Kim Davis Update

Furthermore, the Act on its face does not founder on shoals our prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, see Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); and they must be satisfied that the Act’s prescriptions are and will be administered neutrally among different faiths.

My usual citation in the Hobby Lobby discussions has been U.S. v. Lee where a special exemption from social security taxes for the Amish was rejected particularly because the situation involved a commercial situation that affected third parties. I personally thought the Religious Freedom RESTORATION Act was supposed to "restore" the case law from that era. But, Hobby Lobby said it went further.  Still think the opinion holds both as to the overall balancing involved and the concern for third parties.

Nonetheless, even post-RFRA cases such as the one cited above raised such concerns. Hobby Lobby found the accommodation made to certain non-profits  could be applied to avoid the third party problem, putting aside the reasons supported by four justices years earlier to treat them differently. If public accommodations have special duties, the government surely does. This is why it was particularly problematic for Kim Davis to refuse to issue marriage licenses because of her religious beliefs.  First, she was acting in a public capacity, so legally "she" didn't sign licenses, the office did. Second, burdening third parties raises Establishment Clause problems as well as equal protection concerns given certain groups in particularly are involved. Denying all marriage licenses helps in that respect, but the intent is still there, and the fact a certain area is affected still is an issue.

The district judge has determined that a workaround here is to have a district clerk issue licenses though state law does not appear to allow that workaround even if (granting religious belief covers this akin to the unemployment compensation context) the clerk is unavailable.  This to me is telling. The state authorizes a person, one the public elects in part for this purpose, to do something and provides an alternative if the person is not available. Kim Davis wants to override this and burden people in the process in her county -- there, couples can not get a license authorized by the person particularly given the authority and trust to hand them out. State law doesn't say deputy clerks have the responsibility. To me, it is like getting a dollar bill signed by the assistant treasury secretary. 

The order also holds that the licenses will have "Issued pursuant to a federal court order."  I think that would have been a mild compromise to make clear that Kim Davis herself was authorizing the licenses under sufferance.  It seems that Davis has accepted the order, even though she still doesn't want people under her authority (deputy clerks) to issue the licenses and thinks they aren't legal.  On this point, she might be right under state law, except to the degree a federal judge has the power to enforce the "supreme law of the land," even beyond what current state law at that point authorities.  How far this goes is unclear, but this does seem a mild approach until the state deals with the situation.

Reading about this issue on blogs etc., I have seen various people who simply state Kim Davis should do her job. The judge's compromise approach, which she didn't want to follow, led some to be able to both criticize her intransigence and support a compromise approach.  And, I see some validity in the approach, including if the state eventually gets around to having changing state law to authorize something similar.  But, is it really a good idea?  What if a court clerk has a ministerial duty to sign off on civil judgments and doesn't want to do so for certain types which particularly affects certain groups that violate their beliefs?  Various other scenarios come to mind.  The "burden" here might seem in effect symbolic, but the principle is important.

A favorite comparison is a Muslim flight attendant who does not want to serve alcoholic beverages.  But, how does that really compare, granting some are wary about giving her a pass since that would be seen as helping Muslims? I think that's fairly trivial -- many aren't that petty, granting again some are.  Same sex couples (or some other marriage subset a person's religion finds immoral) are not really the same thing as alcohol drinkers, are they?  The equal protection concerns are a tad different. Also, giving another flight attendant the job is not the same thing as giving a deputy the job of an elected clerk. Noting an employee in a public accommodation can have more duties than a purely private person, government officials are also different. Likewise, marriage as a fundamental right is different than beverage service on an airplane even noting (since we are open to nitpicking) the right to travel is being affected here.

Someone in a blog comment in effect thought it a bit "asshole" like to nitpick here and reject this accommodation.  I disagree, even if we accept it is an okay solution (recall the judge here is the son of a conservative and appointed by Bush43).  I also disagree that if Kim Davis upfront accepted it that we would not have heard about her -- even if the couples would be perfectly fine with it (wouldn't assume this), the media and advocacy groups (on both sides) are on the look out here. Anyway, the principle elected government officials can decide not to do their jobs in this fashion, which is different from letting her wear a hijab at work or take off early for the Sabbath (which itself can be done badly),  is problematic.

Life is imperfect, so hopefully this will work out okay.