So, we can arrest Kim Davis now, right?

[BedellBrave]

I'm not sure I understand. It refers to the individual, specifically, per the RFRA. If you don't want the government making the decision, that would seem to open the door to all kinds of wackiness.

1. I did, in the post you quoted. With some qualifications and allowances for context.

Sorry - I'm slow at times Julio - as you know. So, you don't think it was an undue hardship on the part of the government to allow her to sign with her title and not her name. If I understand you correctly - good, and thanks.

My understanding is that the issue of burden has more to do with what extent would the business/government would have to go to make the accommodation. Volokh explained that well for me. The burden is not, how much of a burden is it for the individual to do the thing they object to - how can we legitimately or fairly determine that? How do I, as a Christian, fully get the angst that a Muslim has to certain things due to their deeply held convictions?

 

[BedellBrave]

Not trying to steak Bedell's treasured thunder, but it takes about 2 secs to google.

http://www.openbible.info/topics/homosexuality
Leviticus 18:22 ESV / 2,238 helpful votes

You shall not lie with a male as with a woman; it is an abomination.
1 Corinthians 6:9-11 ESV / 1,597 helpful votes

Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality, nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God. And such were some of you. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God.

Romans 1:26-28
Leviticus 20:13
1 Timothy 1:10
etc...

Much more than I thought it would be, actually.

Thanks Runnin!

I'd also include the statements of Christ on marriage (and divorce) - they provide a context for understanding how the Apostles then address human sexuality and marriage.

 

[goldfly]

I know the verses and what it says

i just don't get why that gets singled out over all the other things

just picking and choosing

 

[BedellBrave]

I know the verses and what it says

i just don't get why that gets singled out over all the other things

just picking and choosing

Unfortunately, often times you are right - many do emphasize it over other sins. We are all fallen and sinful and we too often want to keep our pet sins safe.

 

[50PoundHead]

Sorry - I'm slow at times Julio - as you know. So, you don't think it was an undue hardship on the part of the government to allow her to sign with her title and not her name. If I understand you correctly - good, and thanks.

My understanding is that the issue of burden has more to do with what extent would the business/government would have to go to make the accommodation. Volokh explained that well for me. The burden is not, how much of a burden is it for the individual to do the thing they object to - how can we legitimately or fairly determine that? How do I, as a Christian, fully get the angst that a Muslim has to certain things due to their deeply held convictions?

I'm not familiar with him, but I read a few of his posts on this subject and found them interesting. Noah Feldman's piece at Bloomberg (here: http://www.bloombergview.com/articles/2015-09-03/what-oath-of-office-means-to-county-clerk-kim-davis) takes a decidedly different tack on the subject and between these two I think we get a pretty decent outline of the legal landscape.

The one problem I have with Volokh's analysis is that I don't believe he delineates clearly enough the difference between an employee and an elected official. The Kentucky RFRA appears to lump the two categories together and that is where the crux of the problem--at least to me--comes to the fore. I'm not saying Davis shouldn't get an exemption, but the problem with granting the exemption is that if a marriage license is issued without her name on it, there will be a question of its validity. Volokh seems to think that's not a problem (or a big one at least), but given the litigious nature of our society and the iffiness of court decisions, I can see a number of licenses being ruled as invalid without the signature of the elected official responsible for that duty. I believe there is a difference between an elected official and an employee because employees generally don't take an oath to uphold the Constitution. I'm not sure about postal service employees and IRS agents and whether or not they take an oath, so I realize I could be wrong on this matter.

I want to be sensitive to Davis' sentiments although I don't agree with her stance. I've personally seen state bureaucrats both make law without legislative approval and ignore laws that have been passed by the legislature, so this isn't that rare an instance. I think the magnitude of the issue is what is different from my experience (which involved relatively minor stuff). But I do think being an elected official puts an individual on a different plane than an employee in these matters. That is what is going to have to be sorted out here (and likely elsewhere) on the nature of burden and whether or not there is a substantial difference between employees and elected officials. I think when we start exempting elected officials from duties they've sworn to perform (and I will give Davis some benefit of the doubt because she was elected prior to Obergefell) we are on a very slippery slope.

