Volokh on Kim Davis

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Jon Rowe

Jon Rowe is a full Professor of Business at Mercer County Community College, where he teaches business, law, and legal issues relating to politics. Of course, his views do not necessarily represent those of his employer.

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131 Responses

  1. Avatar Burt Likko says:

    I quite like Prof. Volokh’s analysis,not least because it concurs with my own on most (not all) points.

    I’ve staked out the position that RFRA entitles you to a reasonable accommodation to how your job functions are performed, not an excuse from doing them altogether. With more column-inches at his disposal, Volokh fleshes out that this really depends on the degree of inconvenience involved: if it’s easy to find another employee who is willing to do that specific task, then yes, get to have the task reassigned.

    Kim Davis has tasks under existing Kentucky law that are not delegable: she must suffer or permit her name to appear on the marriage license. The easy accommodation she requested — a change in state law to remove her name from the license — is beyond the power of a federal court to order.

    Where Prof. Volokh goes further than me in his analysis, he reaches a conclusion favorable to Davis. If, as the good professor argues, the Kentucky RFRA will apply to carve out an exception to Kentucky law, then one of Davis’ clerks can draw up a new form that does not have Davis’ name, but instead refers to “Office of the Rowan County Court Clerk.”

    I have generally staked out an anti-Davis position here on these pages, because I think she has acted lawlessly under the circumstances, this last part is actually heartening, and it appears to me to be a legally appropriate use of RFRA. There ought to be a reasonable way to accommodate Davis’ legitimate Free Exercise rights. I don’t wish to see RFRA interpreted into triviality, notwithstanding my concern that it’s been interpreted too aggressively into a nuclear trump card.

    For now, there doesn’t seem to be any alternative but that she issue, or at least not obstruct issuance of, the licenses in their current form. The federal court cannot order the Kentucky legislature to alter Kentucky’s laws. Gov. Beshear seems unable to order a variance from the black-letter law. So the reasonable accommodation would have to be a volitional political act on the part of the Kentucky Legislature and since the legislature is currently out of session, this political process would take some time to complete, maybe as long as a year.

    It’s nice to notice Prof. Volokh pointing a way to an alternative route to the solution, one which could be created by a sufficiently wise Kentucky state court judge, rather than the legislature.Report

    • Avatar Will Truman says:

      I have a bit of a line in the sand where either all of Rowan County’s marriage licenses contain the clerk’s name, or none do. No separate stacks.Report

    • Avatar Michael Cain says:

      …then one of Davis’ clerks can draw up a new form that does not have Davis’ name, but instead refers to “Office of the Rowan County Court Clerk.”

      Kentucky statute requires clerks to use the form designed by the Department for Libraries and Archives.Report

      • Avatar Will Truman says:

        Volokh’s argument is that the state RFRA law could nullify the particulars of that statute.Report

        • That particular argument he makes kind of strikes me as a stretch.Report

          • Avatar Will Truman says:

            Not sure I buy it, either. At the least, I would like to see the counterargument.Report

            • Yeah, it seems like his argument for “what can be done right now at this moment” kind of hinges on whether Kentucky’s RFRA amends the law in question.Report

            • Avatar Michael Cain says:

              It will be along the lines that (in the case of county clerks) the RFRA is a requirement that the state consider and make reasonable accommodations. It is not a license for clerks to make arbitrary changes to the state’s forms or procedures on their own.Report

              • Avatar Burt Likko says:

                Remember that the RFRA under discussion here is also a state statute, more recent than and therefore debatably amending, the one prescribing the form of the marriage license.

                I think there’s something to the argument that the KY RFRA, applied by a KY court, could provide the way out of the conflict (a conflict that Kim Davis had contrived with the sophistry of a Pharisee, IMO), in the absence of legislative relief.Report

              • Avatar nevermoor says:

                I agree there’s something to it, but it would take a lot of research (that isn’t in that piece) to convince me that creating special forms and modifying duties for the topmost official is really analogous to requiring that certain line workers/truck drivers/etc. are allowed to skip specific shifts.

                It seems to me that you’d either need to create a special Rowan County set of marriage license forms or redo the default form used state-wide. Neither is a small solution, especially as either probably takes (unreasonably) long to actually implement, so what happens in the interim?

                None of which is to say that a solution like that would be wrong in any way, just that I’m not sure even a state court could/would craft it from whole-cloth based on the RFRAReport

  2. I quit reading the Volokh conspiracy a couple years ago because it’s posts seemed, in my opinion then, increasingly to lack substance, amounting in many cases to just a couple of snarky paragraphs and relying on quoting other authors elsewhere. But Eugene’s recent posts suggests I might have been wrong.

    As far as the law goes, I’m sure he’s right, or righter than I’d be, although I do question whether Kentucky’s RFRA really can be counted as an amendment to the law that requires the county clerk’s signature to validate a marriage. That seems like a stretch. But I’m not a lawyer.

    As far as policy goes, I don’t think we should exempt officials under RFRA, at least at first blush and when it comes to well accepted non-discretionary parts of their jobs. (Maybe I’m missing something here, but that’s my view now.) I’m of a similar view when it comes to, say, civil servants or other employees of the state. To me, a reasonable accommodation in the case of marriage licenses could be that employee x just doesn’t handle any marriage licenses and instead handles other things. I’d want at all costs to avoid the situation where a gay couple applies for a license, and employee x says, “excuse me, I’ll get employee y to do it because I object to your marriage.”

