But this is not an attempt to accommodate by someone else doing it. She refuses to issue any marriage licenses and has not delegated anyone else in the office to do it. This is not like a religious cop who won't work on (pick the holy day). And Your solution apparently would require a change in KY law, since as someone else noted, the law *requires* her name on it. ****************** Paul Finkelman, Ph.D. Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholars Advisory Panel National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (w) 518-605-0296 (c) [email protected] www.paulfinkelman.com From: "Volokh, Eugene" <[email protected]> To: Law & Religion issues for Law Academics <[email protected]> Sent: Thursday, September 3, 2015 12:13 AM Subject: RE: Question about the Kentucky County Clerk controversy #yiv3619058084 #yiv3619058084 -- _filtered #yiv3619058084 {font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv3619058084 {font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv3619058084 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;} _filtered #yiv3619058084 {font-family:Tahoma;panose-1:2 11 6 4 3 5 4 4 2 4;}#yiv3619058084 #yiv3619058084 p.yiv3619058084MsoNormal, #yiv3619058084 li.yiv3619058084MsoNormal, #yiv3619058084 div.yiv3619058084MsoNormal {margin:0in;margin-bottom:.0001pt;font-size:12.0pt;}#yiv3619058084 a:link, #yiv3619058084 span.yiv3619058084MsoHyperlink {color:blue;text-decoration:underline;}#yiv3619058084 a:visited, #yiv3619058084 span.yiv3619058084MsoHyperlinkFollowed {color:purple;text-decoration:underline;}#yiv3619058084 p.yiv3619058084MsoAcetate, #yiv3619058084 li.yiv3619058084MsoAcetate, #yiv3619058084 div.yiv3619058084MsoAcetate {margin:0in;margin-bottom:.0001pt;font-size:8.0pt;}#yiv3619058084 p.yiv3619058084msonormal, #yiv3619058084 li.yiv3619058084msonormal, #yiv3619058084 div.yiv3619058084msonormal {margin-right:0in;margin-left:0in;font-size:12.0pt;}#yiv3619058084 span.yiv3619058084msohyperlink {}#yiv3619058084 span.yiv3619058084msohyperlinkfollowed {}#yiv3619058084 span.yiv3619058084emailstyle17 {}#yiv3619058084 p.yiv3619058084msonormal1, #yiv3619058084 li.yiv3619058084msonormal1, #yiv3619058084 div.yiv3619058084msonormal1 {margin:0in;margin-bottom:.0001pt;font-size:11.0pt;}#yiv3619058084 span.yiv3619058084msohyperlink1 {color:blue;text-decoration:underline;}#yiv3619058084 span.yiv3619058084msohyperlinkfollowed1 {color:purple;text-decoration:underline;}#yiv3619058084 span.yiv3619058084emailstyle171 {color:windowtext;}#yiv3619058084 span.yiv3619058084BalloonTextChar {}#yiv3619058084 span.yiv3619058084EmailStyle27 {color:#1F497D;}#yiv3619058084 .yiv3619058084MsoChpDefault {font-size:10.0pt;} _filtered #yiv3619058084 {margin:1.0in 1.0in 1.0in 1.0in;}#yiv3619058084 div.yiv3619058084WordSection1 {}#yiv3619058084 Well, Title VII’s reasonable accommodation does allow people to hold jobs (government or otherwise) knowing that they will not in fact do all parts of the job, so long as the employer can accommodate them without undue hardship (e.g., by some sort of swap of duties). This could be because they can’t do all the temporal parts of the job (“I can’t be on the job Friday nights after sundown”) or it could be because they can’t do all the subject-matter parts of the job (“I can’t process draft registration materials”). The cases I cited so say, it seems to me. It also seems to me that RFRA’s strict scrutiny mandate, as applied to government employees, is at least as demanding as Title VII’s religious accommodation mandate. It may be more demanding, if we take strict scrutiny seriously, or it may be about as demanding, but I doubt it would be less demanding. If a religious objection can be accommodated without undue hardship, it’s hard to see how denying the accommodation is narrowly tailored to a compelling government interest. Then the only question is whether there’s a different RFRA rule for elected officials than for ordinary government employees. (There is a different Title VII rule, but that’s just because of a statutory exclusion of religious officials.) I would think not. So if that’s so, then it seems to me that the Kentucky County Clerk could indeed get a Kentucky RFRA exemption from the requirement that she distribute marriage license/certificate materials with her name listed (though that’s not something she can get in the defense of her federal lawsuit, but would require a separate suit under state law). As to the USDA inspector hypothetical, accommodating that religious objection would indeed be very burdensome from the government. But say that there’s a particular meat processor that only ships meat on Saturdays, and this USDA inspector refuses to come in Saturdays to inspect that processor; instead, he arranges for a coworker to cover for him, because there are plenty of other tasks that he could do instead. Clear case for a Title VII religious accommodation, no? Why not RFRA then, too? Eugene
