing licenses authorized by Mason rather than Davis does not violate Equal Protection, then neither should my proposed workaround.] 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. [KCW: Not sure how this would materially differ from shifting responsibility directly to the deputy. But these things could presumably be worked out if people wanted them to be.] 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<mailto: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<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Marty Lederman [lederman.ma...@gmail.com<mailto: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><mailto: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><mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu><mailto: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><mailto: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><mailto: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><mailto: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<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. -- 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
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