    Finally, here’s a question to you and other other lawyers here. Eugene writes,

    The law assumes that employers will be able to judge employees’ sincerity relatively accurately, and to the extent some insincere objections are granted, this won’t be too much of a problem.

    How true is that in practice? Again, I’m no lawyer, but I have a hard time believing an employer can raise the claim that his/her employee “doesn’t sincerely hold that religious view” and succeed against a religious objection claim.Report

    • Avatar Michael Drew says:

      For a while I’ve felt that VC has been drifting toward a site consisting of one very expert First Amendment scholar and then a bunch of partisans slash oh yeah law professors (just like lots of other law prof blogs & not that there’s anything wrong with that). Volokh’s work has remained consistently rigorous, while the rest of the blog has become steadily more hacky over time.Report

      • When I’ve recalled a VC post as excessively partisan, tendentious, or just plain dishonest, and then looked it up:

        1. I’ve generally had the same opinion after a reread.
        2. It’s never been a post by EV himself.Report

      • I think I agree, with the caveat that I haven’t really gone over there in a very long time, the post Jon mentions excepted.

        I used to like Orin Kerr. In fact, I probably still would. Even Jonathan Adler, for all my ideological differences from and annoyance with him, had some good days.Report

        • Avatar Michael Drew says:

          Oh, wait. Kerr. I would actually fully exempt Kerr from what i say above. Kerr actually seems a little out of place over there sometimes.

          Adler I would include as one of the cardinal cases, though. Which doesn’t mean he’s not brilliant. They’re all brilliant.Report

        • Avatar Morat20 says:

          You thankfully missed the Adler-hack-a-thon, where he went over the deep end on the ACA. I’m pretty sure there was a tacit agreement from the other posters to just leave that topic more or less to him. Orin Kerr I think weighed in a few times, but mostly it was variants of “I FOUND THE SMOKING BULLET” by Adler, with about 5 pages off how mendacious Obama is and how no other reading of the law was possible.

          Seriously, it’s awful. The move to the Washington Post has not been a positive one on in the comment section either.

          Then there’s Bernstein. If Israel is the topic, I don’t even bother reading.

          But Orin and EV I take the time to read, agree or disagree. They tend to try to lay things out fairly, don’t distort opposing views, and keep it…professional, I suppose. I might not agree, but it’s always an interesting and informative read.Report

    • Avatar nevermoor says:

      On your question, I think the way the law works requires Plaintiff to make a prima facie showing of sincerity (i.e. sign a declaration they have sincere religious beliefs requiring the accomodation). Defendant then could challenge that if they had any factual basis to do so, but usually wouldn’t for the obvious reason that it’d be a tough sell to the court without something pretty damn strong.Report

  3. Avatar Jaybird says:

    I remain uncertain as to why this job requires a human being at all (at this point, I mean… I understand why it was required in 1930).

    What percentage of clerking could be replaced by a bunch of self-serve kiosks overseen by a bored functionary who can answer questions about the trees on the touchscreen?Report

    • Avatar Murali says:

      Its about preventing identity fraud and marriage fraud. I went to the registry of marriages on Monday with my fiancée to verify that the marriage cert that they will issue us on our wedding day spells our name correctly, and for them to check that the persons whose name is on the cert really agree to the marriage and are not being forced to it or being impersonated by someone else etc. The first one could be done by a computer but the second one cannot.Report

      • Avatar Jaybird says:

        The bored functionary can look at your Papers and make sure that your Papers look enough like you to provide plausible deniability.

        (Has there been a rash of identity thieves getting their stolen identities officially married? Dude. There should totally be identity thieves out there stealing identities and getting married. “Sister Margarite, it says here that you got married in 2012.” “What? I became a nun in 1978!” “Hey, I’m just saying what the computer says, Sister.”)Report

        • Avatar Will Truman says:

          FWIW, the ID requirements in Kentucky are pretty low.Report

        • Avatar Michael Drew says:

          Say you do that. Then over not much time at all the bored functionary becomes a staff of people staying fairly busy making sure people’s marriage licenses say all the right things, correcting errors, guarding agains ID theft, and maintaining timely service. So what was the point of the automatization?

          You can get machines to create documents. You need a staff to have a government office that is actually responsive to the needs of citizens.Report

          • Avatar Jaybird says:

            The latter things you mention were needed before self-help kiosks.

            Automation, similarly to self-checkout lines at the Safeway, was there to facilitate the X% of customers who needed straightforward enough services to be able to dink their products, pay their money, then slink away without ever having to speak to the bored employee in the corner making sure that they weren’t stealing beer.Report

        • Avatar Murali says:

          Well, that’s what they do right? Someone has to do the minimum of ensuring that the legal niceties are followed. Which part are you imagining that could be automated but hasn’t been yet?Report

      • Avatar Richard Hershberger says:

        check that the persons whose name is on the cert really agree to the marriage and are not being forced to it

        My (future) parents went with my maternal grandfather to apply for their marriage license. The clerk asked, as per routine, what was my father’s occupation, to which he replied he was a seminary student. The clerk then looked embarrassed, and explained that he was required to ask if he was being forced into the marriage. At that point my grandfather stepped up behind my father, and in a low but carrying voice said “Tell him ‘no.'”Report

    • Avatar Saul Degraw says:

      @jaybird

      This is just a small part of what a county clerk does. Another thing that they do is oversee elections and make sure that said elections are run without corruption and intimidation.Report

      • Avatar Jaybird says:

        I’m not saying “replace every single one everywhere”.

