Monday, September 21, 2015

Kim Davis and the Nature of the Fundamental Right to Marry

by Michael Dorf

In a useful update on the Kim Davis case on Balkinization, Marty Lederman raises the question whether the improvised forms that are now being used to issue marriage licenses in Rowan County, Kentucky--insofar as they differ substantially from the forms used in other counties--violate the equal protection rights of applicants for marriage licenses in Rowan County, even if the forms suffice to make the ensuing marriages legal under state law. Marty asks (in his question 5):
Do the Davis-amended licenses violate the 14th Amendment, as plaintiffs suggest, even if they do not affect the legality of the resultant marriages under Kentucky law, and even if same-sex and opposite-sex couples are treated equally within Rowan County?  The theory here presumably would be that Rowan County is symbolically disfavoring same-sex marriage by virtue of appending an effective asterisk, or "issued under protest" message, to all licenses in Rowan County (same-sex and opposite-sex alike).
Marty then provides a cautious non-answer: "I'll need to think about this further if and when plaintiffs offer the argument.  Cf. Palmer v. Thompson."

Palmer, recall, is the case in which Jackson, Mississippi closed all of its public swimming pools rather than integrate them. The Supreme Court, in a 5-4 ruling, held that the city did not thereby violate the Equal Protection Clause. Jackson, after all, was under no obligation to establish or operate public swimming pools, and so by closing them for people of all races it did not discriminate on the basis of race.

While Marty thinks about Palmer, let me suggest that there is a potentially crucial difference between swimming pools and marriage licenses--namely, there is, under the SCOTUS cases, a fundamental right to marry but no fundamental right to swim in a government-operated pool. The cases recognize that even when the government does not draw any distinctions based on any illicit criteria, discriminatory classifications with regard to fundamental rights trigger strict scrutiny.

The relevant case law includes two categories of fundamental rights: (1) those that are recognized as fundamental for substantive due process purposes are, ipso facto, also fundamental for equal protection purposes, so that distinctions drawn regarding their exercise must satisfy strict scrutiny; and (2) rights that are fundamental only for equal protection purposes, such as the right to vote. A state need not have an elected attorney general at all--and thus there is no substantive due process right to vote for the office of attorney general--but if the state does have an elected attorney general, then inequalities in the distribution of the franchise with regard to attorney general elections are strictly scrutinized.

One fair objection to Obergefell v. Hodges--and indeed to the entire line of the Supreme Court's right-to-marry cases--is that the right to marry ought to be the second kind of fundamental right. Under this approach, a state would not be obligated to create a civil institution of marriage at all, but if it does, then inequalities with respect to marriage are strictly scrutinized. In this view, Obergefell is rightly decided as an equal protection fundamental right case, because all of the states did have an institution of marriage and their reasons for denying marriage to same-sex couples were barely rational, much less compelling; but if marriage is the second kind of fundamental right, then Justice Kennedy and the rest of the Obergefell majority oughtn't to have relied on the Due Process Clause. Marriage would be a fundamental right "in" equal protection, just as voting is.

One obvious advantage of this approach would be that it would answer an objection raised by the dissenters: The Constitution, they said, generally protects negative rights against state interference, not affirmative rights to state recognition or assistance; yet the marriage right looks like the latter; when the government denies recognition to a same-sex couple's marriage (or to an opposite-sex couple's marriage), it does not do anything to them; it fails to do something for them.

That is a sound objection in principle but it is not fairly lodged against the Obergefell majority. The Court in Loving v. Virginia quite clearly rested its holding on the alternative ground (endorsed by eight justices) that, in addition to the equal protection violation occasioned by the use of a race-based classification, the Viriginia laws at issue were invalid because they "deprive[d] the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment." Zablocki v. Redhail also relied on a substantive due process right to marry as well as equal protection. (The other main right-to-marry case, Turner v. Safley, arose in the prison context, so the standard for evaluation was somewhat different, although even then, the Court found the infringement on the right to marry unconstitutional.)

