Sorry, I had not previously seen Eugene's post on the VC: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/
Eugene argues that perhaps Davis is entitled under the Kentucky RFRA to have her office (that is, her deputies) issue licenses without her name appearing on them. For reasons I've already offered, I don't think this is right, because I don't think there's a substantial burden on her religious exercise. But more to the point, and even if I'm wrong about the substantial burden point: Davis doesn't think the Kentucky RFRA permits that resolution, either. She is not trying to have her office issue licenses without her name--to the contrary, she has tried to *forbid her deputies *to issue licenses without her name, because she thinks that Kentucky law, as a whole (even including its RFRA), does not allow it (i.e., such licenses would not be valid). Her argument, instead, is that the Kentucky RFRA should afford her the authority to *prohibit the office from issuing licenses altogether*, because the Kentucky legislature *could* amend the marriage licensing law to provide that the Clerk's name can be omitted, i.e., because a lesser restrictive alternative law is in some sense available to the Commonwealth -- albeit one it has not yet enacted. On Sat, Sep 5, 2015 at 10:50 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > FWIW, my effort to make sense (?) of the mess; please let me know if I've > gotten anything wrong (or if anyone has a transcript of the contempt > hearing on Thursday, which might help explain things). Thanks > > http://balkin.blogspot.com/2015/09/does-anyone-have-any-idea-whats.html > > On Thu, Sep 3, 2015 at 5:49 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > >> The reports I've seen (e.g., >> http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) >> do not make clear exactly what's happening, other than that Davis is >> incarcerated. >> >> 1. Is the County Executive Judge now issuing certificates and licenses >> (which might ironically eliminate the grounds for Davis's contempt >> incarceration . . . until she refuses to allow the documents to be issued >> to the next couple that appears)? >> >> 2. What was the deal the judge offered her, regarding her deputies >> issuing the documents? Did she refuse it because her name would continue >> to appear on the two lines? Or did the judge say that she could omit her >> name and she still refused? >> >> Thanks in advance for any info, or, better yet, links to actual documents. >> >> On Thu, Sep 3, 2015 at 2:14 PM, Cohen,David <ds...@drexel.edu> wrote: >> >>> Hi all - a mootness question for you. In the case of the KY clerk who >>> was jailed today for refusing to comply with a district court order that >>> required her to issue a marriage license to a gay couple (and stay denied >>> from the 6th Circuit or Supremes), according to some news reports, now that >>> she is in jail and not able to serve, state law allows a county’s executive >>> judge to now issue licenses. So, presumably that will happen relatively >>> quickly, and the plaintiffs will get their licenses. >>> >>> >>> >>> Is the case now moot and the clerk can get out of jail because she’d no >>> longer be in contempt of a court order, since the case is vacated as moot? >>> And the issue isn’t capable of repetition at this point for the plaintiffs, >>> as they now have a license and can’t get another (until divorced, which may >>> never happen). It certainly is capable of repetition for other people, but >>> not these plaintiffs (and they haven’t filed a class action, to the best of >>> my knowledge). We’ve been around this issue before, and to the best of my >>> recollection, most people believe the cases say that the “capable of >>> repetition” part has to be for the particular plaintiffs, not for someone >>> else. >>> >>> >>> >>> In other words, is she in jail for an hour, maybe a day, and then back >>> at it shortly to deny someone else a license (when that eventually happens) >>> only to repeat the whole thing again? >>> >>> >>> >>> David >>> >>> >>> >>> *David S. Cohen* >>> >>> *Professor of Law* >>> >>> >>> Thomas R. Kline School of Law >>> >>> *Drexel University * >>> >>> 3320 Market St. >>> >>> Philadelphia, PA 19104 >>> >>> Tel: 215.571.4714 >>> >>> drexel.edu <http://drexel.edu/law/faculty/fulltime_fac/David%20Cohen/> | >>> facebook <https://www.facebook.com/dsc250> | twitter >>> <https://twitter.com/dsc250> >>> >>> Available NOW <http://www.livinginthecrosshairs.com/>: *Living in the >>> Crosshairs: The Untold Stories of Anti-Abortion Terrorism *(Oxford) >>> >>> >>> >>> _______________________________________________ >>> To post, send message to conlawp...@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof >>> >>> 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. >>> >> >> >
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