RE: What's happening in KY? -- wrong case, wrong parties

[Volokh, Eugene]

   How would that argument fit with the Court's rejection of the 
Griffin analogy in Palmer v. Thompson?  Griffin involved a system in which 
there were still state-funded - though privately operated - schools that were 
racially segregated.  In Palmer, the Court stressed that this wasn't so as to 
the swimming pools.  "[T]he Griffin case simply treated the school program for 
what it was -- an operation of Prince Edward County schools under a thinly 
disguised 'private' school system actually planned and carried out by the State 
and the county to maintain segregated education with public funds.  That case 
can give no comfort to petitioners here.  Unlike Prince Edward County, Jackson 
has not pretended to close public pools only to run them under a 'private' 
label."

Likewise, under Kim Davis's approach, there was no discriminatory marriage 
system that is being run in parallel with government funding (discriminatory, 
that is, between same-sex and opposite-sex marriages).  All couples in Rowan 
County had to travel out of the county to get their marriage licenses and 
certificates, regardless of whether they were same-sex or opposite-sex couples. 
 Again, that might be an unconstitutional burden on the right to marry.  But I 
don't see how Griffin can, in light of Palmer, make it into an Equal Protection 
Clause violation.

Eugene



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg
Sent: Sunday, September 06, 2015 10:49 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- wrong case, wrong parties

Another possible analogy, perhaps, is Griffin v. County School Board, where the 
Court said: "Prince Edward's public schools were closed and private schools 
operated in their place with state and county assistance, for one reason, and 
one reason only: to ensure, through measures taken by the county and the State, 
that white and colored children in Prince Edward County would not, under any 
circumstances, go to the same school. Whatever nonracial grounds might support 
a State's allowing a county to abandon public schools, the object must be a 
constitutional one, and grounds of race and opposition to desegregation do not 
qualify as constitutional ".  While the assistance there to private schools 
is not paralleled here, the underlying principle seems parallel:  a county may 
not suspend issuance of marriage licenses based on opposition to same sex 
marriage.

Sent from my iPad
___
To post, send message to Religionlaw@lists.ucla.edu
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read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

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

[Levinson, Sanford V]

With regard to Roberta Kwall's interesting post:  what if the case being taught 
were Bob Jones?  Would she (or the rest of us) teach that their animus against 
interracial dating wasn't "bigotry" but instead the result of a serious 
theological position. Ditto on a Christian a Identity group that refused to 
interact with Jews. And so on. I don't mean to suggest that all 
"discriminations" are equal, so to speak. I am genuinely curious as to how we 
decide which views we respect and which we reject  re the way we present them 
in a classroom. (I have no problem, for example, defending Dred Scott as a 
plausible interpretation of a Garrisonian Constitution, but I don't go on to 
defend the plausibility of racialized chattel slavery as a way of organizing a 
labor system.)

Sandy

Sent from my iPhone

On Sep 7, 2015, at 8:34 AM, Kwall, Roberta 
<rkw...@depaul.edu<mailto:rkw...@depaul.edu>> wrote:

I don't know how many folks on this list have actually taught Obergefell yet 
given that it is so early in the semester but having done so just last week, I 
wanted to share my experience doing so.

I was a bit surprised that one student strongly articulated the view that Davis 
is operating out of bigotry. This required me to think--very quickly--of how to 
respond.  Instinctively, I redirected the conversation by 1) pushing back on 
the bigotry issue by articulating why she would feel as she does from a 
theological standpoint, assuming good faith and 2) refocusing the attention on 
the legal aspects of the case (by emphasizing many of the points folks on this 
list have made over the past several days). Given that I typically do not teach 
topics that are polarizing in this way, this was a pretty new experience for me 
(even though I am a veteran teacher!).

After class, a student (who happens to be African American) emailed me saying 
she doesn't agree with same-sex marriage and she has learned to refrain from 
articulating her views given the negative reactions she has received in the 
past from others. She said she also felt somewhat uncomfortable.  I invited her 
to come speak with me (which she will do tomorrow). My point here is that apart 
from the constitutional nuances of all of these fascinating discussions, as 
teachers we have the real world challenge of dealing with student bias (one way 
or the other) in the classroom.  I am curious how others have handled such 
situations.

One last point about bias--The Myth of the Cultural Jew which Sandy mentioned 
yesterday is essentially all about how bias of one sort of another works its 
way into the law (specifically there, Jewish law).  Throughout this discussion, 
I have been pondering whether a Kim Davis type situation would arise with an 
observant Jew in her situation.  I think it would be very different because 
according to Jewish law there is a principle stating "the law of the land is 
the law."  In other words, if Kim Davis was an observant Jew, I think she would 
have a far less strong free exercise argument (although there may be some 
observant Jews who might disagree with that).  In fact, many observant (even 
Orthodox) Jews draw a distinction concerning same-sex marriage when it comes to 
secular vs. Jewish marriage (although again, there is a range on this point as 
well).  On a related point, Michael Helfand just published a very interesting 
piece in Mosaic Magazine which discusses RFRA and some of the issues related to 
these posts.



Roberta Rosenthal Kwall
Raymond P. Niro Professor
Founding Director, DePaul University College of Law
Center for Intellectual Property Law & Information Technology

Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
http://amzn.to/15f7bLH

 You can view my papers on the Social Science Research Network (SSRN) at the 
following
URL:  http://ssrn.com/author=345249



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 Levinson, Sanford V 
[slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>]
Sent: Sunday, September 06, 2015 3:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

I think Steve gets it exactly right.



Sent from my iPhone

On Sep 6, 2015, at 12:42 PM, Steven Jamar 
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:

I don’t know that anyone can really know the extent of their biases influencing 
their thinking.  Deep things like being a trained historian vs. an engineer can 
infect how we view the law.  Life experiences — poor or rich, elite or 
marginal, black, white or other, etc. surely impact how we view things.

But on this one, I am in favor of reasonable accommodations that favor 
religious exercise.  I’m even in favor of finding an accommod

Re: What's happening in KY? -- wrong case, wrong parties

[Brian Landsberg]

That part of the Palmer decision rests on shaky ground.  This was a 5-4 
decision, with  two concurring opinions that stressed that the case was about 
swimming pools, with Justice Blackmun adding it was not about schools.  Both 
concurrences stressed that there were economic reasons to close the pools.  No 
neutral reasons are present in the Davis case.

Sent from my iPad

On Sep 6, 2015, at 11:08 PM, "Volokh, Eugene" 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

   How would that argument fit with the Court’s rejection of the 
Griffin analogy in Palmer v. Thompson?  Griffin involved a system in which 
there were still state-funded – though privately operated – schools that were 
racially segregated.  In Palmer, the Court stressed that this wasn’t so as to 
the swimming pools.  “[T]he Griffin case simply treated the school program for 
what it was -- an operation of Prince Edward County schools under a thinly 
disguised ‘private’ school system actually planned and carried out by the State 
and the county to maintain segregated education with public funds.  That case 
can give no comfort to petitioners here.  Unlike Prince Edward County, Jackson 
has not pretended to close public pools only to run them under a ‘private’ 
label.”

Likewise, under Kim Davis’s approach, there was no discriminatory marriage 
system that is being run in parallel with government funding (discriminatory, 
that is, between same-sex and opposite-sex marriages).  All couples in Rowan 
County had to travel out of the county to get their marriage licenses and 
certificates, regardless of whether they were same-sex or opposite-sex couples. 
 Again, that might be an unconstitutional burden on the right to marry.  But I 
don’t see how Griffin can, in light of Palmer, make it into an Equal Protection 
Clause violation.

Eugene



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg
Sent: Sunday, September 06, 2015 10:49 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- wrong case, wrong parties

Another possible analogy, perhaps, is Griffin v. County School Board, where the 
Court said: "Prince Edward's public schools were closed and private schools 
operated in their place with state and county assistance, for one reason, and 
one reason only: to ensure, through measures taken by the county and the State, 
that white and colored children in Prince Edward County would not, under any 
circumstances, go to the same school. Whatever nonracial grounds might support 
a State's allowing a county to abandon public schools, the object must be a 
constitutional one, and grounds of race and opposition to desegregation do not 
qualify as constitutional ".  While the assistance there to private schools 
is not paralleled here, the underlying principle seems parallel:  a county may 
not suspend issuance of marriage licenses based on opposition to same sex 
marriage.

Sent from my iPad
___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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___
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To subscribe, unsubscribe, change options, or get password, see 
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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: What's happening in KY? -- wrong case, wrong parties

[Steven Jamar]

I think Eugene’s careful dissecting out the EP aspect is misguided, especially 
after Olbergefell’s careful consideration of both EP and SDP in this sort of 
same-sex marriage context.

I agree that the denial of the right to marry is sufficient to support the 
injunction — Davis is denying that right to everyone; it is a fundamental 
constitutional right (though not enumerated, of course); and whatever standard 
of review one applies, if one needs to apply one at all (it seems to be a 
simple per se violation here) it is hard for Davis to come up with a reason 
that justifies her action of denying all marriage licenses — except one and 
only one justification.  And that justification is where the EP comes in and 
the animus matters.  She is acting as she is only because she refuses to be 
complicit with sin — refuses to issue marriage licenses to same sex couples.  
That is an EP violation in substance and makes this an animus case.  The means 
of her refusing to do so is to not do her job with respect to marriage licenses 
at all.  That is a means to discriminate, the means to accomplish her intent or 
purpose to discriminate.

The only way RFRA applies is if the EP aspect is recognized.  RFRA does not 
support her refusal to issue licenses to opposite sex couples because she is 
willing to do that, except that that woiuld force her to do the same for 
same-sex couples. And again back to separating out purpose from means of 
carrying out that purpose.  The RFRA claim is premised on her desire to 
discriminate against same sex couples — again far more of an EP flavor than an 
SDP flavor.  

I think the majority in Olbergefell was correct on recognizing that these two 
rights overlap and interact in this setting.

Steve



-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"The growing good of the world is partly dependent on unhistoric acts; and 
things that are not so ill with you and me as they might have been, is half 
owing to the number who lived faithfully a hidden life, and rest in unvisited 
tombs."
George Eliot, Middlemarch






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

[Kwall, Roberta]

I don't know how many folks on this list have actually taught Obergefell yet 
given that it is so early in the semester but having done so just last week, I 
wanted to share my experience doing so.

I was a bit surprised that one student strongly articulated the view that Davis 
is operating out of bigotry. This required me to think--very quickly--of how to 
respond.  Instinctively, I redirected the conversation by 1) pushing back on 
the bigotry issue by articulating why she would feel as she does from a 
theological standpoint, assuming good faith and 2) refocusing the attention on 
the legal aspects of the case (by emphasizing many of the points folks on this 
list have made over the past several days). Given that I typically do not teach 
topics that are polarizing in this way, this was a pretty new experience for me 
(even though I am a veteran teacher!).

After class, a student (who happens to be African American) emailed me saying 
she doesn't agree with same-sex marriage and she has learned to refrain from 
articulating her views given the negative reactions she has received in the 
past from others. She said she also felt somewhat uncomfortable.  I invited her 
to come speak with me (which she will do tomorrow). My point here is that apart 
from the constitutional nuances of all of these fascinating discussions, as 
teachers we have the real world challenge of dealing with student bias (one way 
or the other) in the classroom.  I am curious how others have handled such 
situations.

One last point about bias--The Myth of the Cultural Jew which Sandy mentioned 
yesterday is essentially all about how bias of one sort of another works its 
way into the law (specifically there, Jewish law).  Throughout this discussion, 
I have been pondering whether a Kim Davis type situation would arise with an 
observant Jew in her situation.  I think it would be very different because 
according to Jewish law there is a principle stating "the law of the land is 
the law."  In other words, if Kim Davis was an observant Jew, I think she would 
have a far less strong free exercise argument (although there may be some 
observant Jews who might disagree with that).  In fact, many observant (even 
Orthodox) Jews draw a distinction concerning same-sex marriage when it comes to 
secular vs. Jewish marriage (although again, there is a range on this point as 
well).  On a related point, Michael Helfand just published a very interesting 
piece in Mosaic Magazine which discusses RFRA and some of the issues related to 
these posts.



Roberta Rosenthal Kwall
Raymond P. Niro Professor
Founding Director, DePaul University College of Law
Center for Intellectual Property Law & Information Technology

Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
http://amzn.to/15f7bLH

 You can view my papers on the Social Science Research Network (SSRN) at the 
following
URL:  http://ssrn.com/author=345249



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Sunday, September 06, 2015 3:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

I think Steve gets it exactly right.



Sent from my iPhone

On Sep 6, 2015, at 12:42 PM, Steven Jamar 
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:

I don’t know that anyone can really know the extent of their biases influencing 
their thinking.  Deep things like being a trained historian vs. an engineer can 
infect how we view the law.  Life experiences — poor or rich, elite or 
marginal, black, white or other, etc. surely impact how we view things.

But on this one, I am in favor of reasonable accommodations that favor 
religious exercise.  I’m even in favor of finding an accommodation for Ms. 
Davis.  But the propriety of finding/making an accommodation does not excuse 
her flouting of clear constitutional requirements.  If she plays MLK Jr or 
Gandhi and says “I will not follow your unjust law but I recognize your right 
to jail me for failing to follow it” — well that would be one thing.  But she 
is not.  She is claiming to above the law, not merely that she is acting 
according to the dictates of her conscience or her religion — but that this 
higher law excuses her refusal to do her job.  It does not.

She is taking a stand and witnesses for her beliefs by becoming a martyr for 
her cause.  But she is not a private citizen in a private job.  She is an 
elected official elected to do a ministerial job.  She is not rendering unto 
Ceasar that which is his.  She is denying the validity of Ceasar’s power.  She 
is not walking the extra mile, shouldering the Centurian’s burden; she is 
dropping the load on the road and demanding to be applauded for it.  She is 
placing her personal religious beliefs above the requirements of We the People 
ac

Re: What's happening in KY? -- wrong case, wrong parties

[Alan E Brownstein]

I appreciate Eugene's point here, but let me press the argument because I think 
it may be more complicated than Eugene suggests.


Assume arguendo that having to go to a different county to get a marriage 
license does not impose a substantial burden on the right to marry. (I think it 
does, but assume it doesn't). Also assume that Palmer is good law and deserves 
respect as precedent. (I think it bad law and incorrectly decided.) Now suppose 
Ms. Davis said, "I'm ordering my office not to issue marriage licenses to all 
couples in order to make it as inconvenient and burdensome as possible for 
same-sex couples to marry. It isn't that much of a burden, but it is all that I 
can do in my official capacity." (I am not suggesting that this is Ms.Davis's 
actual motive.)


What happens in that case? I don't think the invidious motive in my hypo is 
that different than it was in Palmer. As the dissent in Palmer made clear, 
everyone understood why the swimming pools were being.  There are several 
distinctions between my hypothetical and Palmer, however. First, race was a 
suspect class when Palmer is decided. The Supreme Court has not suggested that 
sexual orientation is a suspect or quasi suspect class. It is unclear how 
conventional equal protection doctrine should apply to sexual orientation 
discrimination under the Court's current holdings. That cuts against an 
invidious motive/equal protection argument in my hypo.


Obergefell does say that there is an equal protection dimension to striking 
down bans on same-sex marriages. But it is an equal protection analysis based 
on treating people differently with regard to their exercise of a fundamental 
right. If we were evaluating a legislative decision, that would also cut 
against an invidious motive/equal protection analysis. The Court has generally 
been unwilling to accept challenges to laws that allegedly abridge fundamental 
rights on the grounds that the law is invidiously motivated. See, e.g. O'Brien 
etc. But here we are evaluating one official's decision. This is an 
administrative decision, not a legislative decision. There is no institutional 
motive issue here. And Court's have been much more willing to allow challenges 
to the abridgement of fundamental rights to go forward based on impermissible 
motive if the challenge is directed at the administrative decision of a 
government official. That cuts in favor of taking motive into account even if 
the decision was formally neutral.


Of course this still leaves open the question of whether Ms. Davis's actual 
motive should be considered to be invidious or impermissible. I do not intend 
my comment to reflect any position on that question.


Alan





From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
Sent: Sunday, September 6, 2015 7:53 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties


   1.  If indeed the district court is right, and stopping the 
issuing of marriage licenses and certificates in Rowan County violates the 
right to marry, then that’s a Due Process Clause violation, with no need to 
consider the Equal Protection Clause.



   2.  But if the district court is mistaken, and there’s no 
constitutional violation in all Rowan citizens having to go out-of-county to 
get a license, then it seems to me that Palmer v. Thompson is indeed the right 
analogy.  There’s no violation of a substantive constitutional right, just the 
closing of a program that the government (by hypothesis) has no obligation to 
operate, albeit out of disapproval of same-sex marriages.



Hunter v. Underwood strikes me as more distant, and in any event it didn’t turn 
on the existence of a fundamental right; the analysis would have been the same 
as to non-fundamental-rights, see, e.g., Washington v. Davis.



   Eugene



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg
Sent: Sunday, September 06, 2015 7:22 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- wrong case, wrong parties



In Hunter v. Underwood the Court held that a law under which persons convicted 
of certain crimes was unconstitutional because it had been adopted with the 
intent of disqualifying African-Americans.  The law disqualified both whites 
and blacks.  As in the Davis case a facially indiscriminate deprivation of a 
fundamental right failed because of discriminatory motive.  This seems a better 
analogy than Palmer v. Thompson, where no fundamental right was at stake.

Sent from my iPad

On Sep 6, 2015, at 5:12 PM, "Steven Jamar" 
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:

Mark and I disagree about the nature of animus and bias in the violation of 
co

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

[Graber, Mark]

May I suggest that the way we handle this in practice is something like the 
follows:

There is usually a lag between the time at which the law declares that no state 
shall discriminate against a particular group and the time in which it is 
recognized that no decent person could discriminate (this underlies Alito's 
desperate plea not to regard him as the bigot).  We have entered that period 
with respect to same-sex couples.  We are long past that period for race.  
Hence, a tendency exists as somewhat of a temporary matter (cert. denied may 
often be a wise policy) to admit of accommodations, while suspect that over 
time overt discrimination against same-sex couples will be as odious as over 
discrimination against interracial couples (and when that happens, the 
accommodation disappears).

I am not sure, by the way, that Sandy's hypo works well giving there is no job 
requirement to shake hands, which means that our orthodox Jew might be able to 
a) claim that he/she offers friendly greetings to all people which is all that 
is required or b) simply refuse to shake hands with any one, assuming people 
can be greeted politely without touching.

