Eugene Volokh makes almost precisely the argument that I’ve been making, namely that the court erred in throwing into jail the Kentucky Clerk who refused to issue marriage licenses to homosexual couples with her name on them (as required by state law):
There’s a lot of appeal to the “you take the job, you follow the rules — if you have a religious objection to the rules, quit the job†approach may be. But it’s not the approach that modern American federal employment law has taken, or the approach that the state religious exemption law in Kentucky and many other states has taken.
Muslim truck drivers who don’t want to transport alcohol, Jehovah’s Witnesses who don’t want to raise flags, Sabbatarians (Jewish or Christian) who don’t want to work Saturdays, and philosophical vegetarians who don’t want to hand out hamburger coupons can take advantage of this law. Conservative Christian county clerks who don’t want to have their names listed on marriage certificates and licenses likely can, too.
Read the whole thing.
Employers, even government employers, are required to make reasonable accommodations for the religious beliefs of their employees and in Kentucky that applies to elected officials, too. There are any number of remedies the judge might have applied, several of which are outlined in the post.
The problem is that the clerk would not let her employees issue licenses either. It’s one thing to personally object to something and refuse to carry out a duty that one finds religiously objectionable. It’s quite another to impose ones beliefs on an entire county and prevent the government from performing a service it’s required to perform.
Rowan is a small rural county of 23,333 people, and its largest city, Morehead, has 6,845 people. Like many small, rural areas, the court system is not based upon the county level, but a multi-county circuit. Unlike most small, rural counties, Rowan County is apparently full of gay people wanting to get married, because the federal court decision was full of “slippery slopes” arguments, which as Volokh pointed out are the poorest legal arguments under RFRA. Unless Rowan County has become a popular marriage venue, that is.
Her first request for accommodation was that the couple seek a license from neighboring counties. 21 miles on the interstate to the County Seat of Bath County. The federal court judge dismissed this argument because there are people who lack access to transportation. Not the people in the lawsuit, but hypothetical same-sex couples that want to get married in Rowan County but cannot borrow a pickup truck.
Her alternative accommodation request was that a judge sign the certificate. Judge’s sign all kinds of papers, like deeds and tax forms when an individual refuses to sign his/her name or absents themselves. The federal court thought this was an undue burden because the state judge is frequently out of the county as part of his job. Read between the lines: If you live in Rowan County you do not have full access to legal services during the week. If you need an emergency order of protection, you may need to drive an hour to the court where the the “county” judge is presiding on that day.
It may be that these RFRA arguments were not properly presented in the federal court, but should be brought in the State Court. The couple was seeking enforcement of a federally-protected right, and the RFRA is a state right.
@Andy, I think that is the weakest point in her argument, but her complaint is that the form shows her approval and authorization even if signed by the deputies. I believe part of her case against the State is that the form could be re-written without it. The form used by judges when they issue marriage licenses does not have such language.
The judge’s form is for when the clerk is absent, and the judges don’t think she was absent when she refused to issue licenses. But when they jailed her, she became absent, but why they didn’t then arrange for the state judge to issue the license and release her by the end of the day does not make much sense to me.
The deputies signed the licenses under “apparent authority” of the clerk, which she has publicly denied they possess. I don’t know that there is any legal framework in which someone could test the authority of the deputies to issue those licenses, but having the state judge issue the licenses would have been cleaner.
For Volokh’s argument to hold, I would think the Muslim truck driver wouldn’t have to transport alcohol AND be able to keep everyone else where he works from also transporting it. I find Volokhs argument weak in this case.
How far can one take this “appearance of approval” thing? Could a governor of a state forbid the issuance of any marriage certificates because as the states chief executive it would kookblike granting approval?
Shouldn’t we accept the right-libertarian narrative as they’re the only ones intelligent enough to understand out constitution?
They say if you don’t like your job you’re free to leave, at least when discussing workplace protections from employers. . .
A reasonable accommodation is accepting that Davis does not personally have to issue marriage licenses, but that she cannot prevent her deputies from doing so if they wish to.
The argument about removing her name from the license is absurd. She is the elected County Clerk of Rowan County. The deputies that issue licenses are acting in her name, therefore it makes sense that her name appears as the ultimate authority, just as it makes sense that the name of the County Prosecutor appears on the letterhead from his office even when the letter is signed by a deputy. It is also my understanding that the form of the license is established by Kentucky law. Therefore, it’s not even clear that a license that doesn’t include her name is valid.
