Thursday, September 03, 2015

Meanwhile, in Kentucky

By Michael Dorf

My editors at Verdict were kind enough to rush-publish my column on the Kim Davis case. The column is here. I'll have some further thoughts on the broad issue of when, if ever, government officials are entitled to religious exemptions from their official duties on Monday.

For now, just one short postscript: A breaking story reports that Davis has rejected a proposal that her deputies issue marriage licenses. It's not clear that this is a material change, since Davis had already barred her deputies from issuing the licenses.


Joe said...

I think Hobby Lobby was wrongly decided but realize how things work -- it's the law of the land now just like Obergefell v. Hodges, both by a 5-4. vote.

There the Court, wrongly, held that there was not a damning burden on third parties because of the presence of an accommodation where the government has the insurance company pay. Lower courts have determined that dissenting employers can be required to submit a notice of some sort that they are requesting opt out. The matter remains subject to litigation.

The employees therefore still get the birth control coverage if in a way that others have noted is more burdensome. Here there is not existing accommodation -- one is instead suggested as possible. Change the rules, e.g., so others can hand out the licenses. How will that play? Will same sex couples that go to her office be told "sorry no" while others will not? If the couples can't go to the same offices, will it be applied the same? Will some have to travel longer etc. to get a license? I simply don't see that as truly evenhanded and it is a form of third party harm.

A government official also has more of a duty here than a private employee to evenhandedly apply the law. As the circuit of appeals ruling here noted, her official signature on a license is not her personal statement -- it is a form of governmental speech. Readily admit that some state court etc. might see things differently though the concerns cited can be couched in federal constitutional terms such as the Establishment Clause problem of third party harms in place merely for religious reasons or Equal Protection Clause issues.

Samuel Rickless said...

There is something I am really not getting about the application of Hobby Lobby to this sort of case. I do not see how permitting exceptions for public officials who claim that the exercise of their public duties conflicts with their religious beliefs could result in anything other than anarchy, or, at least, the abandonment of the rule of law. In principle, *anything* that a public official is asked to do could conflict with that official's religious convictions. Think of the pandemonium. A police officer refuses to arrest a gay person because he would be required to touch gays, which is against his religion. A judge refuses to hear a divorce case because the spouses are homosexual and, at least in the eyes of God, were never married to begin with. And on and on and on. Government cannot function if people who take on public functions make exceptions of themselves on religious grounds whenever they feel like it. And practically speaking, just how difficult does it have to be to find someone else to do the job before the US Constitution screams "enough already!". Kim Davis refuses to do her job. The logical consequence of this is that she be removed from office, so that someone else can be elected to do the job that she is refusing to do. I hasten to add that it is a completely different kettle of fish if a law requires a public official to do something morally heinous, such as starve or kill innocent Jewish prisoners. In that sort of case, public protest by the official is justified. But refusing to issue marriage licenses to gay couples is bigotry, not courage in the face of injustice.

Joe said...

"This sort of case" seems to mean services to third parties, so application to beard length, not working on the Sabbath and related issues that are more individual claims remain. The first case is not really academic -- Judge Alito wrote an opinion back in the day covering that issue. As to the last part, such things sound criminal anyhow though the woman here thinks THIS law is "unjust," against God's will. How about more borderline issues, like use of solitary confinement or corporal punishment to students?

David Ricardo said...

As Mr. Dorf reports, Ms. Davis has apparently rejected a resolution of the issues which would allow her deputies to issue marriage licenses. This makes it clear that the real agenda of Ms. Davis is not just her own personal religious freedom, but an attempt to deny marriage to same sex couples that reside within her jurisdiction. The plaintiffs have offered and the judge has accepted a more than reasonable accommodation that would allow her to keep her job and in doing so the plaintiff have acted in a far more Christian manner than Ms. Davis. The argument that having her name appear on a form is a burden on her religion is farcical at best.

Mr. Dorf writes at length about the Hobby Lobby decision and related cases and their applicability here. But in this situation we have different facts. Ms. Davis ran for office knowing full well that she might be required to issue marriage licenses to same sex couples. She presumably took an oath to uphold the law. She has stated that she is not subject to the jurisdiction of the United States. Her argument went all the way to the Supreme Court. She is in jail because she has refused to obey the lawful order of a court, nothing more, nothing less.

