It looks like the request described in Eugene Volokh’s legal analysis and Ryan Anderson’s article has been enacted:
[Footnote:...Plaintiffs’ marriage licenses have been altered so that “Rowan County” rather than “Kim Davis” appears on the line reserved for the name of the county clerk, Plaintiffs have not alleged that the alterations affect the validity of the licenses. Nor do the alterations impact the Court’s finding that the deputy clerks have complied with the Court’s Order.] The Court is therefore satisfied that the Rowan County Clerk’s Office is fulfilling its obligation to issue marriage licenses to all legally eligible couples, consistent with the U.S. Supreme Court’s holding in Obergefell and this Court’s August 12, 2015 Order. For these reasons, the Court’s prior contempt sanction against Defendant Davis is hereby lifted.
Kim Davis’s name has been replaced with “Rowan County,” so clearly this was a reasonable step that was easily taken without burdening the state. But now Volokh has clarified that Davis is asking for these two things in particular:
- the licenses would be issued, as a matter of Kentucky law, under the authority of someone other than Davis or the County Clerk, for instance the County Judge Executive or a deputy clerk who was willing to put his name on them, and
- the licenses reflected that accommodation, by including the name and office of the authorizing person (again, the Judge Executive or deputy clerk or whoever else) instead of Davis’s name and office.
Davis’s objection to the federal judge’s order—and the licenses and certificates issued pursuant to that order—is that the licenses and certificates are still being issued (in her view) under her ostensible authority, even though Davis has not authorized them.
This accommodation is somewhat broader than the one I originally discussed in my post Friday (which was just removing her name from the licenses and certificates, and possibly replacing it with “Rowan County Clerk”). She would object to the documents noting that they come from the office “Rowan County Clerk,” and she would also want an official declaration from the court that the licenses aren’t being issued under her authority. It’s possible that these demands go a bit too far for the Kentucky RFRA (as I noted in my post, the more burdensome a requested accommodation is, the less likely it is that a court will grant it), though it’s hard to tell, given that RFRAs are written in general terms, and a lot of the line-drawing questions are left for judges to make on a case-by-case basis. Still, the accommodation doesn’t seem tremendously burdensome, or that different from what’s already being done under the judge’s order, so it’s possible that this is what will happen.
This changes the reasonableness of the request somewhat, though Volokh still thinks it doesn’t seem burdensome.
I want to reiterate what I said in an earlier post: Even if Davis has a legal case under Kentucky’s RFRA, that doesn’t automatically mean it’s wise to pursue it rather than resign (see here for more on this), and it certainly doesn’t mean turning this into a political spectacle is a good idea. Because the future of religious freedom in this country matters, my goal over the last week has merely been to clarify some key points about this situation that many people seem to be missing:
- Employee requests for religious accommodations are not outrageous; they are available and are granted, even to public officials.
- The laws of many states (including Kentucky) have conscience protections. State RFRAs vary, but in general, if someone’s sincere beliefs are being burdened, exemptions can be granted if there’s a reasonable alternative that doesn’t harm the government’s “compelling interest.”
- Even if you strongly disagree with Kim Davis’s concern, her requested exemption may indeed meet the requirements of Kentucky’s RFRA.
- You don’t need to agree with Kim Davis’s concern in order to support her receiving an accommodation; RFRAs are there to protect people with whom the majority disagrees. In keeping with the values of our country, we ought to support reasonable accommodations for people’s consciences whenever possible, even if we personally find their concern unreasonable.
- You don’t need to disagree with Kim Davis receiving an accommodation in order to think she’s not handling this situation the way she should.
- Ultimately, Davis’s goal is not to prevent anyone from getting married; it’s only to remove herself from being the authority authorizing those marriages. (This means her goal is not to impose her views on people trying to obtain licenses, though that was the unintended consequence while no licenses were being issued.) The question of whether or not her requested accommodation would cause material harm to a “compelling government interest” (the requirement for denying an accommodation) remains to be seen. It will need to be weighed by a judge. There’s no reason to oppose it if it meets Kentucky’s RFRA standard.
Widespread understanding of these points would ease tensions both now and in the future.