From: [email protected] [mailto:[email protected]]On Behalf Of Paul Finkelman Sent: Wednesday, September 02, 2015 8:27 PM To: Law & Religion issues for Law Academics Subject: Re: Question about the Kentucky County Clerk controversy It seems you raise the great RFRA question, can RFRA allow people to hold jobs (especially government jobs) knowing that they will not in fact do the job? This seems to be like Thomas v. Review Board of Indiana (1981). Thomas's job changed. He now had to make military hardware, which violated his religious beliefs. He could not do his job, so he quit and was allowed to take unemployment compensation. Isn't that the situation here? The law has changed and the employee refuses to do her job. Suppose an animal rights activist, who bases her views on religious grounds, wins a job as county health inspector, and refuses to certify restaurants or grocery stores or butchers, that sell meat. Then has them closed down for not being certified. Does RFRA protect her? Can the same person become a USDA inspector and then refuse to certify inspected meat and claim a RFRA right? It seem to me that the clerk in Ky, consistent with her religious beliefs, must resign, and then collect unemployment compensation, like Thomas. To extend this, what if the legislature impeaches her, or somehow she is forced to resign because she does not want to go to jail. And then she runs for the same office and wins? At what point can you be precluded from taking a government job that you know you will not do? (Can a pacifist join the army and then refuse to serve? can a Quaker become the state executioner?) ****************** Paul Finkelman, Ph.D. Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholars Advisory Panel National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (w) 518-605-0296 (c) [email protected] www.paulfinkelman.com From: "Friedman, Howard M." <[email protected]> To: Law & Religion issues for Law Academics <[email protected]> Sent: Wednesday, September 2, 2015 10:10 PM Subject: RE: Question about the Kentucky County Clerk controversy Kentucky law requires the license to be signed by the clerk or deputy clerk.http://www.lrc.ky.gov/statutes/statute.aspx?id=36475 I have a different question though. State RFRAs protect against actions by the government that infringe religious liberty. Here Kim Davis "is" the government, i.e. she is objecting to actions she is required to take in her official capacity. Should RFRAs be read to protect government officials in that kind of situation? Howard Friedman From:[email protected] [[email protected]] on behalf of Paul Finkelman [[email protected]] Sent: Wednesday, September 02, 2015 8:48 PM To: Law & Religion issues for Law Academics Subject: Re: Question about the Kentucky County Clerk controversy Quick question. Does anyone know if KY law requires the clerk to issue the license in the Clerk's name, as opposed to "the office of the Clerk" as Eugene suggests? ****************** Paul Finkelman, Ph.D. Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholars Advisory Panel National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (w) 518-605-0296 (c) [email protected] www.paulfinkelman.com From: "Volokh, Eugene" <[email protected]> To: "Law & Religion issues for Law Academics ([email protected])" <[email protected]> Sent: Wednesday, September 2, 2015 6:31 PM Subject: Question about the Kentucky County Clerk controversy 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. Seehttp://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 _______________________________________________ To post, send message to [email protected] 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 [email protected] 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 [email protected] 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 [email protected] 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.