        I’m more thinking of something like the grocery store. There should be self-checkout lines.

        If people have more than merely the little child seat area’s worth of groceries, sure, get in line. But if all you have are two frozen pizzas and a two-liter, the self-checkout is a boon and a blessing for everybody involved.Report

        • Avatar nevermoor says:

          Not sure how that responds to @saul-degraw

          Each county needs a clerk for things like elections. And I doubt there’s so much demand that they actually need automation to handle these other tasks. For illustration, when Mrs. N and I went in in S.F. there were something like three total counters and zero people in line for any services.Report

          • Avatar Jaybird says:

            Allow me to rephrase my original comment, then.

            I remain uncertain as to why this part of the job requires a human being at all (at this point, I mean… I understand why it was required in 1930).

            What percentage of clerking duties could be replaced by a bunch of self-serve kiosks overseen by a bored functionary who can answer questions about the trees on the touchscreen in the same way that there are self-serve lanes at the local supermarket that replaced a non-zero number of checkout people?Report

        • Avatar Murali says:

          Over here, we tried the self checkout thing. It didn’t really catch on. The cashier from the adjacent line had to keep coming back to help shoppers who had gotten stuck. What did work is self-weighing of fresh vegetables. These kinds of things are generally viable only when the procedure is simple and repetitive. Marriage applications are neither of these things. At the very least it is not repetitive for the vast majority of people.Report

          • Avatar Jaybird says:

            It has caught on like wildfire here in Colorado Springs.

            I suspect it’s because every instance of a fruit and/or vegetable becomes a banana (which is the upper left choice in any given computer screen for “self-weigh produce”).

            As for marriage certificates, “is this you?” then “is this other person you?” followed by some small amount of “are you already married to someone else?” and “you know you’ll risk prison if you’re already married to someone else!” followed by “congrats! please pay $X by credit card or cash then receive your congratulatory tax certificate number to be attached to all future tax returns until one of you divorces the other (God Forbid)” is all a clerk does today *NOW*.Report

            • Avatar Murali says:

              Actually, I paid the filing fees online. They did the “is this you”, “are you already married to someone else” and “you know you’ll go to jail if you’re lying right?”, then “raise your hand and swear to the above” after that “sign here, here and here”

              i.e. for me, none of the stuff that was done by a person could have been automated.Report

            • Avatar Michael Cain says:

              Same in the west Denver suburbs, at least at the Kroger-owned chain. All of the stores I frequent have added more self-check positions over time. They’ve also tinkered with the software, the layout of the positions, and the way the staff works those positions — small steps that have added up to a big overall improvement.

              I use the self-check not because it’s really any quicker than the express check-out lane, but because I’m a fanatic about bagging. I’d probably use the express check-out if they didn’t make such a fuss about me bagging things myself.Report

          • Avatar DensityDuck says:

            Out here in California, self-checkouts worked so well that the union had to find a way to ban them before Safeway fired all the checkout clerks. (They realized that they could make a big noise about the hordes of teenagers buying Four Loko at the self-checkout stand.)Report

            • Out here in California, the Safeways all have self-checkout. (It’s not legal to use them for alcohol.) There are still lots of people using the old-style checkout.Report

              • Avatar Will Truman says:

                Yeah, I’ve never lived in a place where manned aisles weren’t more popular than self-checkout.Report

              • Avatar DensityDuck says:

                Self-checkout is unpopular until people realize that it’s not actually as hard as they think it is.

                The union realized that they couldn’t ban it outright, but remember for about a year how it was legal to buy alcohol at them and then suddenly it wasn’t?Report

              • Avatar Kazzy says:

                In NY, I don’t know what the law says, but you can buy beer at self-checkout but a clerk needs to come over and validate the transaction. They look at your ID (or don’t if you look old enough), swipe their card, and enter your birth date into the computer (sometimes just going with 5/5/55 or some such made up number that suffices). It seems like a good system as it leaves a trail in the event anyone is skirting the system.

                “How’d those 16-year-olds get booze? Let’s see who swiped them through.”Report

  4. Avatar Stillwater says:

    Thanks Jon. Two things about it:

    1. I didn’t know until Just Right Now that Davis isn’t opposed to issuing gays marriage licenses but rather that she merely objects to having her name written on those licenses. It seems weird to me that, if true, this hadn’t been reported earlier, like extensively. I mean, we just had a 400 comment post about Kim Davis and no one on that post (to the best of my knowledge) corrected the record by asserting that in fact, Davis isn’t opposed to issuing gay marriage licenses, she’s just opposed to having her name appear on them because (in her view) that constitutes an endorsement of a practice she objects to.

    2. Irrespective of Davis’ views on this, I rather like V’s solution: basically, establish a distinction between the person who plays a gummintal role from the role being played. I see one problem with this tho: there’s a difference between being appointed by an elected official and being voted in as an elected official, and presumably, insofar as county clerk is an elected office, her name – who she is! – is an integral part of the role she plays within gummint.Report

    • Avatar Jaybird says:

      Holy cow, I didn’t know that either.

      It changes the narrative somewhat. To the point where it makes her position marginally more sympathetic even though she got divorced THREE TIMES.Report

      • Avatar Stillwater says:

        Jaybird,

        Well, that’s Volokh’s take on it, and who am I to argue? So I won’t. I’ll just say that I disagree with him on that point.Report

      • I agree with Will, though, about not wanting there to be two separate piles of marriage certificates, ones signed by the clerk or stamped with her name and the others unsigned/unstamped.Report

        • Avatar Jaybird says:

          Oh, absolutely.

