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September 14, 2015


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You point out that it is all in the word "marriage."

If you want to know why that word is so important and freighted with meaning for some people, read Hollingsworth.

The answer might need to be to eliminate the word "marriage" altogether in the civil sphere. Justice Kennedy has found a dignity interest in the due process clauses of the Constitution, and one's dignity can be bestowed or withdrawn, based on his view, according to this title.



Could a meat inspector be required to label pork "kosher" if he claimed that would violate his religion?

Kosher has (for most) only a religious meaning (though some may seek to purchase meat that meets the requirements regarding this designation), and the government likely would not require or apply this designation.

The word marriage has a foot in both camps. Why argue endlessly about this label and why not call all civil unions civil unions?

Brian Clarke

I've (of course) read Hollingswoth -- as well as Windsor, Loving, Obergefell, etc. -- so the concept of marriage isn't a mystery. My concern with Ms. Davis, as well as the commentary and legal arguments surrounding her actions, is with the seeming inability to distinguish between "marriage" the religious sacrament/ceremony/covenant/etc. and "marriage" the civil, secular, legal relationship. This is especially true given the Kentucky marriage statute (cited in my post and pursuant to which Ms. Davis issues licenses [or not]) as referring to ONLY the civil/secular/legal version.

Given the Kentucky statute, how can one contend that Ms. Davis's "freedom of religion" is being burdened in any way by issuing licenses for a civil marriage to same-sex couples? [Other than if one accepts the inability to distinguish between religious marriage and civil/legal marriage as sufficient to create such a burden.]

How is it any different than a Muslim clerk of court (or some such) refusing to issue business privilege licenses to women because he believes women should not work outside the home, much less own businesses?

Brian Clarke

And, anon@5:00, I'd have no problem with government getting out of the marriage business -- but that is not a realistic option at this point. The volume of statutes and regs that would have to be revised boggles the mind, to say nothing of the inability and/or unwillingness of many legislatures (state and federal) to do so.

Michelle Meyer

As I understand it, the various versions of Apostolic Christianity believe both that marriage is between one man and one woman and that sex outside of marriage, so defined, is a sin. From this perspective, even civil same-sex marriage is sinful, to the extent that it formally recognizes and fosters romantic, sexual relationships between two people of the same sex. Her claim is one of complicity in this alleged sin (a familiar concept to students of religion), which complicity she presumably believes her faith tradition *also* forbids (cf. the Muslim flight attendant claims not only that her religion forbids her from drinking alcohol but also from facilitating others' sin by serving them alcohol; the complicity claims at issue in Hobby Lobby). In her view, I gather, a license that either has her name or her office on it makes her complicit with sin, as her faith tradition defines it--either causally complicit, by facilitating sin, or symbolically complicit, by endorsing it with her name or with a title that, as her lawyer explained, everyone in the county associates with her--and that complicity is itself forbidden. If her desire to avoid complicity with sin is itself "motivated by a sincerely held religious belief," then I'm not sure that the distinction between civil and religious marriage is an obstacle for a claim under KY's RFRA.

Consider this analogy: You are a faithful member of the Church of the Perpetual Age of Consent, one tenet of which is that sex is sinful outside of a consensual relationship. As a result, the priestesses of your Church only perform religious marriage ceremonies between individuals who qualify for this rite by passing a competency exam. Unfortunately, you live in Disturbia, which recently determined that its citizens have a legal right to civilly marry young children (who would never pass the Church's competency exam), so long as the child's parent agrees. In fact, not only do you live in Disturbia, you are the Clerk of Disturbia whose job includes issuing civil marriage licenses to both bilaterally consenting and unilaterally nonconsenting couples. Does facilitating the marriage--and the inevitable nonconsensual love and sex it is intended to foster--of people and young children infringe your religious liberty, where the Church of the Perpetual Age of Consent deems not only the act of nonconsensual sex itself but also the act of facilitating or symbolically endorsing it to be a sin?