This individual represents the worst, the absolute worst of the psyche of America. She wants to impose her ugly, bigoted hateful beliefs on a nation that does not want them. (Listen to her supporters outside the court house.) If she ultimately prevails, which is certainly possible given that at least three Supreme Court Justices vote their personal beliefs the U. S. would make a huge leap towards the imposition of Christian Sharia law.

But there is a major benefit here. The nation is learning that most of the Republican Presidential candidates support the right of individuals to pick and choose which laws they are subject to and that their belief in Constitutional Democracy only extends to those situations where the rulings are in their favor. President Lincoln famously said that the nation could not endure being half slave and half free. Today we face the challenge that the nation cannot endure having partly secular law and partly religious law. We will either be one or the other.


It's called "conscientious objector status" — and it's something that one must assert, demonstrate, and resolve before being asked to engage in that horrible, awful, untenable activity otherwise required of one in government service. Of course, that "horrible, awful, untenable activity" under most circumstances involves potentially killing someone...

The real problem is that the RFRA was originally conceived as a response to suppression of "minority belief" practices, particularly when those "minority belief" practices made the practitioner physically stand out from "majority belief" practices. The statute itself, however, in what is perhaps an excess of caution and certainly an excess of optimism, does not distinguish which religious beliefs fall within its purported scope, which in turn has led those holding majority beliefs to use it as a cudgel against those who hold minority beliefs (or none at all*). All too frequently, this is what happens when frei/free is conflated with kostenlos/free, particularly regarding religion.

I'm not sure that there's a good solution. I am reasonably sure, however, that the RFRA is not it.

* Specific example: My dog tags and personnel records in the 1980s and early 1990s declared "Rel Pref: None" — that is, that I had no religious preference. The regulations at the time prohibited the more-accurate "Atheist" as an entry. <sarcasm> But one of my best friends was a chaplain... </sarcasm> which is rather my point.

Hashim said...


Why exactly does it violate the federal constitution for a single county in a state to deny marriage licenses to everyone?

It doesn't violate equal protection, since Davis is treating everyone equally. Given her constitutional inability to discriminate against gays i/l/o Obergefell, she's chosen to "level down," which is a perfectly valid remedy as far as equal protection is concerned.

And it's not at all apparent why it violates due process, because marriage licenses are still available in every other county in Kentucky. To be sure, they're not available in this particular county -- but so what? Even assuming arguendo that Obergefell et al. stand for the proposition that *a State* must provide marriage licenses, they surely don't establish the proposition that a State must provide marriage licenses *in every county.*

That wouldn't make any sense since the "county" is an utterly arbitrary state-law municipal designation. For example, why can't a state issue marriage licenses just in the state capital instead? Or conversely, if every county must, then how come not every city, every borough, every street, etc.? There's nothing magical about the "county", let alone constitutionally required. (Indeed, I bet the distance between counties in Kentucky is smaller than the distance within counties in other states, so the "burden" on the pltfs in the Davis case is likely smaller than the ordinary "burden" to procure a marriage license in other states.)

Michael C. Dorf said...

Hash: The dissenters in Obergefell objected that most SDP rights are negative rights but that marriage is now (or was already in Loving) an affirmative right, which places some obligation on the state to facilitate it. They were right in their characterization (if not their conclusion). Here's why the district judge thought that permitting Davis to close Rowan County would fail to satisfy the state's affirmative obligations: Plaintiffs "are long-time residents who live, work, pay taxes, vote and conduct other business in Morehead. Under these circumstances, it is understandable that Plaintiffs would prefer to obtain their marriage licenses in their home county. And for other Rowan County residents, it may be more than a preference. The surrounding counties are only thirty minutes to an hour away, but there are individuals in this rural region of the state who simply do not have the physical, financial or practical means to travel. This argument also presupposes that Rowan County will be the only Kentucky county not issuing marriage licenses. While Davis may be the only clerk currently turning away eligible couples, 57 of the state’s 120 elected county clerks have asked Governor Beshear to call a special session of the state legislature to address religious concerns related to same-sex marriage licenses. If this Court were to hold that Davis’ policy did not significantly interfere with the right to marry, what would stop the other 56 clerks from following Davis’ approach? What might be viewed as an inconvenience for residents of one or two counties quickly becomes a substantial interference when applicable to approximately half of the state."