What is ironic--at least to me--is that both the Right and the Left complain about activist courts (the Right probably more than the Left, but the Left is catching up), but then turn to the courts to basically write the law through interpretation. I'm reading a little set of essays on the early American political party system and the Jeffersonian Republicans really railed against John Marshall's introduction of the concept of judicial review and I found that discussion extremely relevant to our current environment.

goldfly, I am totally with you on the historical elevation of homosexuality to the front of the "sin line." Modern capitalist society appears to be built on serial dismissal of the 10th commandment dealing with covetousness, but that, like a lot of other behaviors that are pretty clearly prohibited by the Ten Commandments get routinely overlooked, but somehow that doesn't prevent folks from doing the "yonder stands the sinner" thing in the discussion of homosexuality. I guess it's the old 'speck vs. log" thing.

 

[Julio3000]

Sorry - I'm slow at times Julio - as you know. So, you don't think it was an undue hardship on the part of the government to allow her to sign with her title and not her name. If I understand you correctly - good, and thanks.

My understanding is that the issue of burden has more to do with what extent would the business/government would have to go to make the accommodation. Volokh explained that well for me. The burden is not, how much of a burden is it for the individual to do the thing they object to - how can we legitimately or fairly determine that? How do I, as a Christian, fully get the angst that a Muslim has to certain things due to their deeply held convictions?

I haven't read whatever Volokh wrote that illuminated it for you. I'm just stating that the nut text of the 1993 RFRA is that government:"shall not substantially burden a person's exercise of religion." I understand it as a balance of "burdens." The government shall not do X above unless it can be shown that it can be done so to further a compelling governmental interest with the minimal possible interference to the religious beliefs of person Z. "Least restrictive means" is the actual language. So there is a burden on the government to prove that it can meet those conditions. Am I on it?

I'm not familiar with the literature around the law, and I feel pretty certain that we're misunderstanding each other . . . because it seems pretty unequivocal to me that there is a duty on the individual to prove that they are indeed substantially burdened—and for the court to rule on the merits of such claims. And you say how can we legitimately or fairly determine that? Indeed, how can we? Through either the legislature or the courts, and since the legislature declined to offer a definition, it's up to the courts to do it.

Incidentally, that's a huge problem that I have with the RFRA. It's completely—and purposefully—vague as to what constitutes the "substantial burden" on an individual or group. And you say you don't want the government determining it? Who else is going to do it? As you know, I'm sure, there's tons of case law that deal with free exercise that have explored the question. I mean, there's sheaves and sheaves of pre-and post-RFRA writings from judges all trying to figure out exactly what "substantial burden" means and how it is to be applied. And you suggest . . . just ditching that and accepting ALL claims of "substantial burden on exercise of religion" prima facie?

 

[50PoundHead]

I haven't read whatever Volokh wrote that illuminated it for you. I'm just stating that the nut text of the 1993 RFRA is that government:"shall not substantially burden a person's exercise of religion." I understand it as a balance of "burdens." The government shall not do X above unless it can be shown that it can be done so to further a compelling governmental interest with the minimal possible interference to the religious beliefs of person Z. "Least restrictive means" is the actual language. So there is a burden on the government to prove that it can meet those conditions. Am I on it?

I'm not familiar with the literature around the law, and I feel pretty certain that we're misunderstanding each other . . . because it seems pretty unequivocal to me that there is a duty on the individual to prove that they are indeed substantially burdened—and for the court to rule on the merits of such claims. And you say how can we legitimately or fairly determine that? Indeed, how can we? Through either the legislature or the courts, and since the legislature declined to offer a definition, it's up to the courts to do it.

