RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

 I appreciate Alan’s questions, but isn’t that the sort of thing 
that would arise with virtually every RFRA claim, and virtually every Title VII 
religious accommodation claim?  It’s the same “spectral march,” to borrow Chip 
Lupu’s phrase quoted by Justice Blackmun in Employment Division v. Smith, that 
helped prompt the Smith majority.  It’s the argument that Justice Stevens gave 
in Goldman v. Weinberger.  But RFRAs reject that argument (as does Title VII’s 
religious accommodation claim), and leave it to courts to draw fair lines here. 
 To quote Justice Blackmun in Smith,

That the State might grant an exemption for religious peyote use, but deny 
other religious claims arising in different circumstances, would not violate 
the Establishment Clause. Though the State must treat all religions equally, 
and not favor one over another, this obligation is fulfilled by the uniform 
application of the “compelling interest” test to all free exercise claims, not 
by reaching uniform results as to all claims.

Nor do I see the Clerk’s Office much different from, say, the operation of the 
criminal law (Smith, O Centro) or any other area where we would normally expect 
neutrality.  Indeed, RFRAs and Title VII are expected to be enforced by judges, 
who are likewise supposed to be “scrupulously neutral.”

 I remember when the list started up in the mid-1990s, and I was 
one of the very few people who supported Smith.  (I still do, though I also 
support jurisdiction-by-jurisdiction RFRAs.)  Virtually everyone else, as I 
recall, thought Smith was badly wrong, and the Sherbert/Yoder regime was sound. 
 Am I right in thinking that things have changed, and that Justice Scalia’s 
opinion, once so roundly criticized and even reviled, is now much more popular, 
not just as an interpretation of the Free Exercise Clause but as counsel 
against having RFRAs (or against granting exemptions under RFRAs)?

 Eugene



Alan Brownstein writes:

Sorry to be late joining this discussion, but I had two idiosyncratic , left 
field thoughts on this issue.

If an accommodation is created (either through a separate statute or a RFRA 
decision) that permits the county clerk to delete his or her name from marriage 
licenses to mitigate the burden on clerks who oppose same-sex marriage for 
religious reasons, would that decision require similar accommodations for other 
government employees who object on religious grounds to having their name on 
other documents issued by their office. Under establishment clause doctrine 
prohibiting religious favoritism in the granting of accommodations, just how 
broad would an accommodation have to be (either initially or eventually) to 
avoid religious preferentialism concerns.

Also, do the functions of the county clerk’s office make it a government agency 
in which religious accommodations based on substantive disagreements with the 
law might be considered particularly problematic. If the county clerk’s office 
in Kentucky conducts and supervises elections as the clerk’s office does in 
California, we might reasonably require that individuals who hold that office 
must be prepared to set their personal beliefs aside and operate their office 
under scrupulously neutral criteria. Of course, one might distinguish between 
different functions performed by the clerk’s office. Issuing marriage licenses 
might be distinguished from certifying the results of elections.  But this may 
be an office where the appearance of impartiality is particularly important. 
Just a thought.

Alan
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Re: Question about the Kentucky County Clerk controversy

[Marty Lederman]

I believe the RFRA claim arises in the third-party complaint she filed
against the governor, beginning at page 100 of the pdf.  I don't believe
the court has yet considered that claim in the third-party suit -- that is,
I'm not aware that the Kentucky officials have yet to appear in court.  She
writes:


On August 4, 2015, Davis filed a verified third-party Complaint against
Steven L. Beshear, Governor of Kentucky (“Gov. Beshear”), the issuer of the
SSM Mandate, and Wayne Onkst, Commissioner of Kentucky Department for
Libraries and Archives, the state agency responsible for designing Kentucky
marriage license forms. See App. E. On August 7, 2015, Davis filed a motion
for preliminary injunction to enjoin enforcement of Gov. Beshear’s SSM
Mandate and obtain an exemption “from having to authorize the issuance of
Kentucky marriage licenses.” The grounds on which Davis seeks relief from
Gov. Beshear are intertwined with the grounds on which she opposed
Plaintiffs’ request for an injunction against her. Notwithstanding, *the
district court entered its Injunction, rather than considering Davis’ and
Plaintiffs’ requests together and allowing Davis to develop a further
evidentiary record on her own request for individual accommodation from
Gov. Beshear’s SSM Mandate.*




On Thu, Sep 3, 2015 at 10:04 AM, Conkle, Daniel O. <con...@indiana.edu>
wrote:

> Thanks, Marty.  My point was simply that there is a Ky. RFRA claim in the
> actual case, which I believe the federal courts properly can consider as a
> matter of pendent jurisdiction.  Therefore there is no need for a separate
> state court action to raise the Ky. RFRA claim (regardless of its merit or
> lack thereof).  Right?
>
>
>
> Dan Conkle
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Thursday, September 03, 2015 9:50 AM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Question about the Kentucky County Clerk controversy
>
>
>
> The judge did reject the KY RFRA argument, Dan, but only based upon this:
>
>
>
> Davis is simply being asked to signify that couples meet the legal
> requirements to marry. The State is not asking her to condone same-sex
> unions on moral or religious grounds, nor is it restricting her from
> engaging in a variety of religious activities.
>
>
>
> That doesn't really get at her argument, which is that the form, by its
> terms, "authorizes" the marriage.  The better response would have been
> simply that she doesn't have to do the authorizing (or even to "signify"
> anything).
>
>
>
> On Thu, Sep 3, 2015 at 9:26 AM, Conkle, Daniel O. <con...@indiana.edu>
> wrote:
>
> One additional point about the actual litigation: the federal district
> court in fact considered a claim under the Ky. RFRA, rejecting the claim on
> its merits.  Is there any reason to believe that he should not have done
> so?  I’m wonder why Eugene has been suggesting there would have to be a
> separate state court lawsuit invoking the Ky. RFRA.
>
>
>
> Daniel O. Conkle
> 
> Daniel O. Conkle
> Robert H. McKinney Professor of Law
> Indiana University Maurer School of Law
> Bloomington, Indiana  47405
> (812) 855-4331
> fax (812) 855-0555
> e-mail con...@indiana.edu
> 
>
>
>
>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Thursday, September 03, 2015 5:42 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Question about the Kentucky County Clerk controversy
>
>
>
> I would tend to agree with Eugene here, but for two things.
>
>
>
> First, Davis only took office as County Clerk seven months ago, when it
> was quite foreseeable that her office would be required to issue same-sex
> marriage licenses and certificates.  As we discussed in an earlier thread,
> I doubt the prospect of losing this new job would place a substantial
> burden on her religious exercise, assuming she could then go back to her
> longtime position as Deputy Clerk.
>
>
>
> But let's put aside that debate, which we ran to ground last time.  Let's
> assume, for instance, that she'd have to resign from the Clerk's office
> altogether if she does not comply with Kentucky law, thereby forfeiting her
> vocation of 30 years.  In that case, I might agree with Eugene about
> Kentucky's RFRA *if *the facts were as Davis alleges.  That is to say:
>  If Kentucky law otherwise required her, as County Clerk, to (as her brief
> alleges) "authoriz[e] and approv[e] a proposed union to be a 'marria

Re: Question about the Kentucky County Clerk controversy

[Marty Lederman]

According to the district court, there are six deputy clerks, four of whom
share Davis's views and one of whom is on the fence.  The sixth Deputy
Clerk is willing to sign, but she has prohibited him from doing so "because
her name and title still appear twice on licenses that she does not
personally sign."

On Thu, Sep 3, 2015 at 10:59 AM, Doug Laycock <dlayc...@virginia.edu> wrote:

> For what it’s worth, a reporter for the LA times told me yesterday that
> the deputy clerk is her son. And he seemed to think (this was less clear)
> that the two of them were the whole office.
>
>
>
> That doesn’t change the legal point. Someone in the office has to issue
> licenses.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Thursday, September 03, 2015 10:41 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Question about the Kentucky County Clerk controversy
>
>
>
> By the way, none of this affects whether Davis should be held in contempt
> today:  Obviously, she should be.  If her principal complaint is merely
> that the Kentucky RFRA gives her the right to omit her name on the two
> lines in question, she should simply instruct the Deputy Clerk to do just
> that, but to otherwise issue the licenses/certificates.  And then if her
> superiors, such as the Governor, conclude that the documents are not valid
> without her name (notwithstanding the KY RFRA), she'd have to include her
> name, too.  There's no justification for directing the willing Deputy Clerk
> not to issue the documents.
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Question about the Kentucky County Clerk controversy

[Marty Lederman]

The judge did reject the KY RFRA argument, Dan, but only based upon this:

Davis is simply being asked to signify that couples meet the legal
requirements to marry. The State is not asking her to condone same-sex
unions on moral or religious grounds, nor is it restricting her from
engaging in a variety of religious activities.

That doesn't really get at her argument, which is that the form, by its
terms, "authorizes" the marriage.  The better response would have been
simply that she doesn't have to do the authorizing (or even to "signify"
anything).