Hashim said...

PS. I suppose one could argue that there's an equal protection violation based on the differential treatment between counties w/r/t availability of marriage licenses. But there's certainly a rational basis for the differential treatment (namely, religious accommodation), and it's far from obvious that heightened scrutiny should apply here. Requiring every county in a state to survive strict scrutiny w/r/t rules governing marriage licenses would be bizarre -- e.g., does every county have to process the applications as quickly as the fastest one, etc.

Michael C. Dorf said...

Although Hash didn't cite Palmer v. Thompson, he might have. There the Supreme Court upheld, 5-4, the decision of Jackson, Mississippi to close its public swimming pool rather than to desegregate it. But here we have the combination of an illicit motive (from the perspective of the marriage license applicants, even if religiously motivated) AND a burden on a fundamental right. That combination, for me, takes the case out of the ambit of Palmer. There is a fundamental right to government assistance in marrying, but not in swimming.

Hashim said...

Mike, the judge's reasoning isn't remotely persuasive. As I pointed out, I'd bet a fair amount of money that there are many places in this country where one already has to travel 30-60 minutes to get a marriage license. Are all those places violating the SDP clause? As for what might happen in other counties, since when is a constitutional violation established by rank speculation as to what might happen elsewhere, especially given that the other county clerks are not currently denying licenses, and so presumably would have given one to the pltfs if they'd just asked rather than sued.

Hashim said...

Mike, I certainly agree that Palmer would be distinguishable if the entire State started denying marriage licenses. But there's obviously no fundamental DP right to get a marriage license w/in a 30-60 minute drive, given the countless jurisdictions throughout the country that would flunk that test (e.g., my wife's family farm is nearly a 30 minute ride from the nearest town, and I'm not even sure if marriage licenses are available in that town -- does Nebraska have a substantive DP obligation to set up a marriage outpost on every country road?)

Michael C. Dorf said...

Let me try this one more way--which will connect to my follow-up post--and then we'll have to agree to disagree. I agree that Kentucky was under no obligation to establish outposts for obtaining marriage licenses in the particular places it did. If counties were fewer and bigger, then yes, couples seeking marriage licenses would have to travel some greater distance to get their licenses and that would not be a SDP violation. But Kentucky did set up marriage licensing via every county clerk's office and then discontinued it in one county, not because the state had a budget crisis or decided to consolidate services or for any other banal reason but because an elected official in that county found the prospect of honoring the right to marry of same-sex couples so objectionable that she decided to deny the right to everyone. In light of the underlying reason, there is a dignitary harm that converts what might otherwise be a constitutionally permissible inconvenience into an unconstitutional denial of the right.

Hashim said...

So let me get this straight: a 30-60 minute driving time doesn't infringe the SDP right to marriage if imposed for "banal reasons" like administrative convenience, but does if imposed instead for the reason of religious accommodation?!? That strikes me as completely backwards, because religious accommodation is a *more compelling* reason to infringe a right than mere administrative convenience -- and I would think virtually everyone would agree if you asked them that question in the abstract outside the context of gay-marriage, including even those (like me) who think that Employment Division v. Smith is rightly decided and that religious accommodation is over-rated. So if that's the basis of our disagreement, I'm happy to disagree -- I only wish Judge Benning had been so frank in his opinion, so that reversal on appeal would be easier to establish.

Joe said...

A judge familiar with local conditions and Prof. Dorf adding some more reasonable arguments = "rank speculation." County lines are completely arbitrary. Your knowledge of why Kentucky drew the lines and its people concern for local government is appreciated. Perhaps, various Burger Court rulings where county lines mattered in settling proper treatment of school cases were wrongly decided.

A concern for religious liberty is cited; the opinion by a conservative Bush43 appointee explains why that fails. And, the religious accommodation here does not even by her lights mean a deputy clerk hands out the licenses. The opinion also explains how under USSC precedent application of a religious accommodation of this sort that affects third parties -- not a general policy that in some fashion burdens people -- raises Establishment Clause problems.

Hashim is if nothing else forceful -- "let me get this straight" etc. shows the level of disdain he keeps up here. Hey, others show disdain in other ways, but at some point I must admit it does get a tad much, especially when his arguments are at best debatable & the other side is basically treated as risible.

