I believe this entire discussion has been overtaken by events, hasn't it? Mason is issuing licenses in a form that (apparently) Davis does not object to. That should be the end of the matter (and should have been the beginning, too), at least unless and until any couple receiving such a license complains that it violates the Constitution for the State to issue a license that reads "*Pursuant to Federal Court Order*," i.e., "This license issued under protest."
On Wed, Sep 16, 2015 at 7:31 AM, Walsh, Kevin <kwa...@richmond.edu> wrote: > I agree that only the office holder gets an exemption, not a unit of > government. My argument is premised on the office holder getting an > exemption, and so is Davis's. > > Once an office holder is recused, the question becomes who carries out the > duties instead. That turns on who has legal authority. > > If a federal trial judge recuses from a capital case because she cannot > sign a death order as a matter of religious conscience, the case has to go > to another judge. And that is so even though the recused judge has law > clerks, a courtroom deputy, and other assistants who sign pieces of paper > under the judge's authority. The judge's recusal takes out everyone in the > chambers, as they have no authority independent of her. As I understand > Davis's position on state law, the authority of her deputy clerks is > related to the authority of her office as the authority of law clerks is > related to the authority of the office of judge. The county clerk's recusal > takes out everyone in the office, as they have no authority independent of > her. These results follow from a _personal_ exemption, not one granted to > _the office_ of district court judge or _the office_ of county clerk. > > One pressure point on this position is Davis's understanding of state law. > Marty has set out another reading that, if correct, would make the law > clerk analogy inapposite. Deputy clerks can sign marriage licenses (whereas > law clerks cannot sign death orders). But if Davis is right about state > law, then the law clerk analogy holds. There is no more an Establishment > Clause problem flowing from the need to bring in another judge than there > is from the need to bring in another county clerk. If the substitution is > seamless from the point of view of the applicant, as it would be if > implemented in the manner I proposed, there are also no problems arising > from the fact that the other clerk's geographic location may be distant. > The licenses still get issued out of the recused clerk's physical plant, as > if a substitute judge were sitting in a recused judge's courtroom and using > the recused judge's staff. > > Kevin > > > ________________________________________ > From: religionlaw-boun...@lists.ucla.edu [ > religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock [ > dlayc...@virginia.edu] > Sent: Tuesday, September 15, 2015 9:44 PM > To: Law & Religion issues for Law Academics > Subject: Re: Assessing a Proposed Solution to the KY Case > > The judge who recuses does not try to prevent his whole court from > deciding the death penalty case. He recuses himself, personally; he does > not recuse the government authority. > > Davis did not seek merely to recuse herself; she sought to prevent her > whole office from issuing marriage licenses. And having them issued under > the authority of another county is another way of disabling her whole > office. > > This is the fundamental confusion between the unit of government, which > has no religion, and the office holder, who does. Whatever the > Establishment Clause might say about the issue, the Kentucky RFRA analysis > is clear -- only the office holder gets an exemption. Not the unit of > government. > > > > > > On Wed, 16 Sep 2015 01:02:53 +0000 > "Walsh, Kevin" <kwa...@richmond.edu> wrote: > >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 [ > 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] 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 > > > >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 i! > ssued 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. > > > >_______________________________________________ > >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. > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > _______________________________________________ > 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. > _______________________________________________ > 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. >
_______________________________________________ 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.
