Wednesday, September 09, 2015

Kim Davis and Little Bird of the Snow

by Michael Dorf

Even though Kim Davis is no longer in jail, her case continues to provide a rich source of material for working out the dimensions of legal protection for religious opt-outs. In my Verdict column last week I explained why, even if it may be too late for Kim Davis to prevail on a state Religious Freedom Restoration Act (RFRA) claim, in a future case a Kentucky court (or a court in some other state with a state RFRA and a similar situation) could find that a county clerk is excused from the duty of issuing marriage licenses pursuant to a religious objection--so long as other government personnel stand prepared to issue licenses on a non-discriminatory basis. As I noted in the column, Davis objects not only to issuing the licenses herself but to permitting her deputies to issue them, so long as they bear her name. Indeed, as Eugene Volokh notes, apparently Davis even objects to her deputies issuing licenses that DO NOT include her name, so long as they are issued by the Rowan County Clerk's office, because such licenses would still be, in some sense, on her authority.

Yet even the somewhat weaker claim by Davis to keep her name off of the marriage licenses should probably fail under the state RFRA, as I shall endeavor to show below--and if she has no state RFRA right to block the issuance by others of licenses that bear her name, then a fortiori, she lacks the more powerful right to block the issuance of licenses from the County Clerk's office that do not even bear her name.

In the Verdict column I addressed the question of whether Davis could be required to direct her deputies to issue the licenses with her name on them. But in light of Judge Bunning's seeming willingness to order the deputies to issue the licenses without obtaining acquiescence from Davis, the question is different. The question is not whether Davis can be required--consistent with a state RFRA--to direct her deputies to issue licenses bearing her name; instead, the question is whether she can object under the state RFRA to the deputies issuing licenses bearing her name without her permission.

If the licenses contain Davis's name, they would say: "Issued this [date] in the office of Kim Davis, Rowan County County Clerk, Morehead, Kentucky by [name] Deputy Clerk.” Otherwise they would say something like ""Issued this [date] in the office of the Rowan County County Clerk, Morehead, Kentucky by [name] Deputy Clerk.” If Davis herself is not required to do or to refrain from doing anything in order for either kind of a license to issue, does she have a plausible claim that a deputy's issuance of such a license violates her rights under the state RFRA?

In my column, I suggested that if the very minimal inquiry employed by the SCOTUS in Hobby Lobby were to apply to the state RFRA, then Davis (or a future Davis) would be able to show a "substantial burden" under the RFRA in being forced to choose between issuing a directive she claims violates her religion and losing her job. But if we are going to use federal law as an instructive source of analogies for the state RFRA, then things also look different once we change the case to reflect the fact that in the new scenario, Davis is not being forced to do or refrain from doing anything. Can it really be a substantial burden on Davis's exercise of her religion for another government official to issue a piece of paper that she finds objectionable on religious grounds?

One case from the pre-Employment Division v. Smith caselaw that the federal RFRA purported to "restore" is quite instructive. In Bowen v. Roy, Native American parents objected to the requirement that they provide their two-year-old daughter's Social Security number to the government in order to receive benefits. They also challenged the government's own reference to her by number rather than by her name, Little Bird of the Snow. The Court narrowly rejected the objection to the first provision but there was broad consensus that the plaintiffs could not raise a free exercise objection to the government's own use of the number. (Only Justice White disagreed with this conclusion, and he did not explain his reasoning.)

Davis's claim looks a whole lot like the nearly unanimously rejected claim in Roy. In both cases, a party poses a religious objection to something the government writes on a piece of paper on the ground that the creation of that piece of paper will have consequences that cause spiritual damage to the plaintiff according to the plaintiff's religious beliefs. The plaintiffs lost that claim in Roy and it is hardly clear that Davis has as strong, much less a stronger claim. The Roys thought that the government reference to Little Bird of the Snow by number rather than by her name would "rob her spirit," which sounds like irreparable spiritual damage, whereas Davis seems only to claim that including her name on the top of the marriage license form (or, in the stronger version of her claim, having the license issue from the County Clerk's office even without her name) would somehow violate her religious faith--perhaps by falsely signaling to the public that she approves of same-sex marriage, although it is hard to imagine that anyone in America, much less in Rowan County, Kentucky could possibly think that. Or maybe Davis worries that God will think she approves same-sex marriage, but my guess is that she believes God to be omniscient. In any event, whatever the precise nature of her religious claim, there is no allegation of anything like "spirit robbery" and, even if there were, Davis would still lose on the authority of Roy.