Samuel Rickless said...

Could we get some clarification here regarding why issuing a "marriage license" to a same-sex couple with Davis's name on it would violate her religious beliefs? Which religious beliefs are we talking about here? That marriage is between a man and a woman? But that, now, is not the *legal* definition of "marriage" anywhere in this country any more. This is one of the consequences of Obergefell. The word "marriage" on the "marriage license" on which Davis's name appears is the *legal* term "marriage", not some term with a religious meaning, or even the colloquial meaning of "marriage". Davis is therefore not being forced to issue a marriage license to same-sex couples, *as she understands the term "marriage"*. From her perspective, she is being asked to issue a "schmarriage license", because the license covers unions that, in her idiolect, do not count as "marriages". If this is correct, then Davis's demand for religious accommodation makes no sense. She is misinterpreting what her own faith requires. Of course, if the state were requiring her to issue marriage licenses *in the religious or colloquial sense of "marriage"*, then she might have the basis for a demand for religious accommodation. But the state is not requiring her to issue marriage licenses of this sort. Marriage, as the state conceives it, is a legal status, one that happens to correspond (not perfectly) to the status of religious or colloquial marriage. (For example, unless I am mistaken, common-law marriage in the states that permit it is, legally, a kind of marriage, in the sense that the legal rights and duties of common-law married persons are the same as the legal rights and duties of regular married persons. And yet common-law marriages are not marriages *in the religious or colloquial sense of the word "marriage"*.)

Analogy. Suppose that a statute requires a local official to issue "bat permits" to qualified people who want to swing baseball bats in the local park. Now Dim Kavis, a local official, refuses to issue a permit to Joe Smith because, she says, her religion prohibits her from issuing a permit to those who would seek to swing small echolocating mammals around. Joe's response is that Dim has misunderstood what her own religion requires of her, because she doesn't understand what the word "bat" on the "bat permit" means.

What am I missing?

Samuel Rickless said...

P.S. Here is the definition of "marriage" in the California family code: "Marriage is a personal relation arising out of a civil
contract between two persons, to which the consent of the parties capable of making that contract is necessary." This is similar to the meaning of "marriage" that Kentucky is now left with after Obergefell. But it is not the meaning of "marriage" as Kim Davis understands the word. As she understands it, or so I presume, "marriage" is defined as a holy covenant before God. But Kentucky does not issue "Holy-Covenant-Before-God" licenses. As Kim Davis might put it, it doesn't have the authority to do so. And, frankly, neither does she.

Larry Lennhoff said...

Applying that logic here, we might conclude that so long as Davis has a sincere religious belief that neither she nor her deputies may issue marriage licenses to same-sex couples, the burden on her religion is substantial because non-compliance with the legal obligation to do so could result in the loss of her job—a serious adverse financial consequence. And so long as the state or county ensures that some other government official is available to provide marriage licenses on a non-discriminatory basis without the appearance of her participation, accommodating Davis would not impermissibly burden the constitutional rights of same-sex (or opposite-sex) couples.
What if one of the deputies felt their religious freedom was burdened by NOT being able to marry people, same sex or not? How should the court resolve the conflict?

Hashim said...


Your response to my posts conflates a bunch of different points, so let me try to untangle things:

1. My disdain was limited to one narrow point, and, notably, it's a point that you don't even try to defend. Namely, Mike argued that a State could impose a 30-60 minute driving burden on marriage for "banal" administrative reasons, but not for reasons of religious accommodation. On what conceivable theory of SDP are "banal" administrative reasons a *more compelling* interest than religious accommodation? Mike doesn't say, and neither do you. For good reason -- it doesn't make any sense. However small a State's interest in accommodating the religious conscience of its employees, it's quite implausible to say it has a greater interest in mere administrative convenience. Is there any other context in the law where we'd say that administrative convenience is a more compelling interest than religious accommodation?

2. I characterized as "rank speculation", *not* the judge's description of local conditions re: county lines, but rather his concern that other county clerks might do the same if he ruled for Davis here. And how is that anything other than speculation? After all, he's expressly asking a hypothetical question about how third parties will act depending on how he rules. Moreover, it's inane speculation, since those clerks are currently granting licenses, and so there's no reason to think that they would have denied the pltfs if they'd simply asked for one rather than suing -- a point I made and that you again conveniently ignore.

