Patterico's Pontifications


Volokh on a Religious Accommodation for Kim Davis

Filed under: General — Patterico @ 2:13 pm

Eugene Volokh has a very interesting and illuminating post regarding the application of religious freedom laws to Kim Davis’s objection to issuing marriage licenses. I think this is the heart of his post:

[I]f Davis has a federal constitutional duty to issue marriage licenses, she wouldn’t be able to get a religious exemption from that duty, and decline to issue such licenses at all — denying County residents their constitutional right would certainly be an “undue hardship” imposed on the County and its citizens, and requiring her to comply with the Constitution would be the least restrictive means of serving the compelling interest in protecting citizens’ constitutional rights.

Yet besides her losing claim in the federal lawsuit, it seems to me that Davis has a much stronger claim under state law for a much more limited exemption. Davis’s objection, it appears (see pp. 40 and 133 of her stay application and attachments), is not to issuing same-sex marriage licenses as such. Rather, she objects to issuing such licenses with her name on them, because she believes (rightly or wrongly) that having her name on them is an endorsement of same-sex marriage. Indeed, she says that she would be content with

Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.

Now this would be a cheap accommodation that, it seems to me, a state could quite easily provide.

Before reading Volokh’s analysis, I was unaware that there was arguably a solution that simple, which would accommodate her objections and still ensure that licenses be issued. Elsewhere I have read posts that suggest to the contrary, such as this at SCOTUSblog:

Davis’s religious complaint all along has been that, because Kentucky law requires her name and signature to be on every marriage license issued in her county, issuing licenses to any couples would involve her directly in authorizing same-sex couples to marry, which would violate her belief that God has made marriage an institution only for a man and a woman. She thus adopted a no-licensing policy and ordered her deputies to follow the policy as well.

I think my instinct on this lines up pretty well with what Volokh says the law is. He says the law on religious accommodation requires “judgments of degree” and “turns on the specific facts present in a particular workplace.” If there is no solution other than that the clerk has to sign the license for it to be valid, then in my view the clerk must do her job or resign. If there is a feasible solution — and Volokh suggests there is — then her beliefs should be accommodated.

There are a lot of annoying nuances to the analysis, having to do with the type of lawsuit that would have to be filed, who would have to file it, and where they would have to file it. Apparently it’s not as simple as simply telling the federal judge who is jailing her that she needs an accommodation. Volokh says she would have to go off to state court and file her own lawsuit to get an accommodation. That seems like cold comfort to someone literally in jail. And it shows, in my judgment, that the judge was too hasty to throw her in jail when there was the possibility of exploring possible accommodations.

The bottom line for me remains the same. I have said that “the licenses must be issued, and if no accommodation is possible, she can’t simply refuse. If government officials simply refuse to carry out their functions, the system breaks down.” But I have also said that if an accommodation is possible and feasible, it should be made. Volokh’s analysis shows that the law agrees with my instinct.

Where I part ways with some of my friends is to say that if I see lawlessness in one area, that justifies my applauding lawlessness in another area. This leads to the breakdown of society. I stand by my statement: “the way to respond to lawlessness is to end it, not to emulate it.” If this can be done with an accommodation to religious objections — and according to Volokh it can — then that’s what ought to happen.

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