          This is why I think that there should be a kiosk or something that takes care of this.

          This reminds me of the argument in Marbury vs. Madison:

          The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it. This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President.

          The stuff being signed, there’s nothing for the clerk to do but file it away.

          It doesn’t require her to do anything but affix a seal and record it.

          If she doesn’t want to sign it, that makes sense to me. She shouldn’t sign it. No clerk ought to be signing it in the first place. It has nothing to do with the clerk. Put a seal on it. Record it.Report

    • Avatar Will Truman says:

      She doesn’t want to issue them herself, but she is okay with a deputy clerk doing it as long as her name is not on the document (ie it’s not done in “her” name).Report

      • Avatar Stillwater says:

        Yeah, I think that’s revisionist. I’ve been reading up a bit on the genesis of this and here’s a quote from Davis within the first day or two her decision to not issue marriage licenses:

        Rowan County Clerk Kim Davis said in a telephone interview that her “deep religious convictions” compel her to refuse to issue licenses to same-sex couples, so she decided not to issue them to anyone. “Marriage is ordained by God to be a man and a woman,” she said.

        That was within a day or two of when she started the stopping.Report

        • Avatar greginak says:

          Acchh. She is county clerk who says marriage is ordained by Gosh. Umm her job is to provide the legal certificate for legal marriage. Nothing about Gosh or what he/she/it thinks. She isn’t issuing certificates from the big G.Report

        • Avatar Will Truman says:

          Might be revisionist, but the quote you supply seems consistent with her current position. She doesn’t want to do it herself, then or now. When she started the stopping, there was no way for her to get her name off the document, nor hand the duties over to a deputy, as is the case now.

          Absent an RFRA ruling, anyway.Report

          • Avatar Stillwater says:

            Volokh’s rationale was never clearly articulated until – for me, anyway! – today! It is not reported as a view expressed by Davis or her legal team at any time prior to the application for a stay against the execution of the judge’s requirement that she issue marriage licenses. It’s first appearance, as far as I can tell, is in that application, which was 1 week ago.

            So, no, it’s revisionist. And even if scrubbing her name from those licenses constitutes a potential solution to the issue, it is not what she’s been objecting to at any point during this process. At least by my lights.Report

            • Avatar Will Truman says:

              I’ve been told, pretty repeatedly, that she’s been trying to get her name off the document for a while now. Which may be untrue, but I wouldn’t know either way on that

              Edited to add, by way of example:

              Report

              • Avatar Stillwater says:

                Will,

                I’m continuing to read stuff about this – from the NYT and Kentucky-based newspapers – and 1) everything I’ve read (not everything written!) is that her motivation for denying licenses is a) God and b) that marriage is between a man and a woman, both of which imply that she’s opposed to the marriages, not having her name attached to the license permitting those marriages, and 2) in zero of the articles I’ve read so far (except for Volokh’s!) is there any mention that what she objects to is having her name on the licenses. (Which, sorta ironically, would mean she’s objecting to gay marriage in name only!)Report

              • Avatar Will Truman says:

                I suspect that on a personal level, she is opposed to the marriages which is why she doesn’t want to issue the licenses or have her name on the document. My impression is that presently, the name on the document is why she is not willing to let someone else in her office do it.

                I don’t claim to know when she came around to this point of view. It might have been at the start. I’m honestly a big skeptical, but I don’t know any different. (And the NYT and even Kentucky newspapers misunderstanding her objections is not something that would surprise me even a little.)

                Which is my way of saying “If I heard of hard proof either way, it would not really surprise me.”Report

              • Avatar Stillwater says:

                I suspect that on a personal level, she is opposed to the marriages which is why she doesn’t want to issue the licenses or have her name on the document.

                Why the reluctance to take her at her word? I mean, she’s repeatedly expressed that she’s opposed to gay marriage and THAT’S why she won’t issue the licenses.Report

              • Avatar Will Truman says:

                Isn’t that what I said? Seems like what I was meaning to say in the italicized portion.

                Are you thinking that I am suggesting she may have no problem with SSM? Its beyond clear to me that she does and I don’t think she is currently denying that she does not believe they should be allowed to get married.Report

              • Avatar Stillwater says:

                Isn’t that what I said?

                Well, it’s possible that then, as now, I’m being nitpicky: no, that’s not what you said. You’re saying you suspect (ie, are inclined to believe) that she’s [….], I’m saying there is no suspecting or inclination to believe that she’s […], since she’s affirmatively and repeatedly stated that she is.Report

              • Avatar Stillwater says:

                Will, if there’s no record of her having been “affirmatively trying to get her name off the licenses” then claiming that *THAT’S* what she’s been objecting to all along is revisionist.

                If you can show me that this issue was specifically addressed by the judge in his first ruling against her then I’ll let the whole thing go (even tho that doesn’t take us all the way Back to the Beginning!).

                Adding onto that: I just read a bunch of Davis’ supporters’ responses to the first court order to issue licenses, and none of those advocates mention that the real issue here – the one we’re now supposed to believe was the ONLY issue all along – is that her name appears on those licenses.

                And adding to that: I’ll let the whole thing go because the history of how we got here isn’t relevant to what arguments can and will be made going forward.Report

              • Avatar Will Truman says:

                I’m not really going to go to the mat on this as I think there is a better chance you are more right than wrong than the other way around.