3. As for county lines, the federal desegregation cases *support* my point -- federal courts generally have no business interfering with how States choose to structure their local sub-divisions, because the States' choice of how to draw those lines almost never implicates federal constitutional concerns (setting aside Gomillion-like racial gerrymandering cases). In the desegregation cases, that meant that desegregation remedies had to be limited to the jurisdiction as the State chose to draw it, so long as the district lines weren't based on intentional discrimination. And in this case, it means that marriage should be available in whatever jurisdictions the State chooses to make it available, so long as the right to obtain a marriage license is not unduly burdened. And a 30-60 minute driving time is definitely not an undue burden, since countless jurisdictions impose greater burdens.

4. Finally, I'm not arguing that Davis has a free-standing religious liberty claim. If the State of Kentucky forced her to hand out the licenses, she should have to do so or quit. But if the State of Kentucky is willing to allow her not to provide licenses because it's willing to accommodate her religious concerns as a state law matter, then that doesn't violate the pltfs' SDP rights, because they haven't suffered a cognizable SDP burden given the relative ease with which they can still obtain a license.

Stuart McPhail said...


To address only part of your arguments, it would seem that there's a conflation of accommodating Kim Davis's personal religious practice and accommodating the Rowan County clerks's religious practice. And there is an equal protection issue regardless of the purported justification for the disparate treatment.

With regard to religious accommodation, this would be a very different case if, say, Kim Davis's wanted to not work on Sundays where the clerk's office was open that day and where the clerk's office provided individuals with days off work. That sort of accommodation would be directed at Davis's personal religious practice. But, she is not asking for an accommodation of her personal religious belief. She is rather asking to exercise her official powers as clerk in a way that comports with her religious beliefs(as I understand it, she forbid anyone in the office from issuing same-sex marriage licenses). That violates the constitution . Kentucky's attempt to accommodate that would mean that it is accommodating the religious belief of the clerk as government official, something that is barred by the establishment clause without a need to appeal to any equal protection argument. That then distinguishes it from the banal case of Kentucky limiting licenses because of budgetary issues, etc. The State's justification here for providing an "accommodation" isn't compelling, its unconstitutional.

But there also would seem to be a separate equal protection argument, at least on the facts here. Unlike a law that would limit marriage licenses to being issued in the state capitol, a change in law that would affect all state residents, the purported accommodation here impacts only the residents of Rowan county. Residents of every other county may seek a marriage license at their county courthouses. Only Rowan county residents are to be denied. That would at least raise EP concerns, regardless of the justification for the disparate treatment. The fact that they must travel an additional 30-60 minutes doesn't get weighed in some balancing of interests: it's just the basic injury resulting from the disparate treatment that conveys standing to challenge the rule.

Joe said...

1. However we slice it here, my "disdain" point is based on an ongoing trend.

I did "try to defend" differentiating. "The opinion also explains how under USSC precedent application of a religious accommodation of this sort that affects third parties -- not a general policy that in some fashion burdens people -- raises Establishment Clause problems." Other "banal reasons" don't raise that issue. Prof. Dorf's dignity concern that reflect concerns I commented on also is on pt.

2. One fact local judges would reasonably be understood to know is the general beliefs of the locals, including the reasonable likelihood that others will take an exemption once it is established in federal court. This would not be "inane" and concerns about exemptions in this fashion are common in courts.

3. The dissents in the opinions cited felt county lines were at least somewhat arbitrary to state-wide discrimination. But, the majority respected county lines, not seen as purely arbitrarily formulated. County lines are drawn for a range of reasonable reasons & here Kentucky set forth the rule here in such a way to provide a liberty interest to obtain local marriage licenses. The denial interfered.

4. My comment was that religious liberty was cited as an interest, not something about a "freestanding claim" being claimed by you personally. The State of Kentucky did force her to hand out licenses. She claimed federal and state law, including in respect to religious liberty, gave her a legal exemption. This was rejected thus far. There also was an Establishment Clause concern with use of a government official burdening third parties not for some general administrative reason, but for religious grounds alone. Likewise, personal beliefs that single out certain groups result in the dignity harms cited. The fact some other county resident might have to travel for some neutral reason less doesn't change this. Stuart McPhail covers some of this ground as well.