Anti-Gay Kentucky County Clerk Jailed for Refusing to Issue Marriage Licences

[Jimayo]

https://en.wikipedia.org/wiki/Lemon_v._Kurtzman#Lemon_test

Basic logic like just because people let their religion influence politics, doesn't mean they are supposed to seems to be too hard for you so here is the lemon test.

Please note: The statute must not result in an "excessive government entanglement" with religious affairs.

The statute must have a secular legislative purpose.

The U.S. government is not supposed to advance a religion.

1. The statute must not result in an "excessive government entanglement" with religious affairs. (also known as the Entanglement Prong)
   1. Factors.
      1. Character and purpose of institution benefited.
      2. Nature of aid the state provides.
      3. Resulting relationship between government and religious authority.
2. The statute must not advance nor inhibit religious practice (also known as the Effect Prong)
3. The statute must have a secular legislative purpose. (also known as the Purpose Prong)

[Mr. Ambien]

https://en.wikipedia.org/wiki/Lemon_v._Kurtzman#Lemon_test

Basic logic like just because people let their religion influence politics, doesn't mean they are supposed to seems to be too hard for you so here is the lemon test.

Please note: The statute must not result in an "excessive government entanglement" with religious affairs.

The statute must have a secular legislative purpose.

The U.S. government is not supposed to advance a religion.

Obviously you can't even follow your own arguments.

I've not suggested anywhere that government can favour a religion.

Go back to your statement about it being a two way street:

Wrong. The supreme court ruled almost a century ago that it applies both ways. Religious values are not supposed to influence the government either, since we all don't share the same religious values.

Where you said that religion and religious people cannot influence the government with their religion. This is 100% wrong. It is not a two way street. Government is supposed to be secular but people are not.

Now please, try and follow along this time.

[Jimayo]

The statute must not result in an "excessive government entanglement" with religious affairs.

The statute must have a secular legislative purpose.

[Mr. Ambien]

Yes the government doesn't get entangled in religious affairs. Explain how this correlates to your two way street analogy. Right now you look utterly clueless.

[The Bookie]

more technical legal info than you could ever possibly want! hurray!

the RFRA stuff is worrisome

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/

Can your religion legally excuse you from doing part of your job? This is one of the questions in the Kentucky County Clerk marriage certificate case. But it also arises in lots of other cases — for instance, the Muslim flight attendant who doesn’t want to serve alcohol and who filed a complaint on Tuesday with the Equal Employment Opportunity Commission over the airline’s denial of an exemption.

The question has also arisen before with regard to:

1. Nurses who had religious objections to being involved in abortions (even just to washing instruments that would be used in abortions);
2. Pacifist postal workers who had religious objections to processing draft registration forms;
3. A Jehovah’s Witness employee who had religious objections to raising a flag, which was a task assigned to him;
4. An IRS employee who had religious objections to working on tax exemption applications for organizations that promote “abortion, … homosexuality, worship of the devil, euthanasia, atheism, legalization of marijuana, immoral sexual experiments, sterilization or vasectomies, artificial contraception, and witchcraft”;
5. a philosophically vegetarian bus driver who refused to hand out hamburger coupons as part of an agency’s promotion aimed at boosting ridership;
6. and more.

And of course it arises routinely when people are fine with their job tasks, but have a religious objection to doing them on particular days (e.g., Saturdays and Fridays after sundown).

Under Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an “undue hardship,” meaning more than a modest cost, on the employer. If the employees can be accommodated in a way that would let the job still get done without much burden on the employer, coworkers, and customers — for instance by switching the employee’s assignments with another employee or by otherwise slightly changing the job duties — then the employer must accommodate them. (The Muslim flight attendant I mentioned above, for instance, claims that she has always been able to work out arrangements under which the other flight attendant serves the alcohol instead of her.)

Thus, for instance, in all the cases I mentioned in the numbered list above, the religious objectors got an accommodation, whether in court or as a result of the employer’s settling a lawsuit brought by the EEOC. Likewise, the EEOC is currently litigating a case in which it claims that a trucking company must accommodate a Muslim employee’s religious objections to transporting alcohol, and the court has indeed concluded that the employer had a duty to accommodate such objections. But if the accommodation would have been quite difficult or expensive (beyond the inevitable cost that always come when rearranging tasks), then the employer wouldn’t have had to provide it.

