What plausible reading of religious freedom empowers Ms. Davis to prohibit her deputies from issuing marriage licenses because of her religious objections to same sex marriage? I am genuinely astonished by the persistent claim that, in the name of religious freedom, we should compel license applicants to go to another county to obtain marriage licenses lest Ms. Davis attribute their issuance by a Rowan county deputy clerk to her person. It is the state of Kentucky, acting through the office of the county clerk, which issues the licenses. Ms. Davis may assert in Kentucky courts or before the Kentucky legislature under KRFRA that she ought not to have to sign the license, or perhaps even that her name ought not even to appear on the licenses when issued by a deputy clerk. But how can she be thought to have the right to forbid those employees from discharging their legal duty to issue those licenses or claim that their issuance of those licenses substantially burdens her religious exercise?
This thread lays bare the real import of a muscular reading of RFRA’s substantial burden test – implicit if not explicit in the defense of Ms. Davis is this proposition -- no matter how absurd the claim of a substantial burden may be, as long as it is advanced in good faith (i.e., sincerely), it simply does not matter that it is contrary to well established fact, the boundary between individual and government, or how attenuated its claim of causation may be. All that matters is the governmental employee-objector’s belief that whatever it is that the government seeks to do, directly or indirectly substantially burdens her religious exercise. Under that reading of KRFRA, the cogent explanations of why Ms. Davis should lose, repeatedly and clearly offered by Doug Laycock and Marty simply do not matter, for they rest upon the all but universal understanding that Ms. Davis and her office are distinct from each other. But that is not her belief, and because she appears to sincerely hold the belief that nobody in her office can issue a license without associating her with irreligious conduct, thereby substantially burdening her religious exercise, this muscular understanding of KRFRA compels the state to accommodate her since it can always do so by imposing on those who seek a license the burden to travel to a different county. Forgive me for thinking the argument is nonsensical, but I do. It is at odds with ex Parte Young, which long ago drew the very distinction Ms. Davis seeks through KRFRA to obliterate. But it is also at war with self-government because it puts the private self of a government official acting in her government capacity above the sovereignty of government, whether understood as state qua state or state as the people. The people and state of Kentucky have decided that marriage licenses should be available through the office of a clerk in every county in the state; Ms. Davis would undo that decision based on her private faith, insisting that she must as a matter of private faith forbid her employees from carrying out their legal duties. Did Congress or the state legislatures that enacted RFRAs intend by to equip every government officeholder and employee with a universal solvent for self-government subject only to a requirement of good faith and an all but unavailable defense of strict scrutiny? Surely that is a bridge too far even under the most generous reading of RFRAs. To be sure we do accommodate most government employees (though not Ms. Davis as an elected official) under Title VII, but under 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<mailto:masint...@nsu.law.nova.edu> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser Sent: Wednesday, September 16, 2015 8:40 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Assessing a Proposed Solution to the KY Case To Kevin's point, a somewhat similar accommodation is playing out in North Carolina. As readers of this list will recall, North Carolina passed legislation which allows magistrates to opt out of performing any marriages, provided that each county was required to continue to make secular marriage services routinely available in each county. Recently, all of the magistrates in one county (McDowell County) opted out of performing marriages. However, marriages are still performed in McDowell County because magistrates in neighboring Rutherford County drive over on a regular weekly basis to make the marriage service available. http://www.wbtv.com/story/30001008/mcdowell-co-magistrates-recuse-themselves-from-performing-same-sex-marriages Not that this addresses the current procedural situation with Davis, but it certainly provides a model which the Kentucky legislature might consider during its next session. Plus, as I understand Kevin's proposed accommodation, it has the added advantage of not even requiring government employee travel from one county to the next. It would simply have deputy clerks in one county issue marriage licenses "under the authority of" a county clerk who had no religious objection to the issuance of the licenses, even if that county clerk happened to physically reside in another county. As long as state law permitted such issuance and validity of the licenses, this seems like a reasonable solution. Will Esser ________________________________ From: "Walsh, Kevin" <kwa...@richmond.edu<mailto:kwa...@richmond.edu>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Wednesday, September 16, 2015 7:31 AM 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<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Douglas Laycock [dlayc...@virginia.edu<mailto: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.
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