On Thu, Sep 3, 2015 at 9:26 AM, Conkle, Daniel O. <con...@indiana.edu>
wrote:

> One additional point about the actual litigation: the federal district
> court in fact considered a claim under the Ky. RFRA, rejecting the claim on
> its merits.  Is there any reason to believe that he should not have done
> so?  I’m wonder why Eugene has been suggesting there would have to be a
> separate state court lawsuit invoking the Ky. RFRA.
>
>
>
> Daniel O. Conkle
> 
> Daniel O. Conkle
> Robert H. McKinney Professor of Law
> Indiana University Maurer School of Law
> Bloomington, Indiana  47405
> (812) 855-4331
> fax (812) 855-0555
> e-mail con...@indiana.edu
> 
>
>
>
>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Thursday, September 03, 2015 5:42 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Question about the Kentucky County Clerk controversy
>
>
>
> I would tend to agree with Eugene here, but for two things.
>
>
>
> First, Davis only took office as County Clerk seven months ago, when it
> was quite foreseeable that her office would be required to issue same-sex
> marriage licenses and certificates.  As we discussed in an earlier thread,
> I doubt the prospect of losing this new job would place a substantial
> burden on her religious exercise, assuming she could then go back to her
> longtime position as Deputy Clerk.
>
>
>
> But let's put aside that debate, which we ran to ground last time.  Let's
> assume, for instance, that she'd have to resign from the Clerk's office
> altogether if she does not comply with Kentucky law, thereby forfeiting her
> vocation of 30 years.  In that case, I might agree with Eugene about
> Kentucky's RFRA *if * the facts were as Davis alleges.  That is to say:
>  If Kentucky law otherwise required her, as County Clerk, to (as her brief
> alleges) "authoriz[e] and approv[e] a proposed union to be a 'marriage,'
> which, in her sincerely-held religious beliefs, is not a marriage," then
> perhaps the Kentucky RFRA should be construed to permit her deputy clerk,
> rather than herself, to sign all marriage certificates and licenses in her
> county (same-sex and opposite-sex alike).  (One of her deputy clerks does
> not share her religious objection and has agreed to do so.)
>
>
>
> Here's the catch, however:  Even apart from RFRA, Kentucky law *already* 
> allows
> the wiling deputy clerk to sign the certificate and license, in lieu of
> Davis.  (The license authorizes the officiant to perform the marriage; the
> certificate records the marriage itself.)  Davis does not have to sign or
> approve them.
>
>
>
> So why is she instructing her deputies not to issue such certificates and
> licenses?  Because, she claims, even if a deputy signs the forms, her name
> will continue to appear in one place on each of them.  And she's right
> about that:  Her name will continue to appear.
>
>
>
> However, I believe Davis is mistaken when she argues that "every license
> requires her name to appear on the license *as the authorizing person*."
>  As you can see from the forms themselves -- on page 139 of the pdf -- the
> authorizing person will be the deputy clerk who signs the forms, *not *Davis.
> Her name would appear on each form only to identify *in* * which clerk's
> office* the license was issued and the certificate recorded.  E.g.:
>  "Issued this 3 September 2015 in the office of Kim Davis, Rowan County
> County Clerk, Morehead, Kentucky *by Brian Mason, Deputy Clerk*."
>
>
>
> Her petition suggests that even this factual statement -- that the license
> was issued in her office -- will be seen as her endorsement of the
> marriage, thereby making her complicit in it.  But that's simply wrong,
> isn't it?:  Particularly since it will be her deputy's signature, rather
> than Davis's, that appears on the forms, no reasonable observer, with any
> modicum of knowledge about the views of Kentucky County Clerks in 

Re: Question about the Kentucky County Clerk controversy

[Levinson, Sanford V]

Would a capacious interpretation of the Kentucky RFRA Law in effect allow state 
officials to nullify federal law?  Scalia is looking more prescient in Smith 
every day!

Sandy

Sent from my iPhone

On Sep 3, 2015, at 7:09 AM, Conkle, Daniel O. 
<con...@indiana.edu<mailto:con...@indiana.edu>> wrote:

Thanks, Marty.  My point was simply that there is a Ky. RFRA claim in the 
actual case, which I believe the federal courts properly can consider as a 
matter of pendent jurisdiction.  Therefore there is no need for a separate 
state court action to raise the Ky. RFRA claim (regardless of its merit or lack 
thereof).  Right?

Dan Conkle
From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 9:50 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

The judge did reject the KY RFRA argument, Dan, but only based upon this:

Davis is simply being asked to signify that couples meet the legal requirements 
to marry. The State is not asking her to condone same-sex unions on moral or 
religious grounds, nor is it restricting her from engaging in a variety of 
religious activities.

That doesn't really get at her argument, which is that the form, by its terms, 
"authorizes" the marriage.  The better response would have been simply that she 
doesn't have to do the authorizing (or even to "signify" anything).

On Thu, Sep 3, 2015 at 9:26 AM, Conkle, Daniel O. 
<con...@indiana.edu<mailto:con...@indiana.edu>> wrote:
One additional point about the actual litigation: the federal district court in 
fact considered a claim under the Ky. RFRA, rejecting the claim on its merits.  
Is there any reason to believe that he should not have done so?  I’m wonder why 
Eugene has been suggesting there would have to be a separate state court 
lawsuit invoking the Ky. RFRA.

Daniel O. Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331<tel:%28812%29%20855-4331>
fax (812) 855-0555<tel:%28812%29%20855-0555>
e-mail con...@indiana.edu<mailto:con...@indiana.edu>




From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 5:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

I would tend to agree with Eugene here, but for two things.

First, Davis only took office as County Clerk seven months ago, when it was 
quite foreseeable that her office would be required to issue same-sex marriage 
licenses and certificates.  As we discussed in an earlier thread, I doubt the 
prospect of losing this new job would place a substantial burden on her 
religious exercise, assuming she could then go back to her longtime position as 
Deputy Clerk.

But let's put aside that debate, which we ran to ground last time.  Let's 
assume, for instance, that she'd have to resign from the Clerk's office 
altogether if she does not comply with Kentucky law, thereby forfeiting her 
vocation of 30 years.  In that case, I might agree with Eugene about Kentucky's 
RFRA if the facts were as Davis alleges.  That is to say:  If Kentucky law 
otherwise required her, as County Clerk, to (as her brief alleges) "authoriz[e] 
and approv[e] a proposed union to be a 'marriage,' which, in her sincerely-held 
religious beliefs, is not a marriage," then perhaps the Kentucky RFRA should be 
construed to permit her deputy clerk, rather than herself, to sign all marriage 
certificates and licenses in her county (same-sex and opposite-sex alike).  
(One of her deputy clerks does not share her religious objection and has agreed 
to do so.)

Here's the catch, however:  Even apart from RFRA, Kentucky law already allows 
the wiling deputy clerk to sign the certificate and license, in lieu of Davis.  
(The license authorizes the officiant to perform the marriage; the certificate 
records the marriage itself.)  Davis does not have to sign or approve them.

So why is she instructing her deputies not to issue such certificates and 
licenses?  Because, she claims, even if a deputy signs the forms, her name will 
continue to appear in one place on each of them.  And she's right about that:  
Her name will continue to appear.

However, I believe Davis is mistaken when she argues that "every license 
requires her name to appear on the license as the authorizing person."  As you 
can see from the forms themselves -- on page 139 of the pdf -- the authorizing 
person will be the

RE: Question about the Kentucky County Clerk controversy

[Doug Laycock]

For what it’s worth, a reporter for the LA times told me yesterday that the 
deputy clerk is her son. And he seemed to think (this was less clear) that the 
two of them were the whole office.

 

That doesn’t change the legal point. Someone in the office has to issue 
licenses.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 10:41 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

 

By the way, none of this affects whether Davis should be held in contempt 
today:  Obviously, she should be.  If her principal complaint is merely that 
the Kentucky RFRA gives her the right to omit her name on the two lines in 
question, she should simply instruct the Deputy Clerk to do just that, but to 
otherwise issue the licenses/certificates.  And then if her superiors, such as 
the Governor, conclude that the documents are not valid without her name 
(notwithstanding the KY RFRA), she'd have to include her name, too.  There's no 
justification for directing the willing Deputy Clerk not to issue the documents.

 

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Question about the Kentucky County Clerk controversy

[Conkle, Daniel O.]

Thanks, Marty.  My point was simply that there is a Ky. RFRA claim in the 
actual case, which I believe the federal courts properly can consider as a 
matter of pendent jurisdiction.  Therefore there is no need for a separate 
state court action to raise the Ky. RFRA claim (regardless of its merit or lack 
thereof).  Right?

Dan Conkle
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 9:50 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

The judge did reject the KY RFRA argument, Dan, but only based upon this:

Davis is simply being asked to signify that couples meet the legal requirements 
to marry. The State is not asking her to condone same-sex unions on moral or 
religious grounds, nor is it restricting her from engaging in a variety of 
religious activities.

That doesn't really get at her argument, which is that the form, by its terms, 
"authorizes" the marriage.  The better response would have been simply that she 
doesn't have to do the authorizing (or even to "signify" anything).

On Thu, Sep 3, 2015 at 9:26 AM, Conkle, Daniel O. 
<con...@indiana.edu<mailto:con...@indiana.edu>> wrote:
One additional point about the actual litigation: the federal district court in 
fact considered a claim under the Ky. RFRA, rejecting the claim on its merits.  
Is there any reason to believe that he should not have done so?  I’m wonder why 
Eugene has been suggesting there would have to be a separate state court 
lawsuit invoking the Ky. RFRA.

Daniel O. Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331<tel:%28812%29%20855-4331>
fax (812) 855-0555<tel:%28812%29%20855-0555>
e-mail con...@indiana.edu<mailto:con...@indiana.edu>




From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 5:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

I would tend to agree with Eugene here, but for two things.

First, Davis only took office as County Clerk seven months ago, when it was 
quite foreseeable that her office would be required to issue same-sex marriage 
licenses and certificates.  As we discussed in an earlier thread, I doubt the 
prospect of losing this new job would place a substantial burden on her 
religious exercise, assuming she could then go back to her longtime position as 
Deputy Clerk.

But let's put aside that debate, which we ran to ground last time.  Let's 
assume, for instance, that she'd have to resign from the Clerk's office 
altogether if she does not comply with Kentucky law, thereby forfeiting her 
vocation of 30 years.  In that case, I might agree with Eugene about Kentucky's 
RFRA if the facts were as Davis alleges.  That is to say:  If Kentucky law 
otherwise required her, as County Clerk, to (as her brief alleges) "authoriz[e] 
and approv[e] a proposed union to be a 'marriage,' which, in her sincerely-held 
religious beliefs, is not a marriage," then perhaps the Kentucky RFRA should be 
construed to permit her deputy clerk, rather than herself, to sign all marriage 
certificates and licenses in her county (same-sex and opposite-sex alike).  
(One of her deputy clerks does not share her religious objection and has agreed 
to do so.)

Here's the catch, however:  Even apart from RFRA, Kentucky law already allows 
the wiling deputy clerk to sign the certificate and license, in lieu of Davis.  
(The license authorizes the officiant to perform the marriage; the certificate 
records the marriage itself.)  Davis does not have to sign or approve them.

