1. She may be motivated by disapproval of same-sex marriages,
but she is treating same-sex couples precisely the same way as opposite-sex
couples. Both refusing to issue all licenses and the proposed removal of her
name from the licenses treat all couples the same.
2. Just as closing city swimming pools entirely, even if
motivated by racial hostility, doesn’t violate the Equal Protection Clause, see
Palmer v. Thompson, so closing the marriage license window entirely doesn’t,
either. Even more clearly, reopening the window but seeking to have her name
removed from all marriage licenses wouldn’t violate the Equal Protection
Clause, either.
3. The federal RFRA could be raised as a defense to a federal
court order, just as the Kentucky RFRA could be raised in a state court
proceeding seeking an exemption from the rule that the clerk’s name must appear
on the license. I thus don’t see how Boerne is relevant. But I agree that the
federal RFRA shouldn’t succeed as a defense against the federal court order,
since if refusal to issue licenses violates the Due Process Clause, RFRA can’t
authorize such a refusal.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Saturday, September 05, 2015 7:12 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene
She is motivated by prejudice against same sex couples. Her motivation for that
is not relevant under what I thought to be well settled and noncontroversial
equal protection jurisprudence. She has no rational reason to treat same sex
couples differently from opposite sex couples under the law. Obergefell says
such differing treatment is not rational.
How can a state RFRA undo this constitutional norm and obligation?
The federal RFRA does not apply (Boerne). So how does the issue of substantial
burden even arise? (Smith)
The claim is not title VII, it is the 14th amendment directly. If smith and
Reynolds stand for anything anymore it is that the religious base unit veto
does not work.
Sent from Steve's iPhone
On Sep 5, 2015, at 9:27 PM, Scarberry, Mark
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:
I think Howard’s point cuts the other way, as I’ll note in a moment.
A few quick thoughts:
It seems at the very least odd to me that a federal judge would decide what
Kentucky thinks is a compelling interest for purposes of the Kentucky RFRA. If
Kentucky thinks that having every clerk in every county issue marriage licenses
is a compelling interest, perhaps we might let the state take action, rather
than having a federal judge do so.
It also seems odd to me that a federal judge would decide that state law
requires a state official to take an action. So far, it’s hard to see the
federal question that would justify the federal judge in deciding these state
law issues as a matter of pendent (or ancillary, I can’t keep them straight)
jurisdiction. Indeed, to decide what state law requires Davis to do requires an
application of Kentucky’s RFRA, which in turn, as noted above, requires a
federal judge to determine what the state of Kentucky considers to be a
compelling interest (and what, as a matter of Kentucky law, may be an
appropriate alternative means of advancing any such interest).
At least one list member seems to argue that the Kentucky RFRA doesn’t protect
Davis, with regard to her obligations under state law, because the state
legislature would have to act in order to provide an alternative means for the
state to advance its compelling interest. Set aside for a moment how to define
that interest and whether it is compelling. By enacting its RFRA, the Kentucky
legislature bound itself not to substantially burden a person’s religious
exercise by way of its legislation, if the legislature has, but chooses not to
implement, an alternative way of advancing interests it deems compelling. The
Kentucky legislature has put the burden on itself: it can act to implement an
alternative means, or it can act to exempt the particular state obligation from
the reach of the Kentucky RFRA. If it chooses to do neither, then it has chosen
not to burden the person’s religious exercise. That is not a bug; it is a
feature of a state RFRA, and an intended feature.
It appears to me – as I think Howard’s point suggests – that Kentucky law
requires or at least may well require that Davis’s name be on the license, and
that the license be issued pursuant to Davis’s authority as clerk. The deputy
clerk can’t, if I understand Howard’s point correctly, issue a license in any
other way. The issuance of the license under Davis’s authority with her name on
it would appear to create a relatively close relationship between Davis and the
wedding that she, in order to be true to her sincere religious beliefs, cannot
facilitate (let alone be responsible for the authorizing of the wedding).
Again, what is the federal judge’s role in determining the meaning of state
statutes?
Davis has a duty under Kentucky law – she can certainly say she has a duty, it
seems plain that she does, and it would seem strange for a federal judge to
hold otherwise – to make sure that licenses issued through her office be valid
licenses under Kentucky law. If she believes that an altered form of license is
not valid, she has every reason to prohibit a deputy clerk from issuing such a
license.
That brings us back them to whether she is entitled to an exemption under the
KY RFRA from her statutory duty to issue licenses. If so, then her actions make
perfect sense.
Then the remaining question is whether she is obligated under the US
Constitution to issue licenses. I don’t think the swimming pool closure cases
clearly lead to the conclusion that she has an obligation to issue licenses,
though I need to go back and review them; I disagree with Steve on that point
if I understand him correctly. Assuming her treatment of all couples the same
is not unconstitutional discrimination against same-sex couples, then the issue
would be whether it is an unconstitutional burden on the right to marry for a
state to ask couples to drive an hour to another office to get a license. That
seems unlikely.
With regard to Steve’s argument that only animus could be behind Davis’s
actions, the majority in Obergefell rejected the notion that opposition to
same-sex marriage was necessarily motivated by animus. Of course, the dissent
said that the majority didn’t really mean that, and perhaps we are now seeing
that people think the majority didn’t mean it.