MAG



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Monday, September 07, 2015 10:59 AM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

A hypothetical:  an Orthodox Jew is elected to a public office that often 
requires meeting people. He puts up a sign explaining that he will gladly shake 
the hand of makes, but will not do the same for women. I assume that most of us 
would be "accommodating."  Now imagine a member of Christian Identity who will 
refuse to shake the hand of any Jew, or a believer in the curse of Ham who 
similarly announces that he is theologically precluded from offering similar 
courtesies to anyone thought to be black.

Indeed, as I think about this, perhaps we should simply imagine a receptionist 
at a public agency, one of whose duties is to introduce him/herself to 
visitors, shaking hands, and then accompanying them to the public official's 
office.

Do we rank order the offensiveness if the discriminations, or instead rank 
order the degree to which we respect the overall theological system, or ...?

Sandy

Sent from my iPhone

On Sep 7, 2015, at 9:03 AM, Levinson, Sanford V 
<slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote:

With regard to Roberta Kwall's interesting post:  what if the case being taught 
were Bob Jones?  Would she (or the rest of us) teach that their animus against 
interracial dating wasn't "bigotry" but instead the result of a serious 
theological position. Ditto on a Christian a Identity group that refused to 
interact with Jews. And so on. I don't mean to suggest that all 
"discriminations" are equal, so to speak. I am genuinely curious as to how we 
decide which views we respect and which we reject  re the way we present them 
in a classroom. (I have no problem, for example, defending Dred Scott as a 
plausible interpretation of a Garrisonian Constitution, but I don't go on to 
defend the plausibility of racialized chattel slavery as a way of organizing a 
labor system.)

Sandy

Sent from my iPhone

On Sep 7, 2015, at 8:34 AM, Kwall, Roberta 
<rkw...@depaul.edu<mailto:rkw...@depaul.edu>> wrote:

I don't know how many folks on this list have actually taught Obergefell yet 
given that it is so early in the semester but having done so just last week, I 
wanted to share my experience doing so.

I was a bit surprised that one student strongly articulated the view that Davis 
is operating out of bigotry. This required me to think--very quickly--of how to 
respond.  Instinctively, I redirected the conversation by 1) pushing back on 
the bigotry issue by articulating why she would feel as she does from a 
theological standpoint, assuming good faith and 2) refocusing the attention on 
the legal aspects of the case (by emphasizing many of the points folks on this 
list have made over the past several days). Given that I typically do not teach 
topics that are polarizing in this way, this was a pretty new experience for me 
(even though I am a veteran teacher!).

After class, a student (who happens to be African American) emailed me saying 
she doesn't agree with same-sex marriage and she has learned to refrain from 
articulating her views given the negative reactions she has received in the 
past from others. She said she also felt somewhat uncomfortable.  I invited her 
to come speak with me (which she will do tomorrow). My point here is that apart 
from the constitutional nuances of all of these fascinating discussions, as 
teachers we have the real world challenge of dealing with student bias (one way 
or the other) in the classroom.  I am curious

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

[Levinson, Sanford V]

__
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 Levinson, Sanford V 
[slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>]
Sent: Sunday, September 06, 2015 3:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

I think Steve gets it exactly right.



Sent from my iPhone

On Sep 6, 2015, at 12:42 PM, Steven Jamar 
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:

I don’t know that anyone can really know the extent of their biases influencing 
their thinking.  Deep things like being a trained historian vs. an engineer can 
infect how we view the law.  Life experiences — poor or rich, elite or 
marginal, black, white or other, etc. surely impact how we view things.

But on this one, I am in favor of reasonable accommodations that favor 
religious exercise.  I’m even in favor of finding an accommodation for Ms. 
Davis.  But the propriety of finding/making an accommodation does not excuse 
her flouting of clear constitutional requirements.  If she plays MLK Jr or 
Gandhi and says “I will not follow your unjust law but I recognize your right 
to jail me for failing to follow it” — well that would be one thing.  But she 
is not.  She is claiming to above the law, not merely that she is acting 
according to the dictates of her conscience or her religion — but that this 
higher law excuses her refusal to do her job.  It does not.

She is taking a stand and witnesses for her beliefs by becoming a martyr for 
her cause.  But she is not a private citizen in a private job.  She is an 
elected official elected to do a ministerial job.  She is not rendering unto 
Ceasar that which is his.  She is denying the validity of Ceasar’s power.  She 
is not walking the extra mile, shouldering the Centurian’s burden; she is 
dropping the load on the road and demanding to be applauded for it.  She is 
placing her personal religious beliefs above the requirements of We the People 
acting through our Supreme Court and federal government.

Disliking that is not a matter of political stance on same sex marriage or the 
morality of homosexuals.

One can claim as the dissenters in Obergefell did and still do with respect to 
abortion rights that the court got it wrong.  But even so that does not give 
one the right to play President Jackson and send thousands to their death along 
the trail of tears.  The magnitude is different; the principle is the same.

Steve Jamar


On Sep 6, 2015, at 10:57 AM, Levinson, Sanford V 
<slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote:

I do find myself wondering how much the reaction to Ms. Davis is simply a proxy 
for our politics. Consider, eg, the efforts by some of the conservative pols 
who support Ms. Davis (like Ted Cruz) to go after "sanctuary cities). I suspect 
that many of us support such sanctuaries against our Draconian immigration 
policies, and one might recall that the leader of an earlier sanctuary movement 
was Los Angeles' Cardinal McIntyre. As someone who has long criticized 
extravagant theories of judicial supremacy and still (weakly) supports RFRA, I 
do find it challenging to figure out exactly why I'm so hostile to Ms. Davis. 
Part of it, of course, is my own support for same-sex marriage and Obergefell. 
But another, I'm afraid is my animus against the absurdity of her claim. I know 
I shouldn't take that into account, but I can't help it. Catholic arguments are 
deeply reason-oriented, and I can disagree with them, as I do on same-sex 
marriage, on the basis of what I'd like to think are equally reasoned 
arguments. Ms.
Davis takes us out of the realm of reason into sheer subjective "sincerity."  
Tertullian is famous for defending Christian belief precisely because it was 
"absurd."  As Eugene reminded us, one can easily say the same thing about the 
purported revelation at Sinai.

I apologize if this is too rambling. Some of you might be interested in a 
recent symposium on Balkinization on Roberta Kwall's The Myth of the Cultural 
Jew.

Sandy

Sent from my iPhone

On Sep 6, 2015, at 12:11 AM, Scarberry, Mark 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:

Section 402.100 appears to require that the license include “[a]n authorization 
statement of the county clerk issuing the license.” The section allows the 
license to be signed by the clerk or deputy clerk (which shows that the 
legislature knew how to include the deputies where it wanted to include them) 
but the authorization statement authorizing the appropriate celebrants to 
perform the marriage and unite the couple in marriage  must be a statement of 
the county clerk. The county clerk must authorize the uniting of the couple in 
marriage. Here is the relevant lan

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

[Scarberry, Mark]

Sent again with prior posts trimmed to conform to list size limits.

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

But then it's bigotry to oppose religious exemptions with regard to federal law 
per the federal RFRA, and, if you are a Kentuckian, to oppose religious 
exemptions under the KY RFRA. So opponents of giving an exemption to Davis for 
KY law purposes are anti-religious bigots.

No. Neither position need flow from bigotry as a matter of con law unless we 
think the majority in Obergefell was dishonest and that the Court in Smith was 
dishonest in saying that religious persons could seek protection by way of the 
political process. (Nor do I think either position need flow from bigotry as a 
matter of morality and common understanding. Cf. the President, seeking 
reelection in an earlier reincarnation.)

Of course a generally applicable RFRA is better, as a matter of protection of 
minority faiths, than a case-by-case legislative grant of exemptions for 
particular practices.

I am willing to say that opponents of RFRAs aren't necessarily bigots. Would 
that proponents of same-sex marriage would reciprocate with regard to that 
issue. (I realize that some list members do.)

But of course the promise of a regime of tolerance made by opponents of Prop. 
8, who told us that fears of intolerance were completely unfounded, has become 
inoperative.

Signing off for the day.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Sep 7, 2015, at 10:02 AM, "Steven Jamar" 
> wrote:

What is “bigotry.”  Do you judge it from the target or do you judge it from the 
point of view of the accused person?  Is there an external standard or is it 
purely subjective?  Is this a sensible statement:  “Davis’s actions are bigoted 
under the law of the land though she herself is not a bigot?”  I don’t think 
so.  At some point it is about actions, and philosophical groundings of 
intentions.  Note that in Davis’s case, it is anot a situation of unintended 
consequences.  The actions align perfectly with her intention.

So again, is it bigot is as bigot does, or is it subjective rationalization?

FWIW, I think the motivations of a person, and the grounding of those 
motivations do matter even though the effect is identical. But they matter far 
more in a moral sense than in a legal sense.

Davis is demanding that her beliefs be respected and that she be allowed to act 
in accordance with them (that was, of course not what Reynolds said), but she 
is disrespecting both the beliefs of others and the law of the land.  And she 
is a government official.  The two claims are not equivalent.

Steve Jamar


On Sep 7, 2015, at 8:31 AM, Kwall, Roberta 
> wrote:

I don't know how many folks on this list have actually taught Obergefell yet 
given that it is so early in the semester but having done so just last week, I 
wanted to share my experience doing so.

I was a bit surprised that one student strongly articulated the view that Davis 
is operating out of bigotry. This required me to think--very quickly--of how to 
respond.  Instinctively, I redirected the conversation by 1) pushing back on 
the bigotry issue by articulating why she would feel as she does from a 
theological standpoint, assuming good faith and 2) refocusing the attention on 
the legal aspects of the case (by emphasizing many of the points folks on this 
list have made over the past several days). Given that I typically do not teach 
topics that are polarizing in this way, this was a pretty new experience for me 
(even though I am a veteran teacher!).

After class, a student (who happens to be African American) emailed me saying 
she doesn't agree with same-sex marriage and she has learned to refrain from 
articulating her views given the negative reactions she has received in the 
past from others. She said she also felt somewhat uncomfortable.  I invited her 
to come speak with me (which she will do tomorrow). My point here is that apart 
from the constitutional nuances of all of these fascinating discussions, as 
teachers we have the real world challenge of dealing with student bias (one way 
or the other) in the classroom.  I am curious how others have handled such 
situations.

One last point about bias--The Myth of the Cultural Jew which Sandy mentioned 
yesterday is essentially all about how bias of one sort of another works its 
way into the law (specifically there, Jewish law).  Throughout this discussion, 
I have been pondering whether a Kim Davis type situation would arise with an 
observant Jew in her situation.  I think it would be very different because 
according to Jewish law there is a principle stating "the law of the land is 
the law."  In other words, if Kim Davis was an observant Jew, I think she would 
have a far less strong free exercise argument (although there may be some 
observant 

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

[Steven Jamar]

“Might constitute" religious discrimination?  How would it not?  It would be 
obviousl establishment clause violation.

How is the alcohol not an establishment violation given the intention and 
purpose and motivation of it?


> On Sep 7, 2015, at 1:13 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:
> 
>1.  If the county clerk refuses to issue restaurant licenses 
> to any restaurant that was not halal, that might constitute discrimination 
> based on the religious practices followed by a restaurant, and would violate 
> the Establishment Clause’s “no religious decisions” principle by requiring a 
> government official to decide what is halal and what is not.
>  
>2.  If the county clerk simply refuses to issue licenses to 
> any establishment that serves alcohol, he might be violating state law, 
> assuming that he has a nondiscretionary duty to issue licenses.  But he isn’t 
> violating the federal constitution, any more than a county clerk who 
> disapproves of alcohol for secular purposes is violating the federal 
> constitution.  What secular people are free to do based on their 
> philosophical judgment, Muslims are free to do based on their religious 
> judgment.
>  
>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 Steven Jamar
> Sent: Monday, September 07, 2015 10:04 AM
> To: Law Religion & Law List
> Subject: Re: What's happening in KY? -- my differences with Eugene
>  
> How about this hypothetical:
> Let's say we elected a very conservative Muslim as a county clerk.  Assume 
> the county clerk is the only one who issues licenses for restaurants and 
> issues liquor licenses.  Assume this clerk refused to issue restaurant 
> licenses to any restaurant that was not halal or or to any establishment that 
> served alcohol. Non-halal restaurants are legal as is serving alcohol in the 
> state.   
> ___
> To post, send message to Religionlaw@lists.ucla.edu 
> <mailto:Religionlaw@lists.ucla.edu>
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 
> <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.

-- 
Prof. Steven D. Jamar   
Howard University School of Law 
vox:  202-806-8017  
fax:  202-806-8567
http://sdjlaw.org

"If you want to bake an apple pie from scratch, you must first invent the 
universe.”  
Carl Sagan

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

[Steven Jamar]

What is “bigotry.”  Do you judge it from the target or do you judge it from the 
point of view of the accused person?  Is there an external standard or is it 
purely subjective?  Is this a sensible statement:  “Davis’s actions are bigoted 
under the law of the land though she herself is not a bigot?”  I don’t think 
so.  At some point it is about actions, and philosophical groundings of 
intentions.  Note that in Davis’s case, it is anot a situation of unintended 
consequences.  The actions align perfectly with her intention.

So again, is it bigot is as bigot does, or is it subjective rationalization?  

FWIW, I think the motivations of a person, and the grounding of those 
motivations do matter even though the effect is identical. But they matter far 
more in a moral sense than in a legal sense.

Davis is demanding that her beliefs be respected and that she be allowed to act 
in accordance with them (that was, of course not what Reynolds said), but she 
is disrespecting both the beliefs of others and the law of the land.  And she 
is a government official.  The two claims are not equivalent.

Steve Jamar


> On Sep 7, 2015, at 8:31 AM, Kwall, Roberta <rkw...@depaul.edu> wrote:
> 
> I don't know how many folks on this list have actually taught Obergefell yet 
> given that it is so early in the semester but having done so just last week, 
> I wanted to share my experience doing so.   
> 
> I was a bit surprised that one student strongly articulated the view that 
> Davis is operating out of bigotry. This required me to think--very 
> quickly--of how to respond.  Instinctively, I redirected the conversation by 
> 1) pushing back on the bigotry issue by articulating why she would feel as 
> she does from a theological standpoint, assuming good faith and 2) refocusing 
> the attention on the legal aspects of the case (by emphasizing many of the 
> points folks on this list have made over the past several days). Given that I 
> typically do not teach topics that are polarizing in this way, this was a 
> pretty new experience for me (even though I am a veteran teacher!). 
> 
> After class, a student (who happens to be African American) emailed me saying 
> she doesn't agree with same-sex marriage and she has learned to refrain from 
> articulating her views given the negative reactions she has received in the 
> past from others. She said she also felt somewhat uncomfortable.  I invited 
> her to come speak with me (which she will do tomorrow). My point here is that 
> apart from the constitutional nuances of all of these fascinating 
> discussions, as teachers we have the real world challenge of dealing with 
> student bias (one way or the other) in the classroom.  I am curious how 
> others have handled such situations.
> 
> One last point about bias--The Myth of the Cultural Jew which Sandy mentioned 
> yesterday is essentially all about how bias of one sort of another works its 
> way into the law (specifically there, Jewish law).  Throughout this 
> discussion, I have been pondering whether a Kim Davis type situation would 
> arise with an observant Jew in her situation.  I think it would be very 
> different because according to Jewish law there is a principle stating "the 
> law of the land is the law."  In other words, if Kim Davis was an observant 
> Jew, I think she would have a far less strong free exercise argument 
> (although there may be some observant Jews who might disagree with that).  In 
> fact, many observant (even Orthodox) Jews draw a distinction concerning 
> same-sex marriage when it comes to secular vs. Jewish marriage (although 
> again, there is a range on this point as well).  On a related point, Michael 
> Helfand just published a very interesting piece in Mosaic Magazine which 
> discusses RFRA and some of the issues related to these posts.
> 
> 
> 
> Roberta Rosenthal Kwall
> Raymond P. Niro Professor 
> Founding Director, DePaul University College of Law
> Center for Intellectual Property Law & Information Technology
>  
> Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
> http://amzn.to/15f7bLH <http://amzn.to/15f7bLH>
>  
>  You can view my papers on the Social Science Research Network (SSRN) at the 
> following
> URL:  http://ssrn.com/author=345249 <http://ssrn.com/author=345249>
>  
> 
> 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 Levinson, Sanford V 
> [slevin...@law.utexas.edu <mailto:slevin...@law.utexas.edu>]
> Sent: Sunday, September 06, 2015 3:36 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: What's happening in KY? -- my difference

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

[Steven Jamar]

er a Kim Davis type 
>>> situation would arise with an observant Jew in her situation.  I think it 
>>> would be very different because according to Jewish law there is a 
>>> principle stating "the law of the land is the law."  In other words, if Kim 
>>> Davis was an observant Jew, I think she would have a far less strong free 
>>> exercise argument (although there may be some observant Jews who might 
>>> disagree with that).  In fact, many observant (even Orthodox) Jews draw a 
>>> distinction concerning same-sex marriage when it comes to secular vs. 
>>> Jewish marriage (although again, there is a range on this point as well).  
>>> On a related point, Michael Helfand just published a very interesting piece 
>>> in Mosaic Magazine which discusses RFRA and some of the issues related to 
>>> these posts.
>>> 
>>> 
>>> 
>>> Roberta Rosenthal Kwall
>>> Raymond P. Niro Professor 
>>> Founding Director, DePaul University College of Law
>>> Center for Intellectual Property Law & Information Technology
>>>  
>>> Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
>>> http://amzn.to/15f7bLH <http://amzn.to/15f7bLH>
>>>  
>>>  You can view my papers on the Social Science Research Network (SSRN) at 
>>> the following
>>> URL:  http://ssrn.com/author=345249 <http://ssrn.com/author=345249>
>>>  
>>> 
>>> 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 Levinson, Sanford 
>>> V [slevin...@law.utexas.edu <mailto:slevin...@law.utexas.edu>]
>>> Sent: Sunday, September 06, 2015 3:36 PM
>>> To: Law & Religion issues for Law Academics
>>> Subject: Re: What's happening in KY? -- my differences with Eugene
>>> 
>>> I think Steve gets it exactly right. 
>>> 
>>> 
>>> 
>>> Sent from my iPhone
>>> 
>>> On Sep 6, 2015, at 12:42 PM, Steven Jamar <stevenja...@gmail.com 
>>> <mailto:stevenja...@gmail.com>> wrote:
>>> 
>>>> I don’t know that anyone can really know the extent of their biases 
>>>> influencing their thinking.  Deep things like being a trained historian 
>>>> vs. an engineer can infect how we view the law.  Life experiences — poor 
>>>> or rich, elite or marginal, black, white or other, etc. surely impact how 
>>>> we view things.
>>>> 
>>>> But on this one, I am in favor of reasonable accommodations that favor 
>>>> religious exercise.  I’m even in favor of finding an accommodation for Ms. 
>>>> Davis.  But the propriety of finding/making an accommodation does not 
>>>> excuse her flouting of clear constitutional requirements.  If she plays 
>>>> MLK Jr or Gandhi and says “I will not follow your unjust law but I 
>>>> recognize your right to jail me for failing to follow it” — well that 
>>>> would be one thing.  But she is not.  She is claiming to above the law, 
>>>> not merely that she is acting according to the dictates of her conscience 
>>>> or her religion — but that this higher law excuses her refusal to do her 
>>>> job.  It does not.
>>>> 
>>>> She is taking a stand and witnesses for her beliefs by becoming a martyr 
>>>> for her cause.  But she is not a private citizen in a private job.  She is 
>>>> an elected official elected to do a ministerial job.  She is not rendering 
>>>> unto Ceasar that which is his.  She is denying the validity of Ceasar’s 
>>>> power.  She is not walking the extra mile, shouldering the Centurian’s 
>>>> burden; she is dropping the load on the road and demanding to be applauded 
>>>> for it.  She is placing her personal religious beliefs above the 
>>>> requirements of We the People acting through our Supreme Court and federal 
>>>> government.
>>>> 
>>>> Disliking that is not a matter of political stance on same sex marriage or 
>>>> the morality of homosexuals.
>>>> 
>>>> One can claim as the dissenters in Obergefell did and still do with 
>>>> respect to abortion rights that the court got it wrong.  But even so that 
>>>> does not give one the right to play President Jackson and send thousands 
>>>> to their death along the trail of tears.  The mag

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

[Volokh, Eugene]

   1.  If the county clerk refuses to issue restaurant licenses to 
any restaurant that was not halal, that might constitute discrimination based 
on the religious practices followed by a restaurant, and would violate the 
Establishment Clause’s “no religious decisions” principle by requiring a 
government official to decide what is halal and what is not.