                Rather, if I had to guess, it would be that she objected flat out, and when asked point blank “What exactly are you looking for here” she settled on not having to do it herself and not having her name on the document.

                When trying to sort through unpleasantness, my wife tends to ask “What is bothering me most, here?” or “What are you most worried about here?” and moving towards the problems one by one.

                It seems quite credible to me that’s how Davis landed where she did. She had a mess of objections, but when she cut through it, those were the big two.

                That’s my guess.Report

              • Avatar Stillwater says:

                Here’s my guess:

                She is a Christian who opposes gay marriage; she’s county clerk who issues marriage licenses,; so she decided to not issue gay marriage licenses for religious reasons.

                Once she was ordered repeatedly to issue those licenses via a contempt of court threat hanging over her head, her legal team realized that her stated defense won’t fly, so they began trolling for a defensible position – never held by Davis! – to get her outa jail while retaining her job under an expansive reading of the RFRA.Report

              • Avatar Will Truman says:

                After all this, I think we’re pretty much on the same page and have been (though I apparently articulated poorly). I might nip and tuck some of the wording, but pretty similar.

                As far as my previous use of the word “suspect” that was based on the question of whether or not she expected to unilaterally overturn the SCOTUS or something like that. If the question is whether or not she opposes SSM and that’s why she doesn’t want to issue licenses, the answer is yes.Report

              • Avatar Michael Cain says:

                This from an AP story published yesterday:

                Staver called on the judge as well as Democratic Gov. Steve Beshear to make “reasonable accommodations” so that Davis can keep her job without violating her beliefs as an Apostolic Christian. He suggested that with an executive order, he could change all the forms in Kentucky so that none require a clerk’s signature or say that they’ve been issued under a clerk’s authority.

                I’m assuming that her attorney has a good idea of what she considers an acceptable accommodation.Report

              • Avatar Stillwater says:

                Yeah, I read that. As far as I can tell, that’s a response to her being jailed for contempt of court.

                Adding: the context of this polite discussion CageMatch! is whether or not the following claim is revisionist: “All along, Davis has been perfectly willing to issue marriage licenses to gays just so long as her name doesn’t appear on the license itself.”Report

              • Avatar Will Truman says:

                Shouldn’t that be?:

                “All along, Davis has been perfectly willing to allow deputy clerks to issue marriage licenses to gays just so long as her name doesn’t appear on the license itself.”

                She’s still not willing to do it herself.Report

              • Avatar Stillwater says:

                Will,

                She never articulated those views – however nuanced! – at any point in this whole affair, and her legal team first articulated them (as far as I can tell!) in the application for a stay on jailing her for contempt.

                As they say, tho, this is all academic. So not really worth making much hay about.Report

              • Avatar Will Truman says:

                I was just tightening the wording to reflect that (according to her lawyers) she is willing to allow deputies to do it and still not willing to do it herself.

                To answer the question of whether this would have been okay with her (deputies doing it and her name removed) I do not know. She may not know herself.Report

              • Avatar Oscar Gordon says:

                Perhaps this has been asked & answered already, but if this was all about not attaching her name toa SSM license, why was this not brought through state court?

                Seems to me being obstinate & waiting until someone brought a federal action was either unwise, or a way to deliberately spoil for a fight in federal court.Report

              • Avatar Stillwater says:

                Oscar G.,

                One answer is that this was not about her name appearing on marriage licenses until very recently (when I looked into it a bit the first mention of the signing issue was in the application for a stay on the contempt of court judgment against Davis. That application was written a little over a week ago.)

                The other answer is that since this wasn’t resolved at the state level, this wasn’t a state issue until recently!

                (Same answer twice!)Report

    • I’ve seen it reported before. But I’ve also seen it reported both that she denied licenses only to same-sex couples, that she denied them to everyone, the she denied them to a random collection of people, etc. I’ve given up trying to find a precise description of the facts.Report

  5. Avatar Lurker says:

    I thought I saw a report saying she was offered a Volokh-like compromise of letting the assistant’s do it but didn’t take it. Someone else could do it for her, even if the document has her name as the designated authority on the form.

    Or indeed, in her mind she could separate her personal self and personal beliefs from her public role, especially since her public role has power over others rights, in her head. That is easiest.Report

    • Avatar Will Truman says:

      She wants both (a) someone else to do it and (b) her name off the document. The early compromise addresses (a) but not (b). The latter is a real sticking point since it is, as Michael Cain and others have mentioned, ordered by statute.Report

      • Avatar Lurker says:

        Well, people made an attempt to tolerate her homophobic unjust beliefs and actions. She wouldn’t take it. Who is to say she would take the offer of not having her name, but just a title (which refers to her, or a position she holds).

        This homophobe wants to stop the law from treating people equally. I don’t see a need to try to tolerate her any more than has already been done, since whatever reasons she has given for rejecting compromises could be given by her or another homophobe for future compromises.

