Re: The clerk of court / death warrant hypothetical

[Marty Lederman]

Assuming Jane Smith would otherwise lose a job of longstanding here, I
think we agree on this one, Eugene!  Not because Jane thinks the presence
of her name makes her "complicit" in the sense of responsible for the
execution (it doesn't), but because, on your hypo, her (very idiosyncratic)
religion would prohibit her from engaging in allegedly "symbolic" conduct
such as this.

The harder case is more commonly encountered.  I, for instance, think that
the death penalty is categorically immoral.  Indeed, I've refused to be
involved in any matters regarding it in all of my employments.  (My
employers and coworkers have been appropriately, and graciously, very
accommodating.)  Let's assume that this moral view of mine is largely
informed by my religion.  I *don't *believe that my religion prohibits my
involvement in death penalty cases (at least not unless I were asked to
make a discretionary decision in favor of death); but I nonetheless find
any involvement on my part deeply disturbing, something that I have
endeavored to avoid whenever possible.

If I'm told that my continued employment in my longstanding, revered job
depends upon my work on the case, does that impose a substantial burden on
my religious exercise, in the absence of any religious injunction?  I find
this to be a very difficult question -- and I think it (rather than the
implausible claims of complicity) actually describes what is going on in
many of our contested cases and hypos.

On Sat, Sep 5, 2015 at 2:33 PM, Volokh, Eugene  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
>
> ___
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> To subscribe, unsubscribe, change options, or get password, see
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>
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Re: What's happening in KY? -- my differences with Eugene

[Marty Lederman]

It's linked in my post, Mark

On Sat, Sep 5, 2015 at 4:08 PM, Scarberry, Mark <
mark.scarbe...@pepperdine.edu> wrote:

> It would also be helpful if someone could provide a link to an image of
> the license. My understanding is that new gender neutral forms were in fact
> issued by whatever state office is responsible for them. Perhaps it is the
> application, rather than the license, that is preprinted. If we are going
> to get into the facts, as Marty appropriately suggests, we should see what
> the forms actually say.
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Saturday, September 05, 2015 12:55 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: What's happening in KY? -- my differences with Eugene
>
>
>
> The court reportedly told the deputies that they'd better issue the
> licenses, and they did so *without *including her name.  (It's not
> pre-printed.)  The judge is reported to have said at the hearing that he
> wasn't sure whether such licenses would be valid, but it seems to be what
> he has "permitted" the deputies to do.  A transcript might clarify some of
> this.  Can you obtain one from the ACLU lawyers, Art?  Thanks
>
>
>
> On Sat, Sep 5, 2015 at 3:42 PM, Arthur Spitzer 
> 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 
> 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 
> 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
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Saturday, September 05, 2015 11:47 AM
> *To:* Law & Religion issues for Law Academics
>
>
> 

RE: What's happening in KY? -- my differences with Eugene

[Volokh, Eugene]

   1.  I think the substantial burden question turns on whether an 
objector sincerely believes that what she is ordered to is against her 
religion.  If she sincerely believes that distributing licenses with her name 
is, in God’s eyes, putting her name to an authorization of sinful conduct and 
therefore against God’s will, that’s what matters for substantial burden 
purposes – not that this doesn’t count as “authorization” for purposes of 
secular law or secular reason.

   2.  Davis’s stay petition, filed in the Supreme Court, says, 
among other things, “In this matter, even if the ‘desired goal’ is providing 
Plaintiffs with Kentucky marriage licenses in Rowan County, numerous less 
restrictive means are available to accomplish it without substantially 
burdening Davis’ religious freedom and conscience, such as ... Modifying the 
prescribed Kentucky marriage license form to remove the multiple references to 
Davis’ name, and thus to remove the personal nature of the authorization that 
Davis must provide on the current form.”  
http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
 (PDF pp. 39-40).  To be sure, we might not view the presence of her name as 
“personal nature of the authorization,” or the removal of her name as at all 
morally or religiously significant under our understanding of a rational theory 
of complicity in sin.  But of course religious exemption rules apply even to 
people who don’t operate in ways that we think are rational or sensible.

   3.  It seems to me that the Kentucky Legislature has already 
potentially authorized religious exemptions from the statute that requires that 
marriage certificates and licenses bear the clerk’s name – as well as from 
virtually all other Kentucky statute.  It did so by enacting the Kentucky RFRA. 
 The very point of a RFRA (right or wrong) is that religious objectors 
shouldn’t have to wait for the Legislature to expressly amend statutes to 
include religious exemptions; instead, they could go to court to ask for an 
exemption, and the court could grant such an exemption if it concludes that the 
law substantially burdens religious practice and denying the exemption isn’t 
the least restrictive means of serving a compelling government interest.  (The 
legislature could of course then overrule the court decision, if it thinks the 
court got the strict scrutiny or substantial burden analysis wrong, by 
expressly exempting the statute from the RFRA.)

   A simple analogy:  Say someone objects to having a photograph of 
her face on a driver’s license, whether because she thinks that’s an 
impermissible graven image, or because she thinks she must always appear veiled 
in front of men who aren’t family members.  A court applying a RFRA might be 
able to reject the exemption request on strict scrutiny grounds related to the 
need for visual identification as a means of protecting public safety.  (Back 
in the Sherbert/Yoder era, courts considering this question were split, and the 
Court split 4-4 on it in Jensen v. Quaring.)  But if a court concludes that not 
having a photo wouldn’t materially undermine public safety, and thus that 
strict scrutiny isn’t satisfied, it wouldn’t have to wait for the legislature 
to amend the statute that requires photographs on driver’s licenses: the state 
RFRA would itself authorize the court to require that the license be issued 
without the photograph, as a less restrictive means of serving the broader 
interest in making sure that drivers have at least some sort of license.  
Again, state RFRA has potentially authorized religious exemptions from the 
driver’s license photo requirement just as it has potentially authorized 
religious exemptions from peyote bans, the duty to serve as a juror, and so on. 
 Likewise for the requirement that marriage licenses and certificates contain 
the county clerk’s name.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, September 05, 2015 10:32 AM
To: Cohen,David; Law & Religion issues for Law Academics; 
conlawp...@lists.ucla.edu
Subject: Re: What's happening in KY? -- my differences with Eugene

Sorry, I had not previously seen Eugene's post on the VC:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/

Eugene argues that perhaps Davis is entitled under the Kentucky RFRA to have 
her office (that is, her deputies) issue licenses without her name appearing on 
them.  For reasons I've already offered, I don't think this is right, because I 
don't think there's a substantial burden on her religious exercise.

