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The case of Kim Davis, the clerk in Kentucky who has been in the news due to her refusal to issue marriage licenses to gay couples, has been all over the news. Hence, it was only a matter of time before the All Things Legal team tackled the subject.

kim-davis-and-freedom-of-religion

The Backstory on Kim Davis

Kim Davis is a Rowan County clerk who was elected to the position in 2014. Her mother had previously served as the county’s clerk for 24 years. On Kim Davis’s official website, she describes her duties as follows:

“[G]eneral categories of clerical duties of the fiscal court: issuing and registering, recording and keeping various legal records, registering and purging voter rolls, and conducting election duties and tax duties.”

Among the legal documents that Davis is responsible for issuing as the clerk for Rowan County, one of those is marriage licenses.

On June 26th of this year, the Supreme Court ruled on the case Obergefell v. Hodges, stating in a 5-4 decision that same-sex couples nationwide are guaranteed the fundamental right to marry by both the Due Process and Equal Protection clauses of the 14th Amendment. As a consequence, every state in the country, including those that had previously specifically banned gay marriage, had to begin issuing marriage licenses to same-sex couples.

That same month, Davis stopped issuing marriage licenses to any couple, gay or straight, and instructed her deputy clerks to do the same. On July 2nd, the ACLU sued Davis and the county on behalf of four couples—two same-sex and two gay—who had been denied marriage licenses. On August 12th, the US District Court for the Eastern District of Kentucky ruled that she was required to issue marriage certificates to all couples. That court, as well as the Sixth Circuit Court of Appeals, refused to grant a stay on the ruling.

Davis then chose to take her appeal to the Supreme Court, which on September 1st also declined to grant her a stay. Davis then released a statement in which she described her perspective:

“I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word. It is a matter of religious liberty, which is protected under the First Amendment, the Kentucky Constitution, and in the Kentucky Religious Freedom Restoration Act. Our history is filled with accommodations for people’s religious freedom and conscience. I want to continue to perform my duties, but I also am requesting what our Founders envisioned – that conscience and religious freedom would be protected…”

On Thursday, Davis was summoned to the District Court, where she was found to be in contempt of court. The District Judge ordered that she be taken into federal custody until she complied with the original court order to issue marriage licenses. Of the six deputy clerks who were also summoned to court, five of them agreed to start issuing licenses. The lone holdout, Davis’s son Nathan, refused to comply, but the judge stated that he would not be punished as long as the other deputy clerks complied.

On Friday, the deputy clerks began issuing marriage licenses, while Davis still remains in custody.

So, are Kim Davis’s rights being unconstitutionally restricted by the state?

Craig Ashton led off the discussion by saying, “Let’s break down this foundation so you kind of understand the dynamic of the debate here. The first thing that people will think about is that they believe that this is a First Amendment issue. And, it’s really not. The First Amendment basically says that, ‘Congress shall pass no law to abridge the rights of the individual, and shall make no law respecting [an] establishment of religion, or prohibiting the free exercise thereof.’ So at the end of the day, there is no issue here in regards to Congress making a law that is abridging those rights. Because Congress can’t do that now, that would be clearly unconstitutional. This is an individual who has individual understanding about what God is telling her, and is basically refusing to enforce the law as set down by the Supreme Court of the United States, right? So, now, when it comes to basically providing services… So if she was a pizza owner, and in Kentucky, based upon what I understand of them, same-sex individuals are not a protected class. So you are not protected based upon your sexual orientation. So if she wanted to discriminate against you in Kentucky based upon her understanding of your sexual orientation, she might be able to do that if she was selling pizza.”

Tim Hodson clarified, “Right, that’s a private business owner.”

