Wednesday, September 09, 2015

Kim Davis and Little Bird of the Snow

by Michael Dorf

Even though Kim Davis is no longer in jail, her case continues to provide a rich source of material for working out the dimensions of legal protection for religious opt-outs. In my Verdict column last week I explained why, even if it may be too late for Kim Davis to prevail on a state Religious Freedom Restoration Act (RFRA) claim, in a future case a Kentucky court (or a court in some other state with a state RFRA and a similar situation) could find that a county clerk is excused from the duty of issuing marriage licenses pursuant to a religious objection--so long as other government personnel stand prepared to issue licenses on a non-discriminatory basis. As I noted in the column, Davis objects not only to issuing the licenses herself but to permitting her deputies to issue them, so long as they bear her name. Indeed, as Eugene Volokh notes, apparently Davis even objects to her deputies issuing licenses that DO NOT include her name, so long as they are issued by the Rowan County Clerk's office, because such licenses would still be, in some sense, on her authority.

Yet even the somewhat weaker claim by Davis to keep her name off of the marriage licenses should probably fail under the state RFRA, as I shall endeavor to show below--and if she has no state RFRA right to block the issuance by others of licenses that bear her name, then a fortiori, she lacks the more powerful right to block the issuance of licenses from the County Clerk's office that do not even bear her name.

In the Verdict column I addressed the question of whether Davis could be required to direct her deputies to issue the licenses with her name on them. But in light of Judge Bunning's seeming willingness to order the deputies to issue the licenses without obtaining acquiescence from Davis, the question is different. The question is not whether Davis can be required--consistent with a state RFRA--to direct her deputies to issue licenses bearing her name; instead, the question is whether she can object under the state RFRA to the deputies issuing licenses bearing her name without her permission.

If the licenses contain Davis's name, they would say: "Issued this [date] in the office of Kim Davis, Rowan County County Clerk, Morehead, Kentucky by [name] Deputy Clerk.” Otherwise they would say something like ""Issued this [date] in the office of the Rowan County County Clerk, Morehead, Kentucky by [name] Deputy Clerk.” If Davis herself is not required to do or to refrain from doing anything in order for either kind of a license to issue, does she have a plausible claim that a deputy's issuance of such a license violates her rights under the state RFRA?

In my column, I suggested that if the very minimal inquiry employed by the SCOTUS in Hobby Lobby were to apply to the state RFRA, then Davis (or a future Davis) would be able to show a "substantial burden" under the RFRA in being forced to choose between issuing a directive she claims violates her religion and losing her job. But if we are going to use federal law as an instructive source of analogies for the state RFRA, then things also look different once we change the case to reflect the fact that in the new scenario, Davis is not being forced to do or refrain from doing anything. Can it really be a substantial burden on Davis's exercise of her religion for another government official to issue a piece of paper that she finds objectionable on religious grounds?

One case from the pre-Employment Division v. Smith caselaw that the federal RFRA purported to "restore" is quite instructive. In Bowen v. Roy, Native American parents objected to the requirement that they provide their two-year-old daughter's Social Security number to the government in order to receive benefits. They also challenged the government's own reference to her by number rather than by her name, Little Bird of the Snow. The Court narrowly rejected the objection to the first provision but there was broad consensus that the plaintiffs could not raise a free exercise objection to the government's own use of the number. (Only Justice White disagreed with this conclusion, and he did not explain his reasoning.)

Davis's claim looks a whole lot like the nearly unanimously rejected claim in Roy. In both cases, a party poses a religious objection to something the government writes on a piece of paper on the ground that the creation of that piece of paper will have consequences that cause spiritual damage to the plaintiff according to the plaintiff's religious beliefs. The plaintiffs lost that claim in Roy and it is hardly clear that Davis has as strong, much less a stronger claim. The Roys thought that the government reference to Little Bird of the Snow by number rather than by her name would "rob her spirit," which sounds like irreparable spiritual damage, whereas Davis seems only to claim that including her name on the top of the marriage license form (or, in the stronger version of her claim, having the license issue from the County Clerk's office even without her name) would somehow violate her religious faith--perhaps by falsely signaling to the public that she approves of same-sex marriage, although it is hard to imagine that anyone in America, much less in Rowan County, Kentucky could possibly think that. Or maybe Davis worries that God will think she approves same-sex marriage, but my guess is that she believes God to be omniscient. In any event, whatever the precise nature of her religious claim, there is no allegation of anything like "spirit robbery" and, even if there were, Davis would still lose on the authority of Roy.

Does Roy survive RFRA? Justice Alito said in Hobby Lobby that although denominated the Religious Freedom Restoration Act, the RFRA in fact goes farther than the pre-Smith law. And in one respect, the Court's post-Hobby Lobby order in the Wheaton College case could be deemed inconsistent with the part of Roy that rejected the Roys' claim that they should be permitted to submit a form without including the Social Security number for their daughter. In Wheaton College, the Court allowed (albeit without nominally setting a precedent on the merits) that there might be a good RFRA objection to having to use the government form rather than a writing of the plaintiffs' choosing.

But nothing in Wheaton College nor any other SCOTUS case interpreting RFRA (and admittedly, there aren't many such cases) appears to back away from the proposition that garnered near-unanimous support in Roy: Namely, that a private party cannot make out even a prima facie free exercise case by objecting to something that the government itself is doing.

Lyng v. Northwest Indian Cemetery Protective Ass'n is arguably to the same effect. Although that case was closer than Roy (6-3 rather than 8-1 on the crucial point), the disagreement in Lyng was over whether the government should be characterized as actively blocking the religious claimants from practicing their religion by its (i.e., the government's) use of land. Insofar as Lyng can be understood as a disagreement over whether the incidental burden on the plaintiffs' religious exercise resulting from the government's use of land should count for free exercise purposes, perhaps it was overruled by RFRA--which requires that even incidental burdens satisfy the compelling interest test (if those burdens are substantial). But whatever the fate of Lyng under RFRA, Roy appears to be still good law in its domain: One doesn't state an actionable religious freedom claim by objecting to what the government itself writes on a piece of paper.

Of course, Kentucky can construe its RFRA more broadly than the federal RFRA. But the idea that people could start raising religious objections to the government's own language in its documents was enough to scare off even the Supreme Court's free-exercise-protective Justices (minus Justice White) in Roy. It's doubtful that Kentucky would open this pandora's box.

That's not to say that one can never have a valid objection to government expression. If Kentucky stamped pink triangles on same-sex (but not opposite-sex) marriage licenses, that would work an expressive harm under the Equal Protection Clause. And if Kentucky stamped all marriage licenses with the state motto ("United we stand, divided we fall") presumably Wooley v. Maynard would give people a right to tape over that motto if they (however ironically) disagreed.

But it is difficult to see what valid constitutional objection one could have to the government's falsely implying something about one's beliefs on a piece of paper issued to others--even assuming that the marriage licenses as described above would suggest to anyone that the clerk in whose offices they are issued endorses same-sex marriage. At most, I suppose I could imagine some sort of state tort liability on the part of the government for defamation or perhaps something akin to appropriation of the clerk's name for its own purposes. I doubt that there is liability along these lines under Kentucky law but if there is, it has nothing to do with free exercise or the state RFRA.