I think Steve gets it exactly right.
Sent from my iPhone On Sep 6, 2015, at 12:42 PM, Steven Jamar <stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote: I don’t know that anyone can really know the extent of their biases influencing their thinking. Deep things like being a trained historian vs. an engineer can infect how we view the law. Life experiences — poor or rich, elite or marginal, black, white or other, etc. surely impact how we view things. But on this one, I am in favor of reasonable accommodations that favor religious exercise. I’m even in favor of finding an accommodation for Ms. Davis. But the propriety of finding/making an accommodation does not excuse her flouting of clear constitutional requirements. If she plays MLK Jr or Gandhi and says “I will not follow your unjust law but I recognize your right to jail me for failing to follow it” — well that would be one thing. But she is not. She is claiming to above the law, not merely that she is acting according to the dictates of her conscience or her religion — but that this higher law excuses her refusal to do her job. It does not. She is taking a stand and witnesses for her beliefs by becoming a martyr for her cause. But she is not a private citizen in a private job. She is an elected official elected to do a ministerial job. She is not rendering unto Ceasar that which is his. She is denying the validity of Ceasar’s power. She is not walking the extra mile, shouldering the Centurian’s burden; she is dropping the load on the road and demanding to be applauded for it. She is placing her personal religious beliefs above the requirements of We the People acting through our Supreme Court and federal government. Disliking that is not a matter of political stance on same sex marriage or the morality of homosexuals. One can claim as the dissenters in Obergefell did and still do with respect to abortion rights that the court got it wrong. But even so that does not give one the right to play President Jackson and send thousands to their death along the trail of tears. The magnitude is different; the principle is the same. Steve Jamar On Sep 6, 2015, at 10:57 AM, Levinson, Sanford V <slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote: I do find myself wondering how much the reaction to Ms. Davis is simply a proxy for our politics. Consider, eg, the efforts by some of the conservative pols who support Ms. Davis (like Ted Cruz) to go after "sanctuary cities). I suspect that many of us support such sanctuaries against our Draconian immigration policies, and one might recall that the leader of an earlier sanctuary movement was Los Angeles' Cardinal McIntyre. As someone who has long criticized extravagant theories of judicial supremacy and still (weakly) supports RFRA, I do find it challenging to figure out exactly why I'm so hostile to Ms. Davis. Part of it, of course, is my own support for same-sex marriage and Obergefell. But another, I'm afraid is my animus against the absurdity of her claim. I know I shouldn't take that into account, but I can't help it. Catholic arguments are deeply reason-oriented, and I can disagree with them, as I do on same-sex marriage, on the basis of what I'd like to think are equally reasoned arguments. Ms. Davis takes us out of the realm of reason into sheer subjective "sincerity." Tertullian is famous for defending Christian belief precisely because it was "absurd." As Eugene reminded us, one can easily say the same thing about the purported revelation at Sinai. I apologize if this is too rambling. Some of you might be interested in a recent symposium on Balkinization on Roberta Kwall's The Myth of the Cultural Jew. Sandy Sent from my iPhone On Sep 6, 2015, at 12:11 AM, Scarberry, Mark <mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote: Section 402.100 appears to require that the license include “[a]n authorization statement of the county clerk issuing the license.” The section allows the license to be signed by the clerk or deputy clerk (which shows that the legislature knew how to include the deputies where it wanted to include them) but the authorization statement authorizing the appropriate celebrants to perform the marriage and unite the couple in marriage must be a statement of the county clerk. The county clerk must authorize the uniting of the couple in marriage. Here is the relevant language: “Each county clerk shall use the form prescribed by the Department for Libraries and Archives when issuing a marriage license. This form shall provide for the entering of all of the information required in this section, and may also provide for the entering of additional information prescribed by the Department for Libraries and Archives. The form shall consist of: (1) A marriage license which provides for the entering of: (a) An authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named; (b) Vital information for each party, including the full name, date of birth, place of birth, race, condition (single, widowed, or divorced), number of previous marriages, occupation, current residence, relationship to the other party, and full names of parents; and (c) The date and place the license is issued, and the signature of the county clerk or deputy clerk issuing the license It would seem to me that if the form does not include an authorization statement of the clerk (not a deputy clerk), then the form will not have been filled out as required by section 402.100. The second reference to issuance of the license by the county clerk or deputy clerk may muddy the waters. I certainly don’t think a federal court has the expertise to instruct the county clerk, who is charged with complying with 402.100 and 402.110, on the meaning of the section, or on the consequences of a potential failure to comply with it. If Davis believes a license without an authorization from her by name (indicating that she has authorized the performance of the marriage) does not comport with Kentucky law, then she either must authorize the marriages or instruct persons seeking licenses to drive an hour to another county. It also is a bit ironic that same-sex marriage proponents who cheered when officials issued licenses in violation of the explicit terms of state law (not necessarily any members of this list), now think it’s improper for Davis to act on the basis of her understanding of state law, which of course includes the state RFRA. 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 Marty Lederman Sent: Saturday, September 05, 2015 7:59 PM To: Law & Religion issues for Law Academics Subject: Re: What's happening in KY? -- my differences with Eugene Howard: As the Deputy Clerk is implementing the licenses, the form of the license is the same as that throughout the state, and every license blank does contain the identical words and figures provided in the form prescribed by section 402.100. The only difference is that the Clerk's nameis not written in on the blank where it would ordinarily appear. That doesn't in any way transgress 402.110. On Sat, Sep 5, 2015 at 6:55 PM, Friedman, Howard M. <howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>> wrote: 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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> 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 Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> 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. -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org “There are no wrong notes in jazz: only notes in the wrong places.” Miles Davis _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> 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 Religionlaw@lists.ucla.edu 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.