        A racist election official could not accept an African American’s ballot on religious convictions, too. This is the same ugliness. You can make some room in the law for racists and homophobes to exist in positions of power, but the rights of those they have power over must always trump the freedom of conscience of those empowered by the state. This is especially easy to do if the homophobes and racists are willing to compromise, but impossible if the homophobes and racists are spoiling for a conflict, which seems to be the case here.Report

        • Avatar Will Truman says:

          Well, she is saying that she would take that offer. That may have always been the case, may be a recent development, or may be a lie. But the operating assumption of Volokh’s post is that’s what she is after, which is different than what she was offered.Report

          • Avatar Lurker says:

            What is the evidence that she would take that deal? I’m not saying it doesn’t exist, but I would like a cite to that evidence for my own edification.Report

            • Avatar Will Truman says:

              See Michael Cain’s comment. Her lawyers, speaking on her behalf, said that is what she wants.Report

              • She may be perfectly sincere, but her lawyers are dishonest assholes who just want as much publicity they can get. Something that sounds like a reasonable compromise but isn’t achievable within the law is right up their alley.Report

            • Avatar Lurker says:

              You mean this, from AP:

              “Staver called on the judge as well as Democratic Gov. Steve Beshear to make “reasonable accommodations” so that Davis can keep her job without violating her beliefs as an Apostolic Christian. He suggested that with an executive order, he could change all the forms in Kentucky so that none require a clerk’s signature or say that they’ve been issued under a clerk’s authority.

              The first suggestion is reasonable. The second, I sort of don’t see as reasonable. The clerk’s authority does not belong to her. Her personal beliefs do not and cannot determine what the clerk’s office issues. That is a constitutional no go. “I the clerk say no issuing of ballots to African Americans…”

              She has had a lot of opportunities to take the first compromise. The fact that she hasn’t and her lawyer says she might to get out of jail is suggesting shenanigans.Report

          • Avatar Lurker says:

            Also, I’d actually admire her more if she said that her position was that she felt that there should be no gay marriage and she was doing what was in her power to stop it. On this position, she’d take no deal.

            As it is, she is saying she just doesn’t want to be tainted by association with gay marriage. That is less of a moral principle. A moral principle requires that you not care about your own situation as much as you care about what happens to others and what moral laws are broken.

            Regardless she is a disgusting homophobe as all good willed people should see.Report

  6. Avatar Jaybird says:

    The comparison to the pharmacy that refuses to sell prescription (whatever) is making more and more sense.

    My problem isn’t necessarily with the person who says “I don’t want to sell (whatever).”

    My problem is with the fact that someone without a government license who sells (whatever) is breaking the law and could end up going to prison. Someone who buys (whatever) from someone who doesn’t have a government license to sell (whatever) is breaking the law and could end up going to prison. Someone who does not have a prescription to buy (whatever) from someone with a government license to sell (whatever) is breaking the law and, you guessed it, could end up going to prison.

    When the person with a government license to sell (whatever) then says “I am opposed to selling (whatever)”, they ought to either have their license revoked or they should be forced (by the government (AT THE POINT OF A GUN)) to sell (whatever).

    The local 7-11 can get away with saying “eh, I don’t feel like selling (product you don’t need a license to buy)” because you can buy that stuff anywhere (and even if you buy it on the street, you’re not going to jail).

    But that license makes you The Only Game In Town.

    You don’t want to traffic in substances that require a license? Don’t get the license.Report

  7. Avatar Dand says:

    In a related story a Muslim flight attendant has filed a complain claiming her airline discriminated against her by forcing her to serve alcohol:

    http://www.cbsnews.com/news/muslim-flight-attendant-expressjet-airlines-alcohol/

    My guess is:
    1) The people defending Kim Davis fill mostly think that this woman should do her job.

    2) The people telling Kim Davis to do her job will say that the airline should have accommodated the flight attendant or the the very least support forcing the airline to spend money responding to the EEOC investigation.Report

    • Avatar Jaybird says:

      If she was *TRULY* devout, she wouldn’t be interacting with men who were not her relatives.Report

    • Avatar Dand says:

      The EEOC has actually sued employers that fire employees for refusing to their job because of religion:

      http://www.eeoc.gov/eeoc/newsroom/release/5-29-13.cfm

      PEORIA, Ill. – Star Transport, Inc., a trucking company based in Morton, Ill., violated federal law by failing to accommodate two employees because of their religion, Islam, and discharging them, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

      The lawsuit alleged that Star Transport refused to provide two employees with an accommodation of their religious beliefs when it terminated their employment because they refused to deliver alcohol. According to EEOC District Director John P. Rowe, who supervised administrative investigation prior to filing the lawsuit, “Our investigation revealed that Star could have readily avoided assigning these employees to alcohol delivery without any undue hardship, but chose to force the issue despite the employees’ Islamic religion.”

      Failure to accommodate the religious beliefs of employees, when this can be done without undue hardship, violates Title VII of the Civil Rights Act of 1964 which prohibits discrimination on the basis of religion. The EEOC filed suit, (EEOC v. Star Transport, Inc., Civil Action No. 13 C 01240-JES-BGC, U.S. District Court for the Central District of Illinois in Peoria, assigned to U.S. District Judge James E. Shadid), after first attempting to reach a voluntary settlement through its statutory conciliation process. The agency seeks back pay and compensatory and punitive damages for the fired truck drivers and an order barring future discrimination and other relief.

      John Hendrickson, the EEOC Regional Attorney for the Chicago District Office said, “Everyone has a right to observe his or her religious beliefs, and employers don’t get to pick and choose which religions and which religious practices they will accommodate. If an employer can reasonably accommodate an employee’s religious practice without an undue hardship, then it must do so. That is a principle which has been memorialized in federal employment law for almost50 years, and it is why EEOC is in this case.”

      The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

      Do the people telling Kim Davis to do her job support the EEOC in this case? What about the people who think that Kim Davis should receive an accommodation?Report

    • Avatar Burt Likko says:

      It’s worth remembering that (as is inherently the case in a legal issue involving “reasonable” anything) there’s going to have to be some case-by-case, fact-and-context-driven analysis, with things in one case that may not much bleed over into different scenario.