I don't see why not. The RFRA language, especially KY's version--"The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened"--seems broad enough to encompass complicity. Requiring someone to violate their sincerely held religious beliefs upon pain of losing their job would seem to count as a "substantial" enough burden. And although the state surely has a compelling interest in issuing marriage licenses to all couples, including out of the Rowan County office, arguably a less restrictive means of doing so would be letting her deputies issue a revised license without her name or title on it (or whatever it is she wants).

Anyway, that's my best guess at the claim she's making.

Needless to say, none of the above is to endorse as a matter of policy a statutory right to accommodations to avoid (increasing layers of) complicity with perceived sin, especially in the context of a public official.



I'd have to respectfully disagree about the volume of law that would need to be changed.

After all, it is the law in Kentucky that has been changed. The law in the majority of states has been changed. But, the law doesn't change in the books. Only in enforcement.

Hence, the Kentucky situation, where she claims she is following the "law" as it is written.

Changing federal law was easy in Windsor. Words that had defined meanings were changed without any legislative and only some spotty regulatory action.

Agreed, however, that Justice Kennedy would likely not decide that "dignity" requires that all "marriages" be deemed civil unions. And, because the "kosher" example is so far fetched and unlikely, I would still be wondering how you would rule on that one?

Finally, I think you missed the point about the dual understanding of the word "marriage." You are focused on the words "in law" in the statute and it seems to me ignoring the rest, which sort of proves the point that the word "marriage" means something more than civil union to many people, including those who wrote that statute. Sure, you can start striking out the words that the SCOTUS has required, but you are still left with the beliefs that freighted that word marriage.

BTW, I don't believe that civil disobedience is the answer to any of this and don't support defying the SCOTUS on this issues.

It would make sense, however, IMHO, to draw a clear line between civil unions and religiously sanctioned unions, and, if the word "marriage" is (and has been) so important, let's not deny that meaning to anyone and simply not use it in the civil sphere (thus, not denying anyone the dignity of marriage).

Kim Davis is George Wallace-lite

Michelle, she is not facing the threat of losing her job, she is being told to perform the legal duties of an elected public office that she affirmatively sought. She has no right to hold that office if she is unwilling to perform its duties. Actually, I would argue she has a moral, legal, and possibly religious duty to resign immediately if she can no longer perform the duties of her office.

I fail to see how requiring a government official to comport with the requirements of the Constitution as duly interpreted by the Supreme Court of the United States could ever represent a substantial burden under either the federal or KY RFRA. Indeed, any RFRA that would impose such a result likely violates the Establishment clause by allowing religious dictates to trump Constitutional protections.

Michelle Meyer

KDIGW-L: To repeat, I am not defending the application of RFRA to her case as a matter of policy, and I specifically noted the intuitive oddity, from an ethics/policy perspective, of her being a public official whose duties include issuing marriage licenses (and of this being a complicity claim rather than a more straightforward free exercise case). So please don't shoot the messenger!

I'm primarily responding to Brian's question, which is how her religious beliefs could possibly be "implicated in issuing marriage licenses" when those licenses enable civil, not religious, marriage--a question he seemed to be asking at several levels: how could she have a plausible claim under state or federal RFRAs, but also, just colloquially, in what way would she have to violate her conscience to issue civil licenses?. I offered an explanation based on complicity, which is a standard framework for thinking about when and whether someone's religious beliefs are implicated in an act or omission. It has some legal precedent, as well. Hobby Lobby involved successful complicity claims under RFRA; it's not as if, after all, the ACA requires the owners of closely-held religious for-profit corporations to use contraception themselves.

As for whether Davis's complicity claim passes muster under KY's RFRA, it's only two years old and my understanding is that it's never been interpreted by a court. So I'm certainly not committed to the view that she's got a sound claim. But nor do I think that her *legal* claim is obviously laughable--again, as a matter of KY's statute, and not of what policy I might prefer myself.