Now I’m not saying this to praise the law, or to claim that it’s demanded by vital principles of religious principles. One can certainly argue against this approach, especially as applied to private employers, but also as applied to the government.

The government is barred by the Free Exercise Clause from discriminating based on religion, but the government has no constitutional duty to give religious objectors special exemptions from generally applicable rules. Maybe it (and private employers) shouldn’t have such a statutory duty, either. But my point so far has been simply to describe the American legal rule as it actually is, and as it has been for over 40 years (since the religious accommodation provisions were enacted in the 1972 amendments to Title VII).

Once we see this rule, we can also make some practical observations about it:

1. The rule requires judgments of degree. Some accommodations are relatively cheap (again, always realizing that any accommodation involves some burden on employers), while other are more expensive. The courts have to end up drawing some fuzzy line between them. Maybe that’s a bad idea, but that’s what Congress set up with the “reasonable accommodation” requirement. So if you want to argue that one religious objector shouldn’t get the relatively easy accommodation she wants, you can’t do that by analogy to another claim where the accommodation would be very expensive.

2. The rule turns on the specific facts present in a particular workplace. An accommodation can be very expensive when the objecting employee is the only one at the job site who can do a task, but relatively cheap when there are lots of other employees. It can be very expensive when all the other employees also raise the same objection, but relatively cheap when the other employees are just fine with doing the task.

Again, maybe that’s a bad rule, but it’s the rule Congress created. And if you want to argue that one religious objector shouldn’t get an accommodation that’s easy at the objector’s job site, you can’t do that by pointing out that the accommodation would be expensive at other job sites.

3. The rule accepts the risk of insincere objections. Of course, when sincere religious objectors can get an exemption, others can ask for the same exemption even just for convenience rather than from religious belief. That’s not much of a problem for many exemption requests, since most people have no personal, self-interested reasons not to transport alcohol on their trucks, or raising an American flag on a flagpole. But for some accommodations, there is a risk of insincere claims, for instance when someone just wants Saturdays off so he can do fun weekend things. The law assumes that employers will be able to judge employees’ sincerity relatively accurately, and to the extent some insincere objections are granted, this won’t be too much of a problem. Again, the law might be wrong on this, but it’s the law.

4. The rule accepts the risk of slippery slopes, and counts on courts to stop the slippage. Once some people get a religious exemption, others are likely to claim other religious exemptions; indeed, some people who before managed to find a way to live with their religious objections without raising an accommodation request might now conclude that they need to be more militant about their beliefs. Here too, the law accepts this risk, and counts on courts to cut off the more expensive accommodations.

5. The rule rejects the “you don’t like the job requirements, so quit the job” argument. Again, that argument is a perfectly sensible policy argument against having a Title VII duty of religious accommodation. It’s just an argument that religious accommodation law has, rightly or wrongly, rejected.

6. The rule focused on what specific accommodations are practical. If someone demands as an accommodation that a company completely stop shipping alcohol, that would be an undue hardship for an employer. But if it’s possible to accommodate the person by just not giving him the relatively rare alcohol-shipping orders, then that might well not be an undue hardship.

* * *

OK, now we’ve seen the big picture, which is that sincere religious objections can indeed legally excuse you from doing part of your job — if the employer can exempt you without undue cost to itself, its other employees, or its clients (recognizing that some cost is inevitable with any exemption request). Now let’s try to see how it can apply to the Kim Davis controversy.

First, a technical but important legal point: Title VII expressly excludes elected officials. But Kentucky, like about 20 other states, has a state Religious Freedom Restoration Act (RFRA) statute that requires government agencies to exempt religious objectors from generally applicable laws, unless denying the exemption is the least restrictive means of serving a compelling government interest. The federal government also has a RFRA, which may apply to federal court orders issued to state elected officials.

Such RFRAs are narrower than Title VII (they apply only to the government) but also broader (they apply not just to employment but to all government action). Nothing in them exempts accommodation claims by elected officials. Moreover, the 1963-90 Free Exercise Clause rules that the RFRAs were meant to restore included protections for elected officials, see McDaniel v. Paty (1978); though McDaniel involved a rule that discriminated against religious practice, the plurality opinion treated it as a standard religious exemption request.