So why is she instructing her deputies not to issue such certificates and 
licenses?  Because, she claims, even if a deputy signs the forms, her name will 
continue to appear in one place on each of them.  And she's right about that:  
Her name will continue to appear.

However, I believe Davis is mistaken when she argues that "every license 
requires her name to appear on the license as the authorizing person."  As you 
can see from the forms themselves -- on page 139 of the pdf -- the authorizing 
person will be the deputy clerk who signs the forms, not Davis.  Her name would 
appear on each form only to identify in which clerk's office the license was 
issued and the certificate recorded.  E.g.:  "Issued this 3 September 2015 in 
the office of Kim Davis, Rowan County County Clerk, Morehead, Kentucky by Brian 
Mason, Deputy Clerk."

Her petition suggests t

RE: Question about the Kentucky County Clerk controversy

[Doug Laycock]

So much for reporters!

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-bounces+dlaycock=virginia@lists.ucla.edu 
[mailto:religionlaw-bounces+dlaycock=virginia@lists.ucla.edu] On Behalf Of 
Volokh, Eugene
Sent: Thursday, September 03, 2015 11:11 AM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

 

According to the district court opinion, Davis has six deputy 
clerks.  “Four of Davis’ deputy clerks share her religious objection to 
same-sex marriage, and another is undecided on the subject.  The final deputy 
clerk is willing to issue the licenses, but Davis will not allow it because her 
name and title still appear twice on licenses that she does not personally 
sign.”

 

Eugene

 

From: religionlaw-boun...@lists.ucla.edu 
<mailto:religionlaw-boun...@lists.ucla.edu>  
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Thursday, September 03, 2015 7:59 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Question about the Kentucky County Clerk controversy

 

For what it’s worth, a reporter for the LA times told me yesterday that the 
deputy clerk is her son. And he seemed to think (this was less clear) that the 
two of them were the whole office.

 

That doesn’t change the legal point. Someone in the office has to issue 
licenses.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

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From: religionlaw-boun...@lists.ucla.edu 
<mailto:religionlaw-boun...@lists.ucla.edu>  
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 10:41 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

 

By the way, none of this affects whether Davis should be held in contempt 
today:  Obviously, she should be.  If her principal complaint is merely that 
the Kentucky RFRA gives her the right to omit her name on the two lines in 
question, she should simply instruct the Deputy Clerk to do just that, but to 
otherwise issue the licenses/certificates.  And then if her superiors, such as 
the Governor, conclude that the documents are not valid without her name 
(notwithstanding the KY RFRA), she'd have to include her name, too.  There's no 
justification for directing the willing Deputy Clerk not to issue the documents.

 

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Re: Question about the Kentucky County Clerk controversy

[James Oleske]

Thanks for the clarification, Eugene. I had assumed the clerk would be
seeking an accommodation specific to licenses for same-sex couples. But in
looking at the various alternatives the clerk has proposed in describing
her putative state RFRA claim, only one is explicitly limited to same-sex
licenses, one other would likely be so limited, whereas four others would
not be so limited and instead disengage her from all marriage licenses. I
agree that the alternatives in the latter category don't raise as acute of
a separate-but-equal issue, but one of the four still leaves some of that
dynamic (by resulting in different licenses in this county than all other
Kentucky counties due to a government official's opposition to same-sex
marriage) and I suspect the state could defeat the other three proposed
alternatives at the compelling interest-stage (state not required to change
statewide marriage licensing program to accommodate a single county clerk).

For what it's worth, I didn't read Eugene's initiation of this thread as
advocacy for the clerk. I read it as a testing of the nearly universal
assumption that the clerk has no colorable legal arguments, and I suspect
Eugene would be inclined to do the same type of testing if new cases arose
involving clerks refusing to issue licenses because of opposition to
interracial marriages (there were such cases in the 1960s), interfaith
marriages, or marriages of divorced people. I'm still highly skeptical of
the Kentucky clerk's claims, but I appreciate having my assumptions tested,
and I've thought far more carefully about the potential state RFRA claim as
a result of this thread than I otherwise would have.

- Jim


On Wed, Sep 2, 2015 at 10:12 PM, Volokh, Eugene  wrote:

>I appreciate Jim’s “separate-but-equal feel” point; but as
> I understand it, the County Clerk would want her name removed from *all 
> *marriage
> licenses and certificates, not just same-sex ones.  The reason for that, to
> be sure, will be known to be her opposition to same-sex marriage.  But the
> certificates would be the same for all married couples in Rowan County,
> under the accommodation she is suggesting.
>
>
>
>Eugene
>
>
>
>
>
> Jim Oleske writes:
>
>
>
>
>
> I'm not sure the distinction would affect the analysis of the hypothetical
> Kentucky RFRA claim you posit. I think if we still had a federal
> constitutional exemption regime, the Court might utilize the distinction to
> disallow certain free exercise claims by government employees, analogizing
> to the speech context. And some state courts might do likewise with state
> constitutional free exercise claims. But to the extent Congress or state
> legislatures give government employees additional protections statutorily,
> whether through Title VII, RFRA, or other similar measures, the distinction
> might not be a barrier, especially given the examples you've found from the
> Title VII context.
>
>
>
> As for the reasonableness of providing the requested accommodation,
> telling one group of citizens that they don't get the certification that
> state law requires all other citizens of their county to receive has a
> separate-but-equal feel to me that I don't think is implicated in any of
> the Title VII cases cited below.
>
>
>
> - Jim
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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RE: Question about the Kentucky County Clerk controversy

[Alan E Brownstein]

Sorry to be late joining this discussion, but I had two idiosyncratic , left 
field thoughts on this issue.

If an accommodation is created (either through a separate statute or a RFRA 
decision) that permits the county clerk to delete his or her name from marriage 
licenses to mitigate the burden on clerks who oppose same-sex marriage for 
religious reasons, would that decision require similar accommodations for other 
government employees who object on religious grounds to having their name on 
other documents issued by their office. Under establishment clause doctrine 
prohibiting religious favoritism in the granting of accommodations, just how 
broad would an accommodation have to be (either initially or eventually) to 
avoid religious preferentialism concerns.

Also, do the functions of the county clerk’s office make it a government agency 
in which religious accommodations based on substantive disagreements with the 
law might be considered particularly problematic. If the county clerk’s office 
in Kentucky conducts and supervises elections as the clerk’s office does in 
California, we might reasonably require that individuals who hold that office 
must be prepared to set their personal beliefs aside and operate their office 
under scrupulously neutral criteria. Of course, one might distinguish between 
different functions performed by the clerk’s office. Issuing marriage licenses 
might be distinguished from certifying the results of elections.  But this may 
be an office where the appearance of impartiality is particularly important. 
Just a thought.

Alan

From: religionlaw-bounces+aebrownstein=law.ucdavis@lists.ucla.edu 
[mailto:religionlaw-bounces+aebrownstein=law.ucdavis@lists.ucla.edu] On 
Behalf Of Volokh, Eugene
Sent: Thursday, September 03, 2015 8:11 AM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

According to the district court opinion, Davis has six deputy 
clerks.  “Four of Davis’ deputy clerks share her religious objection to 
same-sex marriage, and another is undecided on the subject.  The final deputy 
clerk is willing to issue the licenses, but Davis will not allow it because her 
name and title still appear twice on licenses that she does not personally 
sign.”

Eugene


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 10:41 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

By the way, none of this affects whether Davis should be held in contempt 
today:  Obviously, she should be.  If her principal complaint is merely that 
the Kentucky RFRA gives her the right to omit her name on the two lines in 
question, she should simply instruct the Deputy Clerk to do just that, but to 
otherwise issue the licenses/certificates.  And then if her superiors, such as 
the Governor, conclude that the documents are not valid without her name 
(notwithstanding the KY RFRA), she'd have to include her name, too.  There's no 
justification for directing the willing Deputy Clerk not to issue the documents.

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RE: Question about the Kentucky County Clerk controversy

[Conkle, Daniel O.]

One additional point about the actual litigation: the federal district court in 
fact considered a claim under the Ky. RFRA, rejecting the claim on its merits.  
Is there any reason to believe that he should not have done so?  I’m wonder why 
Eugene has been suggesting there would have to be a separate state court 
lawsuit invoking the Ky. RFRA.

Daniel O. Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu<mailto:con...@indiana.edu>




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 5:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

I would tend to agree with Eugene here, but for two things.

First, Davis only took office as County Clerk seven months ago, when it was 
quite foreseeable that her office would be required to issue same-sex marriage 
licenses and certificates.  As we discussed in an earlier thread, I doubt the 
prospect of losing this new job would place a substantial burden on her 
religious exercise, assuming she could then go back to her longtime position as 
Deputy Clerk.

But let's put aside that debate, which we ran to ground last time.  Let's 
assume, for instance, that she'd have to resign from the Clerk's office 
altogether if she does not comply with Kentucky law, thereby forfeiting her 
vocation of 30 years.  In that case, I might agree with Eugene about Kentucky's 
RFRA if the facts were as Davis alleges.  That is to say:  If Kentucky law 
otherwise required her, as County Clerk, to (as her brief alleges) "authoriz[e] 
and approv[e] a proposed union to be a 'marriage,' which, in her sincerely-held 
religious beliefs, is not a marriage," then perhaps the Kentucky RFRA should be 
construed to permit her deputy clerk, rather than herself, to sign all marriage 
certificates and licenses in her county (same-sex and opposite-sex alike).  
(One of her deputy clerks does not share her religious objection and has agreed 
to do so.)

Here's the catch, however:  Even apart from RFRA, Kentucky law already allows 
the wiling deputy clerk to sign the certificate and license, in lieu of Davis.  
(The license authorizes the officiant to perform the marriage; the certificate 
records the marriage itself.)  Davis does not have to sign or approve them.

So why is she instructing her deputies not to issue such certificates and 
licenses?  Because, she claims, even if a deputy signs the forms, her name will 
continue to appear in one place on each of them.  And she's right about that:  
Her name will continue to appear.