Although it would be an overstatement to characterize the key portions of the cases recognizing a substantive due process right to marry as mere dicta, it is true that in each of the cases equal protection would suffice for the result. Thus, critics who think that there is something highly problematic about a substantive constitutional right to government recognition (as opposed to non-interference) could argue in some future case that the right to marry ought to be reconceptualized as simply a type-2 fundamental right: one that, like voting for state AG, cannot be distributed unequally if the state recognizes it, but that the state need not recognize at all.

Despite efforts in Oklahoma and elswhere to eliminate civil marriage, it seems unlikely that a test case will actually arise in which the Supreme Court will be asked to consider "demoting" marriage from a fundamental right for substantive due process purposes to a fundamental right only for equal protection purposes. But even if that were to happen--and even if one were to think that marriage is already best understood as fundamental only for equal protection purposes--it wouldn't make a difference in the Rowan County case. Whichever kind of fundamental right marriage is, state laws that treat some people differently from others with respect to marriage trigger strict scrutiny.

All such laws? Well, no. As the Court said in Zablocki:
By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.
So, what kinds of inter-county variations in the form of a marriage license either don't trigger any heightened judicial scrutiny or, if they do trigger such scrutiny, readily satisfy it?

Certainly there are a whole range of unimportant variations. If some counties issue licenses on 8x11 paper while other issue licenses on 8x14 paper, no one would--and certainly no one should--care. Likewise, if in some counties the license is signed by the clerk while in others it is signed by the deputy clerk, it is hard to see any harm. And even if there is some small symbolic harm, if the reason for the variation is to accommodate the religious beliefs of the clerks, that would seem to suffice.

At the other end of the spectrum, suppose that the clerk takes the view that her religion requires her to ensure that any same-sex licenses issued from her office bear some mark of disapproval from her (even if they do not contain her name), and that she chooses to implement this policy by confiscating the regular license forms and substituting for them license forms that are scrawled in green crayon on soiled paper towels. Even assuming such licenses would be valid under state law, and even assuming that both same-sex couples and opposite-sex couples receive these ugly licenses, it strikes me that any couple issued such a license would have a plausible constitutional claim. The official disapproval of marriage in the county could be counted as significant interference with the decision to enter the marital relationship.

Thus I conclude with a question: How different are the hypothetical crayon-on-soiled-paper-towel licenses from the irregular license forms that Kim Davis has provided to her deputy clerk in Rowan County?

28 comments:

David Fairfield said...

None whatsoever. They both give license to marry, but they also both send a personal message of disapproval. Personal because it is the only county in the state that issues the ugly licenses, and because the supervising clerk has made public her disdain for gay people (religious freedom). The ugly licenses carry with them a long held stigma, the very stigma that the Supreme Court intended to eradicate with their decision.

Hashim said...

Mike,

A few questions:

1. Doesn't your analysis undermine your earlier defense of the injunction against Davis? Namely: (a) you recognize that non-significant impairments don't trigger strict scrutiny; (b) you previously recognized that 30 minute driving times wouldn't be significant if imposed for banal reasons (eg, some counties were simply larger than others); (c) yet you here concede that having the deputy clerk sign woul
d be ok, even though that non-significant impairment is imposed for precisely the same reason as the added driving time from closing the clerk's office to all marriages--namely, to accommodate religious conscience. So if religious conscience is an acceptable justification for the non-significant impairment of having the deputy clerk sign, then why not for having a different county clerk?

2. Even assuming strict scrutiny applies, is it your position that accommodating religious conscience is *not* a compelling interest? Why would that be, since it's an interest of such importance that many (though not me) think it's constitutionally require? And if it is a compelling interest, why isn't closing the office, or at least issuing the modified versions of the license that Davis is ok with (if they'd satisfy state law) narrowly tailored to that interest?

Marty Lederman said...

Green crayon? Not red? Actually, in that case I'm not sure that an *opposite-sex* couple would have a Fourteenth Amendment claim, even though they, too, receive the crayon-scrawled license, because it is manifest that there's no "official disapproval of marriage in the county"--it's an official disapproval of *same-sex* marriage. But yes, of course the same-sex couple would have a claim, because the crayon/soiled-paper license is so plainly meant to disparage, or insult.