But more to the point, and even if I'm wrong about the substantial burden 
point:  Davis doesn't think the Kentucky RFRA permits that resolution, either.  
She is not trying to have her 

Re: What's happening in KY?

[Levinson, Sanford V]

Marty's Balkanization post is, as usual, remarkably illuminating on the legal 
issues under Kentucky law. As I read it, I found myself thinking of the statues 
on public property cases, where the claim, as in the Texas Ten Commandments 
case is that the observer will attribute to the state the speech of the private 
parties who put it up. (There's also the Texas license plate case, of course.). 
Davis' argument is that here name (which is different from her physical 
signature) constitutes her personal endorsement of same-sex marriage. But all 
reasonable observers who find O'Connor's arguments remotely plausible know that 
is a mistake. To have her name on the license is simply and exclusively stating 
a fact:  she is the clerk. It's like having a sign saying Rowan County 
Courthouse and Grounds and then seeing an Eagles Ten Commandments statue.

Sandy

Sent from my iPhone

On Sep 5, 2015, at 7:52 AM, Marty Lederman 
> wrote:

FWIW, my effort to make sense (?) of the mess; please let me know if I've 
gotten anything wrong (or if anyone has a transcript of the contempt hearing on 
Thursday, which might help explain things).  Thanks

http://balkin.blogspot.com/2015/09/does-anyone-have-any-idea-whats.html

On Thu, Sep 3, 2015 at 5:49 PM, Marty Lederman 
> wrote:
The reports I've seen (e.g., 
http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) do not 
make clear exactly what's happening, other than that Davis is incarcerated.

1.  Is the County Executive Judge now issuing certificates and licenses (which 
might ironically eliminate the grounds for Davis's contempt incarceration . . . 
until she refuses to allow the documents to be issued to the next couple that 
appears)?

2.  What was the deal the judge offered her, regarding her deputies issuing the 
documents?  Did she refuse it because her name would continue to appear on the 
two lines?  Or did the judge say that she could omit her name and she still 
refused?

Thanks in advance for any info, or, better yet, links to actual documents.

On Thu, Sep 3, 2015 at 2:14 PM, Cohen,David 
> wrote:
Hi all - a mootness question for you.  In the case of the KY clerk who was 
jailed today for refusing to comply with a district court order that required 
her to issue a marriage license to a gay couple (and stay denied from the 6th 
Circuit or Supremes), according to some news reports, now that she is in jail 
and not able to serve, state law allows a county’s executive judge to now issue 
licenses.  So, presumably that will happen relatively quickly, and the 
plaintiffs will get their licenses.

Is the case now moot and the clerk can get out of jail because she’d no longer 
be in contempt of a court order, since the case is vacated as moot?  And the 
issue isn’t capable of repetition at this point for the plaintiffs, as they now 
have a license and can’t get another (until divorced, which may never happen).  
It certainly is capable of repetition for other people, but not these 
plaintiffs (and they haven’t filed a class action, to the best of my 
knowledge).  We’ve been around this issue before, and to the best of my 
recollection, most people believe the cases say that the “capable of 
repetition” part has to be for the particular plaintiffs, not for someone else.

In other words, is she in jail for an hour, maybe a day, and then back at it 
shortly to deny someone else a license (when that eventually happens) only to 
repeat the whole thing again?

David

David S. Cohen
Professor of Law

Thomas R. Kline School of Law
Drexel University
3320 Market St.
Philadelphia, PA 19104
Tel: 215.571.4714
drexel.edu | 
facebook | twitter
Available NOW: Living in the Crosshairs: 
The Untold Stories of Anti-Abortion Terrorism (Oxford)


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RE: What's happening in KY?

[Volokh, Eugene]

   Sandy:  Why would the standards be the same for the 
Establishment Clause endorsement test and the religious exemption substantial 
burden test?  The endorsement test is supposed to be "objective" in the sense 
of asking how a reasonable observer would perceive an action.  The substantial 
burden test is supposed to be subjective in the sense of what the religious 
adherent sincerely believes is religiously forbidden (among other things) to 
her.  How a "reasonable observer" would perceive things seems to me as 
irrelevant as whether a "reasonable observer" would read the Torah as 
forbidding the eating of chicken with cream sauce.

   Indeed, let's work with the religious symbolism cases.  A 
government employer puts up a Christmas tree - no Establishment Clause 
violation, says the majority in Allegheny (and correctly so, I think, since a 
reasonable observer wouldn't perceive the Christmas tree as having a religious 
message.  But now the employer asks the employees to decorate the tree, and one 
of them objects, saying that she perceives the Christmas tree as a religious 
symbol of a religion to which she doesn't subscribe, and the decoration ritual 
as conveying her endorsement of the symbol, which she believes to be 
religiously forbidden to her.  Would there be any basis for rejecting her Title 
VII reasonable accommodation claim on the grounds that a reasonable person 
wouldn't view the decoration of a Christmas tree that way?  I would think not, 
right?  (I say this as a non-Christian of Jewish ancestry who loves to have a 
Christmas tree.)

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Saturday, September 05, 2015 8:02 AM
To: Marty Lederman
Cc: Cohen, David; Law & Religion issues for Law Academics; 
conlawp...@lists.ucla.edu
Subject: Re: What's happening in KY?

Marty's Balkanization post is, as usual, remarkably illuminating on the legal 
issues under Kentucky law. As I read it, I found myself thinking of the statues 
on public property cases, where the claim, as in the Texas Ten Commandments 
case is that the observer will attribute to the state the speech of the private 
parties who put it up. (There's also the Texas license plate case, of course.). 
Davis' argument is that here name (which is different from her physical 
signature) constitutes her personal endorsement of same-sex marriage. But all 
reasonable observers who find O'Connor's arguments remotely plausible know that 
is a mistake. To have her name on the license is simply and exclusively stating 
a fact:  she is the clerk. It's like having a sign saying Rowan County 
Courthouse and Grounds and then seeing an Eagles Ten Commandments statue.

