Thanks, Alan, for the reformulation. I prefer something like this, instead:
“Pursuant to Kentucky law, the county clerk’s authority will not be exercised in a way that forces him or her to act contrary to his or her religious beliefs as long as this does not violate the rights of others. All licenses and other documents requiring the county clerk's authorization are available through this office under the authority of the county clerk here or of some other official authorized by state law to issue them.” I do not think this accommodation violates the Establishment Clause. (I haven’t thought through potential compelled speech issues with a sign as an actual rule to be implemented, but I like the thought experiment of trying to put the position in sign form to boil it down to essentials.) One difference between my formulation and Alan’s is to take out “required to be authorized by this office.” The phrase “this office” is ambiguous. It could mean “this office” (designating the human being holding a particular office, the actual county clerk) and “this office” (designating a physical location, where the county clerk works). The two sentences in Alan’s sign are probably best understood to use the two different meanings I’ve distinguished, but the first sentence could be misinterpreted. In the first sentence “this office” is probably best understood to mean the actual county clerk (a human being) with authority over the physical location that the sign is posted in. In the second sentence, “this office” is probably best understood to mean the physical location that the sign is posted in. My reformulation eliminates the ambiguity. Under Kentucky law, the licenses are to be authorized by a human being holding a particular office (namely, by one of the 120 people holding the office of county clerk). This is the authority of a real, live, breathing person who holds a particular public office enabling her to perform certain activities. Alleviating a burden on her exercise of religion does not give conscience protection to “the office of county clerk,” understood as a government entity or a place that somebody goes. The protection is personal to a human being. Kevin From: Alan E Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> Reply-To: Law & Religion List <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Tuesday, September 15, 2015 at 2:06 AM To: Law & Religion List <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Assessing a Proposed Solution to the KY Case I think I understand Kevin's argument from his last post better than I did before, but I still disagree with it. Let me check my understanding of his position. Suppose Kentucky adopted an accommodation which it described in a sign that was to be posted in each county clerk's office. "Pursuant to Kentucky law, all licenses or other documents required to be authorized by this office will only be issued if they comply with and are not inconsistent with the religious beliefs of the county clerk. Licenses and other documents inconsistent with the county clerk's religious beliefs may be obtained at this office in a timely fashion under the authorization of an alternative county clerk from some other county who has no religious objection to authorizing the licenses or documents." Am I correct, Kevin, that you do not think this accommodation would violate the Establishment Clause? 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 Walsh, Kevin <kwa...@richmond.edu<mailto:kwa...@richmond.edu>> Sent: Monday, September 14, 2015 11:56 AM To: Law & Religion issues for Law Academics Subject: Re: Assessing a Proposed Solution to the KY Case 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.
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