But the court decisions refusing to recognize RFRA claims in suits between private parties even where the suit arises under federal statute point the other way-although by analogy to Shelly and NY TImes v Sullivan,a court decision is no less action of government than an enforcement action by a government agency. Marc
Sent from my iPhone On Sep 16, 2015, at 5:39 PM, Doug Laycock <dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> wrote: I do not think RFRA is off the table, for the reasons you point out. But apart from compelling interest, it is also clear that a statute cannot prevent enforcement of the Constitution, and that a statute that tries to do so is unconstitutional as applied. So it would be essential to devise a RFRA remedy that did not prevent full and effective enforcement of the constitutional right on the other side. That is not what Kim Davis appears to be interested in, but it might matter in some other case with a more reasonable litigant and legal team. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O. Sent: Wednesday, September 16, 2015 5:22 PM To: conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>; Law & Religion issues for Law Academics Subject: Federal RFRA in Davis-Like Situation? I have a conceptual question that I’ve been trying to get my mind around. Could the *federal* RFRA be invoked by someone like Kim Davis (whether or not the state has its own RFRA), arguing that a federal court order—that is, an order that is designed to enforce the 14th Amendment—is action of the “government,” which is defined under 42 U.S.C. Sec. 2000bb–2 to “include[] a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” In other words, is the judicial enforcement of the Constitution subject to RFRA? Cf. 42 U.S.C. Sec. 2000bb–3: “This chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise . . . .” On the face of it, it would seem that the federal RFRA would indeed apply, but maybe I’m missing something. (It’s happened before!) I’m not suggesting that a federal RFRA objection could or should prevail. I’m simply wondering whether the federal RFRA might apply. Needless to say, enforcing the requirements of the 14th Amendment is a compelling governmental interest. But, as the long thread of Kim Davis postings has indicated, there might be various ways of serving that compelling interest. E.g., assuming a class action, perhaps the surest and simplest way to enforce the 14th Amendment in this setting would be to require, by injunction, that each and every official and employee in every relevant government office provide marriage licenses upon request, including for same-sex couples. Putting aside Title VII’s “reasonable accommodation” provision, would a federal court be free to issue that type of categorical order without taking account of the federal RFRA, assuming it were properly raised by one or more state government officials or employees? Again, I’m not trying to make any point here, either way, on the merits of Davis’s objection or about how similar objections ought to be resolved. I’m simply wondering if the federal RFRA is off the table and, if so, why. Dan Conkle ************************************************ Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu<mailto:con...@indiana.edu> ************************************************ From: conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, September 15, 2015 10:53 PM To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>; Law & Religion issues for Law Academics; Michael Dorf; Samuel Bagenstos Subject: CTA6 rejects Davis's KY RFRA claim on sovereign immunity grounds In an order today the Sixth Circuit rejected Kim Davis's state RFRA claim which, realistically, was the only one in play. "We need not address the merits of her claims under Kentucky law because the Eleventh Amendment of the U.S. Constitution precludes the federal courts from compelling state officials to comply with state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105–06 (1984)." As for her federal constitutional claims, they remain alive, but only by a thread: The court held that "Davis has not demonstrated a substantial likelihood of success on her federal constitutional claims." <ATT00001.c>
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