I was wondering what list members thought – as a legal matter –
of this following issue that arises in the Kentucky County Clerk controversy.
A federal judge issued an injunction ordering County Clerk Kim Davis to issue
marriage licenses, including same-sex marriage licenses. See
http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
(the application for stay from the Supreme Court, with the orders below
attached). I think that’s quite correct.
But as I understand it, Kim Davis’s stated objection is not to
having any same-sex marriages be processed by her office, but only to
authorizing the distribution of marriage license and certificate forms in which
her name appears (see PDF p. 133 of the linked-to file above). In particular,
she says that she would accept the option of “Modifying the prescribed Kentucky
marriage license form to remove the multiple references to Davis’ name, and
thus to remove the personal nature of the authorization that Davis must provide
on the current form” (PDF p. 40); presumably those forms might say “Clerk of
Rowan County” or perhaps the name of a deputy clerk who is willing to have his
or her name used for that (assuming there is one).
Now I’m not sure this is a remedy that the federal courts could
offer, or ought to offer. But say that Davis asks for an injunction or for
declaratory judgment from a Kentucky state court, under the Kentucky RFRA,
seeking to exempt her from the statutory requirement of having her name appear
on the form. Should she prevail?
Or stepping away from the same-sex marriage issue, say that
every time a death warrant was issued in a county, the County Clerk was by
statute required to sign off on it, as a purely ministerial task; but the
County Clerk objected on religious grounds to the death penalty, and filed a
RFRA claim asking to have that requirement waived, so that a deputy (who was
willing to sign) would sign instead. Should she prevail, again under a state
RFRA?
Finally, say that the County Clerk was an employee rather than
an elected officeholder, so that Title VII would apply (it doesn’t apply to
elected officeholders). Would the County Clerk have a right under Title VII’s
reasonable accommodation mandate to this sort of exemption? Compare, e.g.,
American Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 777 (9th Cir.
1986) (concluding that government employer had a duty to reasonably
accommodate, by arranging transfers to other jobs, postal workers who had a
religious objection to processing draft registration forms); McGinnis v. United
States Postal Serv., 512 F. Supp. 517, 523 (N.D. Cal. 1980) (finding the
government had a duty to reasonably accommodate, by offering a transfer to
another window that wasn't used for registration materials); Haring v.
Blumenthal, 471 F. Supp. 1172 (D.D.C. 1979) (concluding that the IRS had an
obligation to exempt an employee from having to work on tax-exempt status
applications from abortion clinics and other organizations that the employee
thought it sinful to deal with); Best v. California Apprenticeship Council, 207
Cal. Rptr. 863, 868 (Ct. App. 1984) (concluding that an apprentice training
organization--which was treated by state law as an employer--had an obligation
to accommodate an apprentice's religious objection to working in a nuclear
power plant); David Haldane, Panel Backs Fired Vegetarian Bus Driver, L.A.
Times, Aug. 24, 1996, at A18 (discussing a case in which the EEOC concluded
that a transportation agency must accommodate a vegetarian bus driver's
religious objections to handing out hamburger coupons as part of the agency's
promotion aimed at boosting ridership); Felhaber et al., Bits and Pieces, Minn.
Employment L. Letter, Sept. 1997 (reporting that the case against the
transportation agency was settled for $50,000).
Eugene
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