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 <kwa...@richmond.edu> 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 Coun

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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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 <blandsb...@pacific.edu>
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
> <http://personal2.stthomas.edu/GCSISK/sisk.html>
>
> Publications:  http://ssrn.com/author=44545
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> <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' <miked...@gmail.com>; 'Dellinger, Walter' <
> wdellin...@omm.com>; 'Howard Wasserman' <wasse...@fiu.edu>
> *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
> un

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<http://personal2.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' <miked...@gmail.com>; 'Dellinger, Walter' 
<wdellin...@omm.com>; 'Howard Wasserman' <wasse...@fiu.edu>
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> 
[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

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<mailto:gcs...@stthomas.edu>
http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html>
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edu<mailto: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<mailto:religionlaw@lists.ucla.edu>>
Cc: 'Michael Dorf' <miked...@gmail.com<mailto:miked...@gmail.com>>; 'Dellinger, 
Walter' <wdellin...@omm.com<mailto:wdellin...@omm.com>>; 'Howard Wasserman' 
<wasse...@fiu.edu<mailto:wasse...@fiu.edu>>
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> 
[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

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> 
[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 
lo

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 
<blandsb...@pacific.edu<mailto:blandsb...@pacific.edu>> 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> 
[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<mailto:gcs...@stthomas.edu>
http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html>
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edu<mailto: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<mailto:religionlaw@lists.ucla.edu>>
Cc: 'Michael Dorf' <miked...@gmail.com<mailto:miked...@gmail.com>>; 'Dellinger, 
Walter' <wdellin...@omm.com<mailto:wdellin...@omm.com>>; 'Howard Wasserman' 
<wasse...@fiu.edu<mailto:wasse...@fiu.edu>>
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

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 <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
Reply-To: Law & Religion List 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Wednesday, September 9, 2015 at 5:58 AM
To: Law & Religion List 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Cc: Michael Dorf <miked...@gmail.com<mailto:miked...@gmail.com>>, "Dellinger, 
Walter" <wdellin...@omm.com<mailto:wdellin...@omm.com>>, Howard Wasserman 
<wasse...@fiu.edu<mailto:wasse...@fiu.edu>>
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 perceiv

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<http://personal2.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 <religionlaw@lists.ucla.edu>
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 
<blandsb...@pacific.edu<mailto:blandsb...@pacific.edu>> 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> 
[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<mailto:gcs...@stthomas.edu>
http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html>
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edu<mailto: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<mailto:religionlaw@lists.ucla.edu>>
Cc: 'Michael Dorf' <miked...@gmail.com<mailto:miked...@gmail.com>>; 'Dellinger, 
Walter' <wdellin...@omm.com<mailto:wdellin...@omm.com>>; 'Howard Wasserman' 
<wasse...@fiu.edu<mailto:wasse...@fiu.edu>>
Subject: RE: Davis doubles down

I don't know that the Attorney Gen

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. 
<gcs...@stthomas.edu<mailto:gcs...@stthomas.edu>> 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<mailto:gcs...@stthomas.edu>
http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html>
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edu<mailto: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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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 
<blandsb...@pacific.edu<mailto:blandsb...@pacific.edu>> 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> 
[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. Thoma

Davis doubles down

[Marty Lederman]

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 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: Davis doubles down

[James Oleske]

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 guarantees, but he also opines that "the accommodation doesn't seem
terribly burdensome."

Do others feel similarly? Is it really just no big deal to require the
government to alter the use of government names (Rowan County Clerk's
Office) to accommodate the religious beliefs of individual government
officials, even after their names have been removed from the equation? If
the U.S. Attorney for the District of Massachusetts opposed the death
penalty on religious grounds, and was allowed to take his name off of all
filings in capital cases, would we really entertain a claim that it would
not be terribly burdensome to require the government to take the office's
name off of all such filings?

- Jim

On Tue, Sep 8, 2015 at 3:28 PM, Marty Lederman 
wrote:

> 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 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.
>
___
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: Davis doubles down

[Walsh, Kevin]

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 
guarantees, but he also opines that "the accommodation doesn't seem terribly 
burdensome."

Do others feel similarly? Is it really just no big deal to require the 
government to alter the use of government names (Rowan County Clerk's Office) 
to accommodate the religious beliefs of individual government officials, even 
after their names have been removed from the equation? If the U.S. Attorney for 
the District of Massachusetts opposed the death penalty on religious grounds, 
and was allowed to take his name off of all filings in capital cases, would we 
really entertain a claim that it would not be terribly burdensome to require 
the government to take the office's name off of all such filings?

- Jim

On Tue, Sep 8, 2015 at 3:28 PM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
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 (admira

Re: Davis doubles down

[Rick Garnett]

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 <eseg...@gsu.edu> 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 <lederman.ma...@gmail.com>
> 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
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>
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>
___
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RE: Davis doubles down

[Levinson, Sanford V]

I realize I really am a babe in the woods in this area, and I am learning a lot 
from the discussion.  But how long should applicants for marriage be expected 
to wait to sort out what seem to me to be increasingly abstruse questions of 
Kentucky state and constitutional law.  After all, as someone who lives in 
Texas, I regularly teach my students that whatever may be the case with the 
national government, Texas by no means has a "unitary executive."  The Governor 
has extremely little "authority" over most other Texas officials, given that 
they are all elected.  After all, just think of the number of Republican 
Attorney Generals who insisted on fighting the Affordable Care Act even in 
states with Democratic Governors or, possibly, vice versa, where Democratic 
Attorney Generals resisted pleas by Republican Governors.  Having lived in 
Texas, I cannot tell you with confidence exactly who has authority in what 
circumstances, except that I'm absolutely confident that a governor coul!
 d not order the Attorney General or anyone under the AG to do anything 
whatsoever.  I suspect the same is true of the elected clerk of court or tax 
collector in Travis County.  So is  Kentucky more like Texas or like, say, New 
Jersey, one of the very, very few states that approaches the "unitary 
executive" model?  My bet is on Texas!

Pullman abstention, insofar as I remember anything about it, requires federal 
courts to take the time to find out what state courts think, which means, by 
definition, that the particular plaintiff has to wait for any  potential 
remedy.  But I assume that most (though not all?) of us believe that those 
seeking marriage licenses are entitled to them now, without more than a very 
few minute of delay while the assistant down the hall is summoned to sell the 
license that the protesting clerk is refusing to.  This is in fact the position 
taken by Texas's Attorney General, who will, I suspect, allow no one to portray 
him/herself as more devoted to religion than Paxton.  That being said, he wrote 
a remarkably nuanced letter supporting both conscientious objection and 
emphasizing that Texas would in fact provide the license to anyone asking for 
it quite quickly.  There was no nonsense about having to drive to the next 
county, etc.  The local debate focused, for example, on whether th!
 e compliant clerk was on a lunch break.  Would the applicants have to wait the 
hour until he/she returned, or did there always have to be someone within, say, 
five minutes to sell the license?  Or does even a five minute delay constitute 
a sufficient breach of a constitutionally-supported dignitary interest to be 
insupportable?  (My own view, for what it's worth, is that there should be no 
litigation about five or perhaps even ten minutes, whatever one's answer to the 
question about dignitary harm, which I think is present, but that's another 
matter.)

sandy



-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Tuesday, September 08, 2015 9:21 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman
Subject: RE: Davis doubles down

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

Re: Davis doubles down

[James Oleske]

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


On Tue, Sep 8, 2015 at 7:21 PM, Walsh, Kevin <kwa...@richmond.edu> 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