Re: Davis doubles down

[Marty Lederman]

Among the alternatives that Davis argued would "accomplish" the state
interest "without substantially burdening Davis’ religious freedom and
conscience" was:

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.

If Eugene's representation of what her lawyers are now saying is accurate,
this "solution," now that it's in place, is not enough . . . just as it was
not enough when organizations complained about having to to contract,
arrange, pay, or refer for contraceptive coverage, and then the federal
government developed accommodations to ensure that organizations would not
be required to contract, arrange, pay, or refer for contraceptive coverage.

Now, I've argued that Davis's religious exercise would not be burdened even
if the line in question read:  "Issued this 9/_/2015 in the office of Kim
Davis, Rowan County County Clerk, Morehead, Kentucky by Brian Mason
[signature initials], Deputy Clerk,” because that true statement of
fact--that the license was issued* by* Deputy Clerk Mason *"in"* Davis's
office--would not mean that she would be, or would be perceived as,
authorizing or approving or sanctioning a same-sex marriage.

But surely, even if I were wrong about that, does anyone truly believe that
Davis's religion prohibits *her office, and Mason*, from issuing a license
that reads:  "Issued this 9/_/2015 in the office of the Rowan County County
Clerk, Morehead, Kentucky by Brian Mason [signature initials], Deputy
Clerk”?

On Tue, Sep 8, 2015 at 10:21 PM, Walsh, Kevin  wrote:

> Based on a quick review of the filings, I don't see how Davis's position
> has shifted.
>
> Davis's opposition to the preliminary injunction motion from July 30 says:
> "Even though one of her deputy clerks (and perhaps two) is (or are) willing
> to issue a SSM license, she instructed all deputy clerks to stop issuing
> marriage licenses because licenses are issued with her authority (not the
> deputy clerk’s) and every license requires her name to appear on the
> license (even if signed by a deputy clerk)."
>
> The idea that licenses issued from the Rowan County Clerk's Office are
> issued under the authority of the Rowan County Clerk makes sense. And it
> also makes sense that if Davis does not wish her authority to be used to
> authorize marriages, then she would not wish her office to issue
> authorizations to marry. It would have been odd, for example, if Kentucky's
> Attorney General had said that he would not be defending Kentucky's
> marriage law, but that his office would continue to do so through his
> deputy. It made sense that the state hired private counsel instead.
>
> It is not "no big deal" to let a marriage licensing official take his or
> her office out of the business of doing something the official's religious
> conscience forbids. But neither is doing so "terribly burdensome" if the
> government could easily substitute another official to carry out the
> state's duty so that nobody's right to marry is burdened.
> 
> From: religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [
> jole...@lclark.edu]
> Sent: Tuesday, September 08, 2015 7:28 PM
> To: Law & Religion issues for Law Academics
> Cc: Michael Dorf; Dellinger, Walter; conlawp...@lists.ucla.edu; Howard
> Wasserman
> Subject: Re: Davis doubles down
>
> For what it's worth, in their filing to the Sixth Circuit yesterday,
> Davis's attorneys insisted that she was not making a complicity claim akin
> to that being made in the contraception cases, and they emphasized that her
> concern was the appearance of her name on the forms (emphasis in original):
>
> "Importantly, Davis is not claiming a substantial burden on her religious
> freedom if someone else authorizes and approves a SSM license devoid of her
> name. For example, Davis is not claiming that her religious freedom is
> substantially burdened if she must complete an opt-out form to be exempted
> from issuing SSM licenses. Davis is also not claiming that a SSM license
> authorized by the Rowan County Judge/Executive and devoid of her name and
> authority substantially burdens her religious freedom. Davis is also not
> claiming that her religious freedom is substantially burdened if the
> license were issued by someone else in Rowan County (e.g., a deputy clerk),
> so long as that license is not issued under her name or on her authority."
>
> I gather that the last phrase -- "on her authority" -- is what her
> attorneys are now emphasizing. As long as she is the County Clerk, the
> issuance of marriage licenses in the name of the County Clerk's office,
> even without her name, is on her authority and a violation of her RFRA
> rights.
>
> In his post, Eugene notes that this claim may go beyond what the Kentucky
> RFRA 

Re: Notre Dame diversion

[Rick Garnett]

Dear Marty,

As we've discussed a few times during the all this (and I have nothing to
do, to be clear, with Notre Dame's litigation), I don't regard the opt-out
arrangement (or, for that matter, Ms. Davis's role as a clerk) as involving
culpable cooperation with wrongdoing.  (That I don't regard it this way
doesn't mean that the University should lose on a RFRA claim, of course.)
 It has always seemed to me that the nature of the burden is not
compelled-cooperation but is instead the (admittedly more abstract)
compromising of the University's understanding of what it means to be
animated pervasively by a Catholic character and mission.

As you note, it does seem that the University's current position is not the
same as Davis's, and for the reason you cite:  The insurer and/or TPA are
*Notre Dame's* insurer and/or TPA, and so Notre Dame is not "noninvolve[d]."

Regards,

Rick

On Wed, Sep 9, 2015 at 6:12 AM, Marty Lederman 
wrote:

> I agree with Rick that Judge Posner did not comport himself well (or
> usefully) at oral argument.  I also agree that Notre Dame has not said--not
> clearly, anyway--that it would object if the *government* provided its
> students and employees with coverage in a way that did not involve Notre
> Dame's insurer and third-party administrator.
>
> Yet, like Davis and her Deputy Clerk, Notre Dame now *does *argue that
> its religious obligations are violated, no matter the scope of its own
> noninvolvement, if Notre Dame's insurer (for its employee plan) or TPA (for
> its student plan) themselves provide contraceptive coverage to its
> employees/students -- something that has been happening all this year.
>
> I would be very surprised if Rick agrees that Notre Dame has been
> violating its religious obligations throughout all of 2015 -- or even that
> Notre Dame's decision-makers are of that view.  Yet that is the claim.
>
> In fairness, the new claim in Rowan County is one step further attenuated:
>  Davis now (reportedly) will argue that her religion prohibits a County
> Deputy Clerk from issuing a license even though (unlike ND and its
> insurer/TPA) Davis presumably did not herself enter into a contract with
> the Deputy Clerks.
>
> On Tue, Sep 8, 2015 at 9:20 PM, Rick Garnett  wrote:
>
>> Eric,
>>
>> I was not there, but have I listened, and I don't think your
>> characterization is accurate.  Notre Dame, my understanding and impression
>> are, has not said much about the government's determination to provide (or,
>> more precisely, to require the provision by others of) contraceptives to
>> Notre Dame's employees.
>>
>> Instead, the University insists it wants to avoid being involved with
>> (and, I understand, you and Marty disagree with the University about what
>> constitutes being meaningfully or culpably involved with) that provision.
>> I don't see any point in litigating here the "[]plausibility" of the
>> University's stated views on complicity but, again, it seems inaccurate to
>> suggest that the University is demanding that its employees not receive
>> (from someone) contraception or contraception-coverage.
>>
>> That said:  I do agree that there were a number of things that were
>> "apparent" from Judge Posner's questions and writings. I'm not sure,
>> though, how well some of those things reflect on Judge Posner.
>>
>> Rick
>>
>> On Tue, Sep 8, 2015 at 7:25 PM, Eric J Segall  wrote:
>>
>>> Well said again Marty.
>>>
>>>
>>>
>>> I was present in the courtroom for the Notre Dame 7th Circuit appeal.
>>> It was apparent from Judge Posner’s questions that nothing short of a
>>> complete government abdication of providing contraception to Notre Dame’s
>>> employees would satisfy Notre Dame.
>>>
>>>
>>>
>>> Best,
>>>
>>>
>>>
>>> Eric
>>>
>>>
>>>
>>> *From:* conlawprof-boun...@lists.ucla.edu [mailto:
>>> conlawprof-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
>>> *Sent:* Tuesday, September 08, 2015 6:29 PM
>>> *To:* Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard
>>> Wasserman; conlawp...@lists.ucla.edu; Law & Religion issues for Law
>>> Academics; Michael Dorf
>>> *Subject:* Davis doubles down
>>>
>>>
>>>
>>> Eugene reports, pursuant to a phone conversation with Davis's attorneys,
>>> that she will continue to press her RFRA claim, and insist that the
>>> licenses not be issued, because, even though her name is no longer on the
>>> licenses, the name of her *office *is!
>>>
>>>
>>>
>>>
>>> https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/
>>>
>>>
>>>
>>> It's just like the contraception cases -- whenever the government
>>> accommodates even the most implausible theories of complicity by
>>> eliminating the aspects of the scheme that the plaintiff asserted made her
>>> morally complicit, the plaintiff then unveils a new (and even more
>>> attenuated) theory of responsibility that is said not to be left

Notre Dame diversion

[Marty Lederman]

I agree with Rick that Judge Posner did not comport himself well (or
usefully) at oral argument.  I also agree that Notre Dame has not said--not
clearly, anyway--that it would object if the *government* provided its
students and employees with coverage in a way that did not involve Notre
Dame's insurer and third-party administrator.

Yet, like Davis and her Deputy Clerk, Notre Dame now *does *argue that its
religious obligations are violated, no matter the scope of its own
noninvolvement, if Notre Dame's insurer (for its employee plan) or TPA (for
its student plan) themselves provide contraceptive coverage to its
employees/students -- something that has been happening all this year.

I would be very surprised if Rick agrees that Notre Dame has been violating
its religious obligations throughout all of 2015 -- or even that Notre
Dame's decision-makers are of that view.  Yet that is the claim.

In fairness, the new claim in Rowan County is one step further attenuated:
 Davis now (reportedly) will argue that her religion prohibits a County
Deputy Clerk from issuing a license even though (unlike ND and its
insurer/TPA) Davis presumably did not herself enter into a contract with
the Deputy Clerks.

On Tue, Sep 8, 2015 at 9:20 PM, Rick Garnett  wrote:

> Eric,
>
> I was not there, but have I listened, and I don't think your
> characterization is accurate.  Notre Dame, my understanding and impression
> are, has not said much about the government's determination to provide (or,
> more precisely, to require the provision by others of) contraceptives to
> Notre Dame's employees.
>
> Instead, the University insists it wants to avoid being involved with
> (and, I understand, you and Marty disagree with the University about what
> constitutes being meaningfully or culpably involved with) that provision.
> I don't see any point in litigating here the "[]plausibility" of the
> University's stated views on complicity but, again, it seems inaccurate to
> suggest that the University is demanding that its employees not receive
> (from someone) contraception or contraception-coverage.
>
> That said:  I do agree that there were a number of things that were
> "apparent" from Judge Posner's questions and writings. I'm not sure,
> though, how well some of those things reflect on Judge Posner.
>
> Rick
>
> On Tue, Sep 8, 2015 at 7:25 PM, Eric J Segall  wrote:
>
>> Well said again Marty.
>>
>>
>>
>> I was present in the courtroom for the Notre Dame 7th Circuit appeal. It
>> was apparent from Judge Posner’s questions that nothing short of a complete
>> government abdication of providing contraception to Notre Dame’s employees
>> would satisfy Notre Dame.
>>
>>
>>
>> Best,
>>
>>
>>
>> Eric
>>
>>
>>
>> *From:* conlawprof-boun...@lists.ucla.edu [mailto:
>> conlawprof-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
>> *Sent:* Tuesday, September 08, 2015 6:29 PM
>> *To:* Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard
>> Wasserman; conlawp...@lists.ucla.edu; Law & Religion issues for Law
>> Academics; Michael Dorf
>> *Subject:* Davis doubles down
>>
>>
>>
>> Eugene reports, pursuant to a phone conversation with Davis's attorneys,
>> that she will continue to press her RFRA claim, and insist that the
>> licenses not be issued, because, even though her name is no longer on the
>> licenses, the name of her *office *is!
>>
>>
>>
>>
>> https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/
>>
>>
>>
>> It's just like the contraception cases -- whenever the government
>> accommodates even the most implausible theories of complicity by
>> eliminating the aspects of the scheme that the plaintiff asserted made her
>> morally complicit, the plaintiff then unveils a new (and even more
>> attenuated) theory of responsibility that is said not to be left
>> unaddressed by the accommodation.  In this way, the plaintiffs effectively
>> exploit the fact that the governments in question (admirably) do not choose
>> to challenge the sincerity of the ever-evolving theories of complicity.
>>
>>
>>
>> On Mon, Sep 7, 2015 at 6:14 PM, Marty Lederman 
>> wrote:
>>
>> I'm pressed for time, so this is only a preliminary take, but thought
>> it'd be worth throwing it out there for reactions:
>>
>>
>>
>>
>> http://balkin.blogspot.com/2015/09/further-strangeness-in-kim-davis-case.html
>>
>>
>>
>> ___
>> To post, send message to conlawp...@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> Please note that messages sent to this large list cannot be viewed as
>> private.  Anyone can subscribe to the list and read messages that are
>> posted; people can read the Web archives; and list members can (rightly or
>> wrongly) forward the messages to others.
>>
>
>

Re: Notre Dame diversion

[Marty Lederman]

Rick:  Thank you.  Yes, you have previously confirmed that you do not share
ND's surprising view of Catholic doctrine of cooperation with evil; and I
thank you for being so forthright about that.

But do you think that *Notre Dame's decision-makers *truly believe what its
lawyers are representing, i.e., that ND has been engaged in forbidden
cooperation with evil during 2015 merely because it happens to have
contractual relationships (for *other *services) with Meritain Health, Inc.
and with Aetna, and those two companies offer contraceptive coverage,
without any ND involvement, to ND employees and students, respectively?