Incidentally, that's a huge problem that I have with the RFRA. It's completely—and purposefully—vague as to what constitutes the "substantial burden" on an individual or group. And you say you don't want the government determining it? Who else is going to do it? As you know, I'm sure, there's tons of case law that deal with free exercise that have explored the question. I mean, there's sheaves and sheaves of pre-and post-RFRA writings from judges all trying to figure out exactly what "substantial burden" means and how it is to be applied. And you suggest . . . just ditching that and accepting ALL claims of "substantial burden on exercise of religion" prima facie?

Well said. And again, the irony here for me is that vagueness ends up in the courts, which for the most part proponents of laws like the Kentucky RFRA see as a bastion of liberal overreach.

 

[BedellBrave]

I'm not familiar with him, but I read a few of his posts on this subject and found them interesting. Noah Feldman's piece at Bloomberg (here: http://www.bloombergview.com/articles/2015-09-03/what-oath-of-office-means-to-county-clerk-kim-davis) takes a decidedly different tack on the subject and between these two I think we get a pretty decent outline of the legal landscape.

The one problem I have with Volokh's analysis is that I don't believe he delineates clearly enough the difference between an employee and an elected official. The Kentucky RFRA appears to lump the two categories together and that is where the crux of the problem--at least to me--comes to the fore. I'm not saying Davis shouldn't get an exemption, but the problem with granting the exemption is that if a marriage license is issued without her name on it, there will be a question of its validity. Volokh seems to think that's not a problem (or a big one at least), but given the litigious nature of our society and the iffiness of court decisions, I can see a number of licenses being ruled as invalid without the signature of the elected official responsible for that duty. I believe there is a difference between an elected official and an employee because employees generally don't take an oath to uphold the Constitution. I'm not sure about postal service employees and IRS agents and whether or not they take an oath, so I realize I could be wrong on this matter.

I want to be sensitive to Davis' sentiments although I don't agree with her stance. I've personally seen state bureaucrats both make law without legislative approval and ignore laws that have been passed by the legislature, so this isn't that rare an instance. I think the magnitude of the issue is what is different from my experience (which involved relatively minor stuff). But I do think being an elected official puts an individual on a different plane than an employee in these matters. That is what is going to have to be sorted out here (and likely elsewhere) on the nature of burden and whether or not there is a substantial difference between employees and elected officials. I think when we start exempting elected officials from duties they've sworn to perform (and I will give Davis some benefit of the doubt because she was elected prior to Obergefell) we are on a very slippery slope.

What is ironic--at least to me--is that both the Right and the Left complain about activist courts (the Right probably more than the Left, but the Left is catching up), but then turn to the courts to basically write the law through interpretation. I'm reading a little set of essays on the early American political party system and the Jeffersonian Republicans really railed against John Marshall's introduction of the concept of judicial review and I found that discussion extremely relevant to our current environment.

goldfly, I am totally with you on the historical elevation of homosexuality to the front of the "sin line." Modern capitalist society appears to be built on serial dismissal of the 10th commandment dealing with covetousness, but that, like a lot of other behaviors that are pretty clearly prohibited by the Ten Commandments get routinely overlooked, but somehow that doesn't prevent folks from doing the "yonder stands the sinner" thing in the discussion of homosexuality. I guess it's the old 'speck vs. log" thing.

Thanks 50. I've quoted or linked to the Volokh piece a few times. I'll read Feldman. I think the potential of a lawsuit challenging a stamp of "Clerk" rather than "Davis" is certainly there, but I'm not sure we will ever be free of potential lawsuits to anything in this antagonistic and litigious culture we find ourselves in. But I understand your concern.

I also understand your "slippery slope" appeal but find it less concerning. Hey if I'm to be challenged on using them I get to challenge back - fair play an all. I think the ability to have the critique from within is worth any slippery slope danger. Reasonable accommodation language and approaches seem especially suited to mitigate against wild abuse.

As to there being other public violations of the 10 Commandments, I'm just glad we are recognizing what we are talking about now and I am want to be against all codification of sin.