However, I believe Davis is mistaken when she argues that "every license 
requires her name to appear on the license as the authorizing person."  As you 
can see from the forms themselves -- on page 139 of the pdf -- the authorizing 
person will be the deputy clerk who signs the forms, not Davis.  Her name would 
appear on each form only to identify in which clerk's office the license was 
issued and the certificate recorded.  E.g.:  "Issued this 3 September 2015 in 
the office of Kim Davis, Rowan County County Clerk, Morehead, Kentucky by Brian 
Mason, Deputy Clerk."

Her petition suggests that even this factual statement -- that the license was 
issued in her office -- will be seen as her endorsement of the marriage, 
thereby making her complicit in it.  But that's simply wrong, isn't it?:  
Particularly since it will be her deputy's signature, rather than Davis's, that 
appears on the forms, no reasonable observer, with any modicum of knowledge 
about the views of Kentucky County Clerks in the wake of Obergefell, would 
possibly think that Davis herself has endorsed or approved a same-sex marriage. 
 And therefore, her basic claim about complicity-by-approval or 
complicity-by-perceived-endorsement, is premised on a mistake of fact . . . and 
thus there's no substantial burden on her religious exercise, even accepting 
her religious beliefs.

Now, I agree that, if only to end this whole unfortunate dispute in a way that 
will apparently make Davis feel even further removed from the marriages, it 
would be wise and magnanimous of the Governor to allow Davis to leave her name 
off the documents for all marriages in Cowan county, even if the law does not 
require that accommodation.  E.g.:  "Issued this 3 September 2015 in the office 
of the Rowan County County Clerk, Morehead, Kentucky by Brian Mason, Deputy 
Clerk."  But the Governor can and should do so only if such an omission of 
Davis's name would in no way affect the validity of the documents under 
Kentucky law.

On Wed, Sep 2, 2015 at 6:31 PM, Volokh, Eugene 
<v

Re: Question about the Kentucky County Clerk controversy

[K Chen]

"But the Governor can and should do so *only *if such an omission of
Davis's name would in no way affect the validity of the documents under
Kentucky law."

I don't see how this is a sufficient test. Providing an carve-out/opt-out
for Davis in this way doesn't just help Davis with
her philosophical angst vis-a-vis guilt by association, it also produces a
burden on the state. I don't just mean the government, I mean the entire
population of the state. Any and every Kentucky couple seeking a marriage
license and anyone who has to encounter that license for whatever reason
now has to either 1) deal with two classes of forms, one of which was
created to allow an elected government officer to distance herself from one
class of marriages or 2) deal with a single license form, now missing
information that is plenty useful and confers a certain amount of
ceremonial dignity. Ceremonial dignity is not a small thing when it comes
to marriages, for better or worse. However large or small we think that
burden is, that burden is exacted repeatedly on the state population.

Kevin Chen, Esq.

On Thu, Sep 3, 2015 at 5:42 AM, Marty Lederman 
wrote:

> I would tend to agree with Eugene here, but for two things.
>
> First, Davis only took office as County Clerk seven months ago, when it
> was quite foreseeable that her office would be required to issue same-sex
> marriage licenses and certificates.  As we discussed in an earlier thread,
> I doubt the prospect of losing this new job would place a substantial
> burden on her religious exercise, assuming she could then go back to her
> longtime position as Deputy Clerk.
>
> But let's put aside that debate, which we ran to ground last time.  Let's
> assume, for instance, that she'd have to resign from the Clerk's office
> altogether if she does not comply with Kentucky law, thereby forfeiting her
> vocation of 30 years.  In that case, I might agree with Eugene about
> Kentucky's RFRA *if *the facts were as Davis alleges.  That is to say:
>  If Kentucky law otherwise required her, as County Clerk, to (as her brief
> alleges) "authoriz[e] and approv[e] a proposed union to be a 'marriage,'
> which, in her sincerely-held religious beliefs, is not a marriage," then
> perhaps the Kentucky RFRA should be construed to permit her deputy clerk,
> rather than herself, to sign all marriage certificates and licenses in her
> county (same-sex and opposite-sex alike).  (One of her deputy clerks does
> not share her religious objection and has agreed to do so.)
>
> Here's the catch, however:  Even apart from RFRA, Kentucky law *already* 
> allows
> the wiling deputy clerk to sign the certificate and license, in lieu of
> Davis.  (The license authorizes the officiant to perform the marriage; the
> certificate records the marriage itself.)  Davis does not have to sign or
> approve them.
>
> So why is she instructing her deputies not to issue such certificates and
> licenses?  Because, she claims, even if a deputy signs the forms, her name
> will continue to appear in one place on each of them.  And she's right
> about that:  Her name will continue to appear.
>
> However, I believe Davis is mistaken when she argues that "every license
> requires her name to appear on the license *as the authorizing person*."
>  As you can see from the forms themselves -- on page 139 of the pdf -- the
> authorizing person will be the deputy clerk who signs the forms, *not *Davis.
> Her name would appear on each form only to identify *in* *which clerk's
> office* the license was issued and the certificate recorded.  E.g.:
>  "Issued this 3 September 2015 in the office of Kim Davis, Rowan County
> County Clerk, Morehead, Kentucky *by Brian Mason, Deputy Clerk*."
>
> Her petition suggests that even this factual statement -- that the license
> was issued in her office -- will be seen as her endorsement of the
> marriage, thereby making her complicit in it.  But that's simply wrong,
> isn't it?:  Particularly since it will be her deputy's signature, rather
> than Davis's, that appears on the forms, no reasonable observer, with any
> modicum of knowledge about the views of Kentucky County Clerks in the wake
> of *Obergefell*, would possibly think that Davis herself has endorsed or
> approved a same-sex marriage.  And therefore, her basic claim about
> complicity-by-approval or complicity-by-perceived-endorsement, is premised
> on a mistake of fact . . . and thus there's no substantial burden on her
> religious exercise, even accepting her religious beliefs.
>
> Now, I agree that, if only to end this whole unfortunate dispute in a way
> that will apparently make Davis feel even further removed from the
> marriages, it would be wise and magnanimous of the Governor to allow Davis
> to leave her name off the documents for all marriages in Cowan county, even
> if the law does not require that accommodation.  E.g.:  "Issued this 3
> September 2015 in the office of the Rowan County County Clerk, 

Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   I was wondering what list members thought – as a legal matter – 
of this following issue that arises in the Kentucky County Clerk controversy.  
A federal judge issued an injunction ordering County Clerk Kim Davis to issue 
marriage licenses, including same-sex marriage licenses.  See 
http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
 (the application for stay from the Supreme Court, with the orders below 
attached).  I think that’s quite correct.

   But as I understand it, Kim Davis’s stated objection is not to 
having any same-sex marriages be processed by her office, but only to 
authorizing the distribution of marriage license and certificate forms in which 
her name appears (see PDF p. 133 of the linked-to file above).  In particular, 
she says that she would accept the option of “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” (PDF p. 40); presumably those forms might say “Clerk of 
Rowan County” or perhaps the name of a deputy clerk who is willing to have his 
or her name used for that (assuming there is one).

   Now I’m not sure this is a remedy that the federal courts could 
offer, or ought to offer.  But say that Davis asks for an injunction or for 
declaratory judgment from a Kentucky state court, under the Kentucky RFRA, 
seeking to exempt her from the statutory requirement of having her name appear 
on the form.  Should she prevail?

   Or stepping away from the same-sex marriage issue, say that 
every time a death warrant was issued in a county, the County Clerk was by 
statute required to sign off on it, as a purely ministerial task; but the 
County Clerk objected on religious grounds to the death penalty, and filed a 
RFRA claim asking to have that requirement waived, so that a deputy (who was 
willing to sign) would sign instead.  Should she prevail, again under a state 
RFRA?

   Finally, say that the County Clerk was an employee rather than 
an elected officeholder, so that Title VII would apply (it doesn’t apply to 
elected officeholders).  Would the County Clerk have a right under Title VII’s 
reasonable accommodation mandate to this sort of exemption?  Compare, e.g., 
American Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 777 (9th Cir. 
1986) (concluding that government employer had a duty to reasonably 
accommodate, by arranging transfers to other jobs, postal workers who had a 
religious objection to processing draft registration forms); McGinnis v. United 
States Postal Serv., 512 F. Supp. 517, 523 (N.D. Cal. 1980) (finding the 
government had a duty to reasonably accommodate, by offering a transfer to 
another window that wasn't used for registration materials); Haring v. 
Blumenthal, 471 F. Supp. 1172 (D.D.C. 1979) (concluding that the IRS had an 
obligation to exempt an employee from having to work on tax-exempt status 
applications from abortion clinics and other organizations that the employee 
thought it sinful to deal with); Best v. California Apprenticeship Council, 207 
Cal. Rptr. 863, 868 (Ct. App. 1984) (concluding that an apprentice training 
organization--which was treated by state law as an employer--had an obligation 
to accommodate an apprentice's religious objection to working in a nuclear 
power plant); David Haldane, Panel Backs Fired Vegetarian Bus Driver, L.A. 
Times, Aug. 24, 1996, at A18 (discussing a case in which the EEOC concluded 
that a transportation agency must accommodate a vegetarian bus driver's 
religious objections to handing out hamburger coupons as part of the agency's 
promotion aimed at boosting ridership); Felhaber et al., Bits and Pieces, Minn. 
Employment L. Letter, Sept. 1997 (reporting that the case against the 
transportation agency was settled for $50,000).

   Eugene
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RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   It seems to me that even government officials are sometimes 
acted upon by the government, and might get exemptions from government-imposed 
rules.  That's certainly true for lower-level government employees, but I would 
think the same might be true of election officials, too.  (Compare McDaniel v. 
Paty, which the plurality viewed as a Sherbert-based exemption case, though it 
has since been largely viewed as a discrimination case.)