Sandy

Sent from my iPhone

On Sep 5, 2015, at 7:52 AM, Marty Lederman 
> wrote:
FWIW, my effort to make sense (?) of the mess; please let me know if I've 
gotten anything wrong (or if anyone has a transcript of the contempt hearing on 
Thursday, which might help explain things).  Thanks

http://balkin.blogspot.com/2015/09/does-anyone-have-any-idea-whats.html

On Thu, Sep 3, 2015 at 5:49 PM, Marty Lederman 
> wrote:
The reports I've seen (e.g., 
http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) do not 
make clear exactly what's happening, other than that Davis is incarcerated.

1.  Is the County Executive Judge now issuing certificates and licenses (which 
might ironically eliminate the grounds for Davis's contempt incarceration . . . 
until she refuses to allow the documents to be issued to the next couple that 
appears)?

2.  What was the deal the judge offered her, regarding her deputies issuing the 
documents?  Did she refuse it because her name would continue to appear on the 
two lines?  Or did the judge say that she could omit her name and she still 
refused?

Thanks in advance for any info, or, better yet, links to actual documents.

On Thu, Sep 3, 2015 at 2:14 PM, Cohen,David 
> wrote:
Hi all - a mootness question for you.  In the case of the KY clerk who was 
jailed today for refusing to comply with a district court order that required 
her to issue a marriage license to a gay couple (and stay denied from the 6th 
Circuit or Supremes), according to some news reports, now that she is in jail 
and not able to serve, state law allows a county's executive judge to now issue 
licenses.  So, presumably that will happen relatively quickly, and the 
plaintiffs will get their licenses.

Is the case now moot and the clerk can get out of jail because she'd no longer 
be in contempt of a court order, since the case is vacated as moot?  And the 
issue isn't capable of repetition at this point for the plaintiffs, as they now 
have a license and can't get another (until divorced, which may never 

Re: What's happening in KY?

[Marty Lederman]

FWIW, my effort to make sense (?) of the mess; please let me know if I've
gotten anything wrong (or if anyone has a transcript of the contempt
hearing on Thursday, which might help explain things).  Thanks

http://balkin.blogspot.com/2015/09/does-anyone-have-any-idea-whats.html

On Thu, Sep 3, 2015 at 5:49 PM, Marty Lederman 
wrote:

> The reports I've seen (e.g.,
> http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) do
> not make clear exactly what's happening, other than that Davis is
> incarcerated.
>
> 1.  Is the County Executive Judge now issuing certificates and licenses
> (which might ironically eliminate the grounds for Davis's contempt
> incarceration . . . until she refuses to allow the documents to be issued
> to the next couple that appears)?
>
> 2.  What was the deal the judge offered her, regarding her deputies
> issuing the documents?  Did she refuse it because her name would continue
> to appear on the two lines?  Or did the judge say that she could omit her
> name and she still refused?
>
> Thanks in advance for any info, or, better yet, links to actual documents.
>
> On Thu, Sep 3, 2015 at 2:14 PM, Cohen,David  wrote:
>
>> Hi all - a mootness question for you.  In the case of the KY clerk who
>> was jailed today for refusing to comply with a district court order that
>> required her to issue a marriage license to a gay couple (and stay denied
>> from the 6th Circuit or Supremes), according to some news reports, now that
>> she is in jail and not able to serve, state law allows a county’s executive
>> judge to now issue licenses.  So, presumably that will happen relatively
>> quickly, and the plaintiffs will get their licenses.
>>
>>
>>
>> Is the case now moot and the clerk can get out of jail because she’d no
>> longer be in contempt of a court order, since the case is vacated as moot?
>> And the issue isn’t capable of repetition at this point for the plaintiffs,
>> as they now have a license and can’t get another (until divorced, which may
>> never happen).  It certainly is capable of repetition for other people, but
>> not these plaintiffs (and they haven’t filed a class action, to the best of
>> my knowledge).  We’ve been around this issue before, and to the best of my
>> recollection, most people believe the cases say that the “capable of
>> repetition” part has to be for the particular plaintiffs, not for someone
>> else.
>>
>>
>>
>> In other words, is she in jail for an hour, maybe a day, and then back at
>> it shortly to deny someone else a license (when that eventually happens)
>> only to repeat the whole thing again?
>>
>>
>>
>> David
>>
>>
>>
>> *David S. Cohen*
>>
>> *Professor of Law*
>>
>>
>> Thomas R. Kline School of Law
>>
>> *Drexel University *
>>
>> 3320 Market St.
>>
>> Philadelphia, PA 19104
>>
>> Tel: 215.571.4714
>>
>> drexel.edu  |
>> facebook  | twitter
>> 
>>
>> Available NOW : *Living in the
>> Crosshairs: The Untold Stories of Anti-Abortion Terrorism *(Oxford)
>>
>>
>>
>> ___
>> To post, send message to conlawp...@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> 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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Re: Kay Davis and Title VII

[Gene Schaerr]

>> 
>> Hi all - a mootness question for you.  In the case of the KY clerk who
>> was jailed today for refusing to comply with a district court order that
>> required her to issue a marriage license to a gay couple (and stay denied
>> from the 6th Circuit or Supremes), according to some news reports, now that
>> she is in jail and not able to serve, state law allows a county?s executive
>> judge to now issue licenses.  So, presumably that will happen relatively
>> quickly, and the plaintiffs will get their licenses.
>> 
>> 
>> 
>> Is the case now moot and the clerk can get out of jail because she?d no
>> longer be in contempt of a court order, since the case is vacated as moot?
>> And the issue isn?t capable of repetition at this point for the plaintiffs,
>> as they now have a license and can?t get another (until divorced, which may
>> never happen).  It certainly is capable of repetition for other people, but
>> not these plaintiffs (and they haven?t filed a class action, to the best of
>> my knowledge).  We?ve been around this issue before, and to the best of my
>> recollection, most people believe the cases say that the ?capable of
>> repetition? part has to be for the particular plaintiffs, not for someone
>> else.
>> 
>> 
>> 
>> In other words, is she in jail for an hour, maybe a day, and then back at
>> it shortly to deny someone else a license (when that eventually happens)
>> only to repeat the whole thing again?
>> 
>> 
>> 
>> David
>> 
>> 
>> 
>> *David S. Cohen*
>> 
>> *Professor of Law*
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>> 
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>> 
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>> <https://twitter.com/dsc250>
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Message: 3
Date: Sat, 5 Sep 2015 15:01:48 +
From: "Levinson, Sanford V" <slevin...@law.utexas.edu>
To: Marty Lederman <lederman.ma...@gmail.com>
Cc: "Cohen, David" <ds...@drexel.edu>,Law & Religion issues for Law
   Academics <religionlaw@lists.ucla.edu>,"conlawp...@lists.ucla.edu"
   <conlawp...@lists.ucla.edu>
Subject: Re: What's happening in KY?
Message-ID: <c14ef17e-ac13-4ce9-a84d-16f69a76b...@law.utexas.edu>
Content-Type: text/plain; charset="windows-1252"