Does Roy survive RFRA? Justice Alito said in Hobby Lobby that although denominated the Religious Freedom Restoration Act, the RFRA in fact goes farther than the pre-Smith law. And in one respect, the Court's post-Hobby Lobby order in the Wheaton College case could be deemed inconsistent with the part of Roy that rejected the Roys' claim that they should be permitted to submit a form without including the Social Security number for their daughter. In Wheaton College, the Court allowed (albeit without nominally setting a precedent on the merits) that there might be a good RFRA objection to having to use the government form rather than a writing of the plaintiffs' choosing.

But nothing in Wheaton College nor any other SCOTUS case interpreting RFRA (and admittedly, there aren't many such cases) appears to back away from the proposition that garnered near-unanimous support in Roy: Namely, that a private party cannot make out even a prima facie free exercise case by objecting to something that the government itself is doing.

Lyng v. Northwest Indian Cemetery Protective Ass'n is arguably to the same effect. Although that case was closer than Roy (6-3 rather than 8-1 on the crucial point), the disagreement in Lyng was over whether the government should be characterized as actively blocking the religious claimants from practicing their religion by its (i.e., the government's) use of land. Insofar as Lyng can be understood as a disagreement over whether the incidental burden on the plaintiffs' religious exercise resulting from the government's use of land should count for free exercise purposes, perhaps it was overruled by RFRA--which requires that even incidental burdens satisfy the compelling interest test (if those burdens are substantial). But whatever the fate of Lyng under RFRA, Roy appears to be still good law in its domain: One doesn't state an actionable religious freedom claim by objecting to what the government itself writes on a piece of paper.

Of course, Kentucky can construe its RFRA more broadly than the federal RFRA. But the idea that people could start raising religious objections to the government's own language in its documents was enough to scare off even the Supreme Court's free-exercise-protective Justices (minus Justice White) in Roy. It's doubtful that Kentucky would open this pandora's box.

That's not to say that one can never have a valid objection to government expression. If Kentucky stamped pink triangles on same-sex (but not opposite-sex) marriage licenses, that would work an expressive harm under the Equal Protection Clause. And if Kentucky stamped all marriage licenses with the state motto ("United we stand, divided we fall") presumably Wooley v. Maynard would give people a right to tape over that motto if they (however ironically) disagreed.

But it is difficult to see what valid constitutional objection one could have to the government's falsely implying something about one's beliefs on a piece of paper issued to others--even assuming that the marriage licenses as described above would suggest to anyone that the clerk in whose offices they are issued endorses same-sex marriage. At most, I suppose I could imagine some sort of state tort liability on the part of the government for defamation or perhaps something akin to appropriation of the clerk's name for its own purposes. I doubt that there is liability along these lines under Kentucky law but if there is, it has nothing to do with free exercise or the state RFRA.


Hashim said...

Mike, if the govt, with the consent of divorcing catholic couples, started stamping divorce decrees with the false, sacriligious notification "with the express permission of bishop x," do you think that would implicate the bishop's free-excercise/refra rights, wholly apart from any defamation/due process/establishment claims the bishop might have?

David Ricardo said...

One should acknowledge and admire the legal strategy of Judge Bunning here. In jailing Ms. Davis he set up an environment where marriage licenses were issued. In releasing her he claimed victory, namely that marriage licenses were issued. In ordering her to refrain from interfering in any way with the future issuance of marriage licenses he created the framework that if he needed to return her to jail it was of her own doing, and solely as a result of her attempts to prohibit issuing licenses despite her protests that this was about her religious freedom.

The commentary here is correct. Ms. Davis is required to do . . . nothing. Only those solely interested in promoting her cause as a political strategy (yes we are talking about you Mr. Huckabee and Mr. Cruz)could construe the order for her to do . . . . nothing could regard such an order as a violation of her freedom of religion.

And although it is not the subject of this case I would still ask Mr. Dorf and/or others to weigh in on the Establishment Clause issue here, that is, if Ms. Davis were successful in her efforts would she be in violation of the Establishment Clause because she is acting as government?

Joe said...

"caselaw that the federal RFRA purported to "restore" is quite instructive"

As noted, Hobby Lobby said it did more, but quite right. Hobby Lobby should have lost imho given U.S. v. Lee. But, "restoration" apparently was a bit of a misnomer. Anyway, the cases cited regarded internal governmental actions are telling.