Let's come a bit closer to the actual case, however. Let's say that Rowan County licenses that read as follows:

"Issued this [date], in the Clerk's Office of Rowan County, Morehead, Kentucky, by Brian Mason, Deputy Clerk," and then there was an asterisk, with a notion at the bottom reading: "Clerk Davis is recused on religious grounds from issuing this license."

Would that be constitutional if it were issued to all couples in the county? There's no *obvious* disparagement or insult, as in the soiled-paper case, although surely many recipients were infer it.

What if that form were used *only* for same-sex couples in Rowan County?

Now, what about the form currently in use, assuming it is issued to all couples?:

"Issued this [date], Pursuant to Federal Court Order No. 15-CY-44, DLB, Morehead, Kentucky by Brian Mason [signature initials "BM"], Notary Public."

What about if that form were issued only to same-sex couples?

Joe said...

I think the first comment is correct overall.

Dignity harm and EC concerns make this different than a neutral district office regime that might require some people travel longer [such rules at times might in fact burden certain groups, so might raise problems, e.g., such rules burdening areas with heavy minority populations]. Religious accommodation is important, but "significant" concerns can arise when third party harm etc. is involved.

And, whatever rule is in place needs to be equally applied. Religious accommodation isn't just okay for to many sympathetic dissenters to controversial court opinions on abortion or gay rights. Some other clerk might not want to sign off on a divorce person. Or, any number of things. If we are going to find this compelling, the proper approach should be more complete.

So, Prof. Lederman's hypo has to be used in each county, for each license, for everything. Each time this comes up. I would think it better if there is just some general rule for those "not available" in that case & religious accommodation ala Sherbert v. Verner would be one such reason. Saying Kim Davis isn't signing for religious reasons specifically doesn't seem necessary & can in fact be negative. Don't know how far to take that, but that's how it should be applied.

Joe said...

I personally think a government official has certain duties here that makes them different than even a person running a business, noting they too have duties above a totally private person. So, if the form has a disclaimer noting this, explaining the signature, e.g., is only the person acting (under sufferance, if you want) in their official capacity, okay. Again, every form. This is something the state legislature should address & just having it applied to marriage clerks is not the way.

Shag from Brookline said...

A lot of questions are stacked up for Mike. Let me add one for both Mike and Marty: Under KY law is a Notary Public authorized to issue marriage licenses (whether for opposite or same sex)?

Marty Lederman said...

No, a notary public is not authorized to issue licenses, far as I know. But Mason is also a Deputy Clerk, and such Deputies are.

Shag from Brookline said...

So Mason serves in two governmental capacities. But the marriage licenses he now issues reveal only his role as a Notary. Apparently the "four corners" rule doesn't apply to marriage licenses issued in an unnamed county in KY by an unnamed Deputy Clerk of the unnamed County. Monty Python could make a comeback with this.

Michael C. Dorf said...

Lots of interesting questions here. I'm going to say three things that I think are at least partly responsive to the various questions:

(1) I think that any differentiation in the form or in the opt-out would be problematic, as it would signal some disapproval of SSM. That's why I think that an accommodation should be structured as permitting the clerk or deputy to be excused from providing licenses. Otherwise, a same-sex couple shows up at the same window as the opposite-sex couple and is told to go to the "special" window or whatever.

(2) Having the form say something like "signed by the deputy clerk because the clerk has a religious objection" strikes me as gratuitous. Again, it is possible to accommodate someone like Davis without putting that sort of statement on the form. I suppose someone might say that she needs the form to say that for HER religious exercise, but that strikes me as not a valid objection under Bowen v. Roy for reasons I articulated at http://www.dorfonlaw.org/2015/09/kim-davis-and-little-bird-of-snow.html

(3) With respect to Hashim's question, I agree that burden matters in both cases. What I found objectionable in the original case was not the extra travel per se (I agree that a state is under no obligation to issue marriage licenses in every county) but the extra travel in connection with the symbolic import of that travel, at least in light of the background notion--accepted by Justice Alito for the majority in Hobby Lobby--that religious accommodations ought to be structured to avoid imposing harms on third parties. That's the problem in my hypothetical crayon/soiled paper towel example too. I posed the question whether the forms now being used are different as a sincere one.

Greg said...

