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Monday, October 05, 2020

Thomas and Alito defend Kim Davis

SCOTUS denied cert in Davis v. Ermold, which held that Kim Davis did not enjoy qualified immunity in refusing to issue marriage licenses to same-sex couples because it offends her religious beliefs. Justice Thomas, joined by Justice Alito, issued a cri du ceour respecting the denial of cert., lambasting Obergfell as creating a "novel constitutional right" having "ruinous consequences for religious liberty."

Three things.

First, Thomas proceeds as if Smith no longer is good law and that the First Amendment demands an opt-out from a generally applicable law or satisfaction of strict scrutiny. He cites Smith in a footnote, but to argue that Obergefell is more illegitimate because not done through the legislative process. This seems disingenuous. I doubt that if Kentucky had legalized SSM by statute with no religious accommodation, Thomas would be more willing to accept those ruinous consequences for religious liberty.

Second, I am waiting for a good argument for why having issue licenses to same-sex couples is more a violation of religious liberty than having to issue licenses to inter-racial couples or inter-faith couples. All can be, and have been, subject to religiously based objections by some people. Would Thomas be staking out this position if someone denied a marriage license to Noah Cohen and Mary-Margaret O'Reilly?

Third, whatever one believes about a private baker or photographer, it should not extend to a government official performing her official functions. Her job as a public employee is to carry out the law. If that law offends her religious or other sensibilities, then she should quit. We would not allow someone to enlist in the Army and then refuse to fight in a war; we would not allow an atheist police officer to refuse to conduct traffic at a church. There is no reason to allow a clerk to refuse to issue a marriage license.

Posted by Howard Wasserman on October 5, 2020 at 02:45 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


The Thomas/Alito opinion is just so . . . bad. Really bad. It suggests they are caught up in a culture war bramble bush rather than, with relative dispassion, thinking of the best legal bases for attacking Oberg; and there are certainly much better arguments to be made.

Posted by: Edward Cantu | Oct 9, 2020 2:38:48 PM

No, just from specific public jobs that their personal, moral, religious views prevent them from carrying out. I have no problem with Kim Davis working in public service, but not as county clerk *if* she cannot carry out a core function of the job consistent with the law (or the law as the court would enforce it when she and the county were sued). The rifleman example is a good one. A CO cannot serve in the infantry but refuse to shoot people. If there are jobs in the military that the CO can perform consistent with her beliefs (a former-JAG friend says they are assigned to medical or chaplaincy), then by all means she should be allowed to serve.

My initial error in the military context was assuming that a willingness to use force was necessary for everyone in the military, as even a doctor in a war zone might be forced to take up arms. That not being the case, it is job-specific.

Posted by: Howard Wasserman | Oct 9, 2020 10:13:12 AM

I think you have his point exactly backwards. Mr. Wasserman is not looking for ways to "allow" religious objectors to serve. He is arguing that they should be excluded from public service.

Posted by: Anonymous | Oct 9, 2020 10:03:53 AM

I'm happy somebody brought up COs in the military. Desmond Doss refused even to carry a rifle.

Howard's point may stand if he revised it as: we would not allow a CO to serve as a rifleman, since the COs beliefs make it impossible for the CO to perform the job. But, the COs objections notwithstanding, the government's policy is still to kill the enemy in the war.

So, a person who has religious objections cannot be kept from government service; however, if the person's objections make the performance of a particular job impossible, the government is not forced to change its policies, just like a CO's objections can be accommodated, but they do not negate government policy.

Posted by: thegreatdisappointment | Oct 8, 2020 7:35:24 PM

I stand corrected; thank you for the information. Even taking this, I do think my point stands--if you have objections to the job, do a different job.

Posted by: Howard Wasserman | Oct 8, 2020 6:17:18 PM

Here are two more medal of honor recipients:



Here is a link to information from the selective service, which clearly states you can serve in a non-combatant capacity as a conscientious objector.


"Two types of service are available to conscientious objectors, and the type assigned is determined by the individual’s specific beliefs. The person who is opposed to any form of military service will be assigned to alternative service – described below. The person whose beliefs allow him to serve in the military but in a noncombatant capacity will serve in the Armed Forces but will not be assigned training or duties that include using weapons."

Posted by: Anonymous | Oct 8, 2020 5:31:38 PM

Conscientious objectors have been drafted in WWII and Vietnam. Conscientious objectors have joined voluntarily, knowing they cannot fight, and have joined voluntarily and then decided they cannot fight. We have traditionally accommodated them, sometimes by discharge, but often by assigning them to roles where they can serve without violating their beliefs.

A famous conscientious objector was awarded the medal of honor, while serving on active duty as a conscientious objector. He was literally allowed to enlist and then refuse to fight. They made a movie about it.


Here is the current army manual for handling these requests.


Have a look at Chapter 3 which describes the many potential accommodations of a conscientious objector.

Your belief that we do not assign conscientious objectors to non-fighting positions is just not correct.

Posted by: Anonymous | Oct 8, 2020 5:17:26 PM

They are accommodated by being excused from military service; they aren't drafted/enlisted and assigned to non-fighting positions.

Posted by: Howard Wasserman | Oct 8, 2020 7:21:44 AM

It is amazing to me that a law professor could type "We would not allow someone to enlist in the Army and then refuse to fight in a war." There is an entire body of law devoted to accommodating conscientious objectors.

Posted by: Anonymous | Oct 8, 2020 6:20:36 AM

I presume Thomas might make some sort of distinction on the ground that he thinks inter-racial marriage is actually protected by the Constitution. Though that is far from a complete explanation.

Kim Davis was remarried if I remember correctly. What would Thomas say if a devout Catholic refused to issue a license for her remarriage? Would he allow that?

Posted by: Jr | Oct 5, 2020 4:24:47 PM

This was a lingering case from last term & was part of a list of QI cases discussed on this blog. Wonder if there is more to this story. Did another person consider joining them? Did they try to get two to join them to take the case? And, yes, being against on religious grounds a marriage didn't suddenly become an issue when same sex marriages were recognized.

Posted by: Joe | Oct 5, 2020 4:13:19 PM

During Alito's conformation hearing, Nora Demleitner declared, "Judge Alito has been my role model since the day I began working for him. I consider him one of the most brilliant legal minds of his generation, and a man of great integrity, decency, and character. And I say this as a left-leaning Democrat, a member of the ACLU, a woman, and an immigrant." She then asserted, "Let me detail why I believe that Samuel Alito deserves to sit on the highest Court and why his confirmation will not pose a threat to the foundation of this country or to the rights of women, minorities, immigrants, and other vulnerable groups. Judge Alito does not have a political agenda." She concluded,"In light of my personal experience with Judge Alito, I can assure you that you are not voting on an ideologue. Judge Alito has always tried to follow the law and decided cases on their individual merits. He deserves to be confirmed as the Court's next Associate Justice."

Wow! How wrong can a person be? What will she say if Alito is the deciding vote in overturning Roe n. Wade.

Posted by: Anon | Oct 5, 2020 4:03:19 PM

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