   2.  If the county clerk simply refuses to issue licenses to any 
establishment that serves alcohol, he might be violating state law, assuming 
that he has a nondiscretionary duty to issue licenses.  But he isn’t violating 
the federal constitution, any more than a county clerk who disapproves of 
alcohol for secular purposes is violating the federal constitution.  What 
secular people are free to do based on their philosophical judgment, Muslims 
are free to do based on their religious judgment.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, September 07, 2015 10:04 AM
To: Law Religion & Law List
Subject: Re: What's happening in KY? -- my differences with Eugene

How about this hypothetical:
Let's say we elected a very conservative Muslim as a county clerk.  Assume the 
county clerk is the only one who issues licenses for restaurants and issues 
liquor licenses.  Assume this clerk refused to issue restaurant licenses to any 
restaurant that was not halal or or to any establishment that served alcohol. 
Non-halal restaurants are legal as is serving alcohol in the state.
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Re: What's happening in KY? -- wrong case, wrong parties

[Brian Landsberg]

Another possible analogy, perhaps, is Griffin v. County School Board, where the 
Court said: "Prince Edward's public schools were closed and private schools 
operated in their place with state and county assistance, for one reason, and 
one reason only: to ensure, through measures taken by the county and the State, 
that white and colored children in Prince Edward County would not, under any 
circumstances, go to the same school. Whatever nonracial grounds might support 
a State's allowing a county to abandon public schools, the object must be a 
constitutional one, and grounds of race and opposition to desegregation do not 
qualify as constitutional ".  While the assistance there to private schools 
is not paralleled here, the underlying principle seems parallel:  a county may 
not suspend issuance of marriage licenses based on opposition to same sex 
marriage.

Sent from my iPad

On Sep 6, 2015, at 8:41 PM, "Scarberry, Mark" 
> wrote:

A very quick response to Brian, and then I will subside.

The law invalidated in Hunter v. Underwood had a "racially discriminatory 
impact," which seemed to be the reason or at least a key reason that the Court 
did not follow Palmer v. Thompson. (Also, it was intended to have that 
disparate impact, and it was also intended to have a disparate impact on poor 
whites, as compared to other whites.)

Again, I would authorize issuance of licenses if I were Davis, but her refusal 
to authorize any licenses does not appear to have a discriminatory impact.

Here is what the Court said in Hunter v. Underwood:


"Citing Palmer v. Thompson ... and Michael M. v. Superior Court of Sonoma 
County, ... (plurality opinion), appellants make the further argument that the 
existence of a permissible motive for § 182, namely, the disenfranchisement of 
poor whites, trumps any proof of a parallel impermissible motive. Whether or 
not intentional disenfranchisement of poor whites would qualify as a 
'permissible motive' within the meaning of Palmer and Michael M., it is clear 
that, where both impermissible racial motivation and racially discriminatory 
impact are demonstrated, Arlington Heights and Mt. Healthy supply the proper 
analysis. Under the view that the Court of Appeals could properly take of the 
evidence, an additional purpose to discriminate against poor whites would not 
render nugatory the purpose to discriminate against all blacks, and it is 
beyond peradventure that the latter was a 'but-for' motivation for the 
enactment of § 182."

We could argue about the meaning of Hunter v. Underwood, but it seems clear 
that it was important that there was a racially discriminatory (disparate) 
impact.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Sep 6, 2015, at 7:28 PM, "Brian Landsberg" 
> wrote:

In Hunter v. Underwood the Court held that a law under which persons convicted 
of certain crimes was unconstitutional because it had been adopted with the 
intent of disqualifying African-Americans.  The law disqualified both whites 
and blacks.  As in the Davis case a facially indiscriminate deprivation of a 
fundamental right failed because of discriminatory motive.  This seems a better 
analogy than Palmer v. Thompson, where no fundamental right was at stake.

Sent from my iPad


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Re: What's happening in KY? -- wrong case, wrong parties

[Steven Jamar]

Thank you for posting the extended exerpt, Eugene.

I disagree with you on one point in particular — if the state has chosen to use 
counties, then it has chosen to use counties, not regional offices.  It could 
choose to use another method — regional offices — and the district court did 
not address that issue because it was properly considering the law as it is and 
has been for a long time not making the broad statement you ascribe to it

Steve Jamar

> On Sep 6, 2015, at 4:59 PM, Volokh, Eugene  wrote:
> 
>   
> Davis finally suggests that Plaintiffs will have other avenues for obtaining 
> marriage licenses in the future. For example, county clerks have urged 
> Governor Beshear to create an online marriage licensing system, which would 
> be managed by the State of Kentucky. While these options may be available 
> someday, they are not feasible alternatives at present. Thus, they have no 
> impact on the Court's “substantial interference” analysis.
> Having considered Davis' arguments in depth, the Court finds that Plaintiffs 
> have one feasible avenue for obtaining their marriage licenses-they must go 
> to another county. Davis makes much of the fact that Plaintiffs are able to 
> travel, but she fails to address the one question that lingers in the Court's 
> mind. Even if Plaintiffs are able to obtain licenses elsewhere, why should 
> they be required to? The state has long entrusted county clerks with the task 
> of issuing marriage licenses. It does not seem unreasonable for Plaintiffs, 
> as Rowan County voters, to expect their elected official to perform her 
> statutorily assigned duties. And yet, that is precisely what Davis is 
> refusing to do. Much like the statutes at issue in Loving and Zablocki, 
> Davis' “no marriage licenses” policy significantly discourages many Rowan 
> County residents from exercising their right to marry and effectively 
> disqualifies others from doing so. The Court must subject this policy apply 
> heightened scrutiny.
>  
> This might be mistaken:  It’s not obvious to me that it’s a violation of the 
> federal Constitution to issue licenses only in some counties and not others – 
> for instance, if Kentucky deliberately chose to issue licenses not on a 
> county-by-county level, but on a region-by-region level, with licenses 
> available only in one place in a multi-county region, it’s hard for me to see 
> that this would be a Due Process Clause violation.  On the other hand, 
> perhaps that would be seen as a burden but a constitutionally permissible 
> one, motivated by some state interest such as efficiency; perhaps in the 
> absence of a state interest supporting the exclusion, this would be an 
> arbitrary and thus unjustified burden on the right to marry.  Compare, though 
> recognizing that there are considerable differences, Schad v. Borough of Mt. 
> Ephraim, a First Amendment case rejecting a “you can go to a neighboring 
> town” argument in support of a ban on live entertainment, and Ezell v. City 
> of Chicago (7th Cir.), a Second Amendment case rejecting such an argument in 
> support of a ban on gun ranges.  But in any event, there was indeed a finding 
> by the federal court of a right-to-marry violation.
>  
>Eugene
> ___
> 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.


-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Any intelligent fool can make things bigger, more complex, and more violent.  
It takes a touch of genius - and a lot of courage - to move in the opposite 
direction."

Albert Einstein




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

[Levinson, Sanford V]

  (a) An authorization statement of the county clerk issuing the license for 
any person or religious society authorized to perform marriage ceremonies to 
unite in marriage the persons named;
  (b) Vital information for each party, including the full name, date of birth, 
place of birth, race, condition (single, widowed, or divorced), number of 
previous marriages, occupation, current residence, relationship to the other 
party, and full names of parents; and
  (c) The date and place the license is issued, and the signature of the county 
clerk or deputy clerk issuing the license

It would seem to me that if the form does not include an authorization 
statement of the clerk (not a deputy clerk), then the form will not have been 
filled out as required by section 402.100. The second reference to issuance of 
the license by the county clerk or deputy clerk may muddy the waters. I 
certainly don’t think a federal court has the expertise to instruct the county 
clerk, who is charged with complying with 402.100 and 402.110, on the meaning 
of the section, or on the consequences of a potential failure to comply with 
it. If Davis believes a license without an authorization from her by name 
(indicating that she has authorized the performance of the marriage) does not 
comport with Kentucky law, then she either must authorize the marriages or 
instruct persons seeking licenses to drive an hour to another county.

It also is a bit ironic that same-sex marriage proponents who cheered when 
officials issued licenses in violation of the explicit terms of state law (not 
necessarily any members of this list), now think it’s improper for Davis to act 
on the basis of her understanding of state law, which of course includes the 
state RFRA.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, September 05, 2015 7:59 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

Howard:  As the Deputy Clerk is implementing the licenses, the form of the 
license is the same as that throughout the state, and every license blank does 
contain the identical words and figures provided in the form prescribed by 
section 402.100.  The only difference is that the Clerk's nameis not written in 
on the blank where it would ordinarily appear.  That doesn't in any way 
transgress 402.110.

On Sat, Sep 5, 2015 at 6:55 PM, Friedman, Howard M. 
<howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>> wrote:
In discussing the changes that Ms. Davis might have made in the license form to 
accommodate her religious beliefs, I don't believe anyone on this list has 
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:

"The form of marriage license prescribed in KRS 402.100 shall be uniform 
throughout this state, and every license blank shall contain the identical 
words and figures provided in the form prescribed by that section. In issuing 
the license the clerk shall deliver it in its entirety to the licensee. The 
clerk shall see to it that every blank space required to be filled by the 
applicants is so filled before delivering it to the licensee."

Changes by her office would prevent the license from being uniform throughout 
the state.  Do her state RFRA rights trump this?

Howard Friedman

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--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

“There are no wrong notes in jazz: only notes in the wrong places.”
Miles Davis

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RE: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

I don't quite understand why she needs to affirmatively seek relief under the 
Kentucky RFRA. It's part of Kentucky law. The state legislature didn't exclude 
this law from the reach of the state RFRA. If the Kentucky statute -- that 
would otherwise require her to authorize the issuance of licenses -- 
substantially burdens her religious exercise, and if the legislature has an 
alternative means of advancing an interest that it may or may not consider 
compelling, then she need not comply with it. As a state official, I think she 
has the right in the first instance to decide what Kentucky law requires. She 
also has the right (and obligation) to take into account the concern that if 
she doesn't authorize issuance of the licenses, then they may not be valid; 
that could be a basis for instructing deputies not to issue them. If someone in 
the Kentucky government with authority over her requires her to authorize the 
issuance of licenses do so, then she would interpose the state RFRA, and a 
Kentucky court would decide who is right as a matter of Kentucky law. Or a 
Kentucky court might determine that licenses issued by deputies without her 
authorization are valid under Kentucky law.

Of course the Kentucky RFRA can't override the 14th Amendment, but that may 
miss much of the point.

What business does a federal court have in telling her that Kentucky law 
requires her to authorize issuance of licenses, or in enforcing against her 
Kentucky law, or in saying that licenses signed by deputies are valid under 
Kentucky law despite her refusal to authorize issuance?

The only real questions for the federal court should be whether her even-handed 
refusal to authorize issuance of any licenses violates the 14th Amendment's 
equal protection clause and whether her refusal impermissibly burdens the right 
of all couples to marry (when they can get licenses from other counties by 
driving an hour). Perhaps if one of those issues is decided against her, then 
the federal court could exercise jurisdiction to decide the state law issue, 
but otherwise it seems to me that the federal court should leave the issues to 
state officials and state courts.

If I were her, I would issue the licenses. Nevertheless, on both of those 
constitutional issues I think she has the better argument. 

As for Steve's claim that her refusal can only be based on animus (and his 
rather outrageous invocation of the trail of tears, which was the path of some 
of my ancestors), there is this statement in the majority opinion in Obergefell 
(sincerely stated or not):

"Marriage, in their view, is by its nature a gender-differentiated union of man 
and woman. This view long has been held—and continues to be held—in good faith 
by reasonable and sincere people here and throughout the world."

As Eugene has pointed out, the Court in Palmer v. Thompson refused to hold that 
the closing of swimming pools in response to a desegregation order was a 
violation of equal protection. We can argue about how that case should apply 
here, but it's hardly obvious that her claim of a right under the Kentucky RFRA 
is an impermissible basis for her action. 

As for Sandy's question whether political views control the positions of list 
members, I'd suggest that opposition to Obergefell is not necessarily 
political, and neither is a strong desire to protect religious conscience. Are 
we all influenced by our substantive views (political or not)? Yes. But there 
is also what I hope is an attempt to reach a principled position. I certainly 
wouldn't encourage anyone to become a member of the Santeria Church or to drink 
hoasca tea as part of a religious ritual, but I support the Court's decision in 
both cases. 

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law





-Original Message-
From: Douglas Laycock [mailto:dlayc...@virginia.edu] 
Sent: Sunday, September 06, 2015 9:29 AM
To: Law & Religion issues for Law Academics; Scarberry, Mark
Subject: What's happening in KY? -- wrong case, wrong parties

If state law requires her to personally authorize the marriage, she should be 
able to get an exemption under Kentucky RFRA. But not in litigation against 
same-sex couples, and not by refusing to issue any licenses at all. 

It is not clear who enforces the requirement Mark quotes, but the proper 
defendant might be the head of the Department of Libraries and Archives. 

As several others have noted, her lawyers seem more intent on generating 
publicity and raising money than on representing their client. Most or at least 
much of the confusion, on this list and in the press, flows from the fact that 
she has asserted her claim in the wrong case against the wrong opposing parties.

The bottom line still is that the county has no religion and no claim to an 
exemption. Someone has to issue licenses. The couples had a clear legal 
entitlement, they got a judgment to enforce it, and she was in contempt. 

There is no good reason, and 

Re: What's happening in KY? -- wrong case, wrong parties

[Steven Jamar]

Mark and I disagree about the nature of animus and bias in the violation of 
constitutional rights.  I think the source of her bias is not relevant to the 
14th Amendment analysis; he thinks it is.  She is treating all couples the same 
only because she thinks that insulates her from liability under the 14th 
Amendment EP clause.  Mark agrees that it does; on these facts where the action 
was taken because of a bias against one group, I don’t think it does.

I understand Mark’s position; I just think it is wrong as he thinks mine is 
wrong.

Steve

> On Sep 6, 2015, at 7:54 PM, Scarberry, Mark <mark.scarbe...@pepperdine.edu> 
> wrote:
> 
> A final brief point in response to Steve. Davis is treating all couples the 
> same. This is not like Cleburn. The question is whether her treatment of them 
> all the same way is somehow a violation of equal protection. It is not at all 
> clear that it is a violation.
>  
> Note also that Davis is not claiming that the state has a right to 
> discriminate. She is claiming that she, as a person protected by the KY RFRA, 
> has a religious liberty right not to violate her religious conscience. That 
> is a legitimate interest that is recognized by KY (and also recognized, even 
> after Boerne, as a legitimate interest with respect to federal law, though I 
> make that point only to indicate the legitimacy of the interest, not to 
> suggest that the federal RFRA applies here). She is willing to allow same-sex 
> marriage licenses to be issued, if I understand her position correctly, if 
> that is done without her stamp of approval (her specific authorization) and 
> if it is done in a way that ensures that the licenses are valid under state 
> law (which is quite reasonably interpreted to require her authorization as 
> county clerk for licenses issued in her county). That is not animus. She 
> appears to be acting on a sincerely held good-faith religious belief (if the 
> majority opinion in Obergefell is to be taken seriously) and attempting to 
> avoid violation of her conscience. 
>  
> Mark
>  
> 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 Scarberry, Mark
> Sent: Sunday, September 06, 2015 4:32 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: What's happening in KY? -- wrong case, wrong parties
>  
> In response to Eugene:
>  
> As I’ve said, it’s certainly true that the KY RFRA cannot affect 
> determinations of US Constitutional law. And because the district court did 
> decide against her on the US constitutional right-to-marry issue and did 
> issue an injunction, she is obligated to obey the injunction until and unless 
> it is reversed, on pain of being held in contempt. (Indeed, even if the 
> district court erroneously ordered her to authorize licenses on the ground 
> that KY law requires her to do so, she would have the same obligation to obey 
> the injunction. It probably would not have only a frivolous pretense of 
> validity, per the Walker v. Birmingham analysis.)
>  
> If it is reversed, then civil contempt sanctions will be eliminated to the 
> extent possible. Of course we don’t have a time machine so that her time in 
> jail for civil contempt could be undone, but she could not be held liable for 
> civil contempt conditional fines that had been imposed. 
>  
> As we all know, she could still be held liable for criminal contempt even if 
> the district court is reversed. Walker v. Birmingham. A list member noted 
> that no one wanted to go there because it would make her more of a martyr. In 
> any event, it isn’t the plaintiffs’ call whether she will be prosecuted for 
> criminal contempt. The US Attorney can do so, and I believe the district 
> court might appoint a disinterested person to deal with the matter. The 
> plaintiffs cannot prosecute a criminal contempt – the Supreme Court held that 
> very clearly, I believe in the Vuitton case. 
>  
> So, indeed, in order not to commit a crime, she must either obey the 
> injunction or resign. That is independent of the merits. My points dealt with 
> the merits, and with whether the federal court should interpret and enforce 
> Kentucky law in a case in which there is no diversity jurisdiction. I don’t 
> see how the federal court can find that Kentucky had a compelling interest in 
> requiring marriage licenses to be available in every county; is that a call 
> for a federal court to make, even if otherwise possible? Or that the 
> legislature had no alternative means of advancing such an interest, if 
> compelling, without burdening Davis’s religious exercise (or more 
> appropriately her religious cons

Re: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

A very quick response to Brian, and then I will subside.