1.) I share the concern that Shag implies, that failure to identify Brian Mason as a deputy clerk may be enough to make the legality of the license questionable, particularly decades from now when the current controversy is long forgotten. Even that increased risk should represent a constitutional violation.

2.) Further, there isn't a court order specifically requiring Brian Mason (or any other deputy clerk) to issue licenses, and in fact the only order that I know of is an order for Kim Davis not to interfere. This new format, even if otherwise legal and constitutional, could reasonably be described as a violation of the very non-interference order that it purports to follow.

Despite the above, I agree that there are ways that the form could be marked that would not be meaningful constitutional violations. The most obvious to me would be if, using the original form, instead of "Kim Davis" for the name of the county clerk, on ALL licenses it instead said "Kim Davis, Recused."

David Ricardo said...

I understand that this is a forum about legal issues, and that it is both interesting and entertaining to think and write about the issues Mr. Dorf has raised with respect to the marriage licenses in Kentucky. But really, hasn’t the time has come for those of us who believe in dignity, compassion, equality and the rule of law to declare victory on the issue and move on? The war against bigotry and intolerance has not been won, may never be completely won but we have won an important battle. Ms. Davis has become a joke as those of us who watched the beginning of the Emmy’s last night witnessed. Her fade to irrelevance has already begun.

The much more relevant question is the issue Mr. Dorf raises about whether or not a state is required to be involved in and issue civil marriage licenses at all. We may well see at least one state decide to wash its hands of the whole marriage issue, and one wonders if they will have the right to do so, and what the process might look like if it were put into place. And in the end, aren’t we grateful to Ms. Davis for being the tool (several definitions apply here) that she is that exposed to the nation (once again) the hypocrisy and hatred of those who oppose equal treatment and oppose equal protection and oppose due process under the law and who question even the requirement to obey the law despite their professed so-called love of the Constitution.

Joe said...

My answer to DR in part would because because Kim Davis is just a data point. These issues will continue, just with different details. So, the overall answers -- with fill-in the blanks details -- matter. I'd like to see how the state that 'washes its hands' will operate, especially when dealing with people already married. But, that is a lot more theoretical than dealing with a quite active -- see contraceptives, vaccines, etc. -- issue of handling conscientious accommodations.

David Ricardo said...

Here is the joke on Kim Davis

“Paula Deen is on this season of ‘Dancing with the Stars.’ But I gotta say, if I wanted to see an intolerant lady dance, I would have gone to one of Kim Davis’s four weddings.



And am I the only one almost overcome with laughter from this item.

“I do not believe Sharia is consistent with the Constitution of this country,” Carson said. “Muslims feel that their religion is very much a part of your public life and what you do as a public official, and that’s inconsistent with our principles and our Constitution.”

And I agree these issues will continue, just like segregation holdouts continued after Brown and after the civil rights legislation of the 1960's. But for SSM that's like those few battles from the Civil War that took place after Appomattox, bloody and destructive, but the end futile and forgotten.

Hashim said...

Mike -- I'm still confused about the distinction you seem to be drawing.

The symbolic import of the burden from accommodation is the same in all of the situations we've been discussing -- everyone within the county is being treated differently than everyone outside the county in order to accommodate the religious conscience of the county clerk w/r/t gay marriage.

So, to distinguish between the various situations, you'd have to distinguish between the burdens from the particular accommodations. That's of course easy for your crayon hypo, and at least debatable for the licenses as currently being modified. But it's not at all obvious to me why the distinction cuts the way you suggest for the original situation that you agreed should be enjoined (no licenses at all in this county) and the situation that you said would be fine (licenses simply signed by deputy clerk, w/ no other departure from the norm). Why is it the case that the burden of driving to a different county is a greater burden than the burden of getting a marriage license that has the deputy clerk's name rather than the clerk's name? The driving burden is a one-time thing that is fairly inconsequential in many parts of the country. Yet the burden from having the deputy clerk's name on the license is a permanent distinction (and one that at least potentially calls the legality of the license in question if it had been done independently of a court order). At a minimum, there sure hasn't been any evidence introduced that the driving burden is the greater one.

Michael C. Dorf said...

