Dear Eugene (and colleagues), I realize the conversation has moved on a bit, but I wanted to thank you for this hypo; it's been on my mind, too. For what it's worth, when I was a law clerk, I was -- or, I felt that I was -- in something like the situation you describe when I was the designated clerk for handling the last-day motions and memos at the Court, and coordinating the justices' responses, when an execution was scheduled.
As you probably remember, it was often the task of that law clerk to sign (for his or her boss) the order denying relief and (as a result) allowing the scheduled execution to go forward. A number of us who opposed capital punishment (as I did) spent a fair bit of time working through what we saw as the possible complicity issues. I concluded that I didn't need to ask my boss for any kind of accommodation -- my part seemed remote and "ministerial" -- but I cannot remember if others came to a different conclusion. I remember thinking, though, that such an accommodation would probably have been (informally) given, so long as the other clerks in chambers were willing to pick up the work. (Of course, unlike in the Davis situation, it would have been asking a lot, and imposing a lot, for me to ask them to do so.) Best wishes, Rick Richard W. Garnett Paul J. Schierl / Fort Howard Corporation Professor of Law Concurrent Professor of Political Science Director, Program on Church, State & Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Mirror of Justice <http://mirrorofjustice.blogs.com/> Prawfsblawg <http://prawfsblawg.blogs.com/> Twitter: @RickGarnett <https://twitter.com/RickGarnett> On Sat, Sep 5, 2015 at 2:33 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > Let me bring up again something that I think I mentioned > earlier. Say that in the state of Kennessee, death warrants have to be > filed in a county clerk’s office together with a county clerk’s > “acknowledgment of filing of death warrant” form, and by statute that > acknowledgment form has to include the county clerk’s name (though not her > signature). > > > > Say that Jane Smith, a county clerk, believes that the death penalty is > murder, and thus a grave sin. She also believes that complicity with the > death penalty is itself sinful. She realizes, though, that everyone in > society is in some measure connected with everything – through paying > taxes, through providing staple goods and services (such as selling the > paper on which a death warrant will be printed), and so on. That is > especially so of government employees and officials. So, after reflection, > prayer, and fasting, she concludes that it would be permissible for her > office to file the death warrant, but that having her name on an > acknowledgement of a warrant authorizing a man’s killing would be > unacceptable complicity. This is purely symbolic, of course, but she > thinks this symbolism matters to God, just as symbolism matters in many > other contexts to many other people. She goes to state court, arguing that > under the state RFRA, she should be allowed to have her office file the > warrants with a form that excludes her name. > > > > Why wouldn’t that be a standard, relatively straightforward application of > the state RFRA? There is indeed a compelling government interest in making > sure that the democratically authorized death penalty is implemented, > notwithstanding the objection of one elected official. But the requirement > that the clerk have her office file documents with her name isn’t necessary > to serving that compelling interest; a court order stating that, under the > state RFRA, the clerk can have her office file the documents without her > name included, would make clear that the documents without the name are > valid. The compelling government interest is served. The religious > objector’s religious beliefs, however unreasonable some might view them as > being, are satisfied. Isn’t that precisely what state RFRAs are supposed > to do? > > > > (Of course, I realize that many people have a very different view of the > morality of the death penalty and of same-sex marriage – but I take it that > those differences shouldn’t affect the state RFRA analysis.) > > > > Eugene > > _______________________________________________ > 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. >
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