Marty's Balkanization post is, as usual, remarkably illuminating on the legal 
issues under Kentucky law. As I read it, I found myself thinking of the statues 
on public property cases, where the claim, as in the Texas Ten Commandments 
case is that the observer will attribute to the state the speech of the private 
parties who put it up. (There's also the Texas license plate case, of course.). 
Davis' argument is that here name (which is different from her physical 
signature) constitutes her personal endorsement of same-sex marriage. But all 
reasonable observers who find O'Connor's arguments remotely plausible know that 
is a mistake. To have her name on the license is simply and exclusively stating 
a fact:  she is the clerk. It's like having a sign saying Rowan County 
Courthouse and Grounds and then seeing an Eagles Ten Commandments statue.

Sandy

Sent from my iPhone

On Sep 5, 2015, at 7:52 AM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:

FWIW, my effort to make sense (?) of the mess; please let me know if I've 
gotten anything wrong (or if anyone has a transcript of the contempt hearing on 
Thursday, which might help explain things).  Thanks

http://balkin.blogspot.com/2015/09/does-anyone-have-any-idea-whats.html

RE: What's happening in KY? -- my differences with Eugene

[Scarberry, Mark]

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] 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 

"Authorizing," in law and in religious belief

[Volokh, Eugene]

   1.  Here’s my understanding of the matter:  Kim Davis is looking 
at a document that says “marriage license,” with the text “You are hereby 
authorized to join together in the state of matrimony” two men (or two women).  
She looks at a document that says “marriage certificate,” with the text “I do 
certify that” two men or two women “were united in marriage.”  But she 
apparently thinks that same-sex unions are not “marriage” under God’s law.  She 
therefore thinks it’s against God’s will to have her name attached to documents 
that on their face “authorize[]” such marriages or “certif[y]” such marriages.

   Now it may well be that Kentucky law actually doesn’t treat her 
signature as authorizing such marriages.  But it strikes me as not at all odd 
(not that oddity should matter in such cases) that someone would look at those 
documents and conclude that, given her “sincerely-held religious belief that 
marriage is a union between a man and a woman, only,” she would think it’s 
religiously wrong for her to have her name attached to such documents.  That’s 
a judgment of what her duty to God requires, not a judgment about how Kentucky 
marriage license statutes should be interpreted.

   2.  I read Davis’s stay application as saying that the state of 
Kentucky can give her the accommodation she wants by “[m]odifying the 
prescribed Kentucky marriage license form to remove the multiple references to 
Davis’ name, and thus to remove the personal nature of the authorization that 
Davis must provide on the current form”; I don’t read it as saying that the 
Kentucky Legislature, as opposed to the Kentucky courts applying the Kentucky 
RFRA, must do that.  If she is insisting on a legislative change, then I agree 
that there’s no basis for saying that such a change would be required in order 
for her name to be removed (whether she’s saying it or others on the list are 
saying it).

   3.  I agree that Davis had no right to just stop issuing 
marriage licenses altogether, in violation of state law and of the federal 
constitution (assuming the district court was right in concluding that the 
right to marry includes a right to get a marriage license from your home 
county).  As a government official, she has a duty to try to follow the law (at 
least the law that imposes ministerial, nondiscretionary duties on her) to the 
maximum extent possible; it would be incumbent on her to try to get an 
accommodation worked out beforehand, or to comply with the law while she’s 
getting the accommodation worked out, at least when she could have sought an 
emergency accommodation but didn’t.  I express no opinion on how that interacts 
with Justice Alito’s arguments.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, September 05, 2015 12:34 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

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 
> 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 

Re: What's happening in KY? -- my differences with Eugene

[Ira Lupu]

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  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 
> 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 
>> wrote:
>>
>>>Marty doesn’t view her issuance of the licenses as
>>> authorization.  He 

RE: What's happening in KY? -- my differences with Eugene

[Volokh, 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] 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 
[religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [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 
> 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 

RE: What's happening in KY? -- my differences with Eugene

[Volokh, Eugene]

   I don't think the form displays the name of the current 
officeholder at all prominently, and I doubt that people look enough at their 
marriage licenses and certificates to notice them.  But (1) the proposed 
accommodation would make it possible for Ms. Davis not to have her name listed 
on the form, without stopping other counties' clerks from listing theirs, and 
(2) I agree that it's hard to see building incumbent name recognition as a 
compelling government interest.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Saturday, September 05, 2015 4:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

It is often the case that forms issued by offices of state and local officials 
prominently display the name of the current office holder. My impression is 
that this is a way of creating name recognition for the next election. I would 
guess that many incumbent office holders think there is a compelling interest 
in having the office holder's name on the form-- though maybe it is not a 
compelling "governmental" interest.  And of course Ms. Davis has found another 
way to get name recognition for the next election.

Howard

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene 
[vol...@law.ucla.edu]
Sent: Saturday, September 05, 2015 7:21 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] 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 
[religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [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 

Re: Substantial burdens, RFRA, Chip Lupu's comments

[Alan E Brownstein]

Chip raises some important and provocative points about the way this litigation 
has gone forward.


Let me re-characterize one of them and question another.


Putting aside issues about complicity and whether Ms. Davis's actually 
authorizes anything by having her name on the license, let's just assume that 
she believes that it religiously unacceptable for her to have her name on a 
marriage license issued to same-sex couples.  Further let's assume that this 
constitutes a substantial burden under RFRA. While I am generally sympathetic 
to understanding substantial burden expansively in these cases, I do think that 
doing so has consequences for the rest of a RFRA analysis. As I suggested in an 
earlier post, if RFRA (or a new explicit religious accommodation statute) 
justifies removing a county clerk's name from a same-sex couple's marriage 
license, under Establishment Clause anti-favoritism requirements, that 
accommodation will have to be extended to government officials who adhere to 
other religious beliefs who are similarly situated. It may be that some there 
are some documents as to which the state has a compelling interest in insisting 
that an official's name is publicly displayed on the document. But surely there 
are other situations in which the state's interest would be no stronger than it 
is in the case of a county clerk's name on a marriage license. Additional RFRA 
or establishment clause litigation would be necessary to determine the ultimate 
scope of this accommodation.