The analogy is not *that *far off:  In some sense Aetna and Meritain are
"Notre Dame's"--i.e., in the very modest sense that those companies (along
with countless others) have entered into contracts with ND for the
performance of other services--but then again, in some very real sense
Brian Mason *is *Kim Wilson's deputy:  indeed, whereas ND has nothing to do
with 99.9% of the activities of Aetna and Meritain (including their
provision of contraceptive coverage), Brian Mason is (presumably) subject
to Kim Davis's direction and control, and he acts as her delegate, in
virtually everything he does in his official capacity *save for *the
issuance of marriage licenses beginning last Friday.

On Wed, Sep 9, 2015 at 8:30 AM, Rick Garnett  wrote:

> Dear Marty,
>
> As we've discussed a few times during the all this (and I have nothing to
> do, to be clear, with Notre Dame's litigation), I don't regard the opt-out
> arrangement (or, for that matter, Ms. Davis's role as a clerk) as involving
> culpable cooperation with wrongdoing.  (That I don't regard it this way
> doesn't mean that the University should lose on a RFRA claim, of course.)
>  It has always seemed to me that the nature of the burden is not
> compelled-cooperation but is instead the (admittedly more abstract)
> compromising of the University's understanding of what it means to be
> animated pervasively by a Catholic character and mission.
>
> As you note, it does seem that the University's current position is not
> the same as Davis's, and for the reason you cite:  The insurer and/or TPA
> are *Notre Dame's* insurer and/or TPA, and so Notre Dame is not
> "noninvolve[d]."
>
> Regards,
>
> Rick
>
> On Wed, Sep 9, 2015 at 6:12 AM, Marty Lederman 
> wrote:
>
>> I agree with Rick that Judge Posner did not comport himself well (or
>> usefully) at oral argument.  I also agree that Notre Dame has not said--not
>> clearly, anyway--that it would object if the *government* provided its
>> students and employees with coverage in a way that did not involve Notre
>> Dame's insurer and third-party administrator.
>>
>> Yet, like Davis and her Deputy Clerk, Notre Dame now *does *argue that
>> its religious obligations are violated, no matter the scope of its own
>> noninvolvement, if Notre Dame's insurer (for its employee plan) or TPA (for
>> its student plan) themselves provide contraceptive coverage to its
>> employees/students -- something that has been happening all this year.
>>
>> I would be very surprised if Rick agrees that Notre Dame has been
>> violating its religious obligations throughout all of 2015 -- or even that
>> Notre Dame's decision-makers are of that view.  Yet that is the claim.
>>
>> In fairness, the new claim in Rowan County is one step further
>> attenuated:  Davis now (reportedly) will argue that her religion prohibits
>> a County Deputy Clerk from issuing a license even though (unlike ND and its
>> insurer/TPA) Davis presumably did not herself enter into a contract with
>> the Deputy Clerks.
>>
>> On Tue, Sep 8, 2015 at 9:20 PM, Rick Garnett  wrote:
>>
>>> Eric,
>>>
>>> I was not there, but have I listened, and I don't think your
>>> characterization is accurate.  Notre Dame, my understanding and impression
>>> are, has not said much about the government's determination to provide (or,
>>> more precisely, to require the provision by others of) contraceptives to
>>> Notre Dame's employees.
>>>
>>> Instead, the University insists it wants to avoid being involved with
>>> (and, I understand, you and Marty disagree with the University about what
>>> constitutes being meaningfully or culpably involved with) that provision.
>>> I don't see any point in litigating here the "[]plausibility" of the
>>> University's stated views on complicity but, again, it seems inaccurate to
>>> suggest that the University is demanding that its employees not receive
>>> (from someone) contraception or contraception-coverage.
>>>
>>> That said:  I do agree that there were a number of things that were
>>> "apparent" from Judge Posner's questions and writings. I'm not sure,
>>> though, how well some of those things reflect on Judge Posner.
>>>
>>> Rick
>>>
>>> On Tue, Sep 8, 2015 at 7:25 PM, Eric J Segall  wrote:
>>>
 Well said again Marty.



 I was 

RE: Davis doubles down

[Doug Laycock]

I don’t know that the Attorney General analogy is particularly helpful one way 
or the other. But for what it’s worth, it very occasionally happens that high 
ranking lawyers in the Justice Department refuse to sign a brief because of 
principled disagreement with the position asserted. These are generally, 
probably always, legal objections, not religious objections. The others file 
the brief.

 

Not only has the absence of the dissenter’s name been thought to sufficiently 
disassociate him, but if it’s a name that would normally be in the brief, it’s 
absence makes a powerful statement to a Court accustomed to seeing that name on 
every government brief.

 

Similarly, the absence of Kim Davis’s name in a place where it would normally 
appear makes a powerful statement of her refusal to participate to anyone 
familiar with the forms. On the other hand, it may go entirely unnoticed by a 
couple unfamiliar with the forms.

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Wednesday, September 09, 2015 12:12 AM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman
Subject: Re: Davis doubles down

 

Kevin writes: "It would have been odd, for example, if Kentucky's Attorney 
General had said that he would not be defending Kentucky's marriage law, but 
that his office would continue to do so through his deputy. It made sense that 
the state hired private counsel instead."

 

I'm not sure this analogy works. It's one thing for an AG to refuse to have 
their office defend a law based on the AG's conclusion that a district judge 
correctly found the law to be unconstitutional and that the Supreme Court is 
likely to agree. It is quite another for an AG to refuse to have their office 
defend a law based solely on the AG's religious objection to the law. The idea 
that we wouldn't have state lawyers defend state laws based on  state AGs' 
religious objections to those laws strikes me as extremely odd.

 

Back to Davis, my point was not that she hasn't preserved the "on her 
authority" argument for objecting to the issuance of "Rowan County Clerk's 
Office" licenses. It appears that she has preserved that argument. But given 
Marty's comparison of that argument to the complicity arguments in the 
contraception case, I thought it was worth noting that her lawyers specifically 
argued in their latest filing that her claim should be viewed as more modest 
than the claims in the contraception cases and they framed that argument by 
emphasizing (their emphasis, not mine) the phrase "devoid of her name." 

 

Finally, in judging the burden a claimed accommodation imposes on the 
government, I'm inclined to think that we need to look at more than the 
logistical issue of whether "the government could easily substitute another 
official." It seems to me that requiring the government to modify the use of 
government office names to satisfy the religious beliefs of government 
employees imposes a burden (and raises concerns) beyond logistics. 
(Alternatively, perhaps this is all best approached not by focusing on the 
burden on government, but instead, the lack of a cognizable burden on plaintiff 
per Roy and Lyng).

