Nate Oman offered up a thoughtful analysis of the Kim Davis controversy, which draws on "old fashioned agency law." When I first read it, I think it is pretty persuasive, but now I want to push the edge of the envelope a bit.
Here's the gist:
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.
But consider another hypothetical. During the Holocaust the signature of Klaus--an agent of the German government--is required on transfer documents before the individuals in question can be sent to a concentration camp. Due to his religious scruples, Klaus refuses to sign. Isn't that exactly how Oman sets up the Davis case:
In refusing to [sign the papers], [Klaus] was both purporting to act as the agent of [the German government] and exceeding the scope of [his] authority as an agent. [His] cannot do this. In acting as an agent, [his] is the fiduciary of the county and must exercise that authority only on behalf of the [country]. The [country] as a legal person simply cannot have the religious scruples that [Klaus] has.
Now before you get on your high horse and start writing letters to the dean and chancellor of my university, let me be clear: I am NOT comparing same sex marriage and the Holocaust. Such a comparison would be ludicrous, offensive, and asinine. Which probably won't stop some lunatic left-wing blogger from claiming that's what I'm doing. But I ask you to try reading the whole post with an open mind.
I am simply trying to tee up the question of whether agency law in fact does the work Oman claims. Oman is basically saying that there is no conscientious objector exception to the agent's duty to obey the principal. And that is the point I want to explore. I chose the Klaus example precisely because it is the strongest case I can imagine for saying that there should be a conscientious objector exception to the agent's duty to obey the principal.
If Oman (or the reader) thinks Klaus should get a conscientious objector pass on violating agency law, then it seems to me he must show that Klaus' situation differs in kind and not just degree from Davis'.
One possible way of doing so would be to focus on the wording of the agent's duty to obey as set out in the Restatement (Third) of Agency:
An agent has a duty to comply with all lawful instructions received from the principal and persons designated by the principal concerning the agent's actions on behalf of the principal.
Oman might argue that the orders given Davis to issue same sex marriage licenses were lawful and that she therefore had a duty to obey them. If so, I would agree. The Supreme Court has ruled, government action denying same sex marriage is unconstitutional, and therefore the orders given Davis were lawful instructions she has a duty to obey.
But then Oman must argue that the instructions given Klaus were unlawful. Assume that the laws in question were validly adopted under German law. Does their presumed invalidity under international human rights law excuse Klaus? Assume the answer to that is no, so that the question of whether Klaus gets a conscientious objector pass on obeying a lawful order is fairly presented by the hypothetical.
I think the problem here is that I (at least) intuitively want to give Klaus a conscientious objector pass. But that gets me into the difference in king versus degree problem.
The way of avoiding the whole difference in kind versus degree problem would be to acknowledge that there is no conscientious objector exception to the agent's duty to obey a lawful order period. Even for evil laws like the one Klaus must enforce.
In that case, the answer is clear, if Klaus' religious scruples preclude him from obeying a lawful order he should resign. And so should Davis. The right thing for her to do is either to issue the licenses or quit.
(Like Oman, I pass on the question of whether the county should accommodate her scruples by having somebody else issue the licenses.)
