Kim Davis and the quest for a judicial accommodation.

• Author: Hammond, Jeffrey B.
• Position: Symposium on the Meaning of Religious Liberty in the Anglo-American Legal Tradition

Author's Note: The Kim Davis case was the subject of the foregoing presentation at the Faulkner Law Review Symposium on October 16, 2015. Events subsequent to the Symposium have changed the tenor of the remarks set forth below. Late in 2015, Matt Bevin was sworn in as the new governor of the Commonwealth of Kentucky, and he memorialized changes to the marriage license form that Ms. Davis previously requested and pursued on an ad hoc basis. (1)

By and large, the remarks set forth below were delivered with the assumption that Ms. Davis should be granted her requested judicial accommodation without knowing whether such an accommodation would be forthcoming at law. Ms. Davis was not in line for a religious-based accommodation under Title VII of the Civil Rights Act of 1964 because she is an elected official. (2) This article's discussion focuses on Judge David Bunning's analysis of Ms. Davis's religious accommodation claim found in his August 12, 2015, opinion, which granted April Miller and the other plaintiffs in the case a preliminary injunction against Ms. Davis, and enjoined Ms. Davis to do her job and to issue marriage licenses to same-sex couples. (3) It is very important to note that Judge Bunning ruled, in a subsequent memorandum opinion, that any relief that Ms. Davis would receive under the Kentucky Religious Freedom Restoration Act (RFRA) would have to come from the Kentucky state courts. (4) Though the following text appears largely as it was delivered, verb tenses and other text have been changed, when convenient, to reflect the current status of her case. The new Governor of Kentucky, Matt Bevin, signed an Executive Order on December 22, 2015 removing references to the issuing county clerk and removing the need for the clerk's signature. Hence, on April 19, 2016, the Sixth Circuit ruled as moot Kim Davis's own request for a preliminary injunction against various state parties regarding the wording of the marriage license form. (5) Davis admitted that the Executive Order functions as the accommodation she requested viz. the state parties. (6) Nevertheless, this Article attempts to answer the important question of whether Davis should have received a judicial accommodation.

1. INTRODUCTION

   Is there anyone who does not know who Kim Davis is? Better yet, has anyone not formed an opinion about her, her motives, or her design for the future? I venture to guess that most of us have opinions about Kim Davis that are like Jell-0--they are more or less congealed at this point. Some of us are bound to think that she is a fool who is grandstanding for fame (or perhaps notoriety), desperate to be seen by all as a martyr for her Christian faith. Others might see Davis as a different kind of fool--a bigoted martyr who wants to deny same-sex couples their right to marry, as now defined by the United States Supreme Court. Some may see her as voicing inarticulate, yet wholly laudable objections to sanctioning same-sex marriage licenses by her office. However, I think that the way one is inclined to view Ms. Davis profoundly affects one's willingness to extend her an exemption from her putative duty to issue marriage licenses to same-sex couples.

   Let me offer a quick recap if you are new to these facts: Kim Davis is the County Clerk for Rowan County, Kentucky, a relatively small outpost in northern Kentucky. (7) In the summer of (2015), Ms. Davis generated national and international headlines by refusing to issue marriage licenses to any couple, whether heterosexual or homosexual. (8) The American Civil Liberties Union, on behalf of four couples who desired to marry in Rowan County, sued Ms. Davis. (9) The federal judge, the Honorable David Bunning, then demanded, by issuing a preliminary injunction, that Davis issue the licenses to all couples. (10) Instead, Davis chose jail rather than obey the judge. (11) She was released from jail only six days later. While in jail, her deputy clerks took her name off of the license form. (12) After her release, she returned to her job and continued to manipulate licenses. (13) Davis then wanted an accommodation for her beliefs about same-sex marriage, namely that (1) the marriage license reflect that her name was not on the license and that some other county official was issuing the license; and (2) that the license reflect that changes made to the form (issuing authority, etc.) were done pursuant to a religiously based accommodation for Davis's faith. (14) Late in 2015, the newly sworn Kentucky Governor, Matt Bevin, issued an executive order changing the license form to leave county clerks' names off of the forms. (15)