 

- Jim 

 

 

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Suggestion that this discussion be on the religionlaw list -- Fwd: Conlawprof list multiple delayed posts -- Re: Notre Dame diversion

[Scarberry, Mark]

I serve as moderator for the conlawprof list. Please see the message below, 
which I sent to that list. I've suggested that this discussion be carried out 
on this list rather than both simultaneously.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

Begin forwarded message:

From: "Scarberry, Mark" 
>
Date: September 9, 2015 at 8:43:19 AM PDT
To: "conlawp...@lists.ucla.edu" 
>
Subject: Conlawprof list multiple delayed posts -- Re: Notre Dame diversion

This morning the conlawprof listserv system notified me that six posts had been 
held up. The reason is that there were too many addressees. The list software 
is designed to screen out email blasts. I can't handle that many posts 
manually, so they will not go through to the conlawprof list membership.

When you respond to a post, it's best just to respond to the list, and only to 
one list. It's usually best, I think,  to keep a discussion on one list or the 
other. I'd like to suggest that the discussion on this subject be carried out 
on the religionlaw list. Some experts in the field are only members of that 
list, and most or all of you who are interested in this topic are on that list. 
(That's just a suggestion.)

Best,
Mark (conlawprof moderator)

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

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Re: Kim Davis released, given that her Deputies are issuing licenses BUT ARE THEY VALID?

[Paul Finkelman]

I had dinner tonight in Morehead, KY.  with one of the parties to this case.  
She and her husband-to-be had made wedding plans (caterer, party, etc) only  to 
be denied a license.  She was subsequently given one without the signature of 
the clerk, but does not believe (and her lawyers apparently do not believe) 
that under Kentucky law she can get married with this license because it lacks 
the proper signature.  This is an interesting theoretical question for those on 
this list serve, it is a real life question for this couple that would like to 
be married.  

Kim Davis's idea of preserving "traditional marriage"  seems to be to prevent 
all traditional marriages by prevent loving couples from being married.  This 
seems to me like the counties in Virginia that preserved "traditional 
segregated schools" by closing the public schools.  

Word in Morehead is that tomorrow Kim Davis will order her clerks not to give 
out licenses to anyone.  


**
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: "Volokh, Eugene" ; "Dellinger, Walter" 
; Douglas Laycock ; Howard Wasserman 
; "conlawp...@lists.ucla.edu" ; 
Law & Religion issues for Law Academics ; Michael 
Dorf  
 Sent: Tuesday, September 8, 2015 1:06 PM
 Subject: Kim Davis released, given that her Deputies are issuing licenses
   
Contempt order lifted.  Because the deputies are issuing licenses -- which the 
judge assumes are valid without Davis's name, since plaintiffs have not 
suggested otherwise -- he lets Davis out of jail and orders that she "shall not 
interfere in any way, directly or indirectly, with the efforts of her deputy 
clerks to issue marriage licenses to all legally eligible couples. If Defendant 
Davis should interfere in any way with their issuance, that will be considered 
a violation of this Order and appropriate sanctions will be considered."
http://balkin.blogspot.com/2015/09/judge-bunning-appropriately-releases.html



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Real-life effects of Kim Davis's actions

[Volokh, Eugene]

   1.  Unless I’m mistaken, one can get a license from a 
neighboring county.  One neighboring county seat, for instance, seems to be 20 
miles from the Rowan County seat.  To be sure, there’s a good argument that, as 
a matter of principle, one shouldn’t have to go outside one’s home county.  But 
if the concern is about “real life questions,” wouldn’t a real life answer be 
pretty readily available?

   2.  Relatedly, I’m pretty sure that Kim Davis’s actions are 
neither intended to nor likely to actually “prevent all traditional marriages,” 
any more than (say) a strike by teachers is an attempt to “prevent all 
education.”  Indeed, if I’m right that people can go to neighboring counties, 
Davis’s actions are much less likely to have such an effect (whatever the 
symbolic meaning one might ascribe to them might be).  Rather, their only 
immediate practical, as opposed to symbolic, effect seems to be to make things 
a bit more of a hassle for most people (and maybe considerably more of a hassle 
for a few people).

   None of this is an endorsement of Davis’s actions.  Whatever 
accommodation she might or might not be entitled to, she should not have just 
refused to do her duty altogether, as opposed to properly seeking an 
accommodation beforehand.  But I do think that, if we’re talking about 
practical effects, they ought to be evaluated practically.

   Eugene

From: Paul Finkelman [mailto:paul.finkel...@yahoo.com]
Sent: Wednesday, September 09, 2015 7:34 PM
To: Law & Religion issues for Law Academics; Volokh, Eugene; Dellinger, Walter; 
Douglas Laycock; Howard Wasserman; conlawp...@lists.ucla.edu; Michael Dorf
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses 
BUT ARE THEY VALID?

I had dinner tonight in Morehead, KY.  with one of the parties to this case.  
She and her husband-to-be had made wedding plans (caterer, party, etc) only  to 
be denied a license.  She was subsequently given one without the signature of 
the clerk, but does not believe (and her lawyers apparently do not believe) 
that under Kentucky law she can get married with this license because it lacks 
the proper signature.  This is an interesting theoretical question for those on 
this list serve, it is a real life question for this couple that would like to 
be married.

Kim Davis's idea of preserving "traditional marriage"  seems to be to prevent 
all traditional marriages by prevent loving couples from being married.  This 
seems to me like the counties in Virginia that preserved "traditional 
segregated schools" by closing the public schools.

Word in Morehead is that tomorrow Kim Davis will order her clerks not to give 
out licenses to anyone.


**
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: "Volokh, Eugene" >; 
"Dellinger, Walter" >; Douglas 
Laycock >; Howard Wasserman 
>; 
"conlawp...@lists.ucla.edu" 
>; Law & Religion 
issues for Law Academics 
>; Michael Dorf 
>
Sent: Tuesday, September 8, 2015 1:06 PM
Subject: Kim Davis released, given that her Deputies are issuing licenses

Contempt order lifted.  Because the deputies are issuing licenses -- which the 
judge assumes are valid without Davis's name, since plaintiffs have not 
suggested otherwise -- he lets Davis out of jail and orders that she "shall not 
interfere in any way, directly or indirectly, with the efforts of her deputy 
clerks to issue marriage licenses to all legally eligible couples. If Defendant 
Davis should interfere in any way with their issuance, that will be considered 
a violation of this Order and appropriate sanctions will be considered."

http://balkin.blogspot.com/2015/09/judge-bunning-appropriately-releases.html



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Re: Davis doubles down

[Marty Lederman]

Larry Wallace famously recused from filing the SG's Bob Jones brief even
though he was Acting SG for the case.