The law invalidated in Hunter v. Underwood had a "racially discriminatory 
impact," which seemed to be the reason or at least a key reason that the Court 
did not follow Palmer v. Thompson. (Also, it was intended to have that 
disparate impact, and it was also intended to have a disparate impact on poor 
whites, as compared to other whites.)

Again, I would authorize issuance of licenses if I were Davis, but her refusal 
to authorize any licenses does not appear to have a discriminatory impact.

Here is what the Court said in Hunter v. Underwood:


"Citing Palmer v. Thompson ... and Michael M. v. Superior Court of Sonoma 
County, ... (plurality opinion), appellants make the further argument that the 
existence of a permissible motive for § 182, namely, the disenfranchisement of 
poor whites, trumps any proof of a parallel impermissible motive. Whether or 
not intentional disenfranchisement of poor whites would qualify as a 
'permissible motive' within the meaning of Palmer and Michael M., it is clear 
that, where both impermissible racial motivation and racially discriminatory 
impact are demonstrated, Arlington Heights and Mt. Healthy supply the proper 
analysis. Under the view that the Court of Appeals could properly take of the 
evidence, an additional purpose to discriminate against poor whites would not 
render nugatory the purpose to discriminate against all blacks, and it is 
beyond peradventure that the latter was a 'but-for' motivation for the 
enactment of § 182."

We could argue about the meaning of Hunter v. Underwood, but it seems clear 
that it was important that there was a racially discriminatory (disparate) 
impact.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Sep 6, 2015, at 7:28 PM, "Brian Landsberg" 
> wrote:

In Hunter v. Underwood the Court held that a law under which persons convicted 
of certain crimes was unconstitutional because it had been adopted with the 
intent of disqualifying African-Americans.  The law disqualified both whites 
and blacks.  As in the Davis case a facially indiscriminate deprivation of a 
fundamental right failed because of discriminatory motive.  This seems a better 
analogy than Palmer v. Thompson, where no fundamental right was at stake.

Sent from my iPad


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Re: What's happening in KY? -- wrong case, wrong parties

[David Cruz]

I think you’ve said this (quotation below) at least a couple times now, Mark, 
but I’m a bit puzzled by it.  Don’t federal courts always make such assessments 
any time a plaintiff sues a state actor for violating a federal constitutional 
right that is judicially protected with strict scrutiny?  Or do you mean to be 
suggesting that what counts as a compelling interest for a state law that turns 
on that question is a sufficiently different question from what counts as a 
compelling interest for federal constitutional purposes?  And if the latter, 
why, particularly given that federal courts routinely interpret (/forecast) and 
apply state law, as others have noted?  If it’s not something about the 
substance, what is it about THIS kind of question of state law that makes it 
institutionally out of bounds for federal courts even in cases you hypothesized 
were ones requiring federal judicial interpretation of state law?  I am sorry 
if you already explained your intuition in some post and I overlooked it.

-David

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of "Scarberry, Mark" 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Sunday, September 6, 2015 at 4:43 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: RE: What's happening in KY? -- wrong case, wrong parties

[snip] If it is necessary for the district court to interpret state law, it 
still seems improper for a federal court to determine what a state legislature 
considered to be a compelling interest. [snip]
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Please note that messages sent to this large list cannot be viewed as private.  
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Re: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

I said I was going to subside, but let me answer David's question. I may be 
wrong, but let me be wrong with clarity!

First, no one has yet explained why a federal court in a non-diversity case is 
enforcing or interpreting the KY RFRA. The KY RFRA wouldn't seem relevant to 
the federal constitutional issues properly before the court.

Second, different institutional actors may consider interests to be more or 
less compelling. Whether KY considers provision of licenses in each county to 
be a compelling interest -- sufficient to override religious liberty claims -- 
seems to be a question for state officials and courts, not for a federal judge. 
A federal judge is the wrong institutional actor to make that call. If a KY 
official charged with executing the law believes the interest to be compelling, 
he or she can attempt to require Davis to comply by suing in state court (or by 
attempting to remove her from office, if there is a process of that sort in 
KY). Then a state institutional actor, probably a state court, can consider 
whether the state's interest is compelling (and consider the feasibility of 
alternatives that the state might try).

The very enactment of the KY RFRA means that the state, acting through its 
legislature, determined that some of the interests advanced by some of its laws 
may not be compelling. If a federal judge posits the interest that a state 
statute, in the judge's view, advances, and then tries to determine how 
important that interest is to Kentucky, the federal judge would seem to have 
stepped into a peculiarly state role.  That might be rarely be necessary in a 
diversity case, but it isn't at all clear why it is necessary here.

This isn't the same as the issue that a federal court would face under the 
federal RFRA with respect to a state statute, had the Supreme Court decided 
City of Boerne the other way. Then the federal judge would be applying a 
federal standard for whether the state's asserted interest (probably asserted 
by a state official before the federal court) is compelling. The federal judge 
would be the right institutional actor to measure the state's asserted interest 
against the federal standard, set not by the state legislature but by Congress.

Here the federal judge is trying to measure the strength of the state 
legislature's interest in enforcement of a state statute, as against the state 
legislature's purposeful binding of itself by another state statute (the KY 
RFRA). As I've tried to explain, that seems to be a peculiarly state matter to 
be determined by the right state institutional actors.

Does that make sense, David? Or is it at least clear, however wrong-headed it 
may be?

Mark

Mark S. Scarberry
Pepperdine University School of Law



Sent from my iPad

On Sep 6, 2015, at 8:43 PM, "David Cruz" 
<dc...@law.usc.edu<mailto:dc...@law.usc.edu>> wrote:

I think you’ve said this (quotation below) at least a couple times now, Mark, 
but I’m a bit puzzled by it.  Don’t federal courts always make such assessments 
any time a plaintiff sues a state actor for violating a federal constitutional 
right that is judicially protected with strict scrutiny?  Or do you mean to be 
suggesting that what counts as a compelling interest for a state law that turns 
on that question is a sufficiently different question from what counts as a 
compelling interest for federal constitutional purposes?  And if the latter, 
why, particularly given that federal courts routinely interpret (/forecast) and 
apply state law, as others have noted?  If it’s not something about the 
substance, what is it about THIS kind of question of state law that makes it 
institutionally out of bounds for federal courts even in cases you hypothesized 
were ones requiring federal judicial interpretation of state law?  I am sorry 
if you already explained your intuition in some post and I overlooked it.

-David

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of "Scarberry, Mark" 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Sunday, September 6, 2015 at 4:43 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: RE: What's happening in KY? -- wrong case, wrong parties

[snip] If it is necessary for the district court to interpret state law, it 
still seems improper for a federal court to determine what a state legislature 
considered to be a compelling interest. [snip]
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Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subsc

RE: What's happening in KY? -- wrong case, wrong parties

[Volokh, Eugene]

   1.  If indeed the district court is right, and stopping the 
issuing of marriage licenses and certificates in Rowan County violates the 
right to marry, then that's a Due Process Clause violation, with no need to 
consider the Equal Protection Clause.

   2.  But if the district court is mistaken, and there's no 
constitutional violation in all Rowan citizens having to go out-of-county to 
get a license, then it seems to me that Palmer v. Thompson is indeed the right 
analogy.  There's no violation of a substantive constitutional right, just the 
closing of a program that the government (by hypothesis) has no obligation to 
operate, albeit out of disapproval of same-sex marriages.

Hunter v. Underwood strikes me as more distant, and in any event it didn't turn 
on the existence of a fundamental right; the analysis would have been the same 
as to non-fundamental-rights, see, e.g., Washington v. Davis.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg
Sent: Sunday, September 06, 2015 7:22 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- wrong case, wrong parties

In Hunter v. Underwood the Court held that a law under which persons convicted 
of certain crimes was unconstitutional because it had been adopted with the 
intent of disqualifying African-Americans.  The law disqualified both whites 
and blacks.  As in the Davis case a facially indiscriminate deprivation of a 
fundamental right failed because of discriminatory motive.  This seems a better 
analogy than Palmer v. Thompson, where no fundamental right was at stake.

Sent from my iPad

On Sep 6, 2015, at 5:12 PM, "Steven Jamar" 
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:
Mark and I disagree about the nature of animus and bias in the violation of 
constitutional rights.  I think the source of her bias is not relevant to the 
14th Amendment analysis; he thinks it is.  She is treating all couples the same 
only because she thinks that insulates her from liability under the 14th 
Amendment EP clause.  Mark agrees that it does; on these facts where the action 
was taken because of a bias against one group, I don't think it does.

I understand Mark's position; I just think it is wrong as he thinks mine is 
wrong.

Steve

On Sep 6, 2015, at 7:54 PM, Scarberry, Mark 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:

A final brief point in response to Steve. Davis is treating all couples the 
same. This is not like Cleburn. The question is whether her treatment of them 
all the same way is somehow a violation of equal protection. It is not at all 
clear that it is a violation.

Note also that Davis is not claiming that the state has a right to 
discriminate. She is claiming that she, as a person protected by the KY RFRA, 
has a religious liberty right not to violate her religious conscience. That is 
a legitimate interest that is recognized by KY (and also recognized, even after 
Boerne, as a legitimate interest with respect to federal law, though I make 
that point only to indicate the legitimacy of the interest, not to suggest that 
the federal RFRA applies here). She is willing to allow same-sex marriage 
licenses to be issued, if I understand her position correctly, if that is done 
without her stamp of approval (her specific authorization) and if it is done in 
a way that ensures that the licenses are valid under state law (which is quite 
reasonably interpreted to require her authorization as county clerk for 
licenses issued in her county). That is not animus. She appears to be acting on 
a sincerely held good-faith religious belief (if the majority opinion in 
Obergefell is to be taken seriously) and attempting to avoid violation of her 
conscience.

Mark

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Sunday, September 06, 2015 4:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties

In response to Eugene:

As I've said, it's certainly true that the KY RFRA cannot affect determinations 
of US Constitutional law. And because the district court did decide against her 
on the US constitutional right-to-marry issue and did issue an injunction, she 
is obligated to obey the injunction until and unless it is reversed, on pain of 
being held in contempt. (Indeed, even if the district court erroneously ordered 
her to authorize licenses on the ground that KY law requires her to do so, she 
would have the same obligation to obey the injunction. It probably would not 
have only a frivolous pretense of validity, per the Walker v. Birmingham 
analysis.)

If it is reversed, then civil contempt sanctions will be eliminated to the 
extent pos

RE: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

In response to Eugene:

As I’ve said, it’s certainly true that the KY RFRA cannot affect determinations 
of US Constitutional law. And because the district court did decide against her 
on the US constitutional right-to-marry issue and did issue an injunction, she 
is obligated to obey the injunction until and unless it is reversed, on pain of 
being held in contempt. (Indeed, even if the district court erroneously ordered 
her to authorize licenses on the ground that KY law requires her to do so, she 
would have the same obligation to obey the injunction. It probably would not 
have only a frivolous pretense of validity, per the Walker v. Birmingham 
analysis.)

If it is reversed, then civil contempt sanctions will be eliminated to the 
extent possible. Of course we don’t have a time machine so that her time in 
jail for civil contempt could be undone, but she could not be held liable for 
civil contempt conditional fines that had been imposed.

As we all know, she could still be held liable for criminal contempt even if 
the district court is reversed. Walker v. Birmingham. A list member noted that 
no one wanted to go there because it would make her more of a martyr. In any 
event, it isn’t the plaintiffs’ call whether she will be prosecuted for 
criminal contempt. The US Attorney can do so, and I believe the district court 
might appoint a disinterested person to deal with the matter. The plaintiffs 
cannot prosecute a criminal contempt – the Supreme Court held that very 
clearly, I believe in the Vuitton case.

So, indeed, in order not to commit a crime, she must either obey the injunction 
or resign. That is independent of the merits. My points dealt with the merits, 
and with whether the federal court should interpret and enforce Kentucky law in 
a case in which there is no diversity jurisdiction. I don’t see how the federal 
court can find that Kentucky had a compelling interest in requiring marriage 
licenses to be available in every county; is that a call for a federal court to 
make, even if otherwise possible? Or that the legislature had no alternative 
means of advancing such an interest, if compelling, without burdening Davis’s 
religious exercise (or more appropriately her religious conscience). There 
obviously are alternative means -- if that is the compelling interest -- and 
under the Kentucky RFRA the legislature bound itself to use them rather than 
burdening Davis’s religious exercise.

If I were her I would authorize issuance of the licenses, and if I were her 
attorney I would be required to advise her to do so (though I could also 
explain the law of civil and criminal contempt, as noted above, and tell her 
that in the end the decision is hers).

That’s about all I have to say, though I may respond further to Steve, if the 
press of other business allows me to.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Sunday, September 06, 2015 1:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties


Mark Scarberry:



> The only real questions for the federal court should be whether her 
> even-handed

> refusal to authorize issuance of any licenses violates the 14th Amendment's

> equal protection clause and whether her refusal impermissibly burdens the 
> right

> of all couples to marry (when they can get licenses from other counties by

> driving an hour). Perhaps if one of those issues is decided against her, then 
> the

> federal court could exercise jurisdiction to decide the state law issue, but

> otherwise it seems to me that the federal court should leave the issues to 
> state

> officials and state courts.



   I appreciate that the right-to-marry issue isn't open and shut, 
but the district court did decide it against her:


The state action at issue in this case is Defendant Davis' refusal to issue any 
marriage licenses. Plaintiffs contend that Davis' “no marriage licenses” policy 
significantly interferes with their right to marry because they are unable to 
obtain a license in their home county. Davis insists that her policy does not 
significantly discourage Plaintiffs from marrying because they have several 
other options for obtaining licenses: (1) they may go to one of the seven 
neighboring counties that are issuing marriage licenses; (2) they may obtain 
licenses from Rowan County Judge Executive Walter Blevins; or (3) they may 
avail themselves of other alternatives being considered post-Obergefell.
Davis is correct in stating that Plaintiffs can obtain marriage licenses from 
one of the surrounding counties; thus, they are not totally precluded from 
marrying in Kentucky. However, this argument ignores the fact that Plaintiffs 
have strong ties to Rowan County. They are long-time residents who live, 

Re: What's happening in KY? -- wrong case, wrong parties

[Brian Landsberg]

In Hunter v. Underwood the Court held that a law under which persons convicted 
of certain crimes was unconstitutional because it had been adopted with the 
intent of disqualifying African-Americans.  The law disqualified both whites 
and blacks.  As in the Davis case a facially indiscriminate deprivation of a 
fundamental right failed because of discriminatory motive.  This seems a better 
analogy than Palmer v. Thompson, where no fundamental right was at stake.

Sent from my iPad

On Sep 6, 2015, at 5:12 PM, "Steven Jamar" 
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:

Mark and I disagree about the nature of animus and bias in the violation of 
constitutional rights.  I think the source of her bias is not relevant to the 
14th Amendment analysis; he thinks it is.  She is treating all couples the same 
only because she thinks that insulates her from liability under the 14th 
Amendment EP clause.  Mark agrees that it does; on these facts where the action 
was taken because of a bias against one group, I don’t think it does.

I understand Mark’s position; I just think it is wrong as he thinks mine is 
wrong.

Steve

On Sep 6, 2015, at 7:54 PM, Scarberry, Mark 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:

A final brief point in response to Steve. Davis is treating all couples the 
same. This is not like Cleburn. The question is whether her treatment of them 
all the same way is somehow a violation of equal protection. It is not at all 
clear that it is a violation.

Note also that Davis is not claiming that the state has a right to 
discriminate. She is claiming that she, as a person protected by the KY RFRA, 
has a religious liberty right not to violate her religious conscience. That is 
a legitimate interest that is recognized by KY (and also recognized, even after 
Boerne, as a legitimate interest with respect to federal law, though I make 
that point only to indicate the legitimacy of the interest, not to suggest that 
the federal RFRA applies here). She is willing to allow same-sex marriage 
licenses to be issued, if I understand her position correctly, if that is done 
without her stamp of approval (her specific authorization) and if it is done in 
a way that ensures that the licenses are valid under state law (which is quite 
reasonably interpreted to require her authorization as county clerk for 
licenses issued in her county). That is not animus. She appears to be acting on 
a sincerely held good-faith religious belief (if the majority opinion in 
Obergefell is to be taken seriously) and attempting to avoid violation of her 
conscience.

Mark

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Sunday, September 06, 2015 4:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties

In response to Eugene:

As I’ve said, it’s certainly true that the KY RFRA cannot affect determinations 
of US Constitutional law. And because the district court did decide against her 
on the US constitutional right-to-marry issue and did issue an injunction, she 
is obligated to obey the injunction until and unless it is reversed, on pain of 
being held in contempt. (Indeed, even if the district court erroneously ordered 
her to authorize licenses on the ground that KY law requires her to do so, she 
would have the same obligation to obey the injunction. It probably would not 
have only a frivolous pretense of validity, per the Walker v. Birmingham 
analysis.)

If it is reversed, then civil contempt sanctions will be eliminated to the 
extent possible. Of course we don’t have a time machine so that her time in 
jail for civil contempt could be undone, but she could not be held liable for 
civil contempt conditional fines that had been imposed.

As we all know, she could still be held liable for criminal contempt even if 
the district court is reversed. Walker v. Birmingham. A list member noted that 
no one wanted to go there because it would make her more of a martyr. In any 
event, it isn’t the plaintiffs’ call whether she will be prosecuted for 
criminal contempt. The US Attorney can do so, and I believe the district court 
might appoint a disinterested person to deal with the matter. The plaintiffs 
cannot prosecute a criminal contempt – the Supreme Court held that very 
clearly, I believe in the Vuitton case.

