Based on a quick review of the filings, I don't see how Davis's position has shifted.
Davis's opposition to the preliminary injunction motion from July 30 says: "Even though one of her deputy clerks (and perhaps two) is (or are) willing to issue a SSM license, she instructed all deputy clerks to stop issuing marriage licenses because licenses are issued with her authority (not the deputy clerkâs) and every license requires her name to appear on the license (even if signed by a deputy clerk)." The idea that licenses issued from the Rowan County Clerk's Office are issued under the authority of the Rowan County Clerk makes sense. And it also makes sense that if Davis does not wish her authority to be used to authorize marriages, then she would not wish her office to issue authorizations to marry. It would have been odd, for example, if Kentucky's Attorney General had said that he would not be defending Kentucky's marriage law, but that his office would continue to do so through his deputy. It made sense that the state hired private counsel instead. It is not "no big deal" to let a marriage licensing official take his or her office out of the business of doing something the official's religious conscience forbids. But neither is doing so "terribly burdensome" if the government could easily substitute another official to carry out the state's duty so that nobody's right to marry is burdened. ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [jole...@lclark.edu] Sent: Tuesday, September 08, 2015 7:28 PM To: Law & Religion issues for Law Academics Cc: Michael Dorf; Dellinger, Walter; conlawp...@lists.ucla.edu; Howard Wasserman Subject: Re: Davis doubles down For what it's worth, in their filing to the Sixth Circuit yesterday, Davis's attorneys insisted that she was not making a complicity claim akin to that being made in the contraception cases, and they emphasized that her concern was the appearance of her name on the forms (emphasis in original): "Importantly, Davis is not claiming a substantial burden on her religious freedom if someone else authorizes and approves a SSM license devoid of her name. For example, Davis is not claiming that her religious freedom is substantially burdened if she must complete an opt-out form to be exempted from issuing SSM licenses. Davis is also not claiming that a SSM license authorized by the Rowan County Judge/Executive and devoid of her name and authority substantially burdens her religious freedom. Davis is also not claiming that her religious freedom is substantially burdened if the license were issued by someone else in Rowan County (e.g., a deputy clerk), so long as that license is not issued under her name or on her authority." I gather that the last phrase -- "on her authority" -- is what her attorneys are now emphasizing. As long as she is the County Clerk, the issuance of marriage licenses in the name of the County Clerk's office, even without her name, is on her authority and a violation of her RFRA rights. In his post, Eugene notes that this claim may go beyond what the Kentucky RFRA guarantees, but he also opines that "the accommodation doesn't seem terribly burdensome." Do others feel similarly? Is it really just no big deal to require the government to alter the use of government names (Rowan County Clerk's Office) to accommodate the religious beliefs of individual government officials, even after their names have been removed from the equation? If the U.S. Attorney for the District of Massachusetts opposed the death penalty on religious grounds, and was allowed to take his name off of all filings in capital cases, would we really entertain a claim that it would not be terribly burdensome to require the government to take the office's name off of all such filings? - Jim On Tue, Sep 8, 2015 at 3:28 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: Eugene reports, pursuant to a phone conversation with Davis's attorneys, that she will continue to press her RFRA claim, and insist that the licenses not be issued, because, even though her name is no longer on the licenses, the name of her office is! https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/ It's just like the contraception cases -- whenever the government accommodates even the most implausible theories of complicity by eliminating the aspects of the scheme that the plaintiff asserted made her morally complicit, the plaintiff then unveils a new (and even more attenuated) theory of responsibility that is said not to be left unaddressed by the accommodation. In this way, the plaintiffs effectively exploit the fact that the governments in question (admirably) do not choose to challenge the sincerity of the ever-evolving theories of complicity. On Mon, Sep 7, 2015 at 6:14 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: I'm pressed for time, so this is only a preliminary take, but thought it'd be worth throwing it out there for reactions: http://balkin.blogspot.com/2015/09/further-strangeness-in-kim-davis-case.html _______________________________________________ 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.