On Wed, Sep 9, 2015 at 1:47 PM, Brian Landsberg 
wrote:

> Yes,  the policy, though unstated, dates back at least to the early
> 1970’s.  I was excused from processing Vietnam war protestors, at a time
> when most of the Department’s lawyers were needed because of the large
> number detained at RFK Stadium. In addition to various briefs that I was
> excused from signing, I recall that even Solicitor General Griswold refused
> to sign a Supreme Court paper in a busing case; only Attorney General
> Kleindienst’s name appeared, a strong signal that the Court should pay
> little attention to the filing.  [Of course, Griswold was fired as part of
> a general house-cleaning after Pres. Nixon was re-elected].
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Sisk, Gregory C.
> *Sent:* Wednesday, September 09, 2015 10:31 AM
> *To:* 'Law & Religion issues for Law Academics'
> *Cc:* 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman'
> *Subject:* RE: Davis doubles down
>
>
>
> The Department of Justice long had (and I hope still has) a policy of
> accommodating the religious and civil consciences of its lower-level
> lawyers as well when possible in terms of assignments.  During my time at
> DOJ  many years ago, a lawyer who objected to the “don’t-ask-don’t-tell”
> policy of the military was respected in asking not to be assigned those
> cases.  I exercised the option to request reassignment once in an appeal
> where the government was insisting that a Jewish seminary reinstate an
> individual who had taken leave for military service, which I thought (on
> religious and moral, beyond legal grounds) was an improper intrusion of the
> state into the operation of a theological institution.
>
>
>
> Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of
> this accommodation:
>
> With changes in administrations, many government counsel understand that,
> at least in DOJ, lawyers are not required, at the peril of ending their
> careers, to represent government policy that collides with their most
> fundamental beliefs. . . . This kind of leeway is wise policy for an
> agency; given that the government is a vast enterprise required to take on
> a multitude of subjects, the possibilities of both conflict and
> substitution are greater. It is also wise for government counsel to take
> their employer up on the offer: Their discomfort is often discernible to
> the court, and no government counsel should be asked to ignore deeply felt
> convictions (so long as he does not have too many).
>
> Patricia M. Wald, *“For the United States”: Government Lawyers in Court*, 61
> Law & Contemp. Probs. 107, 121 (Winter 1998).
>
>
>
>
>
>
>
> Gregory Sisk
>
> Laghi Distinguished Chair in Law
>
> University of St. Thomas School of Law (Minnesota)
>
> MSL 400, 1000 LaSalle Avenue
>
> Minneapolis, MN  55403-2005
>
> 651-962-4923
>
> gcs...@stthomas.edu
>
> http://personal.stthomas.edu/GCSISK/sisk.html
> 
>
> Publications:  http://ssrn.com/author=44545
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> ] *On Behalf Of *Doug Laycock
> *Sent:* Wednesday, September 09, 2015 10:05 AM
> *To:* 'Law & Religion issues for Law Academics' <
> religionlaw@lists.ucla.edu>
> *Cc:* 'Michael Dorf' ; 'Dellinger, Walter' <
> wdellin...@omm.com>; 'Howard Wasserman' 
> *Subject:* RE: Davis doubles down
>
>
>
> I don’t know that the Attorney General analogy is particularly helpful one
> way or the other. But for what it’s worth, it very occasionally happens
> that high ranking lawyers in the Justice Department refuse to sign a brief
> because of principled disagreement with the position asserted. These are
> generally, probably always, legal objections, not religious objections. The
> others file the brief.
>
>
>
> Not only has the absence of the dissenter’s name been thought to
> sufficiently disassociate him, but if it’s a name that would normally be in
> the brief, it’s absence makes a powerful statement to a Court accustomed to
> seeing that name on every government brief.
>
>
>
> Similarly, the absence of Kim Davis’s name in a place where it would
> normally appear makes a powerful statement of her refusal to participate to
> anyone familiar with the forms. On the other hand, it may go entirely
> unnoticed by a couple unfamiliar with the forms.
>
>
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> ] *On Behalf 

RE: Davis doubles down

[Sisk, Gregory C.]

The Department of Justice long had (and I hope still has) a policy of 
accommodating the religious and civil consciences of its lower-level lawyers as 
well when possible in terms of assignments.  During my time at DOJ  many years 
ago, a lawyer who objected to the “don’t-ask-don’t-tell” policy of the military 
was respected in asking not to be assigned those cases.  I exercised the option 
to request reassignment once in an appeal where the government was insisting 
that a Jewish seminary reinstate an individual who had taken leave for military 
service, which I thought (on religious and moral, beyond legal grounds) was an 
improper intrusion of the state into the operation of a theological institution.

Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of this 
accommodation:
With changes in administrations, many government counsel understand that, at 
least in DOJ, lawyers are not required, at the peril of ending their careers, 
to represent government policy that collides with their most fundamental 
beliefs. . . . This kind of leeway is wise policy for an agency; given that the 
government is a vast enterprise required to take on a multitude of subjects, 
the possibilities of both conflict and substitution are greater. It is also 
wise for government counsel to take their employer up on the offer: Their 
discomfort is often discernible to the court, and no government counsel should 
be asked to ignore deeply felt convictions (so long as he does not have too 
many).
Patricia M. Wald, “For the United States”: Government Lawyers in Court, 61 Law 
& Contemp. Probs. 107, 121 (Winter 1998).



Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Wednesday, September 09, 2015 10:05 AM
To: 'Law & Religion issues for Law Academics' 
Cc: 'Michael Dorf' ; 'Dellinger, Walter' 
; 'Howard Wasserman' 
Subject: RE: Davis doubles down

I don’t know that the Attorney General analogy is particularly helpful one way 
or the other. But for what it’s worth, it very occasionally happens that high 
ranking lawyers in the Justice Department refuse to sign a brief because of 
principled disagreement with the position asserted. These are generally, 
probably always, legal objections, not religious objections. The others file 
the brief.

Not only has the absence of the dissenter’s name been thought to sufficiently 
disassociate him, but if it’s a name that would normally be in the brief, it’s 
absence makes a powerful statement to a Court accustomed to seeing that name on 
every government brief.

Similarly, the absence of Kim Davis’s name in a place where it would normally 
appear makes a powerful statement of her refusal to participate to anyone 
familiar with the forms. On the other hand, it may go entirely unnoticed by a 
couple unfamiliar with the forms.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Wednesday, September 09, 2015 12:12 AM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman
Subject: Re: Davis doubles down

Kevin writes: "It would have been odd, for example, if Kentucky's Attorney 
General had said that he would not be defending Kentucky's marriage law, but 
that his office would continue to do so through his deputy. It made sense that 
the state hired private counsel instead."

I'm not sure this analogy works. It's one thing for an AG to refuse to have 
their office defend a law based on the AG's conclusion that a district judge 
correctly found the law to be unconstitutional and that the Supreme Court is 
likely to agree. It is quite another for an AG to refuse to have their office 
defend a law based solely on the AG's religious objection to the law. The idea 
that we wouldn't have state lawyers defend state laws based on  state AGs' 
religious objections to those laws strikes me as extremely odd.