Hi Hash,

I suppose reasonable minds could differ on this point but it does seem to me that in the case in which the county municipal building (or whatever) is closed, the drive has a stigmatic impact that it lacks where it is imposed for budgetary reasons. It's also a bit unrealistic, I think, to imagine that the state's response--under a state RFRA--would be to accommodate someone like Davis by shutting down marriage licensing in the county, partly because that imposes the cost of accommodation on third parties. Now I realize that having the deputy rather than the clerk sign also imposes the cost on third parties, but having a deputy sign all licenses in a county feels to me like less of a cost, if any.

On a somewhat unrelated note, I don't know how these things work in Kentucky, but it's not clear to me that the couples keep the licenses. I know that in NY, where I was married in 1991, the document that I filled out to enable the rabbi who officiated at my wedding to do so then went back to the relevant state agency; only after the official ceremony did I receive a state document that I can use as proof of marriage. So it's possible that in all of these examples--including my crayon hypo--that at the end of the day the couple get a standard state-issued document.

James Longfellow said...

In my view the real tension here is between a formal and experiential view of the law. Take MD's crayon on paper towel. The real issue in this hypo is the fact that despite the truth that same sex and opposite sex marriage are being given the same piece of garbage everyone knows that the reason this is so is because Kim Davis "hates gays".

Let me offer a hypo. Imagine that Kim Davis hadn't caused a scene. Imagine instead that she had went quietly about her business and only put the asterisk on her forms about a religious objection. Would anyone have even noticed? Would anyone have even cared? I believe not. Most people don't even examine the form at all, let alone examine it carefully or think about the nuances.

So what really bugs people is the tacitness of her new form. It's the old "wink and nod". Superficially, everyone is being treated equally but we know in our hearts they are not.

The question then becomes how far should the law go in remedying this problem. A formalist would say, "well everyone is getting the same forms, no problem." But I don't think DR is correct in saying that those involved in SSM should just let Kim Davis go and move on. Because Joe is correct---you let it go here and sooner or later many people will be winking and nodding. SSM will have won a "legal battle" but it will be the kiss of peace and not peace itself.

Joe said...

Here's a potential NY example:

http://www.nyc.gov/html/id/images/features/inside_bc.png

It is a "certificate of birth" and is signed by the city registrar. Let's say it was a child of a same sex couple. Let's say the law allows same sex parents to be listed as the parents. The city registrar says "I can't put my name on this since my God says the child's parents are a man and a woman, not two men/women."

Here is a recent marriage license form:

http://www.health.ny.gov/vital_records/docs/marriage_certificate_sample

I take it that Kim Davis (and others) don't want to sign line 23? Also:

https://www.apostille.net/uploads/1/5/1/7/15171332/1366665.png?481

Kim Davis doesn't want to sign that either, I gather?

Samuel Rickless said...

I would like to suggest that *any* difference in content between the standard marriage license form used in all Kentucky counties other than Rowan and the license form used in Rowan, if it could even potentially be reasonably be understood to cast doubt on the legality of the marriage or to express disapproval of the marriage, is constitutionally unacceptable. I can't imagine that this discussion would be this long or this involved if we were talking about the alteration of marriage license forms to accommodate a county clerk's religious objections to *interracial* marriages.

I continue to be completely bemused by the whole Davis affair. Davis claims that the licenses are issued under her "authority". But (those in the know please correct me if I'm wrong) my understanding is that Davis's authority extends to the determination of whether the couples who come to her office for a marriage license fulfill the State's legal requirements for obtaining such a license, including being of a certain age, not being related in a certain way, being of sound mind, not already being married to another person, and so on. It is the *State* that issues, and has the authority to issue, the license.

Furthermore, my understanding is that the license says something like this: Issued this [date] in the office of [name of county clerk], County Clerk, [name of county], Kentucky by [name of clerk or deputy clerk] [initials of clerk or deputy clerk] ["Clerk" or "Deputy Clerk"]. I just don't see the problem with this. The regular license just says that it is issued in the *office* of Kim Davis, not that it is issued *by* Kim Davis or *pursuant to the authority of* Kim Davis.