   Say, for instance, that there is a statute or ordinance 
mandating a no-facial-hair rule for law enforcement officials, including 
elected sheriffs.  A sheriff who belongs to a beard-wearing religion is elected 
to office.  Why wouldn't he have a RFRA claim to an exemption from the 
no-facial-hair rule?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Wednesday, September 02, 2015 7:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

Kentucky law requires the license to be signed by the clerk or deputy clerk. 
http://www.lrc.ky.gov/statutes/statute.aspx?id=36475

I have a different question though. State RFRAs protect against actions by the 
government that infringe religious liberty.  Here Kim Davis "is" the 
government, i.e. she is objecting to actions she is required to take in her 
official capacity.  Should RFRAs be read to protect government officials in 
that kind of situation?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman 
[paul.finkel...@yahoo.com]
Sent: Wednesday, September 02, 2015 8:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy
Quick question. Does anyone know if KY law requires the clerk to issue the 
license in the Clerk's name, as opposed to "the office of the Clerk" as Eugene 
suggests?


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>


From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: "Law & Religion issues for Law Academics 
(religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>)" 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, September 2, 2015 6:31 PM
Subject: Question about the Kentucky County Clerk controversy

   I was wondering what list members thought - as a legal matter - 
of this following issue that arises in the Kentucky County Clerk controversy.  
A federal judge issued an injunction ordering County Clerk Kim Davis to issue 
marriage licenses, including same-sex marriage licenses.  See 
http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
 (the application for stay from the Supreme Court, with the orders below 
attached).  I think that's quite correct.

   But as I understand it, Kim Davis's stated objection is not to 
having any same-sex marriages be processed by her office, but only to 
authorizing the distribution of marriage license and certificate forms in which 
her name appears (see PDF p. 133 of the linked-to file above).  In particular, 
she says that she would accept the option of "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" (PDF p. 40); presumably those forms might say "Clerk of 
Rowan County" or perhaps the name of a deputy clerk who is willing to have his 
or her name used for that (assuming there is one).

   Now I'm not sure this is a remedy that the federal courts could 
offer, or ought to offer.  But say that Davis asks for an injunction or for 
declaratory judgment from a Kentucky state court, under the Kentucky RFRA, 
seeking to exempt her from the statutory requirement of having her name appear 
on the form.  Should she prevail?

   Or stepping away from the same-sex marriage issue, say that 
every time a death warrant was issued in a county, the County Clerk was by 
statute required to sign off on it, as a purely ministerial task; but the 
County Clerk objected on religious grounds to the death penalty, and filed a 
RFRA claim asking to have that requirement waived, so that a deputy (who was 
willing to sign

RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   1.  As best I can tell, County Clerk positions have quite modest 
discretionary authority.  The County Clerk’s job is mostly to administer the 
office effectively.

   2.  But in any event, I’m not sure why the overall nature of the 
elected position should affect much here.  Without a doubt, Title VII’s 
reasonable accommodation requirement doesn’t allow ordinary employees to veto 
office policy generally; at most, it requires the employer to offer low-cost 
accommodations that would still let the job get done.  State RFRAs might or 
might not require more, but probably not much more.  The same, I take it, would 
apply to policymaking employees, or to elected officials.

   The question then is the particular kind of accommodation that 
is sought.  I agree that Davis shouldn’t get an accommodation that would 
involve shutting down marriage licenses in the county.  But if Davis sues under 
the Kentucky RFRA, asking simply that the form not include her name, how is 
that “a veto”?  Why wouldn’t that be precisely the sort of low-cost 
accommodation that a state RFRA would authorize?

   Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of K Chen
Sent: Wednesday, September 02, 2015 9:57 PM
To: Paul Finkelman; Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

"I agree that the key question is how hard it is to provide an accommodation.  
But as I understand the claim, here the accommodation would be easy:  She 
doesn’t demand that marriage licenses be unavailable from her office, or even 
that same-sex marriage licenses be unavailable from her office.  She just wants 
a deputy’s name (or perhaps even the generic “Court Clerk”) to appear on the 
form instead of hers.  How hard is that?"

Fairly? It may be simple from a word processing stand point, but it bakes an 
injury into every marriage license that the county issues from that point 
forward by creating two separate classes of license, one which has the approval 
 of the appropriate minister and one that has it conspicuously absent. This is 
unlike the individual governmental employee in a large office who moves from 
one end of the office to the other to avoid processing a particular kind of 
paperwork - the office as a whole produces the same product, the burdens are 
simply shifted among the various constituent parts of the entity. Here, the 
"product" if you will, is altered significantly. Is it all that different than 
her demanding an accommodation to have the county clerk's office issue civil 
union licenses instead of marriage licenses? There is a distinct difference 
between requesting an accommodation and overriding policy. KRS 402.100 
<http://www.lrc.ky.gov/statutes/statute.aspx?id=36475> requires clerks to "use 
the form prescribed by the Department for Libraries and Archives".

While I suppose one can be elected for a purely ministerial position, there is 
a general assumption that elected positions have significant discretionary and 
therefore policy making powers. Granting accommodations to such persons does 
not grant them an accommodation so much as it grants them a veto, as can be 
seen in Davis shutting down the office entirely.

Kevin Chen, Esq.
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RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   I appreciate Jim’s “separate-but-equal feel” point; but as I 
understand it, the County Clerk would want her name removed from all marriage 
licenses and certificates, not just same-sex ones.  The reason for that, to be 
sure, will be known to be her opposition to same-sex marriage.  But the 
certificates would be the same for all married couples in Rowan County, under 
the accommodation she is suggesting.

   Eugene


Jim Oleske writes:


I'm not sure the distinction would affect the analysis of the hypothetical 
Kentucky RFRA claim you posit. I think if we still had a federal constitutional 
exemption regime, the Court might utilize the distinction to disallow certain 
free exercise claims by government employees, analogizing to the speech 
context. And some state courts might do likewise with state constitutional free 
exercise claims. But to the extent Congress or state legislatures give 
government employees additional protections statutorily, whether through Title 
VII, RFRA, or other similar measures, the distinction might not be a barrier, 
especially given the examples you've found from the Title VII context.

As for the reasonableness of providing the requested accommodation, telling one 
group of citizens that they don't get the certification that state law requires 
all other citizens of their county to receive has a separate-but-equal feel to 
me that I don't think is implicated in any of the Title VII cases cited below.

- Jim
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Re: Question about the Kentucky County Clerk controversy

[Scarberry, Mark]

I haven't been following this carefully, so I have a basic question. Why is a 
federal court ordering her to comply with state law? She is not at this point 
treating same-sex couples differently, and apparently all couples still can get 
licenses by going to a different county. I would assume that the burden of 
doing so is not so great that KY couldn't close down the marriage-license 
issuing function at some county clerks' offices for other reasons. So this 
doesn't seem to be a matter of the placing of an impermissible obstacle in the 
path of couples (same-sex or not) who want to marry.

I suppose the best argument would rely on the pool and park closing cases from 
the 1950s (and 1960s?) in which local officials resisted desegregation by 
closing down public facilities which could permissibly have been closed down 
for other reasons.

I suppose that otherwise a federal court has no business enforcing Kentucky 
law; where would the federal question be? If Kentucky does not choose to 
enforce Kentucky law, or takes the position that the clerk's religious 
conscience should be protected, what basis would the federal court have for 
intervening?

So it seems to me that this turns on an application of the principle of the 
pool and park closing cases: the action doesn't formally discriminate against 
same-sex couples, but the closing of the wedding license window was done with 
discriminatory intent, in violation of the Equal Protection Clause. Whether 
that analogy is persuasive seems to me to be an important question.

But again I haven't been following this case carefully.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Sep 2, 2015, at 9:26 PM, "Paul Finkelman" 
> wrote:

But this is not an attempt to accommodate by someone else doing it. She refuses 
to issue any marriage licenses and has not delegated anyone else in the office 
to do it.  This is not like a religious cop who won't work on (pick the holy 
day).  And Your solution apparently would require a change in KY law, since as 
someone else noted, the law *requires* her name on it.


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com

___
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   I agree that the key question is how hard it is to provide an 
accommodation.  But as I understand the claim, here the accommodation would be 
easy:  She doesn't demand that marriage licenses be unavailable from her 
office, or even that same-sex marriage licenses be unavailable from her office. 
 She just wants a deputy's name (or perhaps even the generic "Court Clerk") to 
appear on the form instead of hers.  How hard is that?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Wednesday, September 02, 2015 9:02 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

But, Eugene, isn't your bearded sheriff different from a clerk refusing to do 
hers job.  The analogy would not be to the beard but to the pacifist sheriff 
who refuses to carry a gun, or the animal rights sheriff who refuses to use 
police dogs, or even the person who believes saving the environment is a 
religious obligation and so as sheriff mothballs all the police cruisers.   An 
accommodation could easily be made for a beard, or halal or kosher food, or 
different Sabbaths.  It is hard do so when the official flat out refuses to do 
the job.

In this case it is beyond marriage equality.  The clerk will not give marriage 
licenses to anyone.  So much for being in favor of marriage, traditional or 
otherwise.

Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law, University of 
Saskatchewan College of Law (2016)
and
Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, 
and Constitutionalism
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, September 02, 2015 11:41 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

   It seems to me that even government officials are sometimes 
acted upon by the government, and might get exemptions from government-imposed 
rules.  That's certainly true for lower-level government employees, but I would 
think the same might be true of election officials, too.  (Compare McDaniel v. 
Paty, which the plurality viewed as a Sherbert-based exemption case, though it 
has since been largely viewed as a discrimination case.)

   Say, for instance, that there is a statute or ordinance 
mandating a no-facial-hair rule for law enforcement officials, including 
elected sheriffs.  A sheriff who belongs to a beard-wearing religion is elected 
to office.  Why wouldn't he have a RFRA claim to an exemption from the 
no-facial-hair rule?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Wednesday, September 02, 2015 7:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

Kentucky law requires the license to be signed by the clerk or deputy clerk. 
http://www.lrc.ky.gov/statutes/statute.aspx?id=36475

I have a different question though. State RFRAs protect against actions by the 
government that infringe religious liberty.  Here Kim Davis "is" the 
government, i.e. she is objecting to actions she is required to take in her 
official capacity.  Should RFRAs be read to protect government officials in 
that kind of situation?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman 
[paul.finkel...@yahoo.com]
Sent: Wednesday, September 02, 2015 8:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy
Quick question. Does anyone know if KY law requires the clerk to issue the 
license in the Clerk's name, as opposed to "the office of the Clerk" as Eugene 
suggests?


