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Thursday, September 03, 2015

Tinkering with the machinery of marriage

Jonathan Adler explains why Kim Davis cannot, and should not be able to, use her personal religious beliefs to refuse to issue licenses to same-sex couples; if her conscience prevents her from doing this, she must resign. Adler points to a 2002 essay by Justice Scalia, in which Scalia explained why, if he believed capital punishment immoral, he must resign from the bench--his personal morality cannot override his judicial obligations. Adler argues that Davis similarly cannot use her personal religious morality to refuse to participate in (paraphrasing Harry Blackmun) the machinery of marriage.

But is there a middle ground between violating religious beliefs and resignation--recusal. Could a Justice Scalia whose religious views prevent him from affirming a death sentence recuse from all such cases? If so, that seems to be what Davis is doing here--recusing herself from the one function that runs afoul of her beliefs, while being ready and willing to perform other functions, even as to same-sex couples.

I am not suggesting Davis should win--she shouldn't. But does the reason have less to do with an absolute prohibition on this type of moral refusal to perform a public function and more with whether the attempted accommodation sufficiently protects the rights of couples seeking marriage licenses?

Posted by Howard Wasserman on September 3, 2015 at 10:10 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


But the individual exception argument still, in my view, misses the point. A county clerk's act is simply to certify that all the requirements for marriage have been met; it's not the clerk's personal imprimatur on that marriage. The clerk is acting as an arm of the state, no matter what his or her personal beliefs. Recusal isn't acceptable as a general matter since it's not a discretionary task. For Scalia, that's different, because as a Supreme Court Justice, he DOES have discretion (since the Supremes can overrule themselves and individual Justices can dissent).

And a refusal by a clerk ("I don't want to do this, but let me find a deputy who can") skirts dangerously close, at least conceptually, to an animus analysis. The clerk's function is ministerial only, and the minute that the clerk, acting in his or her capacity as an agent of the state, signals disapproval, that disapproval appears to come from the state.

And frankly, no one should have to endure the humiliation of showing up, papers in hand, and have the clerk say "I have moral objections to what you're doing, wait here will I see if there's someone who can accommodate you."

Posted by: Brad Parr | Sep 4, 2015 3:32:06 PM

Benjamin: That is specific to Davis. First, Scalia's point seems to be that an individual employee is not entitled to accommodation for his own religious views. So even a policy that would allow an individual employee to have someone else issue the license to a same-sex couple would be problematic. Second, this assumes that "go to the county judge or another county" is not a sufficient accommodation to the couples seeking licenses. It's probably not. But, again, Scalia seems to suggest we do not even get that far.

Posted by: Howard Wasserman | Sep 3, 2015 1:58:49 PM

There are various death penalty cases that split 5-4. Would this chance the calculus?

Posted by: Joe | Sep 3, 2015 12:38:59 PM

There is a middle path but it's not the one Scalia and Adler holds. Scalia appears to think he has an obligation to hear death penalty cases even if he personally opposed the death penalty.

His rhetoric suggests that he doesn't support even a voluntary accommodation regime here as left open in Oregon v. Smith at least in respect to government officials such as himself. Since I'm supportive to some degree to the O'Connor/Blackmun opinions, a middle path would appeal to me personally. This would include burdens to third parties.

I'm somewhat unsure if I think an absolutist path can be good policy, but if it's possible to avoid absolutism, tend to think that works the best in the real world.

Posted by: Joe | Sep 3, 2015 12:37:27 PM

I think the critical difference is that a Justice performs his functions as a member of a group of 9. If he recuses himself, that same organization is still able to perform its functions un-impaired. Davis not only has recused herself, but has shut down that function of her office, including pressuring her deputies to do the same. The analogous situation would be if Roberts said he was recusing himself from all death penalty cases for moral reasons and placed pressure on his associate justices to do the same, rendering the Supreme Court unable to hear such cases.

Posted by: Benjamin Lehman | Sep 3, 2015 12:35:54 PM

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