Back to Davis, my point was not that she hasn't preserved the "on her 
authority" argument for objecting to the issuance of "Rowan County Clerk's 
Office" licenses. It appears that she has preserved that argument. But given 
Marty's comparison of that argument to the complicity arguments in the 
contraception case, I thought it was worth noting that her lawyers specifically 
argued in their latest filing 

RE: Davis doubles down

[Brian Landsberg]

Yes,  the policy, though unstated, dates back at least to the early 1970’s.  I 
was excused from processing Vietnam war protestors, at a time when most of the 
Department’s lawyers were needed because of the large number detained at RFK 
Stadium. In addition to various briefs that I was excused from signing, I 
recall that even Solicitor General Griswold refused to sign a Supreme Court 
paper in a busing case; only Attorney General Kleindienst’s name appeared, a 
strong signal that the Court should pay little attention to the filing.  [Of 
course, Griswold was fired as part of a general house-cleaning after Pres. 
Nixon was re-elected].

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Wednesday, September 09, 2015 10:31 AM
To: 'Law & Religion issues for Law Academics'
Cc: 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman'
Subject: RE: Davis doubles down

The Department of Justice long had (and I hope still has) a policy of 
accommodating the religious and civil consciences of its lower-level lawyers as 
well when possible in terms of assignments.  During my time at DOJ  many years 
ago, a lawyer who objected to the “don’t-ask-don’t-tell” policy of the military 
was respected in asking not to be assigned those cases.  I exercised the option 
to request reassignment once in an appeal where the government was insisting 
that a Jewish seminary reinstate an individual who had taken leave for military 
service, which I thought (on religious and moral, beyond legal grounds) was an 
improper intrusion of the state into the operation of a theological institution.

Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of this 
accommodation:
With changes in administrations, many government counsel understand that, at 
least in DOJ, lawyers are not required, at the peril of ending their careers, 
to represent government policy that collides with their most fundamental 
beliefs. . . . This kind of leeway is wise policy for an agency; given that the 
government is a vast enterprise required to take on a multitude of subjects, 
the possibilities of both conflict and substitution are greater. It is also 
wise for government counsel to take their employer up on the offer: Their 
discomfort is often discernible to the court, and no government counsel should 
be asked to ignore deeply felt convictions (so long as he does not have too 
many).
Patricia M. Wald, “For the United States”: Government Lawyers in Court, 61 Law 
& Contemp. Probs. 107, 121 (Winter 1998).



Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Wednesday, September 09, 2015 10:05 AM
To: 'Law & Religion issues for Law Academics' 
>
Cc: 'Michael Dorf' >; 'Dellinger, 
Walter' >; 'Howard Wasserman' 
>
Subject: RE: Davis doubles down

I don’t know that the Attorney General analogy is particularly helpful one way 
or the other. But for what it’s worth, it very occasionally happens that high 
ranking lawyers in the Justice Department refuse to sign a brief because of 
principled disagreement with the position asserted. These are generally, 
probably always, legal objections, not religious objections. The others file 
the brief.

Not only has the absence of the dissenter’s name been thought to sufficiently 
disassociate him, but if it’s a name that would normally be in the brief, it’s 
absence makes a powerful statement to a Court accustomed to seeing that name on 
every government brief.

Similarly, the absence of Kim Davis’s name in a place where it would normally 
appear makes a powerful statement of her refusal to participate to anyone 
familiar with the forms. On the other hand, it may go entirely unnoticed by a 
couple unfamiliar with the forms.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Wednesday, September 09, 2015 12:12 AM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman
Subject: Re: Davis doubles down

Kevin writes: "It would have been odd, for example, if Kentucky's Attorney 
General had 

RE: Davis doubles down

[Alan E Brownstein]

Doug is probably correct that the absence of Ms. Davis’s name on the marriage 
license form sends a powerful statement of her beliefs. But in evaluating the 
merits of granting her an accommodation I would consider that an incidental 
consequence of her religious liberty claim – and in my judgment it is a 
negative consequence that counts against the granting of an accommodation.

Certainly, as a free speech matter, Ms. Davis has no constitutional right to 
use her office or its resources to proclaim her  religious or political beliefs 
or to express views that are inconsistent with her official responsibilities. 
And as a public policy matter I see little reason to support public officials 
using their office and its resources to communicate their personal religious or 
political views to the community.

Also, to the extent that the accommodation is based on a state RFRA law or a 
separate statute that only accommodates people in Ms. Davis’s position who 
assert religious claims of conscience, the fact that the accommodation only 
provides religious people this vehicle to project and magnify their message and 
denies it to non-religious people is problematic. This may be an unavoidable 
consequence of a religious accommodation, but it conflicts with our commitment 
to provide a regulatory environment that allows both religious and 
non-religious people an equal opportunity to influence the market place of 
ideas.

I do not suggest that this incidental speech consequence, standing alone, 
justifies denying an accommodation in cases like this one. But I think it 
belongs on the “do not accommodate” side of the ledger.

Alan



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Wednesday, September 09, 2015 8:05 AM
To: 'Law & Religion issues for Law Academics'
Cc: 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman'
Subject: RE: Davis doubles down

I don’t know that the Attorney General analogy is particularly helpful one way 
or the other. But for what it’s worth, it very occasionally happens that high 
ranking lawyers in the Justice Department refuse to sign a brief because of 
principled disagreement with the position asserted. These are generally, 
probably always, legal objections, not religious objections. The others file 
the brief.

Not only has the absence of the dissenter’s name been thought to sufficiently 
disassociate him, but if it’s a name that would normally be in the brief, it’s 
absence makes a powerful statement to a Court accustomed to seeing that name on 
every government brief.

Similarly, the absence of Kim Davis’s name in a place where it would normally 
appear makes a powerful statement of her refusal to participate to anyone 
familiar with the forms. On the other hand, it may go entirely unnoticed by a 
couple unfamiliar with the forms.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Wednesday, September 09, 2015 12:12 AM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman
Subject: Re: Davis doubles down

Kevin writes: "It would have been odd, for example, if Kentucky's Attorney 
General had said that he would not be defending Kentucky's marriage law, but 
that his office would continue to do so through his deputy. It made sense that 
the state hired private counsel instead."

I'm not sure this analogy works. It's one thing for an AG to refuse to have 
their office defend a law based on the AG's conclusion that a district judge 
correctly found the law to be unconstitutional and that the Supreme Court is 
likely to agree. It is quite another for an AG to refuse to have their office 
defend a law based solely on the AG's religious objection to the law. The idea 
that we wouldn't have state lawyers defend state laws based on  state AGs' 
religious objections to those laws strikes me as extremely odd.

Back to Davis, my point was not that she hasn't preserved the "on her 
authority" argument for objecting to the issuance of "Rowan County Clerk's 
Office" licenses. It appears that she has preserved that argument. But given 
Marty's comparison of that argument to the complicity arguments in the 
contraception case, I thought it was worth noting that her lawyers specifically 
argued in their latest filing that her claim should be viewed as more modest 
than the claims in the contraception cases and they framed that argument by 
emphasizing (their emphasis, not mine) the phrase "devoid of her name."