On a side note, this is yet another reason why RFRA laws are a bad idea to begin with. We already have a RFRA, it’s called the First Amendment. Giving additional special rights to one group of people is neither necessary nor justifiable.
I agree.
@Doug, you cannot have it both ways. If the deputies do not have authority to issue licenses independent of the clerk, i.e. it is a principal-agency relationship, then the marriage licenses being issued by the deputies with her express and public disavowal of her authorization are meaningless. She is being jailed for no purpose other than to demonstrate that she is being substantially burdened in a sincerely held religious belief.
That was a point that Volokh made. It would require a change in state law which I think under the circumstances is a reasonable accommodation. But, again, making reasonable accommodations to for religious beliefs is what you do in a large, diverse society that has a First Amendment, etc.
I also think that there are social and political problems presented by the judge’s handling of the case. If an objective of homosexuals is acceptance by the larger society, does having people who disagree with you jailed promote that objective?
I’m generally very supportive of religious accommodations for individuals, however in this case I agree with Doug. Her objection boils down to refusing to allow her name to appear on an official legal document.
As has been pointed out elsewhere, Catholic judges have their names on divorce papers. The Catholic Church does not approve of divorce. The Catholic Church and those judges have accepted that having their name on the divorce papers does not mean that they approve of the law, rather it just means that the people involved have met the legal requirements of that state. That seems like a pretty reasonable accommodation to me. I am not sure why the state should necessarily have to go out of its way to accommodate each and every “sincerely held belief” that any individual might have. That said, I am perfectly fine with having the deputies issue the licenses. I don’t see the need to force her to issue them herself if she can have others in the office do it instead.
Steve
I don’t think it’s true that “the Catholic Church does not approve of divorce.” What the Catholic Church does is not approve of re-marriage after divorce, which used to bring excommunication. It was such excommunication of my very religious father, in fact, that saved my family from the curse of Catholicism.
My question is, “What rights does the atheist or humanist have under the RFRA, if any?”
Kim Davis doesn’t seem to mind her name appearing on the marriage licenses of divorced people who are remarrying–she’s on her fourth marriage herself. That negates her whole argument.
@PDShaw
There is a difference between Deputy Clerks issuing marriage licenses in the name of the Clerk, and Deputy Clerks issuing marriage licenses that don’t even contain the name of the clerk. In the first instance, they Deputies are generally authorized by law to act in the stead of the elected Clerk. In the second, which is what Davis wants, they are issuing documents that may not be legally valid because of Davis’s ridiculous request that documents issued by her office not have her name on them.
@Doug, what is the source of the deputy’s authority to sign those licenses? I can see two choices: Principal-agency relationship, with a principal expressly and publicly denying the agent’s authority, or inherent authority of the office of deputy in which case it makes no difference if there is a marriage license form for a judge, for a clerk, and for a deputy clerk.
@Dave, “That was a point that Volokh made. It would require a change in state law . . .”
Volokh indicated that it would have to be clear that deputies are authorized to issue marriage licenses, something the federal judge made unclear IMHO. Very little legal blog commentary on the requirements of state law; they all live in the beltway.
To be clear, if I was the state judge asked by the Clerk to issue the licenses, I would have done it. I can make the argument that the clerk was unavailable to sign the license as much as any post-modern intellectual. I went to college!!! I might communicate publicly or through back channels that I will not continue in this fashion, particularly if she is re-elected. She swore an oath to uphold the federal and state Constitutions; the federal Constitution changed during her term, laws and policies need time to adjust; but she takes that next oath with full awareness of her obligations.
If I was a federal judge, and felt compelled to imprison the Clerk, I would have made clear that the state judge could/should now issue the required marriage licenses because she is now “absent.” Forcing the deputies under threat of imprisonment to sign the imprisoned Clerk’s name is vindictive.
There seems to be a lot of vindictiveness going around.
Mary Ledermanactually does legal research of Kentucky statutes:
1. Deputies have independent authority to sign licenses. They do not derive their authority to sign the licenses from the Clark; they derive the authority directly from the statute.
2. The licenses do not have to have to have the Clerk’s name on it. The statute specifies the content of the license, and the Clerk’s name is not one of them.
3. The federal judge is probably falsely imprisoning the Clerk, at least at this point. And it does appear that the federal judge does not know the Kentucky state laws that Lederman quotes.
To recap: the licenses signed by the deputies are valid; the Governor is violating the Clerk’s rights under the RFRA by refusing to draft a form for Deputy Clerk’s; and the Judge is falsely imprisoning the Clerk at this point.