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>


From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: "Law & Religion issues for Law Academics 
(religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>)&q

Re: Question about the Kentucky County Clerk controversy

[James Oleske]

I agree with Eugene that being elected doesn't disqualify one from getting
exemptions that lower-level officials might get, but I read Howard's email
to be raising a different distinction that might have an analog in the free
speech context.

Some speech by a government employee is the employee's speech, and
potentially protected, but other speech by a government employee is on
behalf of the government, and not protected. See Garcetti. Likewise, a
police officer's conduct in growing a beard may qualify as his religious
conduct, while a police officer's conduct in issuing tickets may qualify as
official government conduct (even if the police officer signs his name to
the tickets, as he's doing so in his government capacity).

This might not resolve the RFRA issue, but I do think its a distinction
worth thinking about.

- Jim

On Wed, Sep 2, 2015 at 8:41 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:

>It seems to me that even government officials are sometimes
> acted upon by the government, and might get exemptions from
> government-imposed rules.  That’s certainly true for lower-level government
> employees, but I would think the same might be true of election officials,
> too.  (Compare *McDaniel v. Paty*, which the plurality viewed as a
> *Sherbert*-based exemption case, though it has since been largely viewed
> as a discrimination case.)
>
>
>
>Say, for instance, that there is a statute or ordinance
> mandating a no-facial-hair rule for law enforcement officials, including
> elected sheriffs.  A sheriff who belongs to a beard-wearing religion is
> elected to office.  Why wouldn’t he have a RFRA claim to an exemption from
> the no-facial-hair rule?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Friedman, Howard M.
> *Sent:* Wednesday, September 02, 2015 7:10 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Question about the Kentucky County Clerk controversy
>
>
>
> Kentucky law requires the license to be signed by the clerk or deputy
> clerk. http://www.lrc.ky.gov/statutes/statute.aspx?id=36475
>
>
>
> I have a different question though. State RFRAs protect against actions by
> the government that infringe religious liberty.  Here Kim Davis "is" the
> government, i.e. she is objecting to actions she is required to take in her
> official capacity.  Should RFRAs be read to protect government officials in
> that kind of situation?
>
>
>
> Howard Friedman
> --
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman [
> paul.finkel...@yahoo.com]
> *Sent:* Wednesday, September 02, 2015 8:48 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Question about the Kentucky County Clerk controversy
>
> Quick question. Does anyone know if KY law requires the clerk to issue the
> license in the Clerk's name, as opposed to "the office of the Clerk" as
> Eugene suggests?
>
>
>
>
> **
> Paul Finkelman, Ph.D.
>
>
>
> *Senior Fellow Penn Program on Democracy, Citizenship, and
> Constitutionalism University of Pennsylvania and *
>
>
> *Scholars Advisory Panel National Constitution Center  Philadelphia,
> Pennsylvania *
> 518-439-7296 (w)
> 518-605-0296 (c)
> paul.finkel...@yahoo.com
> www.paulfinkelman.com
>
>
> ----------
>
> *From:* "Volokh, Eugene" <vol...@law.ucla.edu>
> *To:* "Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)"
> <religionlaw@lists.ucla.edu>
> *Sent:* Wednesday, September 2, 2015 6:31 PM
> *Subject:* Question about the Kentucky County Clerk controversy
>
>
>
>I was wondering what list members thought – as a legal
> matter – of this following issue that arises in the Kentucky County Clerk
> controversy.  A federal judge issued an injunction ordering County Clerk
> Kim Davis to issue marriage licenses, including same-sex marriage
> licenses.  See
> http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
> (the application for stay from the Supreme Court, with the orders below
> attached).  I think that’s quite correct.
>
>
>
>But as I understand it, Kim Davis’s stated objection is not
> to having any same-sex marriages be processed by her office, but only to
> authorizing the distribution of marriage license and certificate forms in
> which her name appears (see PDF p. 133 of the linked-to file above).  In
> particular, she says that she would accept the opti

RE: Question about the Kentucky County Clerk controversy

[Finkelman, Paul]

But, Eugene, isn't your bearded sheriff different from a clerk refusing to do 
hers job.  The analogy would not be to the beard but to the pacifist sheriff 
who refuses to carry a gun, or the animal rights sheriff who refuses to use 
police dogs, or even the person who believes saving the environment is a 
religious obligation and so as sheriff mothballs all the police cruisers.   An 
accommodation could easily be made for a beard, or halal or kosher food, or 
different Sabbaths.  It is hard do so when the official flat out refuses to do 
the job.

In this case it is beyond marriage equality.  The clerk will not give marriage 
licenses to anyone.  So much for being in favor of marriage, traditional or 
otherwise.


Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law, University of 
Saskatchewan College of Law (2016)
and
Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, 
and Constitutionalism
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, September 02, 2015 11:41 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

   It seems to me that even government officials are sometimes 
acted upon by the government, and might get exemptions from government-imposed 
rules.  That's certainly true for lower-level government employees, but I would 
think the same might be true of election officials, too.  (Compare McDaniel v. 
Paty, which the plurality viewed as a Sherbert-based exemption case, though it 
has since been largely viewed as a discrimination case.)

   Say, for instance, that there is a statute or ordinance 
mandating a no-facial-hair rule for law enforcement officials, including 
elected sheriffs.  A sheriff who belongs to a beard-wearing religion is elected 
to office.  Why wouldn't he have a RFRA claim to an exemption from the 
no-facial-hair rule?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Wednesday, September 02, 2015 7:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

Kentucky law requires the license to be signed by the clerk or deputy clerk. 
http://www.lrc.ky.gov/statutes/statute.aspx?id=36475

I have a different question though. State RFRAs protect against actions by the 
government that infringe religious liberty.  Here Kim Davis "is" the 
government, i.e. she is objecting to actions she is required to take in her 
official capacity.  Should RFRAs be read to protect government officials in 
that kind of situation?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman 
[paul.finkel...@yahoo.com]
Sent: Wednesday, September 02, 2015 8:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy
Quick question. Does anyone know if KY law requires the clerk to issue the 
license in the Clerk's name, as opposed to "the office of the Clerk" as Eugene 
suggests?


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>


From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: "Law & Religion issues for Law Academics 
(religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>)" 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, September 2, 2015 6:31 PM
Subject: Question about the Kentucky County Clerk controversy

   I was wondering what list members thought - as a legal matter - 
of this following issue that arises in the Kentucky County Clerk controversy.  
A federal judge issued an injunction ordering County Clerk Kim Davis to issue 
marriage licenses, including same-sex marriage licenses.  See 
http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
 (the application for stay from the Supreme Court, with the orders below 
attached).  I think that's quite correct.

   But as I understand it, Kim Davis's stated objection is not to 
having any same-sex

Re: Question about the Kentucky County Clerk controversy

[K Chen]

"I agree that the key question is how hard it is to provide an
accommodation.  But as I understand the claim, here the accommodation would
be easy:  She doesn’t demand that marriage licenses be unavailable from her
office, or even that same-sex marriage licenses be unavailable from her
office.  She just wants a deputy’s name (or perhaps even the generic “Court
Clerk”) to appear on the form instead of hers.  How hard is that?"

Fairly? It may be simple from a word processing stand point, but it bakes
an injury into every marriage license that the county issues from that
point forward by creating two separate classes of license, one which has
the approval  of the appropriate minister and one that has
it conspicuously absent. This is unlike the individual governmental
employee in a large office who moves from one end of the office to the
other to avoid processing a particular kind of paperwork - the office as a
whole produces the same product, the burdens are simply shifted among the
various constituent parts of the entity. Here, the "product" if you will,
is altered significantly. Is it all that different than her demanding
an accommodation to have the county clerk's office issue civil union
licenses instead of marriage licenses? There is a distinct difference
between requesting an accommodation and overriding policy. KRS 402.100
<http://www.lrc.ky.gov/statutes/statute.aspx?id=36475>requires clerks to "use
the form prescribed by the Department for Libraries and Archives".

While I suppose one can be elected for a purely ministerial position, there
is a general assumption that elected positions have significant
discretionary and therefore policy making powers. Granting accommodations
to such persons does not grant them an accommodation so much as it grants
them a veto, as can be seen in Davis shutting down the office entirely.

Kevin Chen, Esq.

On Thu, Sep 3, 2015 at 12:26 AM, Paul Finkelman <paul.finkel...@yahoo.com>
wrote:

> But she has not done any of this.  Had she done this from day one there
> would have been no law suit, assuming fo course that it does not violate KY
> law.  Instead, she just shuts her door and says no licenses.  There is no
> evidence of her trying to accommodate, at least not in any of the many news
> stories on this.
>
>
> **
> Paul Finkelman, Ph.D.
>
>
>
> *Senior Fellow Penn Program on Democracy, Citizenship, and
> Constitutionalism University of Pennsylvania and *
>
>
> *Scholars Advisory Panel National Constitution Center  Philadelphia,
> Pennsylvania *
> 518-439-7296 (w)
> 518-605-0296 (c)
> paul.finkel...@yahoo.com
> www.paulfinkelman.com
>
> --
> *From:* "Volokh, Eugene" <vol...@law.ucla.edu>
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
>
> *Sent:* Thursday, September 3, 2015 12:20 AM
>
> *Subject:* RE: Question about the Kentucky County Clerk controversy
>
>I agree that the key question is how hard it is to provide
> an accommodation.  But as I understand the claim, here the accommodation
> would be easy:  She doesn’t demand that marriage licenses be unavailable
> from her office, or even that same-sex marriage licenses be unavailable
> from her office.  She just wants a deputy’s name (or perhaps even the
> generic “Court Clerk”) to appear on the form instead of hers.  How hard is
> that?
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Finkelman, Paul
> *Sent:* Wednesday, September 02, 2015 9:02 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Question about the Kentucky County Clerk controversy
>
> But, Eugene, isn't your bearded sheriff different from a clerk refusing to
> do hers job.  The analogy would not be to the beard but to the pacifist
> sheriff who refuses to carry a gun, or the animal rights sheriff who
> refuses to use police dogs, or even the person who believes saving the
> environment is a religious obligation and so as sheriff mothballs all the
> police cruisers.   An accommodation could easily be made for a beard, or
> halal or kosher food, or different Sabbaths.  It is hard do so when the
> official flat out refuses to do the job.
>
> In this case it is beyond marriage equality.  The clerk will not give
> marriage licenses to anyone.  So much for being in favor of marriage,
> traditional or otherwise.
>
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law, University of
> Saskatchewan College of Law (2016)
> and
> Senior Fellow, University of Pennsylvania Program on Democracy,
> Citizenship, and Constitutionalism
> 518-439-7296 (w)
> 518-605-0296 (c)
>

RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   1.  Lots of employees, elected or otherwise, have substantial 
discretionary authority.  I’m not sure that affects whether a state RFRA should 
apply to them.