Finally, in judging the burden a claimed accommodation imposes on the 
government, I'm inclined to think that we need to look at more than the 
logistical issue of whether "the government could easily 

Re: Davis doubles down

[Levinson, Sanford V]

Fortunately, this very sensible policy is the result of political prudence and 
not adversarial litigation.

Sandy

Sent from my iPhone

On Sep 9, 2015, at 1:49 PM, Brian Landsberg 
> wrote:

Yes,  the policy, though unstated, dates back at least to the early 1970’s.  I 
was excused from processing Vietnam war protestors, at a time when most of the 
Department’s lawyers were needed because of the large number detained at RFK 
Stadium. In addition to various briefs that I was excused from signing, I 
recall that even Solicitor General Griswold refused to sign a Supreme Court 
paper in a busing case; only Attorney General Kleindienst’s name appeared, a 
strong signal that the Court should pay little attention to the filing.  [Of 
course, Griswold was fired as part of a general house-cleaning after Pres. 
Nixon was re-elected].

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Wednesday, September 09, 2015 10:31 AM
To: 'Law & Religion issues for Law Academics'
Cc: 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman'
Subject: RE: Davis doubles down

The Department of Justice long had (and I hope still has) a policy of 
accommodating the religious and civil consciences of its lower-level lawyers as 
well when possible in terms of assignments.  During my time at DOJ  many years 
ago, a lawyer who objected to the “don’t-ask-don’t-tell” policy of the military 
was respected in asking not to be assigned those cases.  I exercised the option 
to request reassignment once in an appeal where the government was insisting 
that a Jewish seminary reinstate an individual who had taken leave for military 
service, which I thought (on religious and moral, beyond legal grounds) was an 
improper intrusion of the state into the operation of a theological institution.

Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of this 
accommodation:
With changes in administrations, many government counsel understand that, at 
least in DOJ, lawyers are not required, at the peril of ending their careers, 
to represent government policy that collides with their most fundamental 
beliefs. . . . This kind of leeway is wise policy for an agency; given that the 
government is a vast enterprise required to take on a multitude of subjects, 
the possibilities of both conflict and substitution are greater. It is also 
wise for government counsel to take their employer up on the offer: Their 
discomfort is often discernible to the court, and no government counsel should 
be asked to ignore deeply felt convictions (so long as he does not have too 
many).
Patricia M. Wald, “For the United States”: Government Lawyers in Court, 61 Law 
& Contemp. Probs. 107, 121 (Winter 1998).



Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Wednesday, September 09, 2015 10:05 AM
To: 'Law & Religion issues for Law Academics' 
>
Cc: 'Michael Dorf' >; 'Dellinger, 
Walter' >; 'Howard Wasserman' 
>
Subject: RE: Davis doubles down

I don’t know that the Attorney General analogy is particularly helpful one way 
or the other. But for what it’s worth, it very occasionally happens that high 
ranking lawyers in the Justice Department refuse to sign a brief because of 
principled disagreement with the position asserted. These are generally, 
probably always, legal objections, not religious objections. The others file 
the brief.

Not only has the absence of the dissenter’s name been thought to sufficiently 
disassociate him, but if it’s a name that would normally be in the brief, it’s 
absence makes a powerful statement to a Court accustomed to seeing that name on 
every government brief.

Similarly, the absence of Kim Davis’s name in a place where it would normally 
appear makes a powerful statement of her refusal to participate to anyone 
familiar with the forms. On the other hand, it may go entirely unnoticed by a 
couple unfamiliar with the forms.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] 

Re: Davis doubles down

[Walsh, Kevin]

Circling back to a couple of issues from this morning ...

1. Has Davis changed position?

Marty quotes the portion of her stay application suggesting modification of 
"the prescribed Kentucky marriage license form.” As I understand matters, there 
has been no modification of the prescribed Kentucky marriage license form. A 
deputy is just filling in “Rowan County” where the name of the county clerk is 
supposed to go. The point of the proposed modification to the form was “to 
remove the personal nature of the authorization that Davis must provide on the 
current form.” As I understand Davis's position, the form still calls for 
personal authorization.

2. “[D]oes anyone truly believe that Davis's religion prohibits her office, and 
Mason, from issuing a license that reads:  'Issued this 9/_/2015 in the office 
of the Rowan County County Clerk, Morehead, Kentucky by Brian Mason [signature 
initials], Deputy Clerk’”?

It’s not clear that even Davis believes this, when the words are considered 
apart from their legal context on the prescribed form.

The statement may simply correspond with Ky. Rev. Stat. § 402.100(1)(c), 
requiring the license to include “the date and place the license is issued, and 
the signature of the county clerk or deputy clerk issuing the license.” If a 
date/place signifier referring to her office were the only function served by 
the blank where her name is supposed to go, I don’t know whether she would have 
a religious objection—but I sure hope not!

As I understand Davis’s position, though, under current law as implemented 
through the current form, every valid marriage license issued from her office 
using the prescribed form is issued under her authority. That seems like a 
reasonable interpretation of Kentucky law and the form taken together. With 
respect to forms that she does not sign, Davis’s PI Opposition and her stay 
application both pointed to Ky. Rev. Stat. § 402.100(1)(a) (requiring the form 
to include “an authorization of the county clerk issuing the license”) and § 
402.100(3) (requiring the form to include a marriage certificate that records 
“the name of the county clerk under whose authority the license was issued”). 
(PI Opp, Dkt. 29 at 11; Stay App. at 8 n.7) This is presumably why she thinks 
the licenses that do not include her name are not valid and why nobody in her 
office could issue valid licenses using the prescribed form. Simply put, Davis 
could not have purportedly valid licenses going out from her office on the 
current form while simultaneously disclaiming (a) personal authorization of the 
licensed couple to enter into marriage, or (b) that the license was issued 
under her authority.

I might be wrong in my interpretation of Davis’s filings, but the argument 
seems pretty straightforward. That said, I don’t see how any modification of 
the form could eliminate an authorization from the county clerk without falling 
short of the statutory requirements, so that any relief related to the form 
would also have to include legislative action.

Kevin

From: Marty Lederman >
Reply-To: Law & Religion List 
>
Date: Wednesday, September 9, 2015 at 5:58 AM
To: Law & Religion List 
>
Cc: Michael Dorf >, "Dellinger, 
Walter" >, Howard Wasserman 
>
Subject: Re: Davis doubles down

Among the alternatives that Davis argued would "accomplish" the state interest 
"without substantially burdening Davis’ religious freedom and conscience" was:

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.

If Eugene's representation of what her lawyers are now saying is accurate, this 
"solution," now that it's in place, is not enough . . . just as it was not 
enough when organizations complained about having to to contract, arrange, pay, 
or refer for contraceptive coverage, and then the federal government developed 
accommodations to ensure that organizations would not be required to contract, 
arrange, pay, or refer for contraceptive coverage.