      Whether it’s revisionism or not, if Davis will let the form issue without her name appearing on it, it gives us something in this case to work with so that she can avoid acting contrary to her faith and the licenses can issue. But again, there’s nothing from the various organs of the Kentucky government moving in that direction yet. But maybe she doesn’t have to be impeached or censured just yet.

      Nevertheless none of this is an excuse for disobeying a valid court order.Report

      • Avatar Stillwater says:

        Burt,

        Suppose that a state legislature holds a veto-proof majority for a piece of legislation which the Gubna objects to for reasons of religious conscience. Course, the leg. can’t take effect until the holder of the Office actually signs the bill, and the gov.’s two options have been reduced to only one.

        Problem, yeah? Would a reasonable solution be to change the enactment procedure from requiring a personal signature to a rubber stamp saying “Office of the Governor” or somesuch?Report

        • Avatar Stillwater says:

          Adding: the point I’m wondering about is that if the current procedures requiring office-holders to sign their names to paper bits can be changed to accommodate sincerely held religious beliefs, then what’s the legal argument for not scrapping the practice entirely?Report

          • Avatar Michael Cain says:

            It’s entertaining to read some of the Kentucky statutes pertaining to the county clerk’s office (originally the county court clerk’s office). Records that must be kept in books. Misdemeanor crimes for failure to turn such books over to the successor in office. Very rural, very late-1800s feel to some of it.

            Having had one career that included IT security from time to time, and then some time as a legislative analyst, I’m a whole lot more comfortable with paper and ink and embossed seals as the historical record that might have to be consulted some years after the fact in legal proceedings.Report

        • Avatar Burt Likko says:

          I don’t see a problem at all.

          1. Legislature passes the act.
          2. Governor vetoes the act.
          3. Legislature overrides veto. Act is now law.

          What’s the problem?Report

          • Avatar Stillwater says:

            Ahh, so no Gubna signature required at that point? OK.

            Then what’s the point of the signature? Why not just have a process whereby a governor failing to veto entails that majority-passed leg. automatically becomes law? I ask that assuming there’s a reason for gummint officials signing bits of paper other than pomp and circumstance.Report

            • Avatar Burt Likko says:

              But that is already the law.

              1. Legislature passes act.
              2. Governor “hikes the Appalachian Trail” for X days.
              3. Bill becomes law.

              As for the formalities of moving paper around, it’s already more ceremony than reality anyway.Report

              • Avatar Stillwater says:

                Still not gettin the question. I’ll ask it more directly:

                Is there any basis in law for having gummint officials sign bits of paper with their signature? For example: county clerks?Report

              • Avatar Michael Cain says:

                For county clerks… The state wishes to archive information that, at a particular time and place, people presented particular information, which was examined for obvious fault — “You call this a driver’s license?!?” — and that fact recorded for possible consultation ten or 20 years from now. What do you propose as an alternative to ink signature on a piece of paper?

                This is a dead serious question. AI isn’t here yet. Reliable digital storage isn’t here yet. People examining the papers and signing what is effectively an affidavit has hundreds of years of reasonable success.Report

              • Affidavit is better than none.Report

              • Avatar Michael Cain says:

                Don’t make me come to San Francisco and hurt you.Report

              • Whose signature should they sign them with?Report

              • Avatar Stillwater says:

                Mike and Michael,

                The question is about the legal reasoning behind having county clerks, for example, sign their names on a marriage license. So the question is this: what is the legal reasoning behind having county clerks sign their names to marriage licenses? As in, why do we have that practice?Report

              • Avatar Will Truman says:

                The Alabama senate voted to do away with it having the clerk have to sign anything.Report

              • Avatar Stillwater says:

                From what I read, you’re right. But from what I understand that’s because in Alabama probate judges, and not county clerks, issue marriage licenses.Report

              • Avatar Will Truman says:

                The plan in Alabama was to do away with the licensure process. You print out an form, get it notarized, and turn it in. The only thing the county would then have to do is handle and file the record that originated elsewhere. (Even that you could probably shift to the state capital, maybe.)Report

              • Avatar Michael Cain says:

                Add that, as I’ve noted elsewhere, Alabama’s existing statute says probate judges “may” issue licenses. Kentucky’s statute says clerks “shall” issue. On such apparently minor choice of words by the legislature, legal cases live or die.Report

              • Avatar Will Truman says:

                FTR, Alabama was not brought up in terms of its existing statute, but the proposed change that went through the senate. It, along with Oklahoma, presented a model that did not require clerks or probate judges to issue licenses (just record records submitted to them).Report

              • Avatar Michael Cain says:

                Yeah, and I’m entirely in favor of that. Fill out the standard form, have the signatures notarized as the state feels is necessary, then turn in the form and have the county put it in a drawer, same as they file property transactions (sales, mortgages, liens, etc). Probably have to put the burden of checking that all the blanks have been filled in onto the officiant. In this day and age, I might want the county to run it through a scanner and have that go into a state-wide database.Report

              • Avatar Stillwater says:

                Will, could you expand on that a bit? From what I’ve read about the Alabama law, probate judges DO issue marriage licenses (and sign for them) and are in fact denying gays those licenses.Report

              • Avatar Will Truman says:

                They do and they are, but only because the senate bill I refer to never made I through the House. If it had, the whole issue would be sidestepped.Report

              • Avatar Stillwater says:

