Kevin,
Under your proposed accommodation (leave aside the court order for now), who would issue marriage licenses in Rowan County? In your earlier post below, you write "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)" which would seem to imply that the answer, at least in Rowan County, would be <nobody>, requiring those seeking a license to travel to one of Kentucky's 119 other counties. If that's the case, I think the establishment clause remains in play for the reasons Alan identified. Returning to the court order, today the Court of Appeals denied Davis's request for an injunction pending appeal against the state defendants, writing "Davis has not demonstrated a substantial likelihood of success on her federal constitutional claims. We need not address the merits of her claims under Kentucky law because the Eleventh Amendment of the U.S. Constitution precludes federal courts from compelling state officials to comply with state law." Pennhurst.... 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 -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin Sent: Tuesday, September 15, 2015 9:03 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: RE: Assessing a Proposed Solution to the KY Case Alan, That's a helpful clarification. You're right about this third meaning of "office." (And there may be more!) I find it helpful to think in terms of partial recusal: Davis is declining to exercise marriage licensing authority, rather than exercising it to comport with her religious beliefs. She's still exercising county clerk authority when she does other things while remaining recused from marriages. So there's a sense in which we could say that she is insisting that the way she exercises her official authority must comport with her religious beliefs. But that doesn't seem like the right frame of reference. If it were, there would be seem to be an Establishment Clause problem with the judge who recuses on religious grounds from the rare death penalty cases that come her way while still insisting on exercising the authority of her office in other cases. But there's not; or, at least, I don't think there is. Is there? For whatever it might be worth, the marriage licensing function of the county clerk in Rowan County is a tiny piece of her office's workload. In 2014, the office issued 212 licenses; Davis's PI testimony was that each license took about five to seven minutes of employee time to issue. Davis also estimated marriage licensing to take about one employee hour per week (in an office with her and six deputies) even in the comparatively busy months of May and June. Revenue from the licenses was .1% of the office's revenue from fees and other collections. Not sure if these numbers are directly responsive to your Establishment Clause concerns, but they provide useful perspective for a partial recusal frame of reference. Kevin ________________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu] on behalf of Alan E Brownstein [aebrownst...@ucdavis.edu] Sent: Tuesday, September 15, 2015 7:04 PM To: Law & Religion issues for Law Academics Subject: RE: Assessing a Proposed Solution to the KY Case I think I see one source of our disagreement more clearly now, Kevin. You suggest that the term "this office" has two meanings, the individual holding the office and the physical location of the office. I think, however, there is a third meaning. The term "office" refers to the government power that is vested in the individual who holds the office. For example, the executive power of the United States is vested in the President. So if a person said, "All executive powers required to be exercised by the office of the President will only be exercised if they comply with and are not inconsistent with the religious beliefs of the individual holding the office of the President" we can understand that the office of the President involves more than the identity of the individual holding that office. It refers to government power and authority - the executive powers vested in the President. County clerks are not presidents, of course. And I understand your argument that they may be fungible with regard to some of their authority. But I take it that Ms. Davies (and you) are arguing that there is no Establishment Clause problem if the governmental power and authority vested in a county clerk is restricted to only those exercises of authority that are consistent with the clerk's religious beliefs. It is this governmental authority - the power to confer the legal status of marriage on a couple - that she insists must be exercised in a way that comports with her religious beliefs. And it is this idea -- that the government authority vested in an office, a position, must comport with the religious beliefs of the official holding that office - that raises, at least in my judgment, Establishment Clause concerns. Alan From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin Sent: Tuesday, September 15, 2015 1:37 PM To: Law & Religion issues for Law Academics Subject: Re: Assessing a Proposed Solution to the KY Case 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
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