   2.  As I understand it, under Kentucky law the documents just 
have to have her name on them because she is the County Clerk.  She doesn’t 
have to hand-sign each one; they are instead signed by the deputy clerks who 
would normally handle such documents.

   3.  The particular proposed accommodation I’m discussing 
wouldn’t involve her name on opposite-sex marriage licenses but not same-sex 
ones – as I understand it, it’s that her name just wouldn’t appear on the 
licenses in that county.

   4.  I don’t think the “currying disfavor” objection really works 
here.  One way or another, the deputies know that their superior is clearly 
against same-sex marriages.  They’d have known it even if she had simply 
publicly said that she’s complying with the law but she thinks same-sex 
marriage is an abomination (something that she would have a First Amendment 
right to say, see Bond v. Floyd).  Whatever the reasons might be for denying 
her an accommodation, I don’t see how concerns about deputies’ worries about 
her disapproving of same-sex marriages would qualify as one such reason.

   Eugene

From: K Chen [mailto:tzn...@gmail.com]
Sent: Wednesday, September 02, 2015 10:29 PM
To: Law & Religion issues for Law Academics
Cc: Volokh, Eugene
Subject: Re: Question about the Kentucky County Clerk controversy

1. Modest or otherwise, there is still that authority. I'm suggesting that as 
the underlying reason that Title VII does not apply to elected officials.

2. The change isn't low cost at all. In the scenario where she simply stops 
signing one set of documents (for same sex couples) and not the other (for 
opposite sex couples), she's discriminating, and baking that discrimination 
into each document. Another way to think about it that, if the county was in 
instead Acme Widget Corporation and Davis a QA specialist, she's not requesting 
Acme's HR change their internal forms on which she signs off on QA so much as 
changing the widgets themselves so they no longer have a QA signature on them. 
Whatever the fiscal cost of such a change, it is a significant one impacting 
the corporation's whole line.

In the situation where she has her deputy sign the other set of documents /can/ 
create that discrimination in a visible way, but even if it doesn't, it 
increases the burden on her deputy clerks significantly. Are they going to have 
to get more deputies? Are there now going to be worries for the deputies about 
currying disfavor for processing something their superior is so clearly against?

I suppose I am begging the question of whether having /anyone/ sign any 
marriage license has a governmental purpose, but I don't imagine it'd be hard 
to find a good one.

Kevin Chen, Esq.

On Thu, Sep 3, 2015 at 1:06 AM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   1.  As best I can tell, County Clerk positions have quite modest 
discretionary authority.  The County Clerk’s job is mostly to administer the 
office effectively.

   2.  But in any event, I’m not sure why the overall nature of the 
elected position should affect much here.  Without a doubt, Title VII’s 
reasonable accommodation requirement doesn’t allow ordinary employees to veto 
office policy generally; at most, it requires the employer to offer low-cost 
accommodations that would still let the job get done.  State RFRAs might or 
might not require more, but probably not much more.  The same, I take it, would 
apply to policymaking employees, or to elected officials.

   The question then is the particular kind of accommodation that 
is sought.  I agree that Davis shouldn’t get an accommodation that would 
involve shutting down marriage licenses in the county.  But if Davis sues under 
the Kentucky RFRA, asking simply that the form not include her name, how is 
that “a veto”?  Why wouldn’t that be precisely the sort of low-cost 
accommodation that a state RFRA would authorize?

   Eugene


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of K Chen
Sent: Wednesday, September 02, 2015 9:57 PM
To: Paul Finkelman; Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

"I agree that the key question is how hard it is to provide an accommodation.  
But as I understand the claim, here the accommodation would be easy:  She 
doesn’t demand that marriage licenses be unavailable from her office, or even 
that same-sex marriage licenses be unavailable from her office.  She just wants 
a deputy’s name (or perhaps even the generic “Court Clerk”) to appe

RE: Question about the Kentucky County Clerk controversy

[Friedman, Howard M.]

Kentucky law requires the license to be signed by the clerk or deputy clerk. 
http://www.lrc.ky.gov/statutes/statute.aspx?id=36475

I have a different question though. State RFRAs protect against actions by the 
government that infringe religious liberty.  Here Kim Davis "is" the 
government, i.e. she is objecting to actions she is required to take in her 
official capacity.  Should RFRAs be read to protect government officials in 
that kind of situation?

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Paul Finkelman [paul.finkel...@yahoo.com]
Sent: Wednesday, September 02, 2015 8:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

Quick question. Does anyone know if KY law requires the clerk to issue the 
license in the Clerk's name, as opposed to "the office of the Clerk" as Eugene 
suggests?


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com<http://www.paulfinkelman.com/>


From: "Volokh, Eugene" <vol...@law.ucla.edu>
To: "Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)" 
<religionlaw@lists.ucla.edu>
Sent: Wednesday, September 2, 2015 6:31 PM
Subject: Question about the Kentucky County Clerk controversy

   I was wondering what list members thought – as a legal matter – 
of this following issue that arises in the Kentucky County Clerk controversy.  
A federal judge issued an injunction ordering County Clerk Kim Davis to issue 
marriage licenses, including same-sex marriage licenses.  See 
http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
 (the application for stay from the Supreme Court, with the orders below 
attached).  I think that’s quite correct.

   But as I understand it, Kim Davis’s stated objection is not to 
having any same-sex marriages be processed by her office, but only to 
authorizing the distribution of marriage license and certificate forms in which 
her name appears (see PDF p. 133 of the linked-to file above).  In particular, 
she says that she would accept the option of “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” (PDF p. 40); presumably those forms might say “Clerk of 
Rowan County” or perhaps the name of a deputy clerk who is willing to have his 
or her name used for that (assuming there is one).

   Now I’m not sure this is a remedy that the federal courts could 
offer, or ought to offer.  But say that Davis asks for an injunction or for 
declaratory judgment from a Kentucky state court, under the Kentucky RFRA, 
seeking to exempt her from the statutory requirement of having her name appear 
on the form.  Should she prevail?

   Or stepping away from the same-sex marriage issue, say that 
every time a death warrant was issued in a county, the County Clerk was by 
statute required to sign off on it, as a purely ministerial task; but the 
County Clerk objected on religious grounds to the death penalty, and filed a 
RFRA claim asking to have that requirement waived, so that a deputy (who was 
willing to sign) would sign instead.  Should she prevail, again under a state 
RFRA?

   Finally, say that the County Clerk was an employee rather than 
an elected officeholder, so that Title VII would apply (it doesn’t apply to 
elected officeholders).  Would the County Clerk have a right under Title VII’s 
reasonable accommodation mandate to this sort of exemption?  Compare, e.g., 
American Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 777 (9th Cir. 
1986) (concluding that government employer had a duty to reasonably 
accommodate, by arranging transfers to other jobs, postal workers who had a 
religious objection to processing draft registration forms); McGinnis v. United 
States Postal Serv., 512 F. Supp. 517, 523 (N.D. Cal. 1980) (finding the 
government had a duty to reasonably accommodate, by offering a transfer to 
another window that wasn't used for registration materials); Haring v. 
Blumenthal, 471 F. Supp. 1172 (D.D.C. 1979) (concluding that the IRS had an 
obligation to exempt an employee from having to work on tax-exempt status 
applications from abortion clinics and other organizations that the employee 
thought it sinful to deal with); Best v. California Apprenticeship Council, 207 
Cal. Rptr. 863, 868 (Ct. App. 1984) (concluding that an apprentice training 
organization

RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   I agree in general, but how would that affect the analysis here? 
 For example, processing draft registration forms is official government 
conduct, as is the IRS’s working on tax-exempt status applications from various 
groups.  But the cases I cited show that Title VII’s religious accommodation 
mandate apply to that, too.  Likewise, if a County Clerk simply wants an 
exemption from the requirement that her own name appear on marriage 
certificates – or death warrants – and a deputy is fine with having his name 
appear instead, why wouldn’t that be a reasonable accommodation, and thus 
mandated by the Kentucky RFRA?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Wednesday, September 02, 2015 9:09 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

I agree with Eugene that being elected doesn't disqualify one from getting 
exemptions that lower-level officials might get, but I read Howard's email to 
be raising a different distinction that might have an analog in the free speech 
context.

Some speech by a government employee is the employee's speech, and potentially 
protected, but other speech by a government employee is on behalf of the 
government, and not protected. See Garcetti. Likewise, a police officer's 
conduct in growing a beard may qualify as his religious conduct, while a police 
officer's conduct in issuing tickets may qualify as official government conduct 
(even if the police officer signs his name to the tickets, as he's doing so in 
his government capacity).

This might not resolve the RFRA issue, but I do think its a distinction worth 
thinking about.

- Jim

On Wed, Sep 2, 2015 at 8:41 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   It seems to me that even government officials are sometimes 
acted upon by the government, and might get exemptions from government-imposed 
rules.  That’s certainly true for lower-level government employees, but I would 
think the same might be true of election officials, too.  (Compare McDaniel v. 
Paty, which the plurality viewed as a Sherbert-based exemption case, though it 
has since been largely viewed as a discrimination case.)

