Re: N. Carolina religious exemption for officials w/r/t performing and licensing marriages
I believe your reading of the statute is correct. It is much like Utah's similar law in that the accommodation cannot act as a chokepoint to deny any couple from accessing solemnization services in any county and those asking for the accommodation cannot pick and choose which couples to serve. While I am no fan of SB2, I am hard pressed to see this doing much damage. Anthony Michael Kreis, J.D. University of Georgia School of Public Int'l Affairs Sent from my iPhone On Jun 12, 2015, at 7:31 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: That is to say, the Franke/Loewentheil memo addresses cases in which same-sex couples would face indignity, delay, and uncertainty about whether they can appear, without fear of facing rejection on the basis of their sexual orientation. The NC Act cleverly circumvents this problem -- or tries to, anyway -- by simply allowing magistrates/registers who object to involvement in any NC marriages (SSM or otherwise) to be recused from the business of performing/licensing all marriages -- that is to say, marriage services would no longer be part of that person's job description at all. The same-sex couple would not be turned away; the marriage desk would simply be manned by someone who has not opted out of those duties, for same-sex- and opposite-sex couples alike. Have I misunderstood the statute? On Fri, Jun 12, 2015 at 6:22 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: Unless I missed it, I don't believe that memo addresses the sort of exemption covered by the NC law. On Thu, Jun 11, 2015 at 10:18 PM, Nelson Tebbe nelson.te...@brooklaw.edumailto:nelson.te...@brooklaw.edu wrote: Katherine Franke, Kara Loewentheil and their team put together an analysis of this issue late last year. It's available here: http://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/prpcp_marriage_exemptions_memo_nov_5.pdf On Jun 11, 2015, at 9:28 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: The North Carolina legislature just passed this legislation over the (Republican) governor's veto: http://www.ncga.state.nc.us/Applications/BillLookUp/LoadBillDocument.aspx?SessionCode=2015DocNum=5074SeqNum=0 As I read it, a magistrate may recuse from performing all marriages (which is otherwise a magistrate's duty) based upon any sincerely held religious objection. The same is true for registers of deeds with respect to issuance of marriage licenses. (Note that it does not require any religious burden -- it is sufficient that the individual merely object to participation (or to certain marriages themselves) on religious grounds.) The recusal would not be specific to particular marriages, or even particular types of marriages. (The statute doesn't mention SSM.) If the public official objects to any marriages (or to facilitating them) on religious grounds, her only option is to categorically recuse from the marriage functions of her job description--a decision that must last for at least six months. Thus, I suppose the theory is that no couples are turned away, or even directed to a different official--rather, some officials will simply be out of the marriage business altogether, for at least six months (after which they can chose to get back in the game if they wish. Thoughts? ___ To post, send message to Religionlaw@lists.ucla.edumailto: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.edumailto: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.edumailto: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.
Re: N. Carolina religious exemption for officials w/r/t performing and licensing marriages
Unless I missed it, I don't believe that memo addresses the sort of exemption covered by the NC law. On Thu, Jun 11, 2015 at 10:18 PM, Nelson Tebbe nelson.te...@brooklaw.edu wrote: Katherine Franke, Kara Loewentheil and their team put together an analysis of this issue late last year. It's available here: http://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/prpcp_marriage_exemptions_memo_nov_5.pdf On Jun 11, 2015, at 9:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: The North Carolina legislature just passed this legislation over the (Republican) governor's veto: http://www.ncga.state.nc.us/Applications/BillLookUp/LoadBillDocument.aspx?SessionCode=2015DocNum=5074SeqNum=0 As I read it, a magistrate may recuse from performing *all *marriages (which is otherwise a magistrate's duty) based upon any sincerely held religious *objection*. The same is true for registers of deeds with respect to issuance of marriage licenses. (Note that it does not require any religious *burden* -- it is sufficient that the individual merely object to participation (or to certain marriages themselves) on religious grounds.) The recusal would not be specific to particular marriages, or even particular *types *of marriages. (The statute doesn't mention SSM.) If the public official objects to *any *marriages (or to facilitating them) on religious grounds, her only option is to categorically recuse from the marriage functions of her job description--a decision that must last for at least six months. Thus, I suppose the theory is that no couples are turned away, or even directed to a different official--rather, some officials will simply be out of the marriage business altogether, for at least six months (after which they can chose to get back in the game if they wish. Thoughts? ___ 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. ___ 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. ___ 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.
