I don't think anyone understands the clerk's office to be remotely like a
judge's office. The judge exercises an expert judgment for which only
another judge can be substituted. Even if his staff occasionally signs her
name, no one thinks her staff can legitimately decide cases.
Issuing marriage licenses is a ministerial task that requires essentially no
judgment, for which the deputies are a perfectly adequate substitute, and
the Kentucky statute says (what we would all assume anyway) that "Any duty
enjoined by law . . . upon a ministerial officer, and any act permitted to
be done by him, may be performed by his lawful deputy." Neither the statute
nor the concept applies to judges.
And even with respect to judges: if there are multiple judges in a local
court, the recusal of one does not require bringing in a judge from a
different court. Another judge of the same court takes over the case.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Wednesday, September 16, 2015 7:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: Assessing a Proposed Solution to the KY Case
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.ucl
>a.edu>
><religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.uc
>la.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,
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Please note that messages sent to this large list cannot be viewed as
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_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu To subscribe,
unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as
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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.
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