 

[BedellBrave]

I haven't read whatever Volokh wrote that illuminated it for you. I'm just stating that the nut text of the 1993 RFRA is that government:"shall not substantially burden a person's exercise of religion." I understand it as a balance of "burdens." The government shall not do X above unless it can be shown that it can be done so to further a compelling governmental interest with the minimal possible interference to the religious beliefs of person Z. "Least restrictive means" is the actual language. So there is a burden on the government to prove that it can meet those conditions. Am I on it?

I'm not familiar with the literature around the law, and I feel pretty certain that we're misunderstanding each other . . . because it seems pretty unequivocal to me that there is a duty on the individual to prove that they are indeed substantially burdened—and for the court to rule on the merits of such claims. And you say how can we legitimately or fairly determine that? Indeed, how can we? Through either the legislature or the courts, and since the legislature declined to offer a definition, it's up to the courts to do it.

Incidentally, that's a huge problem that I have with the RFRA. It's completely—and purposefully—vague as to what constitutes the "substantial burden" on an individual or group. And you say you don't want the government determining it? Who else is going to do it? As you know, I'm sure, there's tons of case law that deal with free exercise that have explored the question. I mean, there's sheaves and sheaves of pre-and post-RFRA writings from judges all trying to figure out exactly what "substantial burden" means and how it is to be applied. And you suggest . . . just ditching that and accepting ALL claims of "substantial burden on exercise of religion" prima facie?

I assume (and I know that's dangerous) that the pillar civic belief in the "free exercise of religion" should normally lead courts to leaving the casuistry to the person and/or their ecclesiastical courts. I say normally, because if someone is saying that their conviction would lead them to physically harming another person, for example, then the gov't/court tosses that.

 

[BedellBrave]

Well said. And again, the irony here for me is that vagueness ends up in the courts, which for the most part proponents of laws like the Kentucky RFRA see as a bastion of liberal overreach.

Ironic too that the Left would punt here.

 

[goldfly]

I look forward to these guys being arrested for interfering with the law. Hopefully they're stupid enough to fire on the police and get wiped out.

let's not overlook the irony of the "oath keepers" saying they will protect her for not doing her oath she said she will do

 

[Julio3000]

I assume (and I know that's dangerous) that the pillar civic belief in the "free exercise of religion" should normally lead courts to leaving the casuistry to the person and/or their ecclesiastical courts. I say normally, because if someone is saying that their conviction would lead them to physically harming another person, for example, then the gov't/court tosses that.

So there shouldn't be any court cases adjudicating free exercise? Or, rather, all free exercise cases should be automatically defaulted to the side arguing that their rights under the clause have been infringed?

That really seems like throwing the baby out with the bathwater.

 

[BedellBrave]

let's not overlook the irony of the "oath keepers" saying they will protect her for not doing her oath she said she will do

And let's not overlook the nice loons threatening to do all kinds of "nice" things to her and her husband.

 

[BedellBrave]

So there shouldn't be any court cases adjudicating free exercise? Or, rather, all free exercise cases should be automatically defaulted to the side arguing that their rights under the clause have been infringed?

That really seems like throwing the baby out with the bathwater.

How did you get that from what I wrote? Seriously. You are better than that Julio.

 

[Julio3000]

How did you get that from what I wrote? Seriously. You are better than that Julio.

No, in all good faith, man, that's what you seem to be saying. How did I get that?

the pillar civic belief in the "free exercise of religion" should normally lead courts to leaving the casuistry to the person and/or their ecclesiastical courts

The burden is not, how much of a burden is it for the individual to do the thing they object to - how can we legitimately or fairly determine that? How do I, as a Christian, fully get the angst that a Muslim has to certain things due to their deeply held convictions?

whether you think she should or shouldn't be burdened isn't the point nor do we (I think) want the government making that call. The substantial burden is the burden not placed on the objector but on the business/government were they to grant the request.