Re: N. Carolina religious exemption for officials w/r/t performing and licensing marriages
That is to say, the Franke/Loewentheil memo addresses cases in which same-sex couples would face indignity, delay, and uncertainty about whether they can appear, without fear of facing rejection on the basis of their sexual orientation. The NC Act cleverly circumvents this problem -- or tries to, anyway -- by simply allowing magistrates/registers who object to involvement in any NC marriages (SSM or otherwise) to be recused from the business of performing/licensing all marriages -- that is to say, marriage services would no longer be part of that person's job description at all. The same-sex couple would not be turned away; the marriage desk would simply be manned by someone who has not opted out of those duties, for same-sex- and opposite-sex couples alike. Have I misunderstood the statute? On Fri, Jun 12, 2015 at 6:22 AM, Marty Lederman lederman.ma...@gmail.com wrote: Unless I missed it, I don't believe that memo addresses the sort of exemption covered by the NC law. On Thu, Jun 11, 2015 at 10:18 PM, Nelson Tebbe nelson.te...@brooklaw.edu wrote: Katherine Franke, Kara Loewentheil and their team put together an analysis of this issue late last year. It's available here: http://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/prpcp_marriage_exemptions_memo_nov_5.pdf On Jun 11, 2015, at 9:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: The North Carolina legislature just passed this legislation over the (Republican) governor's veto: http://www.ncga.state.nc.us/Applications/BillLookUp/LoadBillDocument.aspx?SessionCode=2015DocNum=5074SeqNum=0 As I read it, a magistrate may recuse from performing *all *marriages (which is otherwise a magistrate's duty) based upon any sincerely held religious *objection*. The same is true for registers of deeds with respect to issuance of marriage licenses. (Note that it does not require any religious *burden* -- it is sufficient that the individual merely object to participation (or to certain marriages themselves) on religious grounds.) The recusal would not be specific to particular marriages, or even particular *types *of marriages. (The statute doesn't mention SSM.) If the public official objects to *any *marriages (or to facilitating them) on religious grounds, her only option is to categorically recuse from the marriage functions of her job description--a decision that must last for at least six months. Thus, I suppose the theory is that no couples are turned away, or even directed to a different official--rather, some officials will simply be out of the marriage business altogether, for at least six months (after which they can chose to get back in the game if they wish. Thoughts? ___ 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. ___ 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. ___ 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.
Re: N. Carolina religious exemption for officials w/r/t performing and licensing marriages
I believe (and I may be mistaken on this) that Utah considered but did not enact this kind of perform marriages for all or for none rule for public officials with this kind of authority. I think Utah wound up with a right of selective opt-out for these officials. The North Carolina rule (all or none for 6 months), coupled with a guarantee that every county office must provide the relevant services to all, is certainly far preferable to a selective right of officials to opt out (I would say discriminate) re: provision of services. We all understand what is motivating this provision, but in operation it does not disadvantage or invite personal indignity to any couple, same sex or otherwise. On Fri, Jun 12, 2015 at 7:45 AM, Anthony Michael Kreis kr...@uga.edu wrote: I believe your reading of the statute is correct. It is much like Utah's similar law in that the accommodation cannot act as a chokepoint to deny any couple from accessing solemnization services in any county and those asking for the accommodation cannot pick and choose which couples to serve. While I am no fan of SB2, I am hard pressed to see this doing much damage. Anthony Michael Kreis, J.D. University of Georgia School of Public Int'l Affairs Sent from my iPhone On Jun 12, 2015, at 7:31 AM, Marty Lederman lederman.ma...@gmail.com wrote: That is to say, the Franke/Loewentheil memo addresses cases in which same-sex couples would face indignity, delay, and uncertainty about whether they can appear, without fear of facing rejection on the basis of their sexual orientation. The NC Act cleverly circumvents this problem -- or tries to, anyway -- by simply allowing magistrates/registers who object to involvement in any NC marriages (SSM or otherwise) to be recused from the business of performing/licensing all marriages -- that is to say, marriage services would no longer be part of that person's job description at all. The same-sex couple would not be turned away; the marriage desk would simply be manned by someone who has not opted out of those duties, for same-sex- and opposite-sex couples alike. Have I misunderstood the statute? On Fri, Jun 12, 2015 at 6:22 AM, Marty Lederman lederman.ma...