Avoiding special cases like something that seems a violation of the Establishment Clause or some libelous statement, this is a case of a government official -- not even Wheaton College, a private party -- having a ministerial duty to officially sign off on something. A court clerk similarly has to do that in various cases, even if she thinks the official proceedings were against God's law. Even a notary, I would think, though perhaps it's a bit harder, as a licensed executive officer (going by my state's rules), has an obligation to notarize something like a living will that s/he would find against God's law.

"Kim Davis" is not doing this, a government clerk is. The court of appeals noted as much -- the signature is "government speech." Her deputy doing it even without signing her name is even more tenuous. And, as noted in a past thread and in Bunning's opinion itself, yes if she was successful, in part it would raise EC problems. Unlike some other neutral reason, the same sex couples will be burdened because of her religious beliefs. I think it STILL is arguably a problem if her name isn't there or if only a deputy does marriages. It is a little denial of official recognition because of religious beliefs. But, perhaps, it is seen as de minimis.

Unknown said...

@Joe: The principle in Lee was in regards to Free Exercise claims and the congress chose to extend broader protections for religious exercise after the fact. Therefore, Lee is insufficient to result in a "loss" for Hobby Lobby.

The Establishment Clause argument You raise has been raised multiple times by Marci Hamilton and the courts have consistently rejected and/or ignored that particular argument. Additionally, regardless of whether "this is a case of a government official" or not, the Kentucky RFRA makes no distinction between private Actors and Officials. Therefore, the fact a government Clerk is issuing the licenses is irrelevant as far as I can tell.

Unknown said...

Professor, I think You might have misapplied the Kentucky RFRA requirements here. Kentucky's RFRA makes no distinction between whether or not a Person facing a substantial burden upon religion is a private Citizen or elected Official. Ms. Davis's faith prohibits Her from issuing such license and (possibly) from not instructing Her Deputies to refuse as well. The combination of refusal and instruction are Her exercise of religion. Nobody has presented evidence to suggest insincerity. She face tough penalties in the form of prison time and/or loss of employment if She adheres to Her faith; I'm not sure what qualifies as "substantial burden" if these penalties do not. The government's interest in ensuring equal access to marriage licenses can be advanced just as easily by quickly printing licenses which make no reference to Ms. Davis (or Her office), removing the root of Her objection; the courts can then instruct the Deputies to issue the licenses, ensuring timely receipt of the same and restricting Her exercise of religion less. Whether Bowen v. Roy survives the RFRA regime, therefore, is irrelevant in My estimation.

Jim said...

Do you suppose there is any intentional irony in "Unknown's" use of capitalization to refer to a local government agency as "Her" (i.e., Davis's) office? Probably not. Yet, that is precisely what Ms. Davis seeks to achieve - disabling a routine governmental function assigned by state law to each county clerk, on the ground that the government's exercise of the function in the county "She" serves would be incompatible with "Her" beliefs. I can't do any better than "Unknown" (unknowingly) has done in illustrating the obvious Establishment Clause problem with Ms. Davis's position.

David Ricardo said...

Unknown’s comment illustrates both the problem with this situation, the problem with Hobby Lobby and the whole problem trying to accommodate the practice of religion where that practice impacts the liberty of others. Unknown takes at face value the position that the requirements imposed on Ms. Davis by Judge Bunning are an infringement on her practice of her religion. His/her position seems to be that all that is necessary for required action to be an infringement of religion if for the affected person to sincerely declare that to be the case.

But of course that path leads to anarchy/theocracy. If RFRA type protections are to work what is needed is the ‘rule of reason’. Applying that standard it seems to be clear and obvious that what Judge Bunning imposed on Ms. Davis is not an infringement on her practice of her religion. What he requires of her is for her to do . . . wait for it . . . wait for it . . . nothing. That’s right, nothing. She doesn’t have to sign anything, she doesn’t have to approve anything, she doesn’t have to interact with any of those damned to hell sinning gay people. She doesn’t even have to show up at the office when ‘those people’ are there applying for a license.

Ms. Davis may well believe that her freedom is being impinged upon. But just believing something is true doesn’t make it so.

Joe said...


"as noted," the Hobby Lobby majority argued that Congress did not merely "restore" (though this is what it expressly said it was doing in a legislative statement) pre-Smith law but go further. The minority opinion challenged the argument as applied here, so what Congress "chose" is apparently a closely debatable thing.