One question Chip's post poses is what is a government official's 
responsibility in these circumstances. Clearly, the official can bring a 
lawsuit to seek declaratory or injunctive relief under RFRA or sue under the 
Establishment Clause to seek a comparable accommodation. But that doesn't mean 
that the official on his or her own initiative can order his or her office to 
stop issuing the religiously problematic licenses -- and/or ordering his or her 
office to stop issuing all similar documents as well. I'm not sure whether this 
creates grounds for estoppel. But certainly the state has a strong argument 
that it has a compelling state interest in not having any number of government 
officials ordering their offices to stop issuing religiously objectionable 
documents on their own initiative because they think they may have a viable 
RFRA claim that would require the deletion of their name from the document. Or 
to put it another way, does the state have a compelling interest in requiring 
government officials to seek judicial review (even if preliminary) of the 
viability of a RFRA claim before they shut down a government activity on the 
grounds that its continued operation burdens their faith?


Chip's third point suggests that there is no substantial burden under Kentucky 
law because  Kentucky is not penalizing Ms. Davis's conduct. Whatever burden 
she experiences is a consequence of U.S. constitutional law. I'm not sure about 
this point. The constitutional requirement concerning same-sex marriages can be 
complied with in a variety of ways. It should not violate the right to marry 
for Kentucky to give county clerk's the discretion to decide whether or not 
they wanted their name printed on all of the marriage licenses issued by the 
clerk's office. If I understand earlier posts correctly, Kentucky law requires 
the printing of the county clerk's name on the marriage licenses issued by a 
clerk's office. That is a state law requirement. It may be that this state law 
would not be religiously problematic were it not for the constitutional mandate 
requiring states to recognize same-sex marriages. Given that mandate, however, 
the state's continuation of its requirement that the clerk's name be printed on 
the document would seem to make state law a source of the burden on Ms. Davis's 
religious beliefs. And a change in state law would eliminate that burden. If 
the conjunction of state and federal law impose a burden on a state official's 
religious exercise, wouldn't a state RFRA claim be available to challenge the 
state law component of the burden?


Chip is certainly correct the state is not taking any steps at the moment to 
enforce its law against the clerk. But I'm not sure that enforcement actions by 
state officials are a necessary foundation for a state RFRA action. Isn't a 
direct conflict between the facial requirements of a law and an individual's 
religious exercise sufficient to allow a state RFRA claim to go forward? Ms. 
Davis can argue that if she complies with state law and fulfills her 
constitutional obligation to obey the U.S. constitution as a state actor, she 
will violate her religious beliefs.

(Maybe there would be justiciability issues in federal court under federal RFRA 
if the government was not enforcing the law against the religious individual, 
but state courts are usually much less restrictive in providing litigants 
access to a forum.)


Alan

Re: What's happening in KY? -- my differences with Eugene

[Marty Lederman]

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
name *is 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> 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
> --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [
> 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 
> 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 

Re: "Absurd complicity claims"

[Levinson, Sanford V]

As always, I appreciate Eugene's thoughtfulness and thoroughness. With regard 
to taxes, do we have a level of generality plus fear of strategic 
misrepresentation problem. That is, why is it such a big deal if the Amish 
alone don't pay social security taxes. We could clearly accommodate the absence 
of the relevant funds. It's only if we ask the what if everybody did it that 
the state's interest in collecting the marginal dollar is "compelling."  But, 
of course, it would be hard, pace Yoder, to limit the accommodation to the few 
Amish, and, on top of that, we justifiably fear all the bad faith claims.

Eugene is, of course, at one level absolutely right in dismissing my concern 
about "absurdity."  That being said, I do find it frustrating, unless one 
accepts a type of post-modernist relativism like, say, Paul Feyerabend's, that 
we can and do distinguish all the time between tenable and absurd beliefs. I 
will happily agree that many Jewish laws, especially relating to food, are 
absurd. I ultimately don't know what we should say if someone believes she's 
getting messages from a Venusian spaceship.

Sandy

Sent from my iPhone

On Sep 5, 2015, at 7:19 PM, Volokh, Eugene 
> wrote:

   1.  Isn’t there an orthodox answer for this, and one that has 
been orthodox for 30 years?  Religious pacifists certainly are substantially 
burdened by paying taxes for war, if they believe that paying such taxes is 
religiously improper; same for others who have similar objections to other 
taxes.  The Court accepts that this is a substantial burden.  See, e.g., United 
States v. Lee (1982):  “Because the payment of the taxes or receipt of benefits 
violates Amish religious beliefs, compulsory participation in the social 
security system interferes with their free exercise rights.”  But the burden is 
seen as constitutional, because granting exemptions would unduly interfere with 
the compelling interest in raising taxes, see Lee.  And this analysis has been 
applied time and again by courts, and I think quite sensibly.  Where’s the 
broccoli?

   2.  Beyond this, how can our judgment about absurdity of 
religious claims be relevant?  Many people might think it’s absurd to think 
that God cares about whether eat pork or lobster, whether we take a particular 
24 hours a week off, whether we cut our hair, or whether we wear a hat.  They 
might think it’s absurd to object to mixing dairy with fowl or meat – and even 
more absurd to have detailed rules about how many hours after eating meat you 
can eat dairy products.  They might think it’s absurd to conclude that, not 
only can’t you work on a particular day of the week, you can’t use electricity 
(at least in certain ways) or carry things in your pockets outdoors unless 
there’s a very long string around the area in which you are doing the carrying. 
 Indeed, many people believe it is absurd to believe that some book is holy 
scripture, or that God not only exists but is benevolent.  Religious freedom 
law, it seems to me, is all about protecting beliefs that many view as absurd.

   3.  And further beyond, we’re talking here about complicity – an 
area of responsibility that our own legal system finds it very hard to draw 
lines in.  The rules of complicity under American law are notoriously bizarre 
and fractured.