Finally, how far are religious accommodations supposed to go? Is it sufficient for recusal for someone to cite a religious objection, no matter the objection or the grounds for the objection? What if I say that I have a religious objection to a marriage between a person who is over 70 and a person who is under 20? Is that good enough, even if I can't articulate the nature or ground of the religious objection? If it's not, then I think Ms. Davis has a burden to meet here. Where exactly in the articles of her faith does it say (or how is it implied) that there is a religious obligation not to issue licenses to same-sex couples? If there is a religious obligation not to issue such licenses, is there not a similar religious obligation not to issue licenses to people who you happen to know would be unfit marriage partners? If she is prepared to issue marriage licenses in the latter case but not in the former case, is she not a hypocrite? And isn't hypocrisy itself forbidden as a religious matter within her Apostolic faith?

mike said...

In all the discussions here so far including Mr. Dorf's people are over looking Garcetti v Ceballos 2006.

While not a marriage case it is controlling in that it directly addresses a public servants rights as they pertain to them performing their job.

A civil servant speaks for the state, not themselves, in the performance of their job. As such they have no right to pick and choose who gets service allowed under law. They have no right to apply personal disapproval in doing their job.

The case in Kentucky is very simple. SCOTUS ruled that bans against same sex marriage are u constitutional. Kentucky, based on that order altered their existing form to be gender neutral, all other elements remained intact. The legislature is not needed to authorize this since the action is the result of a SCOTUS ruling, not political will.

Davis was ordered to comply and refused. She appealed and lost repeatedly in her requests to stay the demand she comply. Even SCOTUS denied her appeal.

She was held for five days in contempt of a federal court judges order.

She was released when Five of the deputy clerks agreed to obey the judge.

She decided to alter a state mandated form that she has no authority to alter.

As stated above, her obvious and stated intent was to show disapproval of same sex couples. She personally told the press that the new licenses were invalid. She has knowingly harmed the public record and the Individuals so situated in her quest to display her animus towards them.

This case never reaches a discussion by the court about obergefell possibly being decided in a different way.

Her religion is secondary to the harm she is causing others. To make this worse for her, the judge is a Bush appointed Republican who personally disapproves of same sex marriage but is following the law.

As for the suggestion that the couples drive to a different county a) they should not have too as their home county issues marriage license and b) in South Carolina all 23 magistrates in one county are refusing to issue same sex marriage licenses or even heterosexual marriage licenses. The state passed a law allowing this prior to the Obergefell decision. Now the state is paying magistrates from other countries to drive there and issue the licenses. To add insult to injury state law only requires them to do so ten hours a week.

This reality uncovers the flaws in the claim the couples can just go elsewhere.

Shag from Brookline said...

Marty has a new post at Balkinization on recent court filings that is quite interesting. This thread has zig-zagged but has finally seems to have found a steady seam. Early in this thread, Hashim asked a series of questions with his familiar unsuccessful efforts to stump Mike. Included in his pile of questions was this possible pony to saddle up, parenthetically speaking:

"Why would that be, since it's an interest of such importance that many (though not me) think it's constitutionally require?"

There can be such a thing as over-accommodations, with the slippery slope of free exercise of religious conscience. So perhaps Hash might volunteer his "though not me" views. Lower case mike makes a good point after Samuels good point.

Perhaps this will all sort out sooner than we think. Meantime, I'm looking forward to a poster of the thrice divorced Kim Davis with her coveralls 4th hubby by her side, holding a pitchfork as a reminder of these slicing, dicing constitutional times.

Query: If Kim Davis' position had been appointive rather than elective, would the same issues have arisen?

Joe said...

The first part of mike's comment is important; the answer to Shag's query would be "not exactly, but many of them might have been."

On the fundamental right issue, there is a group that wished the ruling was more equal protection focused, but I continue to think the two parts are enmeshed and rather hard to separate. Also, I don't think the fundamental rights approach is wrong. And, the opinion rightly shows how the two interact.

It is striking really that chunks of marriage is now seen as optional. This underlines how much marriage has changed though some think "traditional" marriage is just the one man, one woman part. If marriage, e.g., was the only way you could live with a member of the opposite sex, have sex with them etc., the right to marry would be more important. It still retains importance given the collection of privileges and duties involved, both of which will exist for some time. Spousal immunity is but one that simply can't be contracted.

