1. As best I can tell, County Clerk positions have quite modest
discretionary authority. The County Clerk’s job is mostly to administer the
office effectively.
2. But in any event, I’m not sure why the overall nature of the
elected position should affect much here. Without a doubt, Title VII’s
reasonable accommodation requirement doesn’t allow ordinary employees to veto
office policy generally; at most, it requires the employer to offer low-cost
accommodations that would still let the job get done. State RFRAs might or
might not require more, but probably not much more. The same, I take it, would
apply to policymaking employees, or to elected officials.
The question then is the particular kind of accommodation that
is sought. I agree that Davis shouldn’t get an accommodation that would
involve shutting down marriage licenses in the county. But if Davis sues under
the Kentucky RFRA, asking simply that the form not include her name, how is
that “a veto”? Why wouldn’t that be precisely the sort of low-cost
accommodation that a state RFRA would authorize?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of K Chen
Sent: Wednesday, September 02, 2015 9:57 PM
To: Paul Finkelman; Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy
"I agree that the key question is how hard it is to provide an accommodation.
But as I understand the claim, here the accommodation would be easy: She
doesn’t demand that marriage licenses be unavailable from her office, or even
that same-sex marriage licenses be unavailable from her office. She just wants
a deputy’s name (or perhaps even the generic “Court Clerk”) to appear on the
form instead of hers. How hard is that?"
Fairly? It may be simple from a word processing stand point, but it bakes an
injury into every marriage license that the county issues from that point
forward by creating two separate classes of license, one which has the approval
of the appropriate minister and one that has it conspicuously absent. This is
unlike the individual governmental employee in a large office who moves from
one end of the office to the other to avoid processing a particular kind of
paperwork - the office as a whole produces the same product, the burdens are
simply shifted among the various constituent parts of the entity. Here, the
"product" if you will, is altered significantly. Is it all that different than
her demanding an accommodation to have the county clerk's office issue civil
union licenses instead of marriage licenses? There is a distinct difference
between requesting an accommodation and overriding policy. KRS 402.100
<http://www.lrc.ky.gov/statutes/statute.aspx?id=36475> requires clerks to "use
the form prescribed by the Department for Libraries and Archives".
While I suppose one can be elected for a purely ministerial position, there is
a general assumption that elected positions have significant discretionary and
therefore policy making powers. Granting accommodations to such persons does
not grant them an accommodation so much as it grants them a veto, as can be
seen in Davis shutting down the office entirely.
Kevin Chen, Esq.
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