So, indeed, in order not to commit a crime, she must either obey the injunction 
or resign. That is independent of the merits. My points dealt with the merits, 
and with whether the federal court should interpret and enforce Kentucky law in 
a case in which there is no diversity jurisdiction. I don’t see how the federal 
court can find that Kentucky had a compelling interest in requiring marriage 
licenses to be available in every county; is th

Re: What's happening in KY? -- wrong case, wrong parties

[Steven Jamar]

Mark, are you claiming that her religious-based bias against same sex couples 
is ok under the 14th Amendment? This sort of bias has been repeatedly declared 
unconstitutional by the Supreme Court as inherently unreasonable.  Again, see 
Cleburne.

If her original position had been as nuanced as you are now arguing, she might 
have a possible legitimate argument along the lines you are making.  But how 
can after-the-fact rationalizations be allowed?  Again, those have been 
explicitly rejected by the court.  Mississippi University v. Hogan says that 
explicitly.

Are you saying that an elected county clerk gets to decide what Kentucky law is 
and that that is not reviewable by the federal court under the 14th Amendment?  
In the absence of a definitive ruling by a state court it seems that there are 
two avenues open to the court — interpret the law or send a question to the 
state supreme court to get an interpretation.  I don’t think the latter is ever 
compelled.  At least when I was in practice federal courts in diversity cases 
regularly interpreted state law — taking into account state court 
interpretations and treating them as  controlling when they were on the same 
issue — but a lot of times there were not such rulings on the same issue as in 
federal court.

If the state of Kentucky does not like the interpretation of its laws by the 
federal court, it can amend its laws to make them more clear and certain on 
that point.  That does not mean the federal court had no power to interpret the 
state law in the first place.

The state has not put in place the accommodation Mark is positing might be 
constitutional.  It seems to me to be far more intrusive for the federal court 
to make up such rules excusing a county clerk from performing a clearly 
mandated statutory duty than just applying the law as it is.

And if it is going down Mark’s road, which I have no particular objection to, 
then it is still intepreting Kentucky law — but has no obligation to defer to a 
county clerk’s intepretation of that law and can intepret Kentucky’s RFRA 
directly itself.

All of this assumes, of course, that somehow the animus and religious-based 
bias is excused and gets treated differently than such bias-motivated conduct 
has been treated in the past in a 14th amendment denial of rights claim.

Steve Jamar


> On Sep 6, 2015, at 4:16 PM, Scarberry, Mark  
> wrote:
> 
> I don't quite understand why she needs to affirmatively seek relief under the 
> Kentucky RFRA. It's part of Kentucky law. The state legislature didn't 
> exclude this law from the reach of the state RFRA. If the Kentucky statute -- 
> that would otherwise require her to authorize the issuance of licenses -- 
> substantially burdens her religious exercise, and if the legislature has an 
> alternative means of advancing an interest that it may or may not consider 
> compelling, then she need not comply with it. As a state official, I think 
> she has the right in the first instance to decide what Kentucky law requires. 
> She also has the right (and obligation) to take into account the concern that 
> if she doesn't authorize issuance of the licenses, then they may not be 
> valid; that could be a basis for instructing deputies not to issue them. If 
> someone in the Kentucky government with authority over her requires her to 
> authorize the issuance of licenses do so, then she would interpose the state 
> RFRA, and a Kentucky court would decide who is right as a matter of Kentucky 
> law. Or a Kentucky court might determine that licenses issued by deputies 
> without her authorization are valid under Kentucky law.
> 
> Of course the Kentucky RFRA can't override the 14th Amendment, but that may 
> miss much of the point.
> 
> What business does a federal court have in telling her that Kentucky law 
> requires her to authorize issuance of licenses, or in enforcing against her 
> Kentucky law, or in saying that licenses signed by deputies are valid under 
> Kentucky law despite her refusal to authorize issuance?
> 
> The only real questions for the federal court should be whether her 
> even-handed refusal to authorize issuance of any licenses violates the 14th 
> Amendment's equal protection clause and whether her refusal impermissibly 
> burdens the right of all couples to marry (when they can get licenses from 
> other counties by driving an hour). Perhaps if one of those issues is decided 
> against her, then the federal court could exercise jurisdiction to decide the 
> state law issue, but otherwise it seems to me that the federal court should 
> leave the issues to state officials and state courts.
> 
> If I were her, I would issue the licenses. Nevertheless, on both of those 
> constitutional issues I think she has the better argument. 
> 
> As for Steve's claim that her refusal can only be based on animus (and his 
> rather outrageous invocation of the trail of tears, which was the path of 
> some of my 

RE: What's happening in KY? -- wrong case, wrong parties

[Volokh, Eugene]

Mark Scarberry:



> The only real questions for the federal court should be whether her 
> even-handed

> refusal to authorize issuance of any licenses violates the 14th Amendment's

> equal protection clause and whether her refusal impermissibly burdens the 
> right

> of all couples to marry (when they can get licenses from other counties by

> driving an hour). Perhaps if one of those issues is decided against her, then 
> the

> federal court could exercise jurisdiction to decide the state law issue, but

> otherwise it seems to me that the federal court should leave the issues to 
> state

> officials and state courts.



   I appreciate that the right-to-marry issue isn't open and shut, 
but the district court did decide it against her:


The state action at issue in this case is Defendant Davis' refusal to issue any 
marriage licenses. Plaintiffs contend that Davis' “no marriage licenses” policy 
significantly interferes with their right to marry because they are unable to 
obtain a license in their home county. Davis insists that her policy does not 
significantly discourage Plaintiffs from marrying because they have several 
other options for obtaining licenses: (1) they may go to one of the seven 
neighboring counties that are issuing marriage licenses; (2) they may obtain 
licenses from Rowan County Judge Executive Walter Blevins; or (3) they may 
avail themselves of other alternatives being considered post-Obergefell.
Davis is correct in stating that Plaintiffs can obtain marriage licenses from 
one of the surrounding counties; thus, they are not totally precluded from 
marrying in Kentucky. However, this argument ignores the fact that Plaintiffs 
have strong ties to Rowan County. They are long-time residents who live, work, 
pay taxes, vote and conduct other business in Morehead. Under these 
circumstances, it is understandable that Plaintiffs would prefer to obtain 
their marriage licenses in their home county. And for other Rowan County 
residents, it may be more than a preference. The surrounding counties are only 
thirty minutes to an hour away, but there are individuals in this rural region 
of the state who simply do not have the physical, financial or practical means 
to 
travel.5
This argument also presupposes that Rowan County will be the only Kentucky 
county not issuing marriage licenses. While Davis may be the only clerk 
currently turning away eligible couples, 57 of the state's 120 elected county 
clerks have asked Governor Beshear to call a special session of the state 
legislature to address religious concerns related to same-sex marriage 
licenses.6
 (Doc. # 29–9). If this Court were to hold that Davis' policy did not 
significantly interfere with the right to marry, what would stop the other 56 
clerks from following Davis' approach? What might be viewed as an inconvenience 
for residents of one or two counties quickly becomes a substantial interference 
when applicable to approximately half of the state.
As for her assertion that Judge Blevins may issue marriage licenses, Davis is 
only partially correct. KRS § 
402.240
 provides that, “[i]n the absence of the county clerk, or during a vacancy in 
the office, the county judge/executive may issue the license and, in so doing, 
he shall perform the duties and incur all the responsibilities of the clerk.” 
The statute does not explicitly define “absence,” suggesting that a traditional 
interpretation of the term is appropriate. See Merriam–Webster Online 
Dictionary, 2015, http:// www.merriam-webster.com/, (describing “absence” as “a 
period of time when someone is not present at a place, job, etc.”). However, 
Davis asks the Court to deem her “absent,” for purposes of this statute, 
because she has a religious objection to issuing the licenses. While this is 
certainly a creative interpretation, 

Re: What's happening in KY? -- wrong case, wrong parties

[Douglas Laycock]

It should never be an answer to a constitutional violation by local government 
that the victims can move to, or obtain service from, some other local 
government. Because if one local government is free to violate the 
Constitution, there is no principled reason why all the others cannot do 
likewise.

And she did not close the program in the way Jackson closed its pools.  Jackson 
did not require people to go swimming, either before or after it closed its 
pools. Closing the program would mean Kentucky no longer requiring marriage 
licenses. Instead, we have Kentucky requiring a license that only her office 
can issue, and her office refusing to issue them.

She can work out her desire to be personally exempted formally or informally, 
with or without litigation, with the relevant Kentucky officials. Maybe she 
could exempt herself. But she has to obtain her personal exemption in a way 
that does not prevent the county from issuing licenses. The county does not get 
an exemption.



On Sun, 6 Sep 2015 13:16:16 -0700
 "Scarberry, Mark"  wrote:
>I don't quite understand why she needs to affirmatively seek relief under the 
>Kentucky RFRA. It's part of Kentucky law. The state legislature didn't exclude 
>this law from the reach of the state RFRA. If the Kentucky statute -- that 
>would otherwise require her to authorize the issuance of licenses -- 
>substantially burdens her religious exercise, and if the legislature has an 
>alternative means of advancing an interest that it may or may not consider 
>compelling, then she need not comply with it. As a state official, I think she 
>has the right in the first instance to decide what Kentucky law requires. She 
>also has the right (and obligation) to take into account the concern that if 
>she doesn't authorize issuance of the licenses, then they may not be valid; 
>that could be a basis for instructing deputies not to issue them. If someone 
>in the Kentucky government with authority over her requires her to authorize 
>the issuance of licenses do so, then she would interpose the state RFRA,!
  and a
>Kentucky court would decide who is right as a matter of Kentucky law. Or a 
>Kentucky court might determine that licenses issued by deputies without her 
>authorization are valid under Kentucky law.
>
>Of course the Kentucky RFRA can't override the 14th Amendment, but that may 
>miss much of the point.
>
>What business does a federal court have in telling her that Kentucky law 
>requires her to authorize issuance of licenses, or in enforcing against her 
>Kentucky law, or in saying that licenses signed by deputies are valid under 
>Kentucky law despite her refusal to authorize issuance?
>
>The only real questions for the federal court should be whether her 
>even-handed refusal to authorize issuance of any licenses violates the 14th 
>Amendment's equal protection clause and whether her refusal impermissibly 
>burdens the right of all couples to marry (when they can get licenses from 
>other counties by driving an hour). Perhaps if one of those issues is decided 
>against her, then the federal court could exercise jurisdiction to decide the 
>state law issue, but otherwise it seems to me that the federal court should 
>leave the issues to state officials and state courts.
>
>If I were her, I would issue the licenses. Nevertheless, on both of those 
>constitutional issues I think she has the better argument. 
>
>As for Steve's claim that her refusal can only be based on animus (and his 
>rather outrageous invocation of the trail of tears, which was the path of some 
>of my ancestors), there is this statement in the majority opinion in 
>Obergefell (sincerely stated or not):
>
>"Marriage, in their view, is by its nature a gender-differentiated union of 
>man and woman. This view long has been held—and continues to be held—in good 
>faith by reasonable and sincere people here and throughout the world."
>
>As Eugene has pointed out, the Court in Palmer v. Thompson refused to hold 
>that the closing of swimming pools in response to a desegregation order was a 
>violation of equal protection. We can argue about how that case should apply 
>here, but it's hardly obvious that her claim of a right under the Kentucky 
>RFRA is an impermissible basis for her action. 
>
>As for Sandy's question whether political views control the positions of list 
>members, I'd suggest that opposition to Obergefell is not necessarily 
>political, and neither is a strong desire to protect religious conscience. Are 
>we all influenced by our substantive views (political or not)? Yes. But there 
>is also what I hope is an attempt to reach a principled position. I certainly 
>wouldn't encourage anyone to become a member of the Santeria Church or to 
>drink hoasca tea as part of a religious ritual, but I support the Court's 
>decision in both cases. 
>
>Mark
>
>Mark S. Scarberry
>Professor of Law
>Pepperdine Univ. School of Law
>
>
>
>
>
>-Original 

RE: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

To clarify one of my points:

I am saying that there does not seem to be a basis for the federal court to 
enforce KY law against Davis in this non-diversity case. There simply doesn’t 
seem to be a basis for the federal court to interpret KY law, unless that is 
necessary in order to decide whether Davis has violated the US Constitution. I 
haven’t seen a clear argument that it is necessary to interpret KY law 
(including but not limited to the KY RFRA) in order to determine whether Davis 
is violating the 14th Amendment. If it is necessary for the district court to 
interpret state law, it still seems improper for a federal court to determine 
what a state legislature considered to be a compelling interest. Given that the 
KY RFRA is part of KY law, the district court cannot decide what is required of 
Davis under state law without making that determination.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law





From: Scarberry, Mark
Sent: Sunday, September 06, 2015 4:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties

In response to Eugene:

As I’ve said, it’s certainly true that the KY RFRA cannot affect determinations 
of US Constitutional law. And because the district court did decide against her 
on the US constitutional right-to-marry issue and did issue an injunction, she 
is obligated to obey the injunction until and unless it is reversed, on pain of 
being held in contempt. (Indeed, even if the district court erroneously ordered 
her to authorize licenses on the ground that KY law requires her to do so, she 
would have the same obligation to obey the injunction. It probably would not 
have only a frivolous pretense of validity, per the Walker v. Birmingham 
analysis.)

If it is reversed, then civil contempt sanctions will be eliminated to the 
extent possible. Of course we don’t have a time machine so that her time in 
jail for civil contempt could be undone, but she could not be held liable for 
civil contempt conditional fines that had been imposed.

As we all know, she could still be held liable for criminal contempt even if 
the district court is reversed. Walker v. Birmingham. A list member noted that 
no one wanted to go there because it would make her more of a martyr. In any 
event, it isn’t the plaintiffs’ call whether she will be prosecuted for 
criminal contempt. The US Attorney can do so, and I believe the district court 
might appoint a disinterested person to deal with the matter. The plaintiffs 
cannot prosecute a criminal contempt – the Supreme Court held that very 
clearly, I believe in the Vuitton case.

So, indeed, in order not to commit a crime, she must either obey the injunction 
or resign. That is independent of the merits. My points dealt with the merits, 
and with whether the federal court should interpret and enforce Kentucky law in 
a case in which there is no diversity jurisdiction. I don’t see how the federal 
court can find that Kentucky had a compelling interest in requiring marriage 
licenses to be available in every county; is that a call for a federal court to 
make, even if otherwise possible? Or that the legislature had no alternative 
means of advancing such an interest, if compelling, without burdening Davis’s 
religious exercise (or more appropriately her religious conscience). There 
obviously are alternative means -- if that is the compelling interest -- and 
under the Kentucky RFRA the legislature bound itself to use them rather than 
burdening Davis’s religious exercise.

If I were her I would authorize issuance of the licenses, and if I were her 
attorney I would be required to advise her to do so (though I could also 
explain the law of civil and criminal contempt, as noted above, and tell her 
that in the end the decision is hers).

That’s about all I have to say, though I may respond further to Steve, if the 
press of other business allows me to.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Sunday, September 06, 2015 1:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties


Mark Scarberry:



> The only real questions for the federal court should be whether her 
> even-handed

> refusal to authorize issuance of any licenses violates the 14th Amendment's

> equal protection clause and whether her refusal impermissibly burdens the 
> right

> of all couples to marry (when they can get licenses from other counties by

> driving an hour). Perhaps if one of those issues is decided against her, then 
> the

> federal court could exercise jurisdiction to decide the state law issue, but

> otherwise it seems to me that the federal court should leave the issu

RE: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

A final brief point in response to Steve. Davis is treating all couples the 
same. This is not like Cleburn. The question is whether her treatment of them 
all the same way is somehow a violation of equal protection. It is not at all 
clear that it is a violation.

Note also that Davis is not claiming that the state has a right to 
discriminate. She is claiming that she, as a person protected by the KY RFRA, 
has a religious liberty right not to violate her religious conscience. That is 
a legitimate interest that is recognized by KY (and also recognized, even after 
Boerne, as a legitimate interest with respect to federal law, though I make 
that point only to indicate the legitimacy of the interest, not to suggest that 
the federal RFRA applies here). She is willing to allow same-sex marriage 
licenses to be issued, if I understand her position correctly, if that is done 
without her stamp of approval (her specific authorization) and if it is done in 
a way that ensures that the licenses are valid under state law (which is quite 
reasonably interpreted to require her authorization as county clerk for 
licenses issued in her county). That is not animus. She appears to be acting on 
a sincerely held good-faith religious belief (if the majority opinion in 
Obergefell is to be taken seriously) and attempting to avoid violation of her 
conscience.

Mark

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Sunday, September 06, 2015 4:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties

In response to Eugene:

As I’ve said, it’s certainly true that the KY RFRA cannot affect determinations 
of US Constitutional law. And because the district court did decide against her 
on the US constitutional right-to-marry issue and did issue an injunction, she 
is obligated to obey the injunction until and unless it is reversed, on pain of 
being held in contempt. (Indeed, even if the district court erroneously ordered 
her to authorize licenses on the ground that KY law requires her to do so, she 
would have the same obligation to obey the injunction. It probably would not 
have only a frivolous pretense of validity, per the Walker v. Birmingham 
analysis.)

If it is reversed, then civil contempt sanctions will be eliminated to the 
extent possible. Of course we don’t have a time machine so that her time in 
jail for civil contempt could be undone, but she could not be held liable for 
civil contempt conditional fines that had been imposed.

As we all know, she could still be held liable for criminal contempt even if 
the district court is reversed. Walker v. Birmingham. A list member noted that 
no one wanted to go there because it would make her more of a martyr. In any 
event, it isn’t the plaintiffs’ call whether she will be prosecuted for 
criminal contempt. The US Attorney can do so, and I believe the district court 
might appoint a disinterested person to deal with the matter. The plaintiffs 
cannot prosecute a criminal contempt – the Supreme Court held that very 
clearly, I believe in the Vuitton case.

So, indeed, in order not to commit a crime, she must either obey the injunction 
or resign. That is independent of the merits. My points dealt with the merits, 
and with whether the federal court should interpret and enforce Kentucky law in 
a case in which there is no diversity jurisdiction. I don’t see how the federal 
court can find that Kentucky had a compelling interest in requiring marriage 
licenses to be available in every county; is that a call for a federal court to 
make, even if otherwise possible? Or that the legislature had no alternative 
means of advancing such an interest, if compelling, without burdening Davis’s 
religious exercise (or more appropriately her religious conscience). There 
obviously are alternative means -- if that is the compelling interest -- and 
under the Kentucky RFRA the legislature bound itself to use them rather than 
burdening Davis’s religious exercise.