I agree with the dissent. Part of the reason is that Lee also raised Establishment Clause concerns that were repeatedly in other opinions -- something "operates to impose the employer's religious faith on the employees" is a sort of third party burden that an exemption at some point cannot CONSTITUTIONALLY do. Again, the dissent in HL discussed this and Ginsburg noted how a later opinion involving a beard regulation that she joined was different on this point. So, no, Lee to me is sufficient. In a two-fold matter.

Joe said...

I also think that RFRA, even if it went somewhat beyond pre-Smith law, did not overrule the general principles stated in U.S. v. Lee (and other cases) in the sort things to balance here.

For instance, I don't think Lee would suddenly win his case. Also, "When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity." The problems of exemptions stated there for a united tax system holds as applied to some government employee in this context or the TAX exemption at issue in Hobby Lobby. If things changed so much, RFRA did more than a lot thought.

But, either way, the third party burden issue in a public commercial context (Wheaton College would therefore be a closer case) holds overall.

Justin said...


I think you realize your question answers itself, and the answer is no. It would be unlawful for a variety of reasons, but not as an infringement on the Bishop's free exercise. (A closer, although still weak, argument is that it would infringe the free exercise of Catholics in the Bishop's diocese, because the resulting confusion would impact their ability to exercise their religion, but that's hardly implicated by Ms. Davis.)

Unknown said...

The State and Federal Government has [FIRST] recognized the office of County Clerk as having special powers to approve [as secure] the identity of dozens of category licensing; in that her signature gives authentication to such identity and specific LAW adherence.

In of that, accommodation serves to recognize this integrity, thus avoids rescinding the signature powers of final say.

Unknown said...

@Joe: While I agree Lee would not suddenly prevail under the RFRA doctrine, I do so for different reasons. During oral arguments, the Attorney for Lee was asked whether Lee would change behavior if the court found for the government. The Attorney replied in the negative, clearly indicating the burden is not substantial as defined in Thomas.

For the Establishment Clause to be relevant to Hobby Lobby, the exemptions in Title VII would have to be considered suspect as well. However, religious exemptions like those under RFRA and in Title VII have a long history in America and were considered to be required by the Free Exercise clause in a number of circumstances throughout much of the 20th century. Meanwhile, it would be hard to argue a deliberate relinquishment of authority by the congress is unconstitutional when done so for religious protection reasons in general.

Unknown said...

@Jim: I capitalize all personal pronouns.

Unknown said...
This comment has been removed by the author.
Unknown said...

@David: I see no problem with providing religious accommodations when, as in these cases, dealing with compelling government interest and using the least restrictive means of advancing that interest, as both the federal and state RFRAs require.

I do not take at face value the position "the requirements imposed on Ms. Davis by Judge Bunning are an infringement on her practice of her religion". Instead, I have examined what She says her faith requires and then examined what consequences She faces for adhering to those requirements. How is potential jail time and/or fines far in excessive of Yoder's $5 a day, which was found to be a substantial burden, also not a substantial burden? How is loss of employment which would also result in a loss greater than Yoder's $5 a day, which was found to be a substantial burden, also not a substantial burden?

You say, "But of course that path leads to anarchy/theocracy," which is incorrect. RFRA style laws include a built-in limiting factor, the least restrictive means test which avoids anarchy. To "lead to theocracy" would require creating "[a] form of government in which G-d (or a deity) is recognized as the king or immediate ruler, and his laws are taken as the statute-book of the kingdom, these laws being usually administered by a priestly order as his ministers and agents" and providing People with religion-based exemptions from some laws in circumstances covered by RFRA style laws does not tend to do so, if it ever does.

"What he requires of her is for her to do . . . wait for it . . . wait for it . . . nothing." -- Which Her faith may or may not permit; it remains to be seen. However, regardless of whether or not "She doesn’t have to sign anything, she doesn’t have to approve anything, she doesn’t have to interact with any of those damned to hell sinning gay people. She doesn’t even have to show up at the office when ‘those people’ are there applying for a license," from a legal perspective, as noted in Thomas, where a religious Adherent chooses to "draw a line" is Their decision and Their decision alone. We do not get to redraw that line for Them for legal purposes; neither do the courts.