   So, the "net-net" of the Davis story is this: Ms. Davis wanted an accommodation so that she is not required to issue marriage licenses to same-sex couples in a way that would violate the tenets of her Apostolic Christian faith. (16) She did not want to resign her position. She further realized that the Kentucky Legislature could impeach her and remove her from office. (17) She wanted her accommodation, and she wanted to keep her job. The question for us as lawyers, law professors, law students, and concerned citizens is this: could Kim Davis pull the "inside straight"? Could she demand a "workaround" of one of her putative job duties and still retain her job? Should she, as a minister of the executive branch, demand an exemption from the law that putatively she swore to fulfill?

   This paper attempts to answer these questions in three main parts. First, this paper asks whether Ms. Davis should have received an accommodation under existing religious accommodations law--specifically Kentucky's state version of the Religious Freedom Restoration Act (RFRA)--an under-discussed part of Judge David Bunning's opinion. Next, I ask the why question-why should Kim Davis have received a judicial accommodation?

   Finally, I will offer some brief words on the "rule of law" question--the claim that Davis will positively harm a foundational principle of the Anglo-American legal system--that we are a "nation of laws and not of men."

2. WHY ACCOMMODATIONS?

   If one is to answer the ultimate question of whether Kim Davis, a bureaucrat in the executive branch of the Commonwealth of Kentucky, should have received a religiously based exemption from a law that otherwise would apply to her, the first question to be asked is whether religious accommodations for anyone are a good thing. Consider an observation about the practical history of religious accommodations in America, and then (several) observations about the mechanics of accommodations.

   First, the most basic of observations: the American history of religious accommodations involves claimants who seek specific, targeted releases from otherwise applicable laws. In other words, these claimants do not demand that the government give them all of the benefits of citizenship--welfare payments, help from the fire and police departments when fires are started and when front doors are kicked in--and at the same time they run around like feral cats, subject to no one, with no law, and with no authority steering the course of their day-to-day lives.

   As an example, take the recent case of Burwell v. Hobby Lobby Stores, Inc. (18) As one may recall from the case, the plaintiffs, Hobby Lobby and Conestoga Wood, asked to be exempt from a requirement in the Patient Protection and Affordable Care Act that the companies subsidize certain forms of contraception within the companies' health insurance plans. (19) Importantly, these companies did not object to paying for all forms of contraception, just those pills and devices that they believed caused an abortion to a newly formed, yet nascent, human life. (20) These companies received their exemption through an application of the federal Religious Freedom Restoration Act (RFRA), which stands in the gap created by the Supreme Court's infamous 1990 decision, Employment Division, Department of Human Resources of Oregon v.

   Smith. (21) These companies did not ask for relief on religious grounds from the myriad regulations applicable to them by the federal Department of Transportation; the (likewise) labyrinthine trade laws to which they were subject, as Hobby Lobby imports many of its products from overseas; the business licensing requirement that each of their storefronts is subject to; or the exacting state and federal employment laws.

   Had Hobby Lobby and Conestoga Wood's claims been not what they were, but rather, "let us sell our wares and be subject to no (federal) law," they would have been laughed out of court and would have conclusively lost on the federal district court level. Instead, they ended up winning because they targeted their "ask." To do otherwise would call into serious question the sincerity of their objection. It is simply not plausible, much less sincere, to ask for the moon and the stars from courts when seeking a religious exemption. The system is set up so that a claimant can ask for one thing at a time, and in making the claim for the exemption, they must also state that the requested entitlement is a key component of their religious beliefs. Examples of this include time off from work for a person to engage in worship or other religious exercises, (22) unemployment compensation because a person's employer required her to work on the Sabbath and she could not do it, (23) and an allowance for an employer not to pay for a few (but only a few) of the class of drugs for which the law requires them to pay. (24)

   The system works because the law from which the exemption is requested remains intact and largely unchecked. It is also important to note that the exemption system works because there is always a check on the claimant's request--the judge. The judge makes the determination that the law burdens the claimant's sincere religious beliefs. (25) The judge weighs the "size" of the requested accommodation against the asserted government interest

   (and whether the asserted...