September 05, 2015
Kim Davis, Religious Accommodations, and Agency Law
Posted by Nate Oman

Kim Davis, the Rowan, Kentucky county clerk held in contempt of court for refusing to issue marriage licenses to same-sex couples, has sparked a fair amount of debate and outrage about laws accommodating religion, that is rules that allow religious objectors to opt out of otherwise applicable laws in some circumstances.  Some of Davis's supporters have suggested that the same conception of religious freedom that justifies such accommodations ought to justify Davis's actions.  Some of Davis's critics have insisted that her behavior is the reductio ad absurdum of that conception.  I think that plain old fashioned agency law explains why both responses are mistaken.

Kim Davis says that she has sincere religious objections to same-sex marriage, objections that keep her from issuing marriage licenses as county clerk.  Superficially, this sounds like a claim for a religious accommodation.  Agency law, however, explains why it is not.  In refusing to issue marriage licenses, Kim Davis is acting as the agent of Rowan County.  As an agent, her actions are the the actions of the county.  Indeed, the county, like any other juridical person, can only act through its agents.  The problem, however, is that Rowan County, as a legal person, has no religious beliefs.  Indeed, the Establishment Clause would, on my view, prohibit the county from having religious beliefs. Rowan County cannot claim a religious exemption without a violent change in our basic constitutional structure.  The county must comply with the Supreme Court's interpretation of 14th amendment and issue marriage licenses to same-sex couples.  In refusing to issue marriage licenses, Davis was both purporting to act as the agent of Rowan County and exceeding the scope of her authority as an agent.  She cannot do this.  In acting as an agent, she is the fiduciary of the county and must exercise that authority only on behalf of the county.  The county as a legal person simply cannot have the religious scruples that Davis has.
 
Now consider a hypothetical employee in the Rowan County Clerk's office with religious objections to same-sex marriage who asks that she be excused from issuing licenses to same-sex couples, requesting that a colleague without such religious scruples prepare and issue those documents.  This employee would also be an agent of Rowan county, and thus her actions could potentially become the actions of the county.  Unlike Kim Davis, however, this hypothetical employee is not seeking to act as an agent or exercise any authority on behalf of the county.  Rather, the hypothetical employee is seeking to disclaim authority.  She is asking that in this case she not be treated as an agent of the county.  This would be a request that the county accommodate her religious scruples, and it is very different than what Kim Davis is claiming. 
 
There are, of course, all sorts of arguments about whether or not my hypothetical county employee should be provided with such an accommodation and whether there is any mechanism under current law by which she might claim an accommodation.  My point is only that her case is fundamentally different than the case of Kim Davis.  Davis wishes to act as an agent of the county and exercise authority on its behalf.  My hypothetical employee, on the other hand, is trying to avoid acting as an agent and is disclaiming authority.  In short, it is the structure of agency law that illuminates the fundamental difference between religious accommodations and what Kim Davis is trying to do.

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