"Ms. Davis may well believe that her freedom is being impinged upon. But just believing something is true doesn’t make it so." -- This is a question of whether or not Her exercise of religion is substantially burdened or not. Mischaracterizing the legal framework in which to answer that question doesn't make it so.

David Ricardo said...

I agree with Unknown in his/her comment

“This is a question of whether or not Her exercise of religion is substantially burdened or not.”

But my interpretation of what Unknown is saying is that he/she defaults solely to the individual to make that determination. Sorry, that’s not the way things work, and not the way they should work and not the way they can work. Not if we want to have a society of laws. The courts decide, not the plaintiff or the defendant. And my further point is that no, no reasonable person, no application of common sense, no objective analysis can conclude that her exercise of religion is substantially burdened by allowing her office to issue same sex marriage licenses, which is what the District Court found, the Appellate Court found and what the Supreme Court found.

I repeat, she was given an accommodation by the court, more of an accommodation than I would have given her. She was required to do nothing. But I would conclude that this was not enough for her, because one can conclude that her motivation, as revealed not by her words but by her actions, is not an accommodation of her religion but an attempt on her part and her supporters to deny same sex marriage licenses and to retain her very nice $80k job despite the fact that she violates the oath of office and Article VI of the Constitution. And I would also argue that violating her oath is also a violation of her religion if she truly believes in the Bible (all that stuff about not bearing false witness ) and that given the inherent conflict she faced, violate one provision of her religion or the other, her only course was to resign. But again, there’s that nice $80k government job at stake.

One purpose of our legal system is to adjudicate competing claims. Ms. Davis argued that allowing her office to issue same sex marriage licenses with which she had nothing to do about was a substantial burden on her exercise of her religion while the opposing parties argued that it was not. The court decided the issue, period. In our nation courts decide these things, not one party or the other. And point of clarification, the ‘substantial burden’ is not the penalties as you imply, it is the practices she must undertake in her position. And yes, as an Adherent Ms. Davis is solely allowed to “draw a line” as it relates to herself, but she is not solely allowed to prevail on that line in a legal proceeding if her line cannot be sustained and is in violation of her oath, the law, and the Constitution in a final adjudication by the Courts.

egarber said...

In the spirit of David Ricardo's comments, is the Lemon Test still valid law?

"For a law to be considered constitutional under the Establishment Clause of the First Amendment, the law must have a legitimate secular purpose, must not have the primary effect of either advancing or inhibiting religion, and also must not result in an excessive entanglement of government and religion."

If so, how does it square with expansive RFRA laws? It seems to me that the Smith / Lemon rules work nicely together to create clean contours.

Joe said...

@egarber Technically, Lemon was never overturned, but "endorsement" and "coercion" has been the name of the game in recent years with Kennedy favoring a "coercion test" that is particularly strong in school settings with extreme endorsement (e.g., a permanent cross on City Hall) in effect coercive.

@Unknown What Lee's attorney said really doesn't for me quite settle the staying power of the actual U.S. v. Lee opinion.

And, "exemptions" aren't the problem I cited, so I don't find your broad statement in that respect that useful. The concern here is a certain type of exemption. The Supreme Court repeatedly was concerned with use of religious exemptions that did more than provide relief of special burdens but give religion special powers that burdened third parties.

The Caldor case is an example dealing with Sabbath exemptions. Cutter v. Wilkinson (2005) noted (citing that very case) that "courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries" and that they must be "administered neutrally among different faiths." HL held this wasn't an issue given the workaround in place but others have shown that this isn't true. Also, there is a reason to single out non-profits and private groups particularly as four justices noted in their concurring opinions in Corporation of Presiding Bishop v. Amos.

David Ricardo said...

And so it ends, not with a bang but with a whimper. This stupid, supercilious, silly saga is mostly over, with Ms. Davis realizing that if she defied the courts even her most ardent supporters would realize it was she and not the courts that were incarcerating her. The accomplishment her diehard supports will celebrate, the triumph of religious freedom in that her name was removed from marriage certificates. The accomplishment the rest of us will celebrate, the exposure of hypocrisy, animus, hatred and disdain for law of the so-called deeply religious.

indysam1957 said...

Professor, total layman here. But here's my question: Why not have the damaged parties sue for tortious interence? The marriage license conveys legal rights and a 'contract' between the parties that marry. If failing to issue a marriage license deprives the applicants of the right to pursue a legal contract....why not 'tortious interference?'