The terms of these RFRAs actually seem to offer greater protection for claimants — to deny an exemption, the government must show not just “undue hardship” but unavoidable material harm to a “compelling government interest.” Tagore v. United States (5th Cir. 2013) illustrates this: When Sikh IRS agent Kawaljeet Tagore sought a religious exemption from IRS’s no-weapons-in-the-workplace policy for her kirpan (a 3-inch dulled symbolic dagger), the court concluded that accommodating the request was an “undue hardship,” but allowed the RFRA claim to go forward, so that the trial court could determine whether denying the exemption “furthers a compelling government interest with the least restrictive means.” On the other hand, Harrell v. Donahue (8th Cir. 2011) took the view that, at least as to federal employees, RFRA provided no protections beyond those offered by Title VII.

The Kentucky appellate courts have had no occasion to interpret the Kentucky RFRA yet (it was enacted in 2013), and I don’t know of cases under other state RFRAs dealing with government employees or elected officials. But it’s very likely that (1) the Kentucky RFRA, by its terms, would apply to religious exemption claims brought by elected officials, and (2) it would provide at least the protections offered to ordinary employees by the Title VII religious accommodation regime, and possibly more.

* * *

With all this in hand, we turn to the Kim Davis controversy.

1. The current lawsuit is a federal claim against her, claiming that her policy of not issuing any marriage licenses (for any couples, same-sex or opposite-sex) is a violation of the U.S. Constitution’s right to marry. Whether the policy does violate the right to marry (and not just the state law mandating that clerks issue marriage licenses, a state law that federal courts generally don’t enforce) is an interesting question, given that licenses are available from neighboring counties. Compare Ezell v. City of Chicago (7th Cir. 2011), which rejected the “you can go to the neighboring city” argument when it came to Chicago’s ban on shooting ranges and Schad v. Borough of Mt. Ephraim (1981), which did the same as to a town’s ban on live entertainment.

But in any event, if 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, 133, and 139 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

Now this would be a cheap accommodation that, it seems to me, a state could quite easily provide. It’s true that state law requires the County Clerk’s name on the marriage license and the marriage certificate. But the point of RFRAs, such as the Kentucky RFRA, is precisely to provide religious objectors with exemptions even from such generally applicable laws, so long as the exemptions don’t necessarily and materially undermine a compelling government interest.

And allowing all marriage licenses and certificates — for opposite-sex marriages or same-sex ones — to include a deputy clerk’s name, or just the notation “Rowan County Clerk,” wouldn’t jeopardize any compelling government interest. To be sure, it would have to be clear that this modification is legally authorized, and doesn’t make the license and certificate invalid. But a court that grants Davis’s RFRA exemption request could easily issue an order that makes this clear.

Indeed, Kim Davis has filed a federal complaint against state officials under, among other things, the Kentucky RFRA. And, as I noted, one of the proposed accommodations that she herself has suggested, albeit in the federal stay application, is the simple removal of her name. But that sort of accommodation based on the Kentucky state RFRA is not a remedy that’s likely to be available in federal court.

But if Davis sues in state court, seeking a declaration that she can issue licenses and certificates without her name — as a Kentucky RFRA-based exemption from the Kentucky statutory requirements for what must go on her license — I think she’d have a good case. The federal district court rejected her Kentucky RFRA argument on the grounds that the requirement doesn’t much burden her beliefs:

The record in this case suggests that the burden [on Davis] is more slight. As the Court has already pointed out, Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk. The Court therefore concludes that Davis is unlikely to suffer a violation of her free exercise rights under Kentucky Constitution § 5.

[Salmonberries]

Coincidentally it was in her part of the country that the first gay love scene in a Hollywood movie (Deliverance) was filmed.

Ned Beatty made Hollywood history there.

[nucklehead]

Don't recall the gay part. Incest yes, rape yes...missed the gay part.

[Tortorella's Rant]

5 of the 6 clerks will sign off on marriage licenses and Davis in no way has to be involved in that. Supposedly this was a completely valid alternative in the first place and she turned this into a big unnecessary spectacle. Yet, upon release the brat will still defy the law and restrict the process entirely.

They really should be keeping her in jail..

[BradyBoone]

Sounds like she's about to be released. Hate her opinions or not, she spent 5 days in jail and didn't change her convictions. That's pretty impressive. Thought she would have by day 2.