If I were her I would authorize issuance of the licenses, and if I were her 
attorney I would be required to advise her to do so (though I could also 
explain the law of civil and criminal contempt, as noted above, and tell her 
that in the end the decision is hers).

That’s about all I have to say, though I may respond further to Steve, if the 
press of other business allows me to.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Sunday, September 06, 2015 1:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties


Mark Scarberry:



> The only real questions for the federal court should be whether her 
> even-handed

&g

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

[Steven Jamar]

Even if she is acting in accordance with her understanding of state law, she 
cannot violate the federal constitution in doing so, and any state law that is 
violation of the federal constitution is not, well, constitutional.

State RFRA cannot override the United States Constitution. Period.  Full stop.  
Even if the state were to grant her an accommodation for her religious views in 
relieving her of otherwise performing her job, the state (and its agents like 
county clerks) cannot do so in violation of the federal constitution.  

Thus the law, if it indeed requires a county clerk to include an authorization 
statement in her name, and she refuses to issue it to a same-sex couple, she is 
not performing her duty and she is violating the federal constitution.

The state law makes no accommodation for her that does not violate the federal 
constitution.  

This is (still) an easy case.

Could the state change the law to accommodate her religious objections?  I 
think so, but the matter is not fully free from doubt since the same sex couple 
would be treated differently from opposite sex couples in terms of the form of 
the permission obtained.  Could the state change the whole process so it just 
comes out of the clerks office and not from a particular person for everyone in 
the state and that any elected county clerk or appointed deputy could sign it?  
Surely.

But as it stands, she is simply in violation of federal law. 

How is it that federal RFRA would apply to the courts?  Surely it applies to 
congressional legislation, administrative ageny regulations and the 
administration of the law by the executive branch generally.  But does it apply 
to ordinary court actions?  If it did so, wouldn’t we end up in Escher-like 
legal universe?  The courts are to apply the constitution.  The Constitution is 
the supreme law.  The constitution is to be used to determine whether someone’s 
constitutional rights have been violated.  But now a statute can affect the 
very meaning of those rights?  How can that be?  This is a straight application 
of the constitutional right, not mediated by any statute — and no statute can 
mediate it.  Congress cannot write a law that says:  "when the court applies 
the freedom of exercise clause, or the equal protection clause, or the due 
process clause, it must do it this way.”  It can say that when a statute or 
regulation is being applied, take into account RFRA.  But RFRA cannot constrain 
EP or DP in that same way.

So it still seems a very simple case to me as a constitutional law matter.

What remedies are available to the State of Kentucky?  Different question.

A final point.  She simply cannot say “by issuing no  licenses I’m now 
complying with the constitution” when her motive, intent, in doing so is to 
deny rights to same sex couples.  The evidence of motivation here is 
unequivocal.  And state law does not give her the option to not do her job at 
all.  Or at least no one has pointed to a state court decision or 
interpretation of RFRA that would allow her to avoid doing her job.

And so we come to the power of the federal court to order her to issue licenses 
in accordance with the federal constitution.  She has an obvious statutory duty 
to do that function.  She is refusing to do so in violation of the federal 
constittution.  Simple case.

10 of 10 for cleverness on the state RFRA theory, but it just can’t work here 
in federal court in this posture, can it.

Steve Jamar 

-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Years ago my mother used to say to me... 'In this world Elwood' ... She always 
used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh 
So Pleasant.' Well for years I was smart -- I recommend pleasant.  You may 
quote me." --Elwood P. Dowd

- Mary Chase, "Harvey", 1950




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

[Steven Jamar]

 consist of:
>>  
>> (1) A marriage license which provides for the entering of:
>>   (a) An authorization statement of the county clerk issuing the license for 
>> any person or religious society authorized to perform marriage ceremonies to 
>> unite in marriage the persons named;
>>   (b) Vital information for each party, including the full name, date of 
>> birth, place of birth, race, condition (single, widowed, or divorced), 
>> number of previous marriages, occupation, current residence, relationship to 
>> the other party, and full names of parents; and 
>>   (c) The date and place the license is issued, and the signature of the 
>> county clerk or deputy clerk issuing the license
>>  
>> It would seem to me that if the form does not include an authorization 
>> statement of the clerk (not a deputy clerk), then the form will not have 
>> been filled out as required by section 402.100. The second reference to 
>> issuance of the license by the county clerk or deputy clerk may muddy the 
>> waters. I certainly don’t think a federal court has the expertise to 
>> instruct the county clerk, who is charged with complying with 402.100 and 
>> 402.110, on the meaning of the section, or on the consequences of a 
>> potential failure to comply with it. If Davis believes a license without an 
>> authorization from her by name (indicating that she has authorized the 
>> performance of the marriage) does not comport with Kentucky law, then she 
>> either must authorize the marriages or instruct persons seeking licenses to 
>> drive an hour to another county.
>>  
>> It also is a bit ironic that same-sex marriage proponents who cheered when 
>> officials issued licenses in violation of the explicit terms of state law 
>> (not necessarily any members of this list), now think it’s improper for 
>> Davis to act on the basis of her understanding of state law, which of course 
>> includes the state RFRA.
>>  
>> Mark
>>  
>> Mark S. Scarberry
>> Professor of Law
>> Pepperdine Univ. School of Law
>>  
>>  
>>  
>> From: religionlaw-boun...@lists.ucla.edu 
>> <mailto:religionlaw-boun...@lists.ucla.edu> 
>> [mailto:religionlaw-boun...@lists.ucla.edu 
>> <mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Marty Lederman
>> Sent: Saturday, September 05, 2015 7:59 PM
>> To: Law & Religion issues for Law Academics
>> Subject: Re: What's happening in KY? -- my differences with Eugene
>>  
>> Howard:  As the Deputy Clerk is implementing the licenses, the form of the 
>> license is the same as that throughout the state, and every license blank 
>> does contain the identical words and figures provided in the form prescribed 
>> by section 402.100.  The only difference is that the Clerk's nameis not 
>> written in on the blank where it would ordinarily appear.  That doesn't in 
>> any way transgress 402.110.  
>>  
>> On Sat, Sep 5, 2015 at 6:55 PM, Friedman, Howard M. 
>> <howard.fried...@utoledo.edu <mailto:howard.fried...@utoledo.edu>> wrote:
>> In discussing the changes that Ms. Davis might have made in the license form 
>> to accommodate her religious beliefs, I don't believe anyone on this list 
>> has discussed this provision in Kentucky Rev. Stat. Sec. 402.110: 
>>  
>> "The form of marriage license prescribed in KRS 402.100 shall be uniform 
>> throughout this state, and every license blank shall contain the identical 
>> words and figures provided in the form prescribed by that section. In 
>> issuing the license the clerk shall deliver it in its entirety to the 
>> licensee. The clerk shall see to it that every blank space required to be 
>> filled by the applicants is so filled before delivering it to the licensee."
>>  
>> Changes by her office would prevent the license from being uniform 
>> throughout the state.  Do her state RFRA rights trump this?
>>  
>> Howard Friedman
>>  
>> ___
>> To post, send message to Religionlaw@lists.ucla.edu 
>> <mailto:Religionlaw@lists.ucla.edu>
>> To subscribe, unsubscribe, change options, or get password, see 
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 
>> <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 o

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

[Marty Lederman]

It's linked in my post, Mark

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

> It would also be helpful if someone could provide a link to an image of
> the license. My understanding is that new gender neutral forms were in fact
> issued by whatever state office is responsible for them. Perhaps it is the
> application, rather than the license, that is preprinted. If we are going
> to get into the facts, as Marty appropriately suggests, we should see what
> the forms actually say.
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Saturday, September 05, 2015 12:55 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: What's happening in KY? -- my differences with Eugene
>
>
>
> The court reportedly told the deputies that they'd better issue the
> licenses, and they did so *without *including her name.  (It's not
> pre-printed.)  The judge is reported to have said at the hearing that he
> wasn't sure whether such licenses would be valid, but it seems to be what
> he has "permitted" the deputies to do.  A transcript might clarify some of
> this.  Can you obtain one from the ACLU lawyers, Art?  Thanks
>
>
>
> On Sat, Sep 5, 2015 at 3:42 PM, Arthur Spitzer <artspit...@gmail.com>
> wrote:
>
> Marty says: "Davis is not seeking for the *court *to give her
> a just-not-with-my-name-on-them accommodation --- something he has in fact
> just given her!"
>
> Perhaps I missed this detail in one of your earlier posts, Marty.  Can you
> fill me in on just how the court has already provided this relief?  I
> thought the forms were pre-printed with her name and title.  Did the court
> authorize her to print new forms? Or to black out her name with a magic
> marker?
>
> Thanks,
>
> Art Spitzer
>
>
> *Warning:  This email is subject to monitoring by the NSA.*
>
>
>
> On Sat, Sep 5, 2015 at 3:33 PM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
> 1.  I *don't *understand Kim Davis to claim "that God would view her
> issuing such licenses with her name on them as authorization."  I can't
> even imagine what that would mean:  That God has a view of when the
> appearance of a name on the "issued in" line of a state licensing form
> constitutes one human being "authorizing" another to perform a marriage?
> That God has a view about the actual legal operation of Kentucky law?  Of
> course not.  Davis instead argues that she would be sinning because her
> name would provide* legal *authorization to the minister, under KY law.
> That's a secular question.
>
>
>
> 2. As I understand it, Davis is not seeking for the *court *to give her
> a just-not-with-my-name-on-them accommodation --- something he has in fact
> just given her! -- but instead is asking the court to grant her the right
> to prevent all licenses from being issued in the county, on the theory that 
> *the
> legislature* could, in theory, create the just-not-with-my-name-on-them
> accommodation.
>
>
>
> 3.  Most importantly, you seem to agree, Eugene, that the very possibility
> of such a legislative fix is not sufficient to give Davis a RFRA right to
> cessation of all issuance of marriage licenses in her county.  Does this
> mean that you disagree with the Alito view of "least restrictive means" --
> to include all possible legislative alternatives -- which the plaintiffs
> are pressing hard in the contraception cases?
>
>
>
> On Sat, Sep 5, 2015 at 3:17 PM, Volokh, Eugene <vol...@law.ucla.edu>
> wrote:
>
>Marty doesn’t view her issuance of the licenses as
> authorization.  He may well be right that Kentucky law doesn’t view it as
> authorization.  But, as I understand it, Kim Davis claims that God would
> view her issuing such licenses with her name on them as authorization.  If
> that is indeed Kim Davis’s claim, which it seems to be, then I don’t think
> it matters that Kentucky’s view is not Kim Davis’s view of God’s view.
>
>
>
>Now I agree that Davis is not entitled to the cessation of
> all issuance of marriage licenses in her county as an accommodation – that
> would unduly interfere with the state’s interest in providing marriage
> licenses to its citizens (and possibly the citizens’ federal constitutional
> right in having licenses issued by their county of residence, though that’s
> a somewhat more contested question).  But *if* she continues to seek a
> just-not-wit

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

[Volokh, Eugene]

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

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

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

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

   Eugene

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

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

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

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

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

Re: What's happening in KY?

[Levinson, Sanford V]

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

Sandy

Sent from my iPhone

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

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

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

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

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

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

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

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

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

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

David

David S. Cohen
Professor of Law

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


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RE: What's happening in KY?

[Volokh, Eugene]

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

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

   Eugene

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

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

Sandy

Sent from my iPhone

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

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

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

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

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

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

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

Is the case now moot and the clerk can get out of jail because she'd no longer 
be in contempt of a court order, since the case is vacated as moot?  And the 
issue isn't capable of repetition at this point for the plaintiffs, as they now 

Re: What's happening in KY?

[Marty Lederman]

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

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

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

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

[Scarberry, Mark]

I think Howard's point cuts the other way, as I'll note in a moment.

A few quick thoughts:

It seems at the very least odd to me that a federal judge would decide what 
Kentucky thinks is a compelling interest for purposes of the Kentucky RFRA. If 
Kentucky thinks that having every clerk in every county issue marriage licenses 
is a compelling interest, perhaps we might let the state take action, rather 
than having a federal judge do so.

It also seems odd to me that a federal judge would decide that state law 
requires a state official to take an action. So far, it's hard to see the 
federal question that would justify the federal judge in deciding these state 
law issues as a matter of pendent (or ancillary, I can't keep them straight) 
jurisdiction. Indeed, to decide what state law requires Davis to do requires an 
application of Kentucky's RFRA, which in turn, as noted above, requires a 
federal judge to determine what the state of Kentucky considers to be a 
compelling interest (and what, as a matter of Kentucky law, may be an 
appropriate alternative means of advancing any such interest).

At least one list member seems to argue that the Kentucky RFRA doesn't protect 
Davis, with regard to her obligations under state law, because the state 
legislature would have to act in order to provide an alternative means for the 
state to advance its compelling interest. Set aside for a moment how to define 
that interest and whether it is compelling. By enacting its RFRA, the Kentucky 
legislature bound itself not to substantially burden a person's religious 
exercise by way of its legislation, if the legislature has, but chooses not to 
implement, an alternative way of advancing interests it deems compelling. The 
Kentucky legislature has put the burden on itself: it can act to implement an 
alternative means, or it can act to exempt the particular state obligation from 
the reach of the Kentucky RFRA. If it chooses to do neither, then it has chosen 
not to burden the person's religious exercise. That is not a bug; it is a 
feature of a state RFRA, and an intended feature.

It appears to me - as I think Howard's point suggests - that Kentucky law 
requires or at least may well require that Davis's name be on the license, and 
that the license be issued pursuant to Davis's authority as clerk. The deputy 
clerk can't, if I understand Howard's point correctly, issue a license in any 
other way. The issuance of the license under Davis's authority with her name on 
it would appear to create a relatively close relationship between Davis and the 
wedding that she, in order to be true to her sincere religious beliefs, cannot 
facilitate (let alone be responsible for the authorizing of the wedding). 
Again, what is the federal judge's role in determining the meaning of state 
statutes?

Davis has a duty under Kentucky law - she can certainly say she has a duty, it 
seems plain that she does, and it would seem strange for a federal judge to 
hold otherwise - to make sure that licenses issued through her office be valid 
licenses under Kentucky law. If she believes that an altered form of license is 
not valid, she has every reason to prohibit a deputy clerk from issuing such a 
license.

That brings us back them to whether she is entitled to an exemption under the 
KY RFRA from her statutory duty to issue licenses. If so, then her actions make 
perfect sense.

Then the remaining question is whether she is obligated under the US 
Constitution to issue licenses. I don't think the swimming pool closure cases 
clearly lead to the conclusion that she has an obligation to issue licenses, 
though I need to go back and review them; I disagree with Steve on that point 
if I understand him correctly. Assuming her treatment of all couples the same 
is not unconstitutional discrimination against same-sex couples, then the issue 
would be whether it is an unconstitutional burden on the right to marry for a 
state to ask couples to drive an hour to another office to get a license. That 
seems unlikely.

With regard to Steve's argument that only animus could be behind Davis's 
actions, the majority in Obergefell rejected the notion that opposition to 
same-sex marriage was necessarily motivated by animus. Of course, the dissent 
said that the majority didn't really mean that, and perhaps we are now seeing 
that people think the majority didn't mean it.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Saturday, September 05, 2015 4:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

   It would depend on whether there's a compelling government 
interest in maintaining this particular aspect of uniformity; I doubt that 
there would be.  Many religious exemptions, after all, undermine the uniformity 
of a l

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

[Ira Lupu]

atives --
>> which the plaintiffs are pressing hard in the contraception cases?
>>
>> On Sat, Sep 5, 2015 at 3:17 PM, Volokh, Eugene <vol...@law.ucla.edu>
>> wrote:
>>
>>>Marty doesn’t view her issuance of the licenses as
>>> authorization.  He may well be right that Kentucky law doesn’t view it as
>>> authorization.  But, as I understand it, Kim Davis claims that God would
>>> view her issuing such licenses with her name on them as authorization.  If
>>> that is indeed Kim Davis’s claim, which it seems to be, then I don’t think
>>> it matters that Kentucky’s view is not Kim Davis’s view of God’s view.
>>>
>>>
>>>
>>>Now I agree that Davis is not entitled to the cessation
>>> of all issuance of marriage licenses in her county as an accommodation –
>>> that would unduly interfere with the state’s interest in providing marriage
>>> licenses to its citizens (and possibly the citizens’ federal constitutional
>>> right in having licenses issued by their county of residence, though that’s
>>> a somewhat more contested question).  But *if* she continues to seek a
>>> just-not-with-my-name-on-them accommodation, which she indeed said in her
>>> stay application would be adequate, then the Kentucky RFRA would entitle
>>> her to that exemption.
>>>
>>>
>>>
>>>Eugene
>>>
>>>
>>>
>>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
>>> *Sent:* Saturday, September 05, 2015 11:47 AM
>>> *To:* Law & Religion issues for Law Academics
>>>
>>> *Subject:* Re: What's happening in KY? -- my differences with Eugene
>>>
>>>
>>>
>>> On Points 1 and 2 of Eugene's post, Davis's religious objection is not,
>>> as Eugene suggests, *independent *of whether her name serves to provide
>>> her "authorization" of a same-sex marriage; instead, she claims that it
>>> violates her religion *because *it in fact serves as an authorization.
>>> And thus, understandably, she cites Kentucky law for that proposition,
>>> because it's a question not of religious doctrine but of the legal affect
>>> of the appearance of her name.  Her reading of that law is, I suggest,
>>> mistaken if not tendentious.  And since her religious objection is
>>> predicated on a mistake of fact/law that civil authorities can assess,
>>> rather than on a disputed religious tenet, there's no substantial burden on
>>> her religious exercise.  (Obviously, this same issue is now front and
>>> center in the contraception cases--most or all of the theories of
>>> complicity are, I've argued, based upon mistakes of law or fact that the
>>> courts need not accept.)
>>>
>>>
>>>
>>> The more important point for present purposes, however, is No. 3:  And
>>> on that, I basically *agree *with Eugene that if there were a
>>> substantial burden here (but see above), then perhaps Kentucky law, viewed
>>> as a whole (including RFRA), could be read to provide that the issuance of
>>> a license by Deputy Clerk Mason, *without *Davis's name, is both
>>> permissible and results in a valid marriage license.  The problem, however,
>>> is that Davis herself is strongly *resisting* this reading of Kentucky
>>> law.  If she agreed with that reading, she would be thrilled, satisfied,
>>> with the current outcome -- Mason issuing licenses without Davis's name.
>>> Win-win!  Indeed, before she was held in contempt she would not have
>>> prohibited Mason from doing just that--citing Kentucky RFRA--and thereby
>>> avoided prison.
>>>
>>>
>>>
>>> But her attorney instead insists that such licenses are invalid, and
>>> Davis contends that, under Kentucky law, Mason may *not *issue them.
>>> The outcome she is seeking is not for the court to rule that the issuance
>>> of such name-of-Davis-free licenses are lawful, but instead that there are
>>> to be *no marriage licenses in Rowan County *unless and until the
>>> Kentucky legislature amends Kentucky law to allow the omission of her name.
>>>
>>>
>>>
>>> (This all assumes that Kentucky law does, even apart from RFRA, require
>>> that Davis's name be on the license.  For reasons I explain in my post, I
>>> have doubts whether that's even correct.)
>>>
>>>
>>>
>>> 

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

[Volokh, Eugene]

   It would depend on whether there's a compelling government 
interest in maintaining this particular aspect of uniformity; I doubt that 
there would be.  Many religious exemptions, after all, undermine the uniformity 
of a legal rule that is generally uniform (e.g., no peyote) or at least 
uniform.  If uniformity is really critical (as it has been held to be with 
taxes), then exemptions could be denied on those grounds.  But there really 
would have to be a compelling interest in uniformity, and not just a general 
desire for uniformity.

   Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Saturday, September 05, 2015 3:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

In discussing the changes that Ms. Davis might have made in the license form to 
accommodate her religious beliefs, I don't believe anyone on this list has 
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:

"The form of marriage license prescribed in KRS 402.100 shall be uniform 
throughout this state, and every license blank shall contain the identical 
words and figures provided in the form prescribed by that section. In issuing 
the license the clerk shall deliver it in its entirety to the licensee. The 
clerk shall see to it that every blank space required to be filled by the 
applicants is so filled before delivering it to the licensee."

Changes by her office would prevent the license from being uniform throughout 
the state.  Do her state RFRA rights trump this?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Saturday, September 05, 2015 6:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene
A few questions, and forgive me if they have been asked and answered on this or 
related threads on this listserv:

1) Why did Ms. Davis stop issuing all marriage licenses?  God did not tell her 
that issuing licenses for different-sex couples was sinful or wrong.  Was this 
full closure on advice of counsel (don't discriminate, that will be harder to 
defend than a shut down for everyone)?  Was that sound advice, in light of the 
due process holding in Obergefell about the right to marry?  Whatever the 
reasons, what seems obvious is that Kentucky law did not burden her religious 
exercise with respect to different sex couples, so her Kentucky RFRA claim for 
a right to withhold licenses from those couples must be worth zero.

2) Obergefell was decided in late June.  Ms. Davis knew from then on that she 
eventually would be asked to issue a license for a same-sex couple.  Could she 
have gone to state court, seeking a a declaratory judgment (against whom?) that 
RFRA gave her the right to remove her name from some marriage licenses?  Who is 
the employer from whom she was seeking an accommodation?  Is anyone her boss?  
If she is her own boss, she could grant herself an accommodation.  (Let's take 
my name of some of those license forms.  Done.)  She didn't do any of these 
things.  She just waited, and then she shut down her office to everyone, 
including couples whose marriages did not implicate her religious freedom.  She 
wants equitable relief -- delay reopening my office until my religious concerns 
can be accommodated, even if that takes months.  Would it be appropriate to 
impose some form of equitable estoppel on her state RFRA claims now -- after 
all, she imposed the costs of her objection on every marriage applicant in the 
County.

3) Substantial burden -- to what coercive choice is Kentucky putting Ms. Davis? 
 Kentucky RFRA applies only to acts of Kentucky government, state or local.  
(Applying it fto ederal action would be an attempt at nullification, barred by 
the Supremacy Clause.)  Has she been indicted, fired, impeached?  (I know there 
was talk of a criminal prosecution, but it seems to have faded away.)  If she 
faces no civil or criminal burden under Kentucky law, then the state (and the 
County) have not burdened her religious exercise.  The burden all comes from 
enforcement of the federal Constitution, and state RFRA can't help her there.  
If and when the State or County come after her with threat of punishment or 
loss of job, RFRA might be her defense (but then she will be stuck with the 
issue of denying licenses to everyone; RFRA cannot help her with that.)



On Sat, Sep 5, 2015 at 3:42 PM, Arthur Spitzer 
<artspit...@gmail.com<mailto:artspit...@gmail.com>> wrote:
Marty says: "Davis is not seeking for the court to give her a 
just-not-with-my-name-on-them accommodation --- something he has in fact just 
given her!"
Perhaps I missed this detail

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

[Volokh, Eugene]

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

   Eugene

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

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

Howard

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene 
[vol...@law.ucla.edu]
Sent: Saturday, September 05, 2015 7:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene
   It would depend on whether there's a compelling government 
interest in maintaining this particular aspect of uniformity; I doubt that 
there would be.  Many religious exemptions, after all, undermine the uniformity 
of a legal rule that is generally uniform (e.g., no peyote) or at least 
uniform.  If uniformity is really critical (as it has been held to be with 
taxes), then exemptions could be denied on those grounds.  But there really 
would have to be a compelling interest in uniformity, and not just a general 
desire for uniformity.

   Eugene


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Saturday, September 05, 2015 3:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

In discussing the changes that Ms. Davis might have made in the license form to 
accommodate her religious beliefs, I don't believe anyone on this list has 
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:

"The form of marriage license prescribed in KRS 402.100 shall be uniform 
throughout this state, and every license blank shall contain the identical 
words and figures provided in the form prescribed by that section. In issuing 
the license the clerk shall deliver it in its entirety to the licensee. The 
clerk shall see to it that every blank space required to be filled by the 
applicants is so filled before delivering it to the licensee."

Changes by her office would prevent the license from being uniform throughout 
the state.  Do her state RFRA rights trump this?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Saturday, September 05, 2015 6:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene
A few questions, and forgive me if they have been asked and answered on this or 
related threads on this listserv:

1) Why did Ms. Davis stop issuing all marriage licenses?  God did not tell her 
that issuing licenses for different-sex couples was sinful or wrong.  Was this 
full closure on advice of counsel (don't discriminate, that will be harder to 
defend than a shut down for everyone)?  Was that sound advice, in light of the 
due process holding in Obergefell about the right to marry?  Whatever the 
reasons, what seems obvious is that Kentucky law did not burden her religious 
exercise with respect to different sex couples, so her Kentucky RFRA claim for 
a right to withhold licenses from those couples must be worth zero.

2) Obergefell was decided in late June.  Ms. Davis knew from then on that she 
eventually would be asked to issue a license for a same-sex couple.  Could she 
have gone to state court, seeking a a declaratory judgment (against whom?) that 
RFRA gave her the right to remove her name from some marriage licenses?  Who is 
the employer from whom she was seeking an accommodation?  Is anyone her boss?  
If she is her own boss, she could grant herself an accommo

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

[Marty Lederman]

Howard:  As the Deputy Clerk is implementing the licenses, the form of the
license *is *the same as that throughout the state, and every license blank
*does* contain the identical words and figures provided in the form
prescribed by section 402.100.  The only difference is that the Clerk's
name *is not written in *on the blank where it would ordinarily appear.
That doesn't in any way transgress 402.110.

On Sat, Sep 5, 2015 at 6:55 PM, Friedman, Howard M. <
howard.fried...@utoledo.edu> wrote:

> In discussing the changes that Ms. Davis might have made in the license
> form to accommodate her religious beliefs, I don't believe anyone on this
> list has discussed this provision in Kentucky Rev. Stat. Sec. 402.110:
>
> "The form of marriage license prescribed in KRS 402.100 shall be uniform
> throughout this state, and every license blank shall contain the identical
> words and figures provided in the form prescribed by that section. In
> issuing the license the clerk shall deliver it in its entirety to the
> licensee. The clerk shall see to it that every blank space required to be
> filled by the applicants is so filled before delivering it to the licensee."
>
> Changes by her office would prevent the license from being uniform
> throughout the state.  Do her state RFRA rights trump this?
>
> Howard Friedman
> --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [
> icl...@law.gwu.edu]
> *Sent:* Saturday, September 05, 2015 6:24 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: What's happening in KY? -- my differences with Eugene
>
> A few questions, and forgive me if they have been asked and answered on
> this or related threads on this listserv:
>
> 1) Why did Ms. Davis stop issuing all marriage licenses?  God did not tell
> her that issuing licenses for different-sex couples was sinful or wrong.
> Was this full closure on advice of counsel (don't discriminate, that will
> be harder to defend than a shut down for everyone)?  Was that sound advice,
> in light of the due process holding in Obergefell about the right to
> marry?  Whatever the reasons, what seems obvious is that Kentucky law did
> not burden her religious exercise with respect to different sex couples, so
> her Kentucky RFRA claim for a right to withhold licenses from those couples
> must be worth zero.
>
> 2) Obergefell was decided in late June.  Ms. Davis knew from then on that
> she eventually would be asked to issue a license for a same-sex couple.
> Could she have gone to state court, seeking a a declaratory judgment
> (against whom?) that RFRA gave her the right to remove her name from some
> marriage licenses?  Who is the employer from whom she was seeking an
> accommodation?  Is anyone her boss?  If she is her own boss, she could
> grant herself an accommodation.  (Let's take my name of some of those
> license forms.  Done.)  She didn't do any of these things.  She just
> waited, and then she shut down her office to everyone, including couples
> whose marriages did not implicate her religious freedom.  She wants
> equitable relief -- delay reopening my office until my religious concerns
> can be accommodated, even if that takes months.  Would it be appropriate to
> impose some form of equitable estoppel on her state RFRA claims now --
> after all, she imposed the costs of her objection on every marriage
> applicant in the County.
>
> 3) Substantial burden -- to what coercive choice is Kentucky putting Ms.
> Davis?  Kentucky RFRA applies only to acts of Kentucky government, state or
> local.  (Applying it fto ederal action would be an attempt at
> nullification, barred by the Supremacy Clause.)  Has she been indicted,
> fired, impeached?  (I know there was talk of a criminal prosecution, but it
> seems to have faded away.)  If she faces no civil or criminal burden under
> Kentucky law, then the state (and the County) have not burdened her
> religious exercise.  The burden all comes from enforcement of the federal
> Constitution, and state RFRA can't help her there.  If and when the State
> or County come after her with threat of punishment or loss of job, RFRA
> might be her defense (but then she will be stuck with the issue of denying
> licenses to everyone; RFRA cannot help her with that.)
>
>
>
> On Sat, Sep 5, 2015 at 3:42 PM, Arthur Spitzer <artspit...@gmail.com>
> wrote:
>
>> Marty says: "Davis is not seeking for the *court *to give her
>> a just-not-with-my-name-on-them accommodation --- something he has in fact
>> just given her!"
>>
>> Perhaps I missed this detail in one of your earlier posts, Marty.  Can
>> you fill me in on just how

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

[Steven Jamar]

 against same-sex couples, then the 
> issue would be whether it is an unconstitutional burden on the right to marry 
> for a state to ask couples to drive an hour to another office to get a 
> license. That seems unlikely.
>  
> With regard to Steve’s argument that only animus could be behind Davis’s 
> actions, the majority in Obergefell rejected the notion that opposition to 
> same-sex marriage was necessarily motivated by animus. Of course, the dissent 
> said that the majority didn’t really mean that, and perhaps we are now seeing 
> that people think the majority didn’t mean it.
>  
> Mark
>  
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
>  
>  
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Saturday, September 05, 2015 4:21 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: What's happening in KY? -- my differences with Eugene
>  
>It would depend on whether there’s a compelling government 
> interest in maintaining this particular aspect of uniformity; I doubt that 
> there would be.  Many religious exemptions, after all, undermine the 
> uniformity of a legal rule that is generally uniform (e.g., no peyote) or at 
> least uniform.  If uniformity is really critical (as it has been held to be 
> with taxes), then exemptions could be denied on those grounds.  But there 
> really would have to be a compelling interest in uniformity, and not just a 
> general desire for uniformity.
>  
>Eugene
>  
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
> Sent: Saturday, September 05, 2015 3:56 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: What's happening in KY? -- my differences with Eugene
>  
> In discussing the changes that Ms. Davis might have made in the license form 
> to accommodate her religious beliefs, I don't believe anyone on this list has 
> discussed this provision in Kentucky Rev. Stat. Sec. 402.110: 
>  
> "The form of marriage license prescribed in KRS 402.100 shall be uniform 
> throughout this state, and every license blank shall contain the identical 
> words and figures provided in the form prescribed by that section. In issuing 
> the license the clerk shall deliver it in its entirety to the licensee. The 
> clerk shall see to it that every blank space required to be filled by the 
> applicants is so filled before delivering it to the licensee."
>  
> Changes by her office would prevent the license from being uniform throughout 
> the state.  Do her state RFRA rights trump this?
>  
> Howard Friedman
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Ira Lupu [icl...@law.gwu.edu]
> Sent: Saturday, September 05, 2015 6:24 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: What's happening in KY? -- my differences with Eugene
> 
> A few questions, and forgive me if they have been asked and answered on this 
> or related threads on this listserv:
>  
> 1) Why did Ms. Davis stop issuing all marriage licenses?  God did not tell 
> her that issuing licenses for different-sex couples was sinful or wrong.  Was 
> this full closure on advice of counsel (don't discriminate, that will be 
> harder to defend than a shut down for everyone)?  Was that sound advice, in 
> light of the due process holding in Obergefell about the right to marry?  
> Whatever the reasons, what seems obvious is that Kentucky law did not burden 
> her religious exercise with respect to different sex couples, so her Kentucky 
> RFRA claim for a right to withhold licenses from those couples must be worth 
> zero.
>  
> 2) Obergefell was decided in late June.  Ms. Davis knew from then on that she 
> eventually would be asked to issue a license for a same-sex couple.  Could 
> she have gone to state court, seeking a a declaratory judgment (against 
> whom?) that RFRA gave her the right to remove her name from some marriage 
> licenses?  Who is the employer from whom she was seeking an accommodation?  
> Is anyone her boss?  If she is her own boss, she could grant herself an 
> accommodation.  (Let's take my name of some of those license forms.  Done.)  
> She didn't do any of these things.  She just waited, and then she shut down 
> her office to everyone, including couples whose marriages did not implicate 
> her religious freedom.  She wants equitable relief -- delay reopening my 
> office until my religious concerns can be accommodated, even if that takes 
> months.  Would it be appropriate to impose some form of equitable estoppel on 
> her 

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

[Volokh, Eugene]

   1.  She may be motivated by disapproval of same-sex marriages, 
but she is treating same-sex couples precisely the same way as opposite-sex 
couples.  Both refusing to issue all licenses and the proposed removal of her 
name from the licenses treat all couples the same.

   2.  Just as closing city swimming pools entirely, even if 
motivated by racial hostility, doesn’t violate the Equal Protection Clause, see 
Palmer v. Thompson, so closing the marriage license window entirely doesn’t, 
either.  Even more clearly, reopening the window but seeking to have her name 
removed from all marriage licenses wouldn’t violate the Equal Protection 
Clause, either.

   3.  The federal RFRA could be raised as a defense to a federal 
court order, just as the Kentucky RFRA could be raised in a state court 
proceeding seeking an exemption from the rule that the clerk’s name must appear 
on the license.  I thus don’t see how Boerne is relevant.  But I agree that the 
federal RFRA shouldn’t succeed as a defense against the federal court order, 
since if refusal to issue licenses violates the Due Process Clause, RFRA can’t 
authorize such a refusal.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Saturday, September 05, 2015 7:12 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

She is motivated by prejudice against same sex couples. Her motivation for that 
is not relevant under what I thought to be well settled and noncontroversial 
equal protection jurisprudence. She has no rational reason to treat same sex 
couples differently from opposite sex couples under the law. Obergefell says 
such differing treatment is not rational.
How can a state RFRA undo this constitutional norm and obligation?
The federal RFRA does not apply (Boerne).  So how does the issue of substantial 
burden even arise? (Smith)
The claim is not title VII, it is the 14th amendment directly. If smith and 
Reynolds stand for anything anymore it is that the religious base unit veto 
does not work.

Sent from Steve's iPhone


On Sep 5, 2015, at 9:27 PM, Scarberry, Mark 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:
I think Howard’s point cuts the other way, as I’ll note in a moment.

A few quick thoughts:

It seems at the very least odd to me that a federal judge would decide what 
Kentucky thinks is a compelling interest for purposes of the Kentucky RFRA. If 
Kentucky thinks that having every clerk in every county issue marriage licenses 
is a compelling interest, perhaps we might let the state take action, rather 
than having a federal judge do so.

It also seems odd to me that a federal judge would decide that state law 
requires a state official to take an action. So far, it’s hard to see the 
federal question that would justify the federal judge in deciding these state 
law issues as a matter of pendent (or ancillary, I can’t keep them straight) 
jurisdiction. Indeed, to decide what state law requires Davis to do requires an 
application of Kentucky’s RFRA, which in turn, as noted above, requires a 
federal judge to determine what the state of Kentucky considers to be a 
compelling interest (and what, as a matter of Kentucky law, may be an 
appropriate alternative means of advancing any such interest).

At least one list member seems to argue that the Kentucky RFRA doesn’t protect 
Davis, with regard to her obligations under state law, because the state 
legislature would have to act in order to provide an alternative means for the 
state to advance its compelling interest. Set aside for a moment how to define 
that interest and whether it is compelling. By enacting its RFRA, the Kentucky 
legislature bound itself not to substantially burden a person’s religious 
exercise by way of its legislation, if the legislature has, but chooses not to 
implement, an alternative way of advancing interests it deems compelling. The 
Kentucky legislature has put the burden on itself: it can act to implement an 
alternative means, or it can act to exempt the particular state obligation from 
the reach of the Kentucky RFRA. If it chooses to do neither, then it has chosen 
not to burden the person’s religious exercise. That is not a bug; it is a 
feature of a state RFRA, and an intended feature.