Anyway, this specific case will eventually run its course, but the overall issues won't go away.

t jones said...

I don't think the "the State of course could opt out of the marriage business altogether" hypothetical alternative is useful (or at least not fully fleshed out). As is evident from Windsor (from whence came Oberkfell), the elephant in the room is economic relations: Two married people are treated differently from two single people who like each other under (e.g.,) the US tax code. Since marriage "has always been" regulated by the States, wouldn't it be a denial of equal protection if one or more States opted out of the marriage game?
Citizens of States who no longer have marriage would be unable to receive the Federal tax benefits granted to married couples (at least without having to travel to another State - possibly a big enough burden to bother Prof. Dorf). On the other hand, if the State either delegates to private actors (i.e., notaries or clergy) its former role of making the joining of two people official, or creates a civil union like substitute which is all the State offers, is it really opting out of the marriage business?

mike said...

The question from shag, Query: If Kim Davis' position had been appointive rather than elective, would the same issues have arisen?

Is interesting in that if she had been appointed, then she could be rapidly removed if the person with authority to remove her wanted to and no state law prevented it.

Not all governors or authorities would remove her or take actions they legally might to stop her. For example the Kentucky state AG declined to appoint a special prosecutor to deal with the county attorneys request she be tried for refusing to do her job. His reason was a federal court was handling the matter.

This was a political sidestep from his duties, which his office has latitude to make.

Many people feel that he should have allowed that to move forward to resolve the issue.

As of right now, Davis is hoping to dealt things until January when the legislature comes back in session. She believes they will change the law to allow her to continue to discriminate.

If they do this may become the first case to test whether states rfra laws can allow a public servant to discriminate based on their claimed religious belief.

If they can, the watch out for a slew of other religion based claims by public officials.

Shag from Brookline said...

I am not comforted by the responses to my query. With elected officials, there can be accountability by voters (although voters in KY might agree with Kim Davis) as well as public opinion. But there are many more appointed positions (including by civil service process) than there are elected officials. How are such appointed persons held accountable? To what extent should the performance of ministerial duties by government officials be conditioned on the 1st A's free exercise clause and individual conscience?

Joe said...

As Shag suggests, being elected can be a two-edged sword & this can be made into a political tool.

I myself think being elected here gives her more responsibility since not doing her job means someone the people themselves were given a role in appointing for specific purposes is not doing that job. Elections every few years is a limited check as is impeachment which is rarely done.

An appointed person given a waiver there in fact might be somewhat less troubling in various cases. Still, the person would have certain responsibilities and must be held accountable by the relevant parties. And, civil servants with ministerial and other duties do not have the right to harm third parties and/or not do their jobs in various ways even to advance individual conscience.

mike said...

Shag,

Not sure of your confusion but will try again.

A person who is appointed serves at the will of the person appointing them, unless there is some law in that state that protects them from being removed.

Hope that is clearer.

Shag from Brookline said...

But the appointing person may not exercise that will, for any number of reasons, including a claim that doing so is discriminatory per 14th A incorporation of 1st A, some specific state law, etc. The person seeking a license or some other ministerial act may need to sue in a federal (or state?) court. I am not confused, mike, ratherI am uncomfortable that through possibly concerted actions many appointed persons will refuse to perform certain ministerial tasks. It has the potential for "you're damned if you do" (law suit by dismissed appointive employee) and "damned if you don't" (law suit by person seeking license, etc).

James Wimberley said...

I wonder about the framing that issuing a marriage license is "doing something for" the would-be spouses. Kentucky creates the need for a license by a prohibition on marrying without one. It didn't have to; it could have set out the standard conditions (adult? sound mind? uncoerced? not already married? not very close relatives?), defined authorised categories of officiants (ministers of specified religions, plus somebody to do the civil marriages, such as a notary public or the registrar of births and deaths), and made these officiants responsible for verifying the conditions. After all, for centuries European states simply recognized church marriages - perhaps even synagogue ones. Since Kentucky has instead chosen the prohibition route, it has to operate it in a constitutional manner. Kentucky has to set up a fair, transparent, affordable and expeditious process for issuing licenses to eligible couples. It is failing to do this.