Eugene Volokh in The Volokh Conspiracy:
Yet besides her losing claim in the federal lawsuit, it seems to me that Davis has a much stronger claim under state law for a much more limited exemption. Davis’s objection, it appears (see pp. 40, 133, and 139 of her stay application and attachments), is not to issuing same-sex marriage licenses as such. Rather, she objects to issuing such licenses with her name on them, because she believes (rightly or wrongly) that having her name on them is an endorsement of same-sex marriage. Indeed, she says that she would be content with
Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.
Now this would be a cheap accommodation that, it seems to me, a state could quite easily provide. It’s true that state law requires the County Clerk’s name on the marriage license and the marriage certificate. But the point of RFRAs, such as the Kentucky RFRA, is precisely to provide religious objectors with exemptions even from such generally applicable laws, so long as the exemptions don’t necessarily and materially undermine a compelling government interest.
And allowing all marriage licenses and certificates — for opposite-sex marriages or same-sex ones — to include a deputy clerk’s name, or just the notation “Rowan County Clerk,” wouldn’t jeopardize any compelling government interest.
If Davis sues in state court, seeking a declaration that she can issue licenses and certificates without her name — as a Kentucky RFRA-based exemption from the Kentucky statutory requirements for what must go on her license — I think she’d have a good case. The federal district court rejected her Kentucky RFRA argument on the grounds that the requirement doesn’t much burden her beliefs:
The record in this case suggests that the burden [on Davis] is more slight. As the Court has already pointed out, Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk. The Court therefore concludes that Davis is unlikely to suffer a violation of her free exercise rights under Kentucky Constitution § 5.
But though I agree that her religious convictions can’t excuse her from issuing marriage licenses altogether, I think the judge erred in the rest of the analysis in this paragraph. If Davis believes that it’s religiously wrong for her to issue licenses with her name on them, ordering her to do that indeed burdens her religious beliefs, enough to trigger the Kentucky RFRA. And giving her the more modest exemption from the include-the-court-clerk’s-name requirement might therefore indeed be required by the Kentucky RFRA.
So if Kim Davis does indeed go through the state courts, and ask for a modest exemption under the state RFRA — simply to allow her to issue marriage licenses (opposite-sex or same-sex) without her name on them — she might indeed prevail. Rightly or wrongly, under the logic of Title VII’s religious accommodation regime and the RFRA religious accommodation regime, she probably should prevail.
There’s a lot of appeal to the “you take the job, you follow the rules — if you have a religious objection to the rules, quit the job” approach may be. But it’s not the approach that modern American federal employment law has taken, or the approach that the state religious exemption law in Kentucky and many other states has taken.
Muslim truck drivers who don’t want to transport alcohol, Jehovah’s Witnesses who don’t want to raise flags, Sabbatarians (Jewish or Christian) who don’t want to work Saturdays, and philosophical vegetarians who don’t want to hand out hamburger coupons can take advantage of this law. Conservative Christian county clerks who don’t want to have their names listed on marriage certificates and licenses likely can, too.