   Say, for instance, that there is a statute or ordinance 
mandating a no-facial-hair rule for law enforcement officials, including 
elected sheriffs.  A sheriff who belongs to a beard-wearing religion is elected 
to office.  Why wouldn’t he have a RFRA claim to an exemption from the 
no-facial-hair rule?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Friedman, Howard M.
Sent: Wednesday, September 02, 2015 7:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

Kentucky law requires the license to be signed by the clerk or deputy clerk. 
http://www.lrc.ky.gov/statutes/statute.aspx?id=36475

I have a different question though. State RFRAs protect against actions by the 
government that infringe religious liberty.  Here Kim Davis "is" the 
government, i.e. she is objecting to actions she is required to take in her 
official capacity.  Should RFRAs be read to protect government officials in 
that kind of situation?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Paul Finkelman 
[paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>]
Sent: Wednesday, September 02, 2015 8:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy
Quick question. Does anyone know if KY law requires the clerk to issue the 
license in the Clerk's name, as opposed to "the office of the Clerk" as Eugene 
suggests?


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>


From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: "Law & Religion issues for Law Academics 
(religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>)" 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, September 2, 2015 6:31 PM
Subject: Question about th

RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

From: Volokh, Eugene
Sent: Wednesday, September 02, 2015 9:59 PM
To: 'Paul Finkelman'; 'Law & Religion issues for Law Academics'
Subject: RE: Question about the Kentucky County Clerk controversy

   1.  As I mentioned in my initial post, she should lose the 
federal lawsuit.  But the question then is whether she would be able to win a 
Kentucky RFRA lawsuit.  In the S. Ct. stay application in the federal lawsuit, 
she specifically offers alternatives that she would presumably likewise 
identify in that lawsuit as less restrictive alternatives, including this:

In this matter, even if the “desired goal” is providing Plaintiffs with 
Kentucky marriage licenses in Rowan County, see id., 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;

   2.  Indeed, such an accommodation would require a change in 
Kentucky law, which is why the federal courts are unlikely to provide it in the 
federal litigation.  But if she brings a claim under the Kentucky RFRA, 
Kentucky RFRA is all about carving out exemptions from Kentucky law.  That’s 
what RFRAs are supposed to do, if the exemptions can be carved out without 
unduly interfering with the government’s interest.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Wednesday, September 02, 2015 9:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

But she has not done any of this.  Had she done this from day one there would 
have been no law suit, assuming fo course that it does not violate KY law.  
Instead, she just shuts her door and says no licenses.  There is no evidence of 
her trying to accommodate, at least not in any of the many news stories on this.


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Wednesday, September 02, 2015 9:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

But this is not an attempt to accommodate by someone else doing it. She refuses 
to issue any marriage licenses and has not delegated anyone else in the office 
to do it.  This is not like a religious cop who won't work on (pick the holy 
day).  And Your solution apparently would require a change in KY law, since as 
someone else noted, the law *requires* her name on it.


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com<http://www.paulfinkelman.com/>


From: "Volokh, Eugene" <vol...@law.ucla.edu>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Thursday, September 3, 2015 12:13 AM
Subject: RE: Question about the Kentucky County Clerk controversy

   Well, Title VII’s reasonable accommodation does allow people to 
hold jobs (government or otherwise) knowing that they will not in fact do all 
parts of the job, so long as the employer can accommodate them without undue 
hardship (e.g., by some sort of swap of duties).  This could be because they 
can’t do all the temporal parts of the job (“I can’t be on the job Friday 
nights after sundown”) or it could be because they can’t do all the 
subject-matter parts of the job (“I can’t process draft registration 
materials”).  The cases I cited so say, it seems to me.

   It also seems to me that RFRA’s strict scrutiny mandate, as 
applied to government employees, is at least as demanding as Title VII’s 
religious accommodation mandate.  It may be more demanding, if we take strict 
scrutiny seriously, or it may be about as demanding, but I doubt it would be 
less demanding.  If a religious objection can be accommodated without undue 
hardship, it’s hard to see how denying the accommodation is narrowly tailored 
to a compelling government interest.

   Then the only question is whether there’s a different RFRA rule 
for elected officials than for ordinary government employees.  (There is a 
different Title VII rule, but that’s just because of a statutory exclusion of 
religious officials.)  I would think not.  So if that’s so, then it seems to me 
that the Kentucky County Clerk could indeed get a Kentucky RFRA exemption from 
the requirement that she distribute marriage license/certificate materials with 
her name lis

Re: Question about the Kentucky County Clerk controversy

[James Oleske]

I'm not sure the distinction would affect the analysis of the hypothetical
Kentucky RFRA claim you posit. I think if we still had a federal
constitutional exemption regime, the Court might utilize the distinction to
disallow certain free exercise claims by government employees, analogizing
to the speech context. And some state courts might do likewise with state
constitutional free exercise claims. But to the extent Congress or state
legislatures give government employees additional protections statutorily,
whether through Title VII, RFRA, or other similar measures, the distinction
might not be a barrier, especially given the examples you've found from the
Title VII context.

As for the reasonableness of providing the requested accommodation, telling
one group of citizens that they don't get the certification that state law
requires all other citizens of their county to receive has a
separate-but-equal feel to me that I don't think is implicated in any of
the Title VII cases cited below.

- Jim


On Wed, Sep 2, 2015 at 9:17 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:

>I agree in general, but how would that affect the analysis
> here?  For example, processing draft registration forms is official
> government conduct, as is the IRS’s working on tax-exempt status
> applications from various groups.  But the cases I cited show that Title
> VII’s religious accommodation mandate apply to that, too.  Likewise, if a
> County Clerk simply wants an exemption from the requirement that her own
> name appear on marriage certificates – or death warrants – and a deputy is
> fine with having his name appear instead, why wouldn’t that be a reasonable
> accommodation, and thus mandated by the Kentucky RFRA?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
> *Sent:* Wednesday, September 02, 2015 9:09 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Question about the Kentucky County Clerk controversy
>
>
>
> I agree with Eugene that being elected doesn't disqualify one from getting
> exemptions that lower-level officials might get, but I read Howard's email
> to be raising a different distinction that might have an analog in the free
> speech context.
>
>
>
> Some speech by a government employee is the employee's speech, and
> potentially protected, but other speech by a government employee is on
> behalf of the government, and not protected. See Garcetti. Likewise, a
> police officer's conduct in growing a beard may qualify as his religious
> conduct, while a police officer's conduct in issuing tickets may qualify as
> official government conduct (even if the police officer signs his name to
> the tickets, as he's doing so in his government capacity).
>
>
>
> This might not resolve the RFRA issue, but I do think its a distinction
> worth thinking about.
>
>
>
> - Jim
>
>
>
> On Wed, Sep 2, 2015 at 8:41 PM, Volokh, Eugene <vol...@law.ucla.edu>
> wrote:
>
>It seems to me that even government officials are sometimes
> acted upon by the government, and might get exemptions from
> government-imposed rules.  That’s certainly true for lower-level government
> employees, but I would think the same might be true of election officials,
> too.  (Compare *McDaniel v. Paty*, which the plurality viewed as a
> *Sherbert*-based exemption case, though it has since been largely viewed
> as a discrimination case.)
>
>
>
>Say, for instance, that there is a statute or ordinance
> mandating a no-facial-hair rule for law enforcement officials, including
> elected sheriffs.  A sheriff who belongs to a beard-wearing religion is
> elected to office.  Why wouldn’t he have a RFRA claim to an exemption from
> the no-facial-hair rule?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Friedman, Howard M.
> *Sent:* Wednesday, September 02, 2015 7:10 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Question about the Kentucky County Clerk controversy
>
>
>
> Kentucky law requires the license to be signed by the clerk or deputy
> clerk. http://www.lrc.ky.gov/statutes/statute.aspx?id=36475
>
>
>
> I have a different question though. State RFRAs protect against actions by
> the government that infringe religious liberty.  Here Kim Davis "is" the
> government, i.e. she is objecting to actions she is required to take in her
> official capacity.  Should RFRAs be read to protect government officials in
> that kind of situation?
>
>
>
> Howard Friedman
> -

Re: Question about the Kentucky County Clerk controversy

[Paul Finkelman]

But this is not an attempt to accommodate by someone else doing it. She refuses 
to issue any marriage licenses and has not delegated anyone else in the office 
to do it.  This is not like a religious cop who won't work on (pick the holy 
day).  And Your solution apparently would require a change in KY law, since as 
someone else noted, the law *requires* her name on it.  
 
**
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
Scholars Advisory Panel 
National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: "Volokh, Eugene" <vol...@law.ucla.edu>
 To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> 
 Sent: Thursday, September 3, 2015 12:13 AM
 Subject: RE: Question about the Kentucky County Clerk controversy
   
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{}#yiv3619058084    Well, Title VII’s reasonable accommodation does 
allow people to hold jobs (government or otherwise) knowing that they will not 
in fact do all parts of the job, so long as the employer can accommodate them 
without undue hardship (e.g., by some sort of swap of duties).  This could be 
because they can’t do all the temporal parts of the job (“I can’t be on the job 
Friday nights after sundown”) or it could be because they can’t do all the 
subject-matter parts of the job (“I can’t process draft registration 
materials”).  The cases I cited so say, it seems to me.       It 
also seems to me that RFRA’s strict scrutiny mandate, as applied to government 
employees, is at least as demanding as Title VII’s religious accommodation 
mandate.  It may be more demanding, if we take strict scrutiny seriously, or it 
may be about as demanding, but I doubt it would be less demanding.  If a 
religious objection can be accommodated without undue hardship, it’s hard to 
see how denying the accommodation is narrowly tailored to a compelling 
government interest.       Then the only question is whether 
there’s a different RFRA rule for elected officials than for ordinary 
government employees.  (There is a different Title VII rule, but that’s just 
because of a statutory exclusion of religious officials.)  I would think not.  
So if that’s so, then it seems to me that the Kentucky County Clerk could 
indeed get a Kentucky RFRA exemption from the requirement that she distribute 
marriage license/certificate materials with her name listed (though that’s not 
something she can get in the defense of her federal lawsuit, but would require 
a separate suit under state law).       As to the USDA inspector 
hypothetical, accommodating that religious objection would indeed be very 
burdensome from the government.  But say that there’s a particular meat 
processor that only ships meat on Saturdays, and this USDA inspector refuses to 
co