If she was an NFL player charged with spousal assault she wouldn't have spent a day in detention. Just saying it seems a little harsh that they could have just sent her home at much less cost to the tax payers

[BradyBoone]

5 of the 6 clerks will sign off on marriage licenses and Davis in no way has to be involved in that. Supposedly this was a completely valid alternative in the first place and she turned this into a big unnecessary spectacle. Yet, upon release the brat will still defy the law and restrict the process entirely.

They really should be keeping her in jail..

I really don't think they should keep her in jail. Fired or suspended without pay, absolutely.

[Mr. Ambien]

Sounds like she's about to be released. Hate her opinions or not, she spent 5 days in jail and didn't change her convictions. That's pretty impressive. Thought she would have by day 2.

If she was an NFL player charged with spousal assault she wouldn't have spent a day in detention. Just saying it seems a little harsh that they could have just sent her home at much less cost to the tax payers

So put her in jail for longer until she changes her opinion and signs all marriage documents, or until she steps down/until the next election where she can get voted out for someone that can do their job. Simple enough.

I really don't think they should keep her in jail. Fired or suspended without pay, absolutely.

She can't be fired. She'd have to be impeached and removed.

Suspended without pay is not the punishment for criminal contempt of court.

She is an acting, sworn in government official refusing to follow the law. That is actually a pretty serious crime.. even though some here don't seem to understand why.

[Tortorella's Rant]

I really don't think they should keep her in jail. Fired or suspended without pay, absolutely.

It's an elected position supposedly so they can't do that. She has to either do her job, resign, or sit in jail. Personally the latter is fine with me - one less religious parasite prowling around in society.

[BradyBoone]

I agree with having her fired, I do. But keeping her in jail over an 'opinion', just seems odd. Even in my worst day at work, I'm sent home (oven ever been sent home, let me clarify), I doubt I'd get jail time though.

[BradyBoone]

Just for the record, I am NOT defending her! Just realized it may sound like that. I'm not. I think she's wrong. I just think the criminal system is overcrowded.

[Mr. Ambien]

I agree with having her fired, I do. But keeping her in jail over an 'opinion', just seems odd. Even in my worst day at work, I'm sent home (oven ever been sent home, let me clarify), I doubt I'd get jail time though.

If only it were just an "opinion".. it's as if she were fired over free speech amirite?

Except her opinion is not merely an opinion, it is a decision she has made in preventing gay people from attaining marriage licenses.

She has decided to take the law into her own hands and place herself above the United States Supreme Court, and that is not her job. Such discrimination is a serious issue, which is why it went all the way to SCOTUS and was ruled in favour of gays attaining marriage equality.

Her job is not to use her position to challenge Supreme Court rulings or insert her religious views.

[BradyBoone]

Except her opinion is not merely an opinion, it is a decision she has made in preventing gay people from attaining marriage licenses.

Her job is not to use her position to challenge Supreme Court rulings or insert her religious views.

(Just noticed my autocorrect changed 'I've' to 'oven' in my previous post. Stupid thing). I actually agree with you in most parts. Just not the jail. However, she is getting WAY too much attention and support outside the jailhouse. It's on CNN right now. Disgusting.

[Mr. Ambien]

(Just noticed my autocorrect changed 'I've' to 'oven' in my previous post. Stupid thing). I actually agree with you in most parts. Just not the jail. However, she is getting WAY too much attention and support outside the jailhouse. It's on CNN right now. Disgusting.

Well, CNN is losing ground to liberal crapsites like Salon and DailyKOS so when not doing 24/7 coverage of plane crashes or mass shootings, they need to beat the drum of homophobia and racism to try and stay relevant. FOX News has long been crushing them in ratings.

[Amish Rake Fighter]

I really don't think they should keep her in jail. Fired or suspended without pay, absolutely.

a monetary penalty won't mean anything, she's already getting bankrolled by some nutbag tax exempt legal defence organization out of Florida

[Tortorella's Rant]

Well, CNN is losing ground to liberal crapsites like Salon and DailyKOS so when not doing 24/7 coverage of plane crashes or mass shootings, they need to beat the drum of homophobia and racism to try and stay relevant. FOX News has long been crushing them in ratings.

Which is sad because Fox is intentionally and demonstrably fallacious. Much more so than CNN. And idiots have this belief in their head that if more people follow something, in this case watch Fox, the more trustworthy and reliable it is.

And wow. That parasite Feuerstein is on stage.

[Amish Rake Fighter]

she's been released, her original complainants now have their marriage license