Mark
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Saturday, September 05, 2015 4:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene
It would depend on whether there’s a compelling government
interest in maintaining this particular aspect of uniformity; I doubt that
there would be. Many religious exemptions, after all, undermine the uniformity
of a legal rule that is generally uniform (e.g., no peyote) or at least
uniform. If uniformity is really critical (as it has been held to be with
taxes), then exemptions could be denied on those grounds. But there really
would have to be a compelling interest in uniformity, and not just a general
desire for uniformity.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Saturday, September 05, 2015 3:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene
In discussing the changes that Ms. Davis might have made in the license form to
accommodate her religious beliefs, I don't believe anyone on this list has
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:
"The form of marriage license prescribed in KRS 402.100 shall be uniform
throughout this state, and every license blank shall contain the identical
words and figures provided in the form prescribed by that section. In issuing
the license the clerk shall deliver it in its entirety to the licensee. The
clerk shall see to it that every blank space required to be filled by the
applicants is so filled before delivering it to the licensee."
Changes by her office would prevent the license from being uniform throughout
the state. Do her state RFRA rights trump this?
Howard Friedman
________________________________
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
on behalf of Ira Lupu [icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>]
Sent: Saturday, September 05, 2015 6:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene
A few questions, and forgive me if they have been asked and answered on this or
related threads on this listserv:
1) Why did Ms. Davis stop issuing all marriage licenses? God did not tell her
that issuing licenses for different-sex couples was sinful or wrong. Was this
full closure on advice of counsel (don't discriminate, that will be harder to
defend than a shut down for everyone)? Was that sound advice, in light of the
due process holding in Obergefell about the right to marry? Whatever the
reasons, what seems obvious is that Kentucky law did not burden her religious
exercise with respect to different sex couples, so her Kentucky RFRA claim for
a right to withhold licenses from those couples must be worth zero.
2) Obergefell was decided in late June. Ms. Davis knew from then on that she
eventually would be asked to issue a license for a same-sex couple. Could she
have gone to state court, seeking a a declaratory judgment (against whom?) that
RFRA gave her the right to remove her name from some marriage licenses? Who is
the employer from whom she was seeking an accommodation? Is anyone her boss?
If she is her own boss, she could grant herself an accommodation. (Let's take
my name of some of those license forms. Done.) She didn't do any of these
things. She just waited, and then she shut down her office to everyone,
including couples whose marriages did not implicate her religious freedom. She
wants equitable relief -- delay reopening my office until my religious concerns
can be accommodated, even if that takes months. Would it be appropriate to
impose some form of equitable estoppel on her state RFRA claims now -- after
all, she imposed the costs of her objection on every marriage applicant in the
County.
3) Substantial burden -- to what coercive choice is Kentucky putting Ms. Davis?
Kentucky RFRA applies only to acts of Kentucky government, state or local.
(Applying it fto ederal action would be an attempt at nullification, barred by
the Supremacy Clause.) Has she been indicted, fired, impeached? (I know there
was talk of a criminal prosecution, but it seems to have faded away.) If she
faces no civil or criminal burden under Kentucky law, then the state (and the
County) have not burdened her religious exercise. The burden all comes from
enforcement of the federal Constitution, and state RFRA can't help her there.
If and when the State or County come after her with threat of punishment or
loss of job, RFRA might be her defense (but then she will be stuck with the
issue of denying licenses to everyone; RFRA cannot help her with that.)
On Sat, Sep 5, 2015 at 3:42 PM, Arthur Spitzer
<artspit...@gmail.com<mailto:artspit...@gmail.com>> wrote:
Marty says: "Davis is not seeking for the court to give her a
just-not-with-my-name-on-them accommodation --- something he has in fact just
given her!"
Perhaps I missed this detail in one of your earlier posts, Marty. Can you fill
me in on just how the court has already provided this relief? I thought the
forms were pre-printed with her name and title. Did the court authorize her to
print new forms? Or to black out her name with a magic marker?
Thanks,
Art Spitzer
Warning: This email is subject to monitoring by the NSA.
On Sat, Sep 5, 2015 at 3:33 PM, Marty Lederman
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
1. I don't understand Kim Davis to claim "that God would view her issuing such
licenses with her name on them as authorization." I can't even imagine what
that would mean: That God has a view of when the appearance of a name on the
"issued in" line of a state licensing form constitutes one human being
"authorizing" another to perform a marriage? That God has a view about the
actual legal operation of Kentucky law? Of course not. Davis instead argues
that she would be sinning because her name would provide legal authorization to
the minister, under KY law. That's a secular question.
2. As I understand it, Davis is not seeking for the court to give her a
just-not-with-my-name-on-them accommodation --- something he has in fact just
given her! -- but instead is asking the court to grant her the right to prevent
all licenses from being issued in the county, on the theory that the
legislature could, in theory, create the just-not-with-my-name-on-them
accommodation.
3. Most importantly, you seem to agree, Eugene, that the very possibility of
such a legislative fix is not sufficient to give Davis a RFRA right to
cessation of all issuance of marriage licenses in her county. Does this mean
that you disagree with the Alito view of "least restrictive means" -- to
include all possible legislative alternatives -- which the plaintiffs are
pressing hard in the contraception cases?
On Sat, Sep 5, 2015 at 3:17 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
Marty doesn’t view her issuance of the licenses as
authorization. He may well be right that Kentucky law doesn’t view it as
authorization. But, as I understand it, Kim Davis claims that God would view
her issuing such licenses with her name on them as authorization. If that is
indeed Kim Davis’s claim, which it seems to be, then I don’t think it matters
that Kentucky’s view is not Kim Davis’s view of God’s view.
Now I agree that Davis is not entitled to the cessation of all
issuance of marriage licenses in her county as an accommodation – that would
unduly interfere with the state’s interest in providing marriage licenses to
its citizens (and possibly the citizens’ federal constitutional right in having
licenses issued by their county of residence, though that’s a somewhat more
contested question). But if she continues to seek a
just-not-with-my-name-on-them accommodation, which she indeed said in her stay
application would be adequate, then the Kentucky RFRA would entitle her to that
exemption.
Eugene
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