Is it weird that an elected public official might be statutorily owed an accommodation? Yup. But I don't know of anything in KY's RFRA that allows an exception for elected or other public officials. Do you? There certainly could be and I may just be missing it.

I don't think that anyone is saying that her religious beliefs should "trump constitutional protections." The state obviously has a compelling interest in protecting couples' constitutional right to marry. I don't think anyone, not even Team Davis, is denying that. To that end, she's not saying that either straight or gay couples can't get licenses from her office and thus that they should be denied their constitutional right to marry. Instead, she wants her name and (I gather) the name of her office/her title not to be appear on the license and for her deputies to issue them in her stead.

Does the right to marry guarantee a license of a particular format (assuming it's legally valid)? That's hardly obvious. But, acknowledging the dignitary sting of this accommodation for couples subject to it, even if that sting does not deprive them of their constitutional right to marry or itself rise to the level of an equal protection violation, perhaps one could nevertheless argue that the state has a compelling interest in not permitting any religious accommodations from enforcement of the constitutional right to marry, such that there is no lesser restrictive alternative to enforcing the law and therefore an accommodation is not required under RFRA. I'm not sure about that. I am sure that one needs to grapple with the RFRA framework somehow.

And RFRA requires more than a showing of a compelling governmental interest. If there's a substantial burden on freedom of religion, then the state must use the least restrictive means of pursuing that compelling interest. It's not clear why a revised license form, which shouldn't be unreasonably costly for the state, which Davis says would burden her religion not at all, and which would enable all couples in Rowan County to legally marry, is not the least restrictive means to which she's entitled, for better or worse, under KY's RFRA. (Notably, in Hobby Lobby, Justice Kennedy concurred to emphasize the importance of the fact that HHS had already demonstrated that a lesser restrictive alternative was available; here, such an alternative would have to be created, though the other four Justices comprising the majority in HL didn't find that distinction to make any difference and I'm not sure I see the statutory basis for it, either.)

As for the "substantial burden" prong, you say you "fail to see how requiring a government official to comport with the requirements of the Constitution as duly interpreted by the Supreme Court of the United States could ever represent a substantial burden under either the federal or KY RFRA." But whether a burden on someone's religion is substantial or not, as I understand it, has to do with how much it burdens their religion, not with how compelling the state's interest is. SCOTUS's analysis of this prong under the federal RFRA in Hobby Lobby essentially amounted to noting that without an accommodation, the owners either had to violate their conscience or pay heavy fines, which the majority easily found to constitute a substantial burden. Here, without an accommodation, Davis either has to violate her conscience (taking her at her word, and assuming that RFRA encompasses complicity claims) or lose her job (e.g., through impeachment).

For better or worse, I think one can no more get around RFRA by saying that "she is not facing the threat of losing her job, she is being told to perform the legal duties of an elected public office that she affirmatively sought" than one can get around RFRA in Hobby Lobby by saying "they are not facing the threat of fines, they are being told to comply with the statutory duties of employers which they assumed when they incorporated their business and hired more than 50 employees." (Yes, she's an elected official and they aren't. But again, the legal question isn't whether our intuitions tells us that these cases ought to be treated differently; it's whether the law in fact does treat them differently.)

You say she has no "right" to be Rowan County Clerk if she's not willing to do her job without an accommodation. I share your intuition about the lack of a moral right, but that seems to be precisely what RFRA would deny. You could have said the same of the owners of Hobby Lobby--that they didn't have a right to run a corporation with 50 or more employees without complying with the duly enacted ACA by providing their employees with all FDA-approved methods of contraception, without accommodation. But that's not how SCOTUS applied the federal RFRA to that fact pattern. Under RFRA, it's just a fact that, like it or not, an employer does often have a right to an accommodation from what would otherwise be their duties.

Michelle Meyer

In last sentence, "employer" should read "employee."

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