                Ahh. We’ve talking about a bill that wasn’t enacted. Got it. That clears things up a bit.Report

              • Avatar greginak says:

                It seems like a version of having something notarized. An official is saying there are people who say they are and they entering into this proper contract which is being recognized by the state.Report

              • Avatar Stillwater says:

                Thank you greg! That’s exactly the type of answer I wanted to hear. So the question is … well … it’s sorta long, so just read the comment right below this.Report

              • Avatar Stillwater says:

                OK, I’ll answer that question: we have that practice (it seems to my own nonlawyer self) because we want an individual whose been a) assigned the execution of certain tasks to b) take responsibility for the appropriate execution of policy relevant to that task. Now, that may not be the correct answer, but if it is, then how can the proposed accomodation of Kim Davis’ religious beliefs be accomplished reasonably by eliminating the name of county clerks from marriage licenses.Report

              • Avatar Will Truman says:

                The authority of her office and/or the name of the deputy clerk who observed the identification. Having an employee should is not the clerk herself should be sufficient.

                For that matter, so would allowing any notary to do it, which was the plan in Alabama and Oklahoma.

                I’m not arguing in favor of the accommodation – especially as an accommodation rather than a bona fide change in procedure – but there are alternatives.Report

              • Avatar Lurker says:

                Also, why is her signing her name to the document her approving of gay marriage. She could see it as -which it sort of is- her approving of the fact that the document has been submitted and filled out completely and filed.

                After all, her signature and her approval is not what determines that the marriage is valid. The law determines that the marriage is valid. She simply writes that the documents have been processed.

                There is no Christian prohibition against taking documents from two men who want to be married and reviewing them?

                Why do I state this? It shows that her concerns are not good faith efforts to maintain her own religious beliefs while earning a living, as the case of the Muslim flight attendant is. She could’ve easily created a compromise in her mind at her office. Rather she is attempting to make sure gay people don’t get married, i.e. she is using her power to avoid compromise and prevent people from getting their rights. And indeed, another disanalogy here between this case and many employer discrimination/1st amendment cases, is here the religious person is actively violating the rights of others and not just making it difficult for them to purchase some nice privilege, like a drink.Report

              • Avatar greginak says:

                Yeah. It’s essentially a Christian micro aggression.Report

              • Avatar Stillwater says:

                It’s essentially the second graders view of “icky” (“girl germs!” has become “gay germs!!” for adults, expressing about the exact same level of intellectual maturity). If a person thinks that mere verbal contact with gay people, or in this case, providing them a document they are legally entitled to, somehow equates to violating a commandment of Gawd (or whatever), they really need to rethink what they believe and why.Report

    • Avatar Alan Scott says:

      Dand:
      My guess is:
      1) The people defending Kim Davis fill mostly think that this woman should do her job.

      2) The people telling Kim Davis to do her job will say that the airline should have accommodated the flight attendant or the the very least support forcing the airline to spend money responding to the EEOC investigation.

      That’s a rather ungenerous guess. I think you’ll find it particularly untrue of the OT bloggers and commentariat for two reasons:

      First, we’re usually principled sorts who don’t magically change all of our thinking just because one case involves a victim on team red and the other case involves a victim on team blue.

      Second, we like alcohol quite a bit. ‘Round these parts, someone whose religious position is “Alcohol is evil” is going to get even less sympathy than someone whose religious position is “Homosexuality is evil”.Report

    • Volokh discusses that precise case, and explains why it fits within normal religious accommodation. The precise analogy would be letting her assistants issue marriage licenses, so she wouldn’t have to do it herself. That’s not what happened.Report

      • Avatar nevermoor says:

        Right. It’s a matter of degree.

        If she’s pushing a drink cart with another stewardess, it’s hardly any trouble to have the other one actually hand over booze. If, however, she’s claiming she can’t be on an airplane that serves booze, then it’s completely incompatible with her job and she need not be accommodated.

        Volokh is 100% right that law in this area is a matter of degrees, fuzzy, and easy to make a mess of.Report

    • Avatar LWA says:

      @dand
      You realize that Eugene Volokh references that very case in his piece, and explains why it, and several others, represent different gradations of reasonable accommodations?Report

    • Avatar Patrick says:

      These two cases don’t compare for lots of reasons, but the biggest one is the absence of a leadership position.

      The flight attendant had been accommodated before, so it clearly is not an undue burden on the airline.

      In any event, she is not demanding that nobody serve drinks on the plane.Report

    • Avatar gingergene says:

      Well, you could sit and wonder, or you could go take a look.

      And if you do, you’ll find a bunch of people who don’t support Kim Davis who also don’t defend the flight attendant, and all this even though other people like Volokh see these two cases as apples-and-oranges. Unless you don’t consider the Balloon-Juice crowd to be liberal, or Volokh to be worthwhile in this area of the law.Report

  8. Avatar LWA says:

    The expansive readings of RFRA are where I get off the small-l liberal bus.

    I don’t see a principle here that is deserving of accommodation. The principle of so expansive a reading if the sovereignty of the individual that causes us to go so far afield in accommodation seems like it leads to a very bad place.

    I think there is a benefit to a narrower range of accommodation that doesn’t get discussed much, which is the benefits of solidarity and community.

    As I mentioned before, the vision of a society comprised of atomistic individuals, each in their castle and moat of rights and who engage solely at whim and choice is the sort of society I don’t have any desire to live in or defend.

    I think we become larger and better people when there is some degree of involuntary acceptance, a degree of surrendering some of our agency to the larger group.Report