Consider mens rea. If you help someone with the purpose of helping him commit 
his crimes, you’re guilty of the crime itself as an accomplice. If you help 
someone, knowing that your actions are helping him commit the crime, you aren’t 
an accomplice under the laws of most states — but you are under the laws of 
some states. And in some states, you are guilty of the lesser crime of 
“criminal facilitation.”

And the rules differ for different kinds of conduct. For instance, informing a 
particular person how to make a bomb, knowing that he plans to make a bomb 
(even if you have no specific purpose to help him do so), is a crime under 
federal law. Likewise, knowingly providing assistance to a foreign terrorist 
organization is a crime even if you don’t have the purpose of advancing the 
organization’s terrorist goals, but are just trying to promote the 
organization’s supposedly humanitarian wing or are trying to teach the 
organization’s members about international law.

Likewise, there is much uncertainty about how close the connection between the 
allegedly complicit act and the wrongful underlying act should be to count as 
complicity.  Knowing distribution and even possession of child pornography is 
banned, chiefly on the grounds that such distribution and possession tend to 
cause the making of child pornography by creating and sustaining a market for 
such material. The causal connection between possession of child pornography 
and the production of child pornography is quite indirect (though real). But 
the law criminalizes possession nonetheless, based on that 

Re: What's happening in KY? -- my differences with Eugene

[Steven Jamar]

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  
> 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 

Re: The clerk of court / death warrant hypothetical

[K Chen]

"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?"

And what if the death penalty objector, instead of asking for their name to
be taken off the form wishes to have the words "over the objections of"
inserted in front of their name acknowledging the death warrant? It is not
hard to imagine a sincere believer's objections being grounded in
silence-as-complicity rather than signature-as-complicity. The government's
compelling interest in having the death acknowledged would be exactly as
fulfilled in this case. Yet, I doubt her suggested accommodation would move
the court. Perhaps because the government has an overriding interest in
delivering its words in the form and manner of their choosing

Alternatively, imagine another clerk who is a sincere neopagan, worshiping
a Gaia entity. This clerk sincerely believes that wasting paper is an
affront to her goddess, disrespecting her most prized gifts to humanity,
trees. Her suggested accommodation, taking into account the government's
compelling interest in having a paper record, is to convert the type face
in all documents within her office as using the Tahoma typeface in 7pt
font. The government doesn't have a compelling interest in subsidizing
Times New Roman typeface after all. It is even fiscal lower cost than Davis
wishing to remove her/ all clerk's names from her documentation. It is,
however, absurd to give a religious objector, however sincere.

Rather than a spectral march of religious objectors comprising "a system in
which each conscience is a law unto itself" your interpretation of state
RFRAs creates a system in which each conscience is a supreme micro-manager
over others. I wasn't there, but I don't think that is what the drafters
had in mind.

Kevin Chen, Esq.

On Sat, Sep 5, 2015 at 3:11 PM, Marty Lederman 
wrote:

> Assuming Jane Smith would otherwise lose a job of longstanding here, I
> think we agree on this one, Eugene!  Not because Jane thinks the presence
> of her name makes her "complicit" in the sense of responsible for the
> execution (it doesn't), but because, on your hypo, her (very idiosyncratic)
> religion would prohibit her from engaging in allegedly "symbolic" conduct
> such as this.
>
> The harder case is more commonly encountered.  I, for instance, think that
> the death penalty is categorically immoral.  Indeed, I've refused to be
> involved in any matters regarding it in all of my employments.  (My
> employers and coworkers have been appropriately, and graciously, very
> accommodating.)  Let's assume that this moral view of mine is largely
> informed by my religion.  I *don't *believe that my religion prohibits my
> involvement in death penalty cases (at least not unless I were asked to
> make a discretionary decision in favor of death); but I nonetheless find
> any involvement on my part deeply disturbing, something that I have
> endeavored to avoid whenever possible.
>
> If I'm told that my continued employment in my longstanding, revered job
> depends upon my work on the case, does that impose a substantial burden on
> my religious exercise, in the absence of any religious injunction?  I find
> this to be a very difficult question -- and I think it (rather than the
> implausible claims of complicity) actually describes what is going on in
> many of our contested cases and hypos.
>
> On Sat, Sep 5, 2015 at 2:33 PM, Volokh, Eugene 
> 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 

"Absurd complicity claims"

[Volokh, Eugene]

   1.  Isn't there an orthodox answer for this, and one that has 
been orthodox for 30 years?  Religious pacifists certainly are substantially 
burdened by paying taxes for war, if they believe that paying such taxes is 
religiously improper; same for others who have similar objections to other 
taxes.  The Court accepts that this is a substantial burden.  See, e.g., United 
States v. Lee (1982):  "Because the payment of the taxes or receipt of benefits 
violates Amish religious beliefs, compulsory participation in the social 
security system interferes with their free exercise rights."  But the burden is 
seen as constitutional, because granting exemptions would unduly interfere with 
the compelling interest in raising taxes, see Lee.  And this analysis has been 
applied time and again by courts, and I think quite sensibly.  Where's the 
broccoli?

   2.  Beyond this, how can our judgment about absurdity of 
religious claims be relevant?  Many people might think it's absurd to think 
that God cares about whether eat pork or lobster, whether we take a particular 
24 hours a week off, whether we cut our hair, or whether we wear a hat.  They 
might think it's absurd to object to mixing dairy with fowl or meat - and even 
more absurd to have detailed rules about how many hours after eating meat you 
can eat dairy products.  They might think it's absurd to conclude that, not 
only can't you work on a particular day of the week, you can't use electricity 
(at least in certain ways) or carry things in your pockets outdoors unless 
there's a very long string around the area in which you are doing the carrying. 
 Indeed, many people believe it is absurd to believe that some book is holy 
scripture, or that God not only exists but is benevolent.  Religious freedom 
law, it seems to me, is all about protecting beliefs that many view as absurd.

   3.  And further beyond, we're talking here about complicity - an 
area of responsibility that our own legal system finds it very hard to draw 
lines in.  The rules of complicity under American law are notoriously bizarre 
and fractured.

Consider mens rea. If you help someone with the purpose of helping him commit 
his crimes, you're guilty of the crime itself as an accomplice. If you help 
someone, knowing that your actions are helping him commit the crime, you aren't 
an accomplice under the laws of most states - but you are under the laws of 
some states. And in some states, you are guilty of the lesser crime of 
"criminal facilitation."