It appears to me – as I think Howard’s point suggests – that Kentucky law 
requires or at least may well require that Davis’s name be on the license, and 
that the license be issued pursuant to Davis’s authority as clerk. The deputy 
clerk can’t, if I understand Howard’s point correctly, issue a license in any 
other way. The issuance of the license under Davis’s authority with her name on 
it would appear to create a relatively close relationship between Davis and the 
wedding that she, in order to be true to her sincere religious

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

[Friedman, Howard M.]

In discussing the changes that Ms. Davis might have made in the license form to 
accommodate her religious beliefs, I don't believe anyone on this list has 
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:

"The form of marriage license prescribed in KRS 402.100 shall be uniform 
throughout this state, and every license blank shall contain the identical 
words and figures provided in the form prescribed by that section. In issuing 
the license the clerk shall deliver it in its entirety to the licensee. The 
clerk shall see to it that every blank space required to be filled by the 
applicants is so filled before delivering it to the licensee."

Changes by her office would prevent the license from being uniform throughout 
the state.  Do her state RFRA rights trump this?

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Saturday, September 05, 2015 6:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

A few questions, and forgive me if they have been asked and answered on this or 
related threads on this listserv:

1) Why did Ms. Davis stop issuing all marriage licenses?  God did not tell her 
that issuing licenses for different-sex couples was sinful or wrong.  Was this 
full closure on advice of counsel (don't discriminate, that will be harder to 
defend than a shut down for everyone)?  Was that sound advice, in light of the 
due process holding in Obergefell about the right to marry?  Whatever the 
reasons, what seems obvious is that Kentucky law did not burden her religious 
exercise with respect to different sex couples, so her Kentucky RFRA claim for 
a right to withhold licenses from those couples must be worth zero.

2) Obergefell was decided in late June.  Ms. Davis knew from then on that she 
eventually would be asked to issue a license for a same-sex couple.  Could she 
have gone to state court, seeking a a declaratory judgment (against whom?) that 
RFRA gave her the right to remove her name from some marriage licenses?  Who is 
the employer from whom she was seeking an accommodation?  Is anyone her boss?  
If she is her own boss, she could grant herself an accommodation.  (Let's take 
my name of some of those license forms.  Done.)  She didn't do any of these 
things.  She just waited, and then she shut down her office to everyone, 
including couples whose marriages did not implicate her religious freedom.  She 
wants equitable relief -- delay reopening my office until my religious concerns 
can be accommodated, even if that takes months.  Would it be appropriate to 
impose some form of equitable estoppel on her state RFRA claims now -- after 
all, she imposed the costs of her objection on every marriage applicant in the 
County.

3) Substantial burden -- to what coercive choice is Kentucky putting Ms. Davis? 
 Kentucky RFRA applies only to acts of Kentucky government, state or local.  
(Applying it fto ederal action would be an attempt at nullification, barred by 
the Supremacy Clause.)  Has she been indicted, fired, impeached?  (I know there 
was talk of a criminal prosecution, but it seems to have faded away.)  If she 
faces no civil or criminal burden under Kentucky law, then the state (and the 
County) have not burdened her religious exercise.  The burden all comes from 
enforcement of the federal Constitution, and state RFRA can't help her there.  
If and when the State or County come after her with threat of punishment or 
loss of job, RFRA might be her defense (but then she will be stuck with the 
issue of denying licenses to everyone; RFRA cannot help her with that.)



On Sat, Sep 5, 2015 at 3:42 PM, Arthur Spitzer 
<artspit...@gmail.com<mailto:artspit...@gmail.com>> wrote:
Marty says: "Davis is not seeking for the court to give her a 
just-not-with-my-name-on-them accommodation --- something he has in fact just 
given her!"

Perhaps I missed this detail in one of your earlier posts, Marty.  Can you fill 
me in on just how the court has already provided this relief?  I thought the 
forms were pre-printed with her name and title.  Did the court authorize her to 
print new forms? Or to black out her name with a magic marker?

Thanks,
Art Spitzer



Warning:  This email is subject to monitoring by the NSA.

On Sat, Sep 5, 2015 at 3:33 PM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
1.  I don't understand Kim Davis to claim "that God would view her issuing such 
licenses with her name on them as authorization."  I can't even imagine what 
that would mean:  That God has a view of when the appearance of a name on the 
"issued in" line of a state licensing form constitutes one human being 
"authorizing" another to perform a marriage?  That God has a view about the 
actual le

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

[Friedman, Howard M.]

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

Howard

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Saturday, September 05, 2015 7:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

   It would depend on whether there’s a compelling government 
interest in maintaining this particular aspect of uniformity; I doubt that 
there would be.  Many religious exemptions, after all, undermine the uniformity 
of a legal rule that is generally uniform (e.g., no peyote) or at least 
uniform.  If uniformity is really critical (as it has been held to be with 
taxes), then exemptions could be denied on those grounds.  But there really 
would have to be a compelling interest in uniformity, and not just a general 
desire for uniformity.

   Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Saturday, September 05, 2015 3:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

In discussing the changes that Ms. Davis might have made in the license form to 
accommodate her religious beliefs, I don't believe anyone on this list has 
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:

"The form of marriage license prescribed in KRS 402.100 shall be uniform 
throughout this state, and every license blank shall contain the identical 
words and figures provided in the form prescribed by that section. In issuing 
the license the clerk shall deliver it in its entirety to the licensee. The 
clerk shall see to it that every blank space required to be filled by the 
applicants is so filled before delivering it to the licensee."

Changes by her office would prevent the license from being uniform throughout 
the state.  Do her state RFRA rights trump this?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Saturday, September 05, 2015 6:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene
A few questions, and forgive me if they have been asked and answered on this or 
related threads on this listserv:

1) Why did Ms. Davis stop issuing all marriage licenses?  God did not tell her 
that issuing licenses for different-sex couples was sinful or wrong.  Was this 
full closure on advice of counsel (don't discriminate, that will be harder to 
defend than a shut down for everyone)?  Was that sound advice, in light of the 
due process holding in Obergefell about the right to marry?  Whatever the 
reasons, what seems obvious is that Kentucky law did not burden her religious 
exercise with respect to different sex couples, so her Kentucky RFRA claim for 
a right to withhold licenses from those couples must be worth zero.

2) Obergefell was decided in late June.  Ms. Davis knew from then on that she 
eventually would be asked to issue a license for a same-sex couple.  Could she 
have gone to state court, seeking a a declaratory judgment (against whom?) that 
RFRA gave her the right to remove her name from some marriage licenses?  Who is 
the employer from whom she was seeking an accommodation?  Is anyone her boss?  
If she is her own boss, she could grant herself an accommodation.  (Let's take 
my name of some of those license forms.  Done.)  She didn't do any of these 
things.  She just waited, and then she shut down her office to everyone, 
including couples whose marriages did not implicate her religious freedom.  She 
wants equitable relief -- delay reopening my office until my religious concerns 
can be accommodated, even if that takes months.  Would it be appropriate to 
impose some form of equitable estoppel on her state RFRA claims now -- after 
all, she imposed the costs of her objection on every marriage applicant in the 
County.

3) Substantial burden -- to what coercive choice is Kentucky putting Ms. Davis? 
 Kentucky RFRA applies only to acts of Kentucky government, state or local.  
(Applying it fto ederal action would be an attempt at nullification, barred by 
the Supremacy Clause.)  Has she been indicted, fired, impeached?  (I know the

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

[Volokh, Eugene]

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

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

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

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, September 05, 2015 3:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

A few questions, and forgive me if they have been asked and answered on this or 
related threads on this listserv:

1) Why did Ms. Davis stop issuing all marriage licenses?  God did not tell her 
that issuing licenses for different-sex couples was sinful or wrong.  Was this 
full closure on advice of counsel (don't discriminate, that will be harder to 
defend than a shut down for everyone)?  Was that sound advice, in light of the 
due process holding in Obergefell about the right to marry?  Whatever the 
reasons, what seems obvious is that Kentucky law did not burden her religious 
exercise with respect to different sex couples, so her Kentucky RFRA claim for 
a right to withhold licenses from those couples must be worth zero.

2) Obergefell was decided in late June.  Ms. Davis knew from then on that she 
eventually would be asked to issue a license for a same-sex couple.  Could she 
have gone to state court, seeking a a declaratory judgment (against whom?) that 
RFRA gave her the right to remove her name from some marriage licenses?  Who is 
the employer from whom she was seeking an accommodation?  Is anyone her boss?  
If she is her own boss, she could grant herself an accommodation.  (Let's take 
my name of some of those license forms.  Done.)  She didn't do any of these 
things.  She just waited, and then she shut down her office to everyone, 
including couples whose marriages did not implicate her religious freedom.  She 
wants equitable relief -- delay reopening my office until my religious concerns 
can be accommodated, even if that takes months.  Would it be appropriate to 
impose some form of equitable estoppel on her state RFRA claims now -- after 
all, she imposed the costs of her objection on every marriage applicant in the 
County.

3) Substantial burden -- to what coercive choice is Kentucky putting Ms. Davis? 
 Kentucky RFRA applies only to acts of Kentucky government, state or local.  
(Applying it fto ederal action would be an attempt at nullification, barred by 
the Supremacy Clause.)  Has she been indicted, fired, impeached?  (I know there 
was talk of a criminal prosecution, but it seems to have faded away.)  If she 
faces no civil or criminal burden under Kentucky law, then the state (and the 
County) have not burdened her religious exercise.  The burden all comes from 
enforcement of the federal Constitution, and state RFRA can't help her there.  
If and when the State or County come after her with threat of punishment or 
loss of job, RFRA might be her defense (but then she will be stuck with the 
issue of denying licenses to everyone; RFRA cannot help her with that.)



On Sat, Sep 5, 2015 at 3:42 PM, Arthur Spitzer 
<artspit...@gmail.com<mailto:artspit...@gmail.com>> wrote:
Marty says: "Davis is not seeking for the court to give her a 
just-not-with-my-name-on-them accommodation --- something he has in fact just 
given her!"
Perhaps I missed this detail in one of your earlier posts, Marty.  Can you fill 
me in on just how the court has already provided this relief?  I thought the 
forms were pre-printed with her name and title.  Did the court authorize her to 
print new forms? Or to black out her name with a magic marker?
Thanks,
Art Spitzer

Warning:  This email is subject to monitoring by th

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

[Scarberry, Mark]

Section 402.100 appears to require that the license include “[a]n authorization 
statement of the county clerk issuing the license.” The section allows the 
license to be signed by the clerk or deputy clerk (which shows that the 
legislature knew how to include the deputies where it wanted to include them) 
but the authorization statement authorizing the appropriate celebrants to 
perform the marriage and unite the couple in marriage  must be a statement of 
the county clerk. The county clerk must authorize the uniting of the couple in 
marriage. Here is the relevant language:

“Each county clerk shall use the form prescribed by the Department for 
Libraries and Archives when issuing a marriage license. This form shall provide 
for the entering of all of the information required in this section, and may 
also provide for the entering of additional information prescribed by the 
Department for Libraries and Archives. The form shall consist of:

(1) A marriage license which provides for the entering of:
  (a) An authorization statement of the county clerk issuing the license for 
any person or religious society authorized to perform marriage ceremonies to 
unite in marriage the persons named;
  (b) Vital information for each party, including the full name, date of birth, 
place of birth, race, condition (single, widowed, or divorced), number of 
previous marriages, occupation, current residence, relationship to the other 
party, and full names of parents; and
  (c) The date and place the license is issued, and the signature of the county 
clerk or deputy clerk issuing the license

It would seem to me that if the form does not include an authorization 
statement of the clerk (not a deputy clerk), then the form will not have been 
filled out as required by section 402.100. The second reference to issuance of 
the license by the county clerk or deputy clerk may muddy the waters. I 
certainly don’t think a federal court has the expertise to instruct the county 
clerk, who is charged with complying with 402.100 and 402.110, on the meaning 
of the section, or on the consequences of a potential failure to comply with 
it. If Davis believes a license without an authorization from her by name 
(indicating that she has authorized the performance of the marriage) does not 
comport with Kentucky law, then she either must authorize the marriages or 
instruct persons seeking licenses to drive an hour to another county.

It also is a bit ironic that same-sex marriage proponents who cheered when 
officials issued licenses in violation of the explicit terms of state law (not 
necessarily any members of this list), now think it’s improper for Davis to act 
on the basis of her understanding of state law, which of course includes the 
state RFRA.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, September 05, 2015 7:59 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

Howard:  As the Deputy Clerk is implementing the licenses, the form of the 
license is the same as that throughout the state, and every license blank does 
contain the identical words and figures provided in the form prescribed by 
section 402.100.  The only difference is that the Clerk's name is not written 
in on the blank where it would ordinarily appear.  That doesn't in any way 
transgress 402.110.

On Sat, Sep 5, 2015 at 6:55 PM, Friedman, Howard M. 
<howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>> wrote:
In discussing the changes that Ms. Davis might have made in the license form to 
accommodate her religious beliefs, I don't believe anyone on this list has 
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:

"The form of marriage license prescribed in KRS 402.100 shall be uniform 
throughout this state, and every license blank shall contain the identical 
words and figures provided in the form prescribed by that section. In issuing 
the license the clerk shall deliver it in its entirety to the licensee. The 
clerk shall see to it that every blank space required to be filled by the 
applicants is so filled before delivering it to the licensee."

Changes by her office would prevent the license from being uniform throughout 
the state.  Do her state RFRA rights trump this?

Howard Friedman

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

[Marty Lederman]

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

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

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

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

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

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

Re: What's happening in KY?

[Paul Finkelman]

For what it is worth NPR says that she could be in jail -- or in and out of 
jail -- for most of the next three+ years, since she was only elected recently. 
 This report seemed to imply that the Judge would keep sending her back to jail 
(or keep her in jail) until she agreed to issue licenses or I suppose resigned. 
 
 
For what it is worth, the Judge (appointed by Bush) is the son of the former 
Senator (and more importantly Baseball Hall of Fame pitcher Jim Bunning),
 
**
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: Marty Lederman 
 To: "Cohen,David" ; Law & Religion issues for Law Academics 
 
Cc: ConLaw LIst Prof  
 Sent: Thursday, September 3, 2015 5:49 PM
 Subject: What's happening in KY?
   
The reports I've seen (e.g., 
http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) do not 
make clear exactly what's happening, other than that Davis is incarcerated.
1.  Is the County Executive Judge now issuing certificates and licenses (which 
might ironically eliminate the grounds for Davis's contempt incarceration . . . 
until she refuses to allow the documents to be issued to the next couple that 
appears)?
2.  What was the deal the judge offered her, regarding her deputies issuing the 
documents?  Did she refuse it because her name would continue to appear on the 
two lines?  Or did the judge say that she could omit her name and she still 
refused?
Thanks in advance for any info, or, better yet, links to actual documents.
On Thu, Sep 3, 2015 at 2:14 PM, Cohen,David  wrote:

Hi all - a mootness question for you.  In the case of the KY clerk who was 
jailed today for refusing to comply with a district court order that required 
her to issue a marriage license to a gay couple (and stay denied from the 6th 
Circuit or Supremes), according to some news reports, now that she is in jail 
and not able to serve, state law allows a county’s executive judge to now issue 
licenses.  So, presumably that will happen relatively quickly, and the 
plaintiffs will get their licenses. Is the case now moot and the clerk can get 
out of jail because she’d no longer be in contempt of a court order, since the 
case is vacated as moot?  And the issue isn’t capable of repetition at this 
point for the plaintiffs, as they now have a license and can’t get another 
(until divorced, which may never happen).  It certainly is capable of 
repetition for other people, but not these plaintiffs (and they haven’t filed a 
class action, to the best of my knowledge).  We’ve been around this issue 
before, and to the best of my recollection, most people believe the cases say 
that the “capable of repetition” part has to be for the particular plaintiffs, 
not for someone else. In other words, is she in jail for an hour, maybe a day, 
and then back at it shortly to deny someone else a license (when that 
eventually happens) only to repeat the whole thing again? David David S. 
CohenProfessor of Law
Thomas R. Kline School of LawDrexel University3320 Market St.Philadelphia, PA 
19104Tel: 215.571.4714drexel.edu | facebook |twitterAvailable NOW:Living in the 
Crosshairs: The Untold Stories of Anti-Abortion Terrorism (Oxford) 
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RE: What's happening in KY?

[Finkelman, Paul]

As Marty says: “. . . until she refuses to allow the documents to be issued to 
the next couple that appears)?”  Martyrdom is a strong tradition among some 
Christians so she may be planning for the long haul, or until it becomes old 
news and is boring and no one cares that she is in jail.


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
www.paulfinkelman.com

From: conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 5:49 PM
To: Cohen,David; Law & Religion issues for Law Academics
Cc: ConLaw LIst Prof
Subject: What's happening in KY?

The reports I've seen (e.g., 
http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) do not 
make clear exactly what's happening, other than that Davis is incarcerated.

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

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

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

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

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

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

David

David S. Cohen
Professor of Law

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


___
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conlawp...@lists.ucla.edu
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RE: What's happening in KY?

[Friedman, Howard M.]

Here is my post on the facts to this hour as I have been able to glean them: 
http://religionclause.blogspot.com/2015/09/recalcitrant-kentucky-county-clerk.html

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Finkelman, Paul [paul.finkel...@albanylaw.edu]
Sent: Thursday, September 03, 2015 6:12 PM
To: Marty Lederman; Cohen,David; Law & Religion issues for Law Academics
Cc: ConLaw LIst Prof
Subject: RE: What's happening in KY?

As Marty says: “. . . until she refuses to allow the documents to be issued to 
the next couple that appears)?”  Martyrdom is a strong tradition among some 
Christians so she may be planning for the long haul, or until it becomes old 
news and is boring and no one cares that she is in jail.


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: conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 5:49 PM
To: Cohen,David; Law & Religion issues for Law Academics
Cc: ConLaw LIst Prof
Subject: What's happening in KY?

The reports I've seen (e.g., 
http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) do not 
make clear exactly what's happening, other than that Davis is incarcerated.

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

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

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

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

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

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

David

David S. Cohen
Professor of Law

Thomas R. Kline School of Law
Drexel University
3320 Market St.
Philadelphia, PA 19104
Tel: 215.571.4714
drexel.edu<http://drexel.edu/law/faculty/fulltime_fac/David%20Cohen/> | 
facebook<https://www.facebook.com/dsc250> | twitter<https://twitter.com/dsc250>
Available NOW<http://www.livinginthecrosshairs.com/>: Living in the Crosshairs: 
The Untold Stories of Anti-Abortion Terrorism (Oxford)


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conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
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