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
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> 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:
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[mailto: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
Subject: Re: What's happening in KY? -- my differences with Eugene
On Points 1 and 2 of Eugene's post, Davis's religious objection is not, as
Eugene suggests, independent of whether her name serves to provide her
"authorization" of a same-sex marriage; instead, she claims that it violates
her religion because it in fact serves as an authorization. And thus,
understandably, she cites Kentucky law for that proposition, because it's a
question not of religious doctrine but of the legal affect of the appearance of
her name. Her reading of that law is, I suggest, mistaken if not tendentious.
And since her religious objection is predicated on a mistake of fact/law that
civil authorities can assess, rather than on a disputed religious tenet,
there's no substantial burden on her religious exercise. (Obviously, this same
issue is now front and center in the contraception cases--most or all of the
theories of complicity are, I've argued, based upon mistakes of law or fact
that the courts need not accept.)
The more important point for present purposes, however, is No. 3: And on that,
I basically agree with Eugene that if there were a substantial burden here (but
see above), then perhaps Kentucky law, viewed as a whole (including RFRA),
could be read to provide that the issuance of a license by Deputy Clerk Mason,
without Davis's name, is both permissible and results in a valid marriage
license. The problem, however, is that Davis herself is strongly resisting
this reading of Kentucky law. If she agreed with that reading, she would be
thrilled, satisfied, with the current outcome -- Mason issuing licenses without
Davis's name. Win-win! Indeed, before she was held in contempt she would not
have prohibited Mason from doing just that--citing Kentucky RFRA--and thereby
avoided prison.
But her attorney instead insists that such licenses are invalid, and Davis
contends that, under Kentucky law, Mason may not issue them. The outcome she
is seeking is not for the court to rule that the issuance of such
name-of-Davis-free licenses are lawful, but instead that there are to be no
marriage licenses in Rowan County unless and until the Kentucky legislature
amends Kentucky law to allow the omission of her name.
(This all assumes that Kentucky law does, even apart from RFRA, require that
Davis's name be on the license. For reasons I explain in my post, I have
doubts whether that's even correct.)
On Sat, Sep 5, 2015 at 1:50 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
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:
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[mailto: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<mailto: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 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
<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.com<mailto:lederman.ma...@gmail.com>> 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
<ds...@drexel.edu<mailto:ds...@drexel.edu>> 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<tel:215.571.4714>
drexel.edu<http://drexel.edu/law/faculty/fulltime_fac/David%20Cohen/> |
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Available NOW<http://www.livinginthecrosshairs.com/>: Living in the Crosshairs:
The Untold Stories of Anti-Abortion Terrorism (Oxford)
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