And the rules differ for different kinds of conduct. For instance, informing a 
particular person how to make a bomb, knowing that he plans to make a bomb 
(even if you have no specific purpose to help him do so), is a crime under 
federal law. Likewise, knowingly providing assistance to a foreign terrorist 
organization is a crime even if you don't have the purpose of advancing the 
organization's terrorist goals, but are just trying to promote the 
organization's supposedly humanitarian wing or are trying to teach the 
organization's members about international law.

Likewise, there is much uncertainty about how close the connection between the 
allegedly complicit act and the wrongful underlying act should be to count as 
complicity.  Knowing distribution and even possession of child pornography is 
banned, chiefly on the grounds that such distribution and possession tend to 
cause the making of child pornography by creating and sustaining a market for 
such material. The causal connection between possession of child pornography 
and the production of child pornography is quite indirect (though real). But 
the law criminalizes possession nonetheless, based on that connection.

And that's just the criminal law. If you know or have reason to know that your 
actions are materially helping someone infringe copyright, you are guilty of 
contributory copyright infringement. And in some situations, you can be 
vicariously liable for copyright infringement even if you weren't negligent - 
for instance, if a band performs a song in a bar that you own and it turns out 
that (despite their assurances to the contrary) they weren't licensed by the 
owner of the copyright in the song. Beyond copyright law, people can be liable 
for negligently facilitating another's criminal conduct. Landlords can have 
their property seized if they negligently allowed it to be used for drug 
transactions. And the list could go on.

What about causation?  Well, it turns out that causation is generally not 
required for complicity liability under criminal law - but not just actual 
cause but proximate cause is required for complicity liability under tort law, 
with "proximate cause" being famously complicated, especially when aiding third 
parties' voluntary actions is involved.  Don't get me started on the various 
rules related to this under various states' tort laws.

   That's just the law.  If you look at moral 

RE: What's happening in KY? -- my differences with Eugene

[Volokh, Eugene]

   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 
> 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 

Kay Davis and Title VII

[Alan Reinach]

f the KY clerk who
>> was jailed today for refusing to comply with a district court order that
>> required her to issue a marriage license to a gay couple (and stay denied
>> from the 6th Circuit or Supremes), according to some news reports, now that
>> she is in jail and not able to serve, state law allows a county?s executive
>> judge to now issue licenses.  So, presumably that will happen relatively
>> quickly, and the plaintiffs will get their licenses.
>>
>>
>>
>> Is the case now moot and the clerk can get out of jail because she?d no
>> longer be in contempt of a court order, since the case is vacated as moot?
>> And the issue isn?t capable of repetition at this point for the plaintiffs,
>> as they now have a license and can?t get another (until divorced, which may
>> never happen).  It certainly is capable of repetition for other people, but
>> not these plaintiffs (and they haven?t filed a class action, to the best of
>> my knowledge).  We?ve been around this issue before, and to the best of my
>> recollection, most people believe the cases say that the ?capable of
>> repetition? part has to be for the particular plaintiffs, not for someone
>> else.
>>
>>
>>
>> In other words, is she in jail for an hour, maybe a day, and then back at
>> it shortly to deny someone else a license (when that eventually happens)
>> only to repeat the whole thing again?
>>
>>
>>
>> David
>>
>>
>>
>> *David S. Cohen*
>>
>> *Professor of Law*
>>
>>
>> Thomas R. Kline School of Law
>>
>> *Drexel University *
>>
>> 3320 Market St.
>>
>> Philadelphia, PA 19104
>>
>> Tel: 215.571.4714
>>
>> drexel.edu <http://drexel.edu/law/faculty/fulltime_fac/David%20Cohen/> |
>> facebook <https://www.facebook.com/dsc250> | twitter
>> <https://twitter.com/dsc250>
>>
>> Available NOW <http://www.livinginthecrosshairs.com/>: *Living in the
>> Crosshairs: The Untold Stories of Anti-Abortion Terrorism *(Oxford)
>>
>>
>>
>> ___
>> To post, send message to conlawp...@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> 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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Message: 3
Date: Sat, 5 Sep 2015 15:01:48 +
From: "Levinson, Sanford V" <slevin...@law.utexas.edu>
To: Marty Lederman <lederman.ma...@gmail.com>
Cc: "Cohen, David" <ds...@drexel.edu>,  Law & Religion issues for Law
Academics <religionlaw@lists.ucla.edu>, "conlawp...@lists.ucla.edu"
<conlawp...@lists.ucla.edu>
Subject: Re: What's happening in KY?
Message-ID: <c14ef17e-ac13-4ce9-a84d-16f69a76b...@law.utexas.edu>
Content-Type: text/plain; charset="windows-1252"

Marty's Balkanization post is, as usual, remarkably illuminating on the legal 
issues under Kentucky law. As I read it, I found myself thinking of the statues 
on public property cases, where the claim, as in the Texas Ten Commandments 
case is that the observer will attribute to the state the speech of the private 
parties who put it up. (There's also the Texas license plate case, of course.). 
Davis' argument is that here name (which is different from her physical 
signature) constitutes her personal endorsement of same-sex marriage. But all 
reasonable observers who find O'Connor's arguments remotely plausible know that 
is a mistake. To have her name on the license is simply and exclusively stating 
a fact:  she is the clerk. It's like having a sign saying Rowan County 
Courthouse and Grounds and then seeing an Eagles Ten Commandments statue.

Sandy

Sent from my iPhone

On Sep 5, 2015, at 7:52 AM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:

FWIW, my effort to make sense (?) of the mess; please let me know if I've 
gotten anything wrong (or if anyone has a transcript of the contempt hearing on 
Thursday, which might help explain things).  Thanks

http://balkin.blogspot.com/2015/09/does-anyone-have-any-idea-whats.html

On Thu, Sep 3, 2015 at 5:49 PM, Marty Lederman 
<lederman.ma...@gmail.co

RE: What's happening in KY? -- my differences with Eugene

[Friedman, Howard M.]

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 [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [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 
> 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 
> 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 

RE: What's happening in KY? -- my differences with Eugene

[Friedman, Howard M.]