Now, I've argued that Davis's religious exercise would not be burdened even if 
the line in question read:  "Issued this 9/_/2015 in the office of Kim Davis, 
Rowan County County Clerk, Morehead, Kentucky by Brian Mason [signature 
initials], Deputy Clerk,” because that true statement of fact--that the license 
was issued by Deputy Clerk Mason "in" Davis's office--would not mean that she 
would be, or would be perceived as, authorizing or approving or sanctioning a 
same-sex marriage.

But surely, even if I were wrong about that, does anyone truly believe that 

RE: Davis doubles down

[Sisk, Gregory C.]

I wonder how long the DOJ policy will survive, though, in an era in which 
accommodating the values of others with which one strongly disagrees appears to 
be no longer in favor, especially among the elites, and accusations of malice 
or bad faith or bigotry are so quick to be made in so many circles.  The 
present scorched earth approach to political and legal policymaking, from both 
sides of the political spectrum when they take power, is depressing.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Wednesday, September 09, 2015 12:52 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Davis doubles down

Fortunately, this very sensible policy is the result of political prudence and 
not adversarial litigation.

Sandy

Sent from my iPhone

On Sep 9, 2015, at 1:49 PM, Brian Landsberg 
> wrote:
Yes,  the policy, though unstated, dates back at least to the early 1970's.  I 
was excused from processing Vietnam war protestors, at a time when most of the 
Department's lawyers were needed because of the large number detained at RFK 
Stadium. In addition to various briefs that I was excused from signing, I 
recall that even Solicitor General Griswold refused to sign a Supreme Court 
paper in a busing case; only Attorney General Kleindienst's name appeared, a 
strong signal that the Court should pay little attention to the filing.  [Of 
course, Griswold was fired as part of a general house-cleaning after Pres. 
Nixon was re-elected].

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Wednesday, September 09, 2015 10:31 AM
To: 'Law & Religion issues for Law Academics'
Cc: 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman'
Subject: RE: Davis doubles down

The Department of Justice long had (and I hope still has) a policy of 
accommodating the religious and civil consciences of its lower-level lawyers as 
well when possible in terms of assignments.  During my time at DOJ  many years 
ago, a lawyer who objected to the "don't-ask-don't-tell" policy of the military 
was respected in asking not to be assigned those cases.  I exercised the option 
to request reassignment once in an appeal where the government was insisting 
that a Jewish seminary reinstate an individual who had taken leave for military 
service, which I thought (on religious and moral, beyond legal grounds) was an 
improper intrusion of the state into the operation of a theological institution.

Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of this 
accommodation:
With changes in administrations, many government counsel understand that, at 
least in DOJ, lawyers are not required, at the peril of ending their careers, 
to represent government policy that collides with their most fundamental 
beliefs. . . . This kind of leeway is wise policy for an agency; given that the 
government is a vast enterprise required to take on a multitude of subjects, 
the possibilities of both conflict and substitution are greater. It is also 
wise for government counsel to take their employer up on the offer: Their 
discomfort is often discernible to the court, and no government counsel should 
be asked to ignore deeply felt convictions (so long as he does not have too 
many).
Patricia M. Wald, "For the United States": Government Lawyers in Court, 61 Law 
& Contemp. Probs. 107, 121 (Winter 1998).



Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Wednesday, September 09, 2015 10:05 AM
To: 'Law & Religion issues for Law Academics' 
>
Cc: 'Michael Dorf' >; 'Dellinger, 
Walter' >; 'Howard Wasserman' 
>
Subject: RE: Davis doubles down

I don't know that the Attorney General analogy is particularly helpful one way 
or the other. But for what it's worth, it very occasionally happens that high 
ranking 

Re: Davis doubles down

[Levinson, Sanford V]

I think Greg is too pessimistic. What is really at issue is what 
"accommodation" requires. Even in these parlous times, I suspect that most 
people, elite and non-elite, would agree that a Jewish postal worker should be 
allowed not to work on Yom Kippur and that a non-Jewish worker should agree to 
fill in, in part because the Jewish worker will gladly reciprocate on, say, 
Good Friday. Similarly, I'd be truly shocked if anyone on this list disapproves 
of the defacto DOJ policy.

But "accommodation," for me, does not extend to a postal worker's unwillingness 
to deliver mail to a Planned Parenthood office or to the Sons of the 
Confederacy. And so on...

Sandy



Sent from my iPhone

On Sep 9, 2015, at 5:17 PM, Sisk, Gregory C. 
> wrote:

I wonder how long the DOJ policy will survive, though, in an era in which 
accommodating the values of others with which one strongly disagrees appears to 
be no longer in favor, especially among the elites, and accusations of malice 
or bad faith or bigotry are so quick to be made in so many circles.  The 
present scorched earth approach to political and legal policymaking, from both 
sides of the political spectrum when they take power, is depressing.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Wednesday, September 09, 2015 12:52 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Davis doubles down

Fortunately, this very sensible policy is the result of political prudence and 
not adversarial litigation.

Sandy

Sent from my iPhone

On Sep 9, 2015, at 1:49 PM, Brian Landsberg 
> wrote:
Yes,  the policy, though unstated, dates back at least to the early 1970’s.  I 
was excused from processing Vietnam war protestors, at a time when most of the 
Department’s lawyers were needed because of the large number detained at RFK 
Stadium. In addition to various briefs that I was excused from signing, I 
recall that even Solicitor General Griswold refused to sign a Supreme Court 
paper in a busing case; only Attorney General Kleindienst’s name appeared, a 
strong signal that the Court should pay little attention to the filing.  [Of 
course, Griswold was fired as part of a general house-cleaning after Pres. 
Nixon was re-elected].

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Wednesday, September 09, 2015 10:31 AM
To: 'Law & Religion issues for Law Academics'
Cc: 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman'
Subject: RE: Davis doubles down

The Department of Justice long had (and I hope still has) a policy of 
accommodating the religious and civil consciences of its lower-level lawyers as 
well when possible in terms of assignments.  During my time at DOJ  many years 
ago, a lawyer who objected to the “don’t-ask-don’t-tell” policy of the military 
was respected in asking not to be assigned those cases.  I exercised the option 
to request reassignment once in an appeal where the government was insisting 
that a Jewish seminary reinstate an individual who had taken leave for military 
service, which I thought (on religious and moral, beyond legal grounds) was an 
improper intrusion of the state into the operation of a theological institution.

Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of this 
accommodation:
With changes in administrations, many government counsel understand that, at 
least in DOJ, lawyers are not required, at the peril of ending their careers, 
to represent government policy that collides with their most fundamental 
beliefs. . . . This kind of leeway is wise policy for an agency; given that the 
government is a vast enterprise required to take on a multitude of subjects, 
the possibilities of both conflict and substitution are greater. It is also 
wise for government counsel to take their employer up on the offer: Their 
discomfort is often discernible to the court, and no government counsel should 
be asked to ignore deeply felt convictions (so long as he does not have too 
many).
Patricia M. Wald, “For the United States”: Government Lawyers in Court, 61 Law 
& Contemp. Probs. 107, 121 (Winter 1998).



Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005