@gmail.com wrote: Unless I missed it, I don't believe that memo addresses the sort of exemption covered by the NC law. On Thu, Jun 11, 2015 at 10:18 PM, Nelson Tebbe nelson.te...@brooklaw.edu wrote: Katherine Franke, Kara Loewentheil and their team put together an analysis of this issue late last year. It's available here: http://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/prpcp_marriage_exemptions_memo_nov_5.pdf On Jun 11, 2015, at 9:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: The North Carolina legislature just passed this legislation over the (Republican) governor's veto: http://www.ncga.state.nc.us/Applications/BillLookUp/LoadBillDocument.aspx?SessionCode=2015DocNum=5074SeqNum=0 As I read it, a magistrate may recuse from performing *all *marriages (which is otherwise a magistrate's duty) based upon any sincerely held religious *objection*. The same is true for registers of deeds with respect to issuance of marriage licenses. (Note that it does not require any religious *burden* -- it is sufficient that the individual merely object to participation (or to certain marriages themselves) on religious grounds.) The recusal would not be specific to particular marriages, or even particular *types *of marriages. (The statute doesn't mention SSM.) If the public official objects to *any *marriages (or to facilitating them) on religious grounds, her only option is to categorically recuse from the marriage functions of her job description--a decision that must last for at least six months. Thus, I suppose the theory is that no couples are turned away, or even directed to a different official--rather, some officials will simply be out of the marriage business altogether, for at least six months (after which they can chose to get back in the game if they wish. Thoughts? ___ 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. ___ 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
RE:
Plaintiffs who do seek damages for establishment clause violations often do so to forestall potential mootness issues even absent any likelihood of substantial damages. Injunctive relief claims can become moot either because the plaintiff cannot show the injury is capable of repetition to her, or, particularly in circuits that employ a presumption in favor of government defendants to overcome U.S. v. W.T. Grant Co., because the school officials voluntarily cease the allegedly unconstitutional conduct. Mike Michael R. Masinter Professor of Law Nova Southeastern University 3305 College Avenue Fort Lauderdale, FL 33314vi 954.262.6151 masint...@nsu.law.nova.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock Sent: Friday, June 12, 2015 10:38 AM To: 'Law Religion issues for Law Academics' Subject: RE: I think there is no legal or doctrinal basis for her statement. But the practical reality is that the damages are emotional or dignitary, and juries are generally unsympathetic, so plaintiffs usually don't seek damages and don't recover much when they do. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Friday, June 12, 2015 9:44 AM To: Law Religion issues for Law Academics Subject: In Smith v Jefferson County Bd. of School Comm'rs, 13-5957,decided yesterday by the Sixth Circuit,, the concurring judge(Judge Batchelder) said flat out that We do not grant monetary damages for violations of the Establishment Clause. No authority is cited for that proposition ,other than a remark that EC relief is equitable in nature. I know that other courts have awarded such damages, although with the exception of one 10th Circuit case, I don't know of any published opinions. Is Judge Batchelder right about this claim? I understand it will often be difficult to prove or quantify such damages, but I don't see a blanket rule against them. Marc D. Stern General Counsel AJC 212 891 1480 646 289 2707 (c ) 212 891 1495 (f) ste...@ajc.orgmailto:ste...@ajc.org www.ajc.orghttp://www.ajc.org/ Facebook.com/AJCGlobalhttp://www.facebook.com/AJCGlobal Twitter.com/AJCGlobalhttp://www.twitter.com/AJCGlobal [Description: cid:image005.jpg@01CFA04D.71B24C30] ___ 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.
[no subject]
In Smith v Jefferson County Bd. of School Comm'rs, 13-5957,decided yesterday by the Sixth Circuit,, the concurring judge(Judge Batchelder) said flat out that We do not grant monetary damages for violations of the Establishment Clause. No authority is cited for that proposition ,other than a remark that EC relief is equitable in nature. I know that other courts have awarded such damages, although with the exception of one 10th Circuit case, I don't know of any published opinions. Is Judge Batchelder right about this claim? I understand it will often be difficult to prove or quantify such damages, but I don't see a blanket rule against them. Marc D. Stern General Counsel AJC 212 891 1480 646 289 2707 (c ) 212 891 1495 (f) ste...@ajc.orgmailto:ste...@ajc.org www.ajc.orghttp://www.ajc.org/ Facebook.com/AJCGlobalhttp://www.facebook.com/AJCGlobal Twitter.com/AJCGlobalhttp://www.twitter.com/AJCGlobal [cid:image001.jpg@01D0A4F4.5C4ADD10] ___ 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.