It is often the case that forms issued by offices of state and local officials 
prominently display the name of the current office holder. My impression is 
that this is a way of creating name recognition for the next election. I would 
guess that many incumbent office holders think there is a compelling interest 
in having the office holder's name on the form-- though maybe it is not a 
compelling "governmental" interest.  And of course Ms. Davis has found another 
way to get name recognition for the next election.

Howard

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Saturday, September 05, 2015 7:21 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] 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 
[religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [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 

Re: What's happening in KY? -- my differences with Eugene

[Volokh, Eugene]

   I agree that Davis’s decision not issue marriage licenses at all 
is not defensible under RFRA, and I agree that she should have gone to state 
court first to seek an exception.  I doubt that there’s much of an estoppel 
argument available here, but I leave that to others.

   But as to item 3, it seems to me that there is indeed a Kentucky 
government act involved.  Kentucky statute apparently requires her to issue 
marriage licenses with her name on it.  Federal law requires her to issue 
marriage licenses, which I take it means that she must issue them consistently 
with state law.  Kentucky law thus puts her in a position where she must 
violate a federal court order, violate Kentucky law, or violate her felt 
religious beliefs (again, taking seriously her statement in the stay request 
that her religious beliefs simply forbid her from allowing her office to issue 
certificates and licenses with her name on them).

   This is so even if Kentucky agencies haven’t yet enforced the 
law against her.  It seems to me that, unless I’m missing some Kentucky 
remedies law objections, she would be able to go to Kentucky state court and 
ask for an injunction or a declaratory judgment allowing her to issue the 
licenses without her name on them.  That means that state RFRA can indeed be of 
help to her.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, September 05, 2015 3:24 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 
> 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 

RE: What's happening in KY? -- my differences with Eugene

[Scarberry, Mark]

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] 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 name is 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. 
> 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

___
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Re: What's happening in KY? -- my differences with Eugene

[Marty Lederman]

Sorry, I had not previously seen Eugene's post on the VC:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/

Eugene argues that perhaps Davis is entitled under the Kentucky RFRA to
have her office (that is, her deputies) issue licenses without her name
appearing on them.  For reasons I've already offered, I don't think this is
right, because I don't think there's a substantial burden on her religious
exercise.

But more to the point, and even if I'm wrong about the substantial burden
point:  Davis doesn't think the Kentucky RFRA permits that resolution,
either.  She is not trying to have her office issue licenses without her
name--to the contrary, she has tried to *forbid her deputies *to issue
licenses without her name, because she thinks that Kentucky law, as a whole
(even including its RFRA), does not allow it (i.e., such licenses would not
be valid).  Her argument, instead, is that the Kentucky RFRA should afford
her the authority to *prohibit the office from issuing licenses altogether*,
because the Kentucky legislature *could* amend the marriage licensing law
to provide that the Clerk's name can be omitted, i.e., because a lesser
restrictive alternative law is in some sense available to the Commonwealth
-- albeit one it has not yet enacted.

On Sat, Sep 5, 2015 at 10:50 AM, Marty Lederman 
wrote:

> FWIW, my effort to make sense (?) of the mess; please let me know if I've
> gotten anything wrong (or if anyone has a transcript of the contempt
> hearing on Thursday, which might help explain things).  Thanks
>
> http://balkin.blogspot.com/2015/09/does-anyone-have-any-idea-whats.html
>
> On Thu, Sep 3, 2015 at 5:49 PM, Marty Lederman 
> wrote:
>
>> The reports I've seen (e.g.,
>> http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html)
>> do not make clear exactly what's happening, other than that Davis is
>> incarcerated.
>>
>> 1.  Is the County Executive Judge now issuing certificates and licenses
>> (which might ironically eliminate the grounds for Davis's contempt
>> incarceration . . . until she refuses to allow the documents to be issued
>> to the next couple that appears)?
>>
>> 2.  What was the deal the judge offered her, regarding her deputies
>> issuing the documents?  Did she refuse it because her name would continue
>> to appear on the two lines?  Or did the judge say that she could omit her
>> name and she still refused?
>>
>> Thanks in advance for any info, or, better yet, links to actual documents.
>>
>> On Thu, Sep 3, 2015 at 2:14 PM, Cohen,David  wrote:
>>
>>> Hi all - a mootness question for you.  In the case of the KY clerk who
>>> was jailed today for refusing to comply with a district court order that
>>> required her to issue a marriage license to a gay couple (and stay denied
>>> from the 6th Circuit or Supremes), according to some news reports, now that
>>> she is in jail and not able to serve, state law allows a county’s executive
>>> judge to now issue licenses.  So, presumably that will happen relatively
>>> quickly, and the plaintiffs will get their licenses.
>>>
>>>
>>>
>>> Is the case now moot and the clerk can get out of jail because she’d no
>>> longer be in contempt of a court order, since the case is vacated as moot?
>>> And the issue isn’t capable of repetition at this point for the plaintiffs,
>>> as they now have a license and can’t get another (until divorced, which may
>>> never happen).  It certainly is capable of repetition for other people, but
>>> not these plaintiffs (and they haven’t filed a class action, to the best of
>>> my knowledge).  We’ve been around this issue before, and to the best of my
>>> recollection, most people believe the cases say that the “capable of
>>> repetition” part has to be for the particular plaintiffs, not for someone
>>> else.
>>>
>>>
>>>
>>> In other words, is she in jail for an hour, maybe a day, and then back
>>> at it shortly to deny someone else a license (when that eventually happens)
>>> only to repeat the whole thing again?
>>>
>>>
>>>
>>> David
>>>
>>>
>>>
>>> *David S. Cohen*
>>>
>>> *Professor of Law*
>>>
>>>
>>> Thomas R. Kline School of Law
>>>
>>> *Drexel University *
>>>
>>> 3320 Market St.
>>>
>>> Philadelphia, PA 19104
>>>
>>> Tel: 215.571.4714
>>>
>>> drexel.edu  |
>>> facebook  | twitter
>>> 
>>>
>>> Available NOW : *Living in the
>>> Crosshairs: The Untold Stories of Anti-Abortion Terrorism *(Oxford)
>>>
>>>
>>>
>>> ___
>>> To post, send message to conlawp...@lists.ucla.edu
>>> To subscribe, unsubscribe, change options, or get password, see
>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>>
>>> Please note that messages sent 

The clerk of court / death warrant hypothetical

[Volokh, Eugene]

   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
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