That's how. And I still think you haven't addressed the issue of "substantial burden" as applied to the individual or group affected. It's the government's responsibility to accommodate in the case of a valid RFRA claim. There's still a question as to whether an individual or group has been "substantially burdened." There has to be a test there, right? I'm not sure why you haven't acknowledged that, and why you think that I shouldn't ascribe to you that opinion based on the quotes above.

The RFRA states it clearly. If government action places a substantial burden on the free exercise of religion, then . . . et al. Now, is there no role at all for the court to determine if that party's free exercise rights have indeed been infringed? Now, there's the court's quite reasonable reticence to enter into adjudication of religious doctrine, of course. But that would touch only some of the free exercise or RFRA cases that have been decided.

So, in light of your third quote: whether or not she should or shouldn't have been burdened seems to be an integral part of the question, and indeed a test of the validity of the claim? No?

 

[zitothebrave]

I think the root gripe for me. Is I cannot take this woman seriously. She's been married 4 times. I'm sure Bedell can tell me of the passages about divorce in the bible, there really aren't many.

 

[BedellBrave]

I wrote:

I assume (and I know that's dangerous) that the pillar civic belief in the "free exercise of religion" should normally lead courts to leaving the casuistry to the person and/or their ecclesiastical courts. I say normally, because if someone is saying that their conviction would lead them to physically harming another person, for example, then the gov't/court tosses that.

To arrive at your conclusion you have to totally miss my use of "normally" and the last sentence. I am obviously saying by that sentence there are/could-be objections which can not be granted obviously. There are others at the other end of the spectrum that should obviously be granted for they place no reasonable burden upon the gov't/business/customer. I think the Davis objection is a case of the latter.

You are placing the emphasis on "is this a burden for her to do?". That doesn't seem to be primary question to ask and it seems to me to be one fraught with problems - how would you know unless you shared the person's religious worldview? How could a minority ever get a fair shake from a majority? So, beyond, "will this bring unrepairable harm?" concerns, I am inclined to believe that the focus should be on, "can this objection be reasonably accommodated?". And that seems to be the purpose of the RFRA.

Do you have the exact language of the Kentucky RFRA, where you say it states it clearly? I'll be happy to read it and reconsider.

 

[BedellBrave]

I think the root gripe for me. Is I cannot take this woman seriously. She's been married 4 times. I'm sure Bedell can tell me of the passages about divorce in the bible, there really aren't many.

Why do people keep missing this? She is claiming to have had a conversion and that she recognizes her previous sins and disregard for the sanctity of marriage. Believe her or not. At least acknowledge that.

Sure there are passages in the Bible about against divorce and generally two exceptions (porneia and abandonment - variously understood).

 

[The Tariff King]

I'm more surprised she got remarried 3 times, moreso than she's been divorced a few.

 

[Julio3000]

I wrote:

I assume (and I know that's dangerous) that the pillar civic belief in the "free exercise of religion" should normally lead courts to leaving the casuistry to the person and/or their ecclesiastical courts. I say normally, because if someone is saying that their conviction would lead them to physically harming another person, for example, then the gov't/court tosses that.

To arrive at your conclusion you have to totally miss my use of "normally" and the last sentence. I am obviously saying by that sentence there are/could-be objections which can not be granted obviously. There are others at the other end of the spectrum that should obviously be granted for they place no reasonable burden upon the gov't/business/customer. I think the Davis objection is a case of the latter.

You are placing the emphasis on "is this a burden for her to do?". That doesn't seem to be primary question to ask and it seems to me to be one fraught with problems - how would you know unless you shared the person's religious worldview? How could a minority ever get a fair shake from a majority? So, beyond, "will this bring unrepairable harm?" concerns, I am inclined to believe that the focus should be on, "can this objection be reasonably accommodated?". And that seems to be the purpose of the RFRA.

Do you have the exact language of the Kentucky RFRA, where you say it states it clearly? I'll be happy to read it and reconsider.

Your placing the qualification at physically harming another person doesn't leave a lot of room for maneuver.