Re: N. Carolina religious exemption for officials w/r/t performing and licensing marriages
Marty is right in his reading of the statute, but I believe that the Franke/Loewentheil letter makes arguments that are relevant to an evaluation of the statute, especially concerning the duty of public officials to serve everyone. It's debatable what the duty to serve all impartially means in the context of the NC law. (On p.6, the letter addresses situations where the state finds substitutes for unwilling officials, though the letter seems to contemplate individualized substitutions, not categorical ones.) The authors also point out that many proposed exemptions, like the one that actually passed, would protect public officials with religious objections to interracial or interfaith marriages as well. The Utah statute is somewhat more complicated. First, it differentiates between providing marriage licenses and solemnizing a wedding. Second, it not only (arguably) contemplates an exemption for objecting officials, but it also creates for the first time (I'm told) a duty on clerks to ensure that both licenses and solemnization services are available to everyone. Previously, as I understand the situation on the ground, some same-sex couples were having difficulty finding anyone to process their unions, especially in rural areas. Here is part the text of the Utah law, SB297. The full law is at the link below. Section 1. Section 17-20-4 is amended to read: 17-20-4. Duties of county clerk. A county clerk shall: (1) establish policies to issue all marriage licenses and keep a register of marriages as provided by law; (2) establish policies to ensure that the county clerk, or a designee of the county clerk who is willing, is available during business hours to solemnize a legal marriage for which a marriage license has been issued; http://le.utah.gov/~2015/bills/static/SB0297.html On Jun 12, 2015, at 9:39 AM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I believe (and I may be mistaken on this) that Utah considered but did not enact this kind of perform marriages for all or for none rule for public officials with this kind of authority. I think Utah wound up with a right of selective opt-out for these officials. The North Carolina rule (all or none for 6 months), coupled with a guarantee that every county office must provide the relevant services to all, is certainly far preferable to a selective right of officials to opt out (I would say discriminate) re: provision of services. We all understand what is motivating this provision, but in operation it does not disadvantage or invite personal indignity to any couple, same sex or otherwise. On Fri, Jun 12, 2015 at 7:45 AM, Anthony Michael Kreis kr...@uga.edumailto:kr...@uga.edu wrote: I believe your reading of the statute is correct. It is much like Utah's similar law in that the accommodation cannot act as a chokepoint to deny any couple from accessing solemnization services in any county and those asking for the accommodation cannot pick and choose which couples to serve. While I am no fan of SB2, I am hard pressed to see this doing much damage. Anthony Michael Kreis, J.D. University of Georgia School of Public Int'l Affairs Sent from my iPhone On Jun 12, 2015, at 7:31 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: That is to say, the Franke/Loewentheil memo addresses cases in which same-sex couples would face indignity, delay, and uncertainty about whether they can appear, without fear of facing rejection on the basis of their sexual orientation. The NC Act cleverly circumvents this problem -- or tries to, anyway -- by simply allowing magistrates/registers who object to involvement in any NC marriages (SSM or otherwise) to be recused from the business of performing/licensing all marriages -- that is to say, marriage services would no longer be part of that person's job description at all. The same-sex couple would not be turned away; the marriage desk would simply be manned by someone who has not opted out of those duties, for same-sex- and opposite-sex couples alike. Have I misunderstood the statute? On Fri, Jun 12, 2015 at 6:22 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: Unless I missed it, I don't believe that memo addresses the sort of exemption covered by the NC law. On Thu, Jun 11, 2015 at 10:18 PM, Nelson Tebbe nelson.te...@brooklaw.edumailto:nelson.te...@brooklaw.edu wrote: Katherine Franke, Kara Loewentheil and their team put together an analysis of this issue late last year. It's available here: http://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/prpcp_marriage_exemptions_memo_nov_5.pdf On Jun 11, 2015, at 9:28 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: The North Carolina legislature just passed this legislation over the (Republican) governor's veto:
RE:
I think there is no legal or doctrinal basis for her statement. But the practical reality is that the damages are emotional or dignitary, and juries are generally unsympathetic, so plaintiffs usually don't seek damages and don't recover much when they do. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Friday, June 12, 2015 9:44 AM To: Law Religion issues for Law Academics Subject: In Smith v Jefferson County Bd. of School Comm'rs, 13-5957,decided yesterday by the Sixth Circuit,, the concurring judge(Judge Batchelder) said flat out that We do not grant monetary damages for violations of the Establishment Clause. No authority is cited for that proposition ,other than a remark that EC relief is equitable in nature. I know that other courts have awarded such damages, although with the exception of one 10th Circuit case, I don't know of any published opinions. Is Judge Batchelder right about this claim? I understand it will often be difficult to prove or quantify such damages, but I don't see a blanket rule against them. Marc D. Stern General Counsel AJC 212 891 1480 646 289 2707 (c ) 212 891 1495 (f) ste...@ajc.org mailto:ste...@ajc.org www.ajc.org http://www.ajc.org/ Facebook.com/AJCGlobal http://www.facebook.com/AJCGlobal Twitter.com/AJCGlobal http://www.twitter.com/AJCGlobal ___ 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.