Craig continued, “Because she’s giving out marriage licenses, and the law says you must do that, there’s no gray area, right? She’s in violation. Now, in California, the Unruh Civil Rights Act ultimately has protected classes, which says, based upon employment, housing, public accommodation, and services provided by business establishments, you may not discriminate based upon sex, race, color, national origin, religion, disability, medical condition, marital status, and sexual orientation. So, in this state, you cannot say to somebody, ‘I’m not serving you because you’re gay.’ You’re in violation of the Unruh Civil Rights Act. That’s a violation. In Kentucky, probably not the same case.

“So, Kim Davis has determined that God is speaking to her and the Supreme Court is overruled by the Supreme Being, and [she] is not giving out, ultimately, marriage licenses to same-sex couples. Now, the problem is, and—where’s Trump when you need him, right?—you’d think she’d be fired. But because she’s in Kentucky and elected, ultimately the only group that can take her out is the Kentucky State Legislature. And guess what? They’re not in session. And in Kentucky, and this is Appalachia, they’re probably not down with the concept of same-sex marriage, anyway. So I don’t think they’re in any rush to come back and make a determination as to whether or not they’re going to take her out of office.”

Craig went on to try and make the flaws in Davis’s legal argument more apparent by turning the situation on its head, and presenting a hypothetical that might well appall Davis’s supporters, but which would have a similar legal grounding, if her argument were sound:

“It can’t work this way. I read a really interesting editorial, and if you’re on the other side of this, I get it, but this is a rule of law country… where [the] bottom line is, when the Supreme Court says this is what happens, you don’t get to—as a clerk—determine that you have a better approach.

“So, there was an analogy that was drawn. So what if an Inuit clerk in Alaska refuses to issue a hunting license to Sarah Palin because she’s a woman? His reason is his religion says only men are allowed to hunt. Therefore he says, ‘Look, guess what? My religion says you don’t get a gun, I’m not issuing you a license, thanks for coming.’ Now, would the same group of people that are supporting the individual clerk in Kentucky support this Inuit, based upon their religious freedom? Or how about: you’re Muslim, and you believe—you work for the DMV—that women shouldn’t drive. And you say, it’s you religious conviction, that ‘I’m not issuing any driver’s licenses to women, because that’s what my religion tells me.’”

Craig paused for effect before following this line of thought up with, “No. Possible. Way.”

Tim was quick to agree: “That guy would be vilified on the front [page] of the paper. It’d be everywhere.”

Edward Schade elaborated on this alternative argument: “Imagine if it was [Kim Davis] asking for the hunting license and she got refused, or she was denied the right to drive. And literally, up until 1976, the State of California would have denied her the right to bring a claim for loss of consortium. That’s only recently that changed.”

Craig concluded: “The point is, is that, she is free—at home—to put up a sign in front of her house saying, ‘All people that are same-sex married are going to Hell. Stay away from my house if you’re gay.’ She can do that all day long. The First Amendment protects that right. No law can be passed to prohibit her from saying that. And she can practice her religion any way she likes in her off time. But when it comes to being the clerk who’s responsible for marriage licenses, and the law of the United States of America says, that whether or not you agree with it—you know, I don’t agree with the speed limit being 65, I’d like to do 75, but guess what, I just don’t get to say, ‘My personal belief is 75 is safe for me’—there’s a law. So the moral of the story: she’s gotta follow the law. And when she doesn’t follow the law, the problem is in Kentucky they can’t get her out until the Kentucky Legislature goes into session, but, she can be held in contempt, right Ed?”

Here he deferred to Ed Schade, who explained: “Correct, there’s actually two things. Whenever you’re a state official—even an attorney—when you’re sworn in, you’re sworn in to uphold the Constitution [and defend it] from all enemies, foreign and domestic, [and uphold the laws of] the state as well as the federal [government].”

After speculating as to whether Davis’s lucrative salary—$80,000 per year—may have something to do with why she has refused to resign, Ed went on to conclude: “She is not upholding her obligations as a county clerk and as a government employee to fulfill the duty that she put her right hand up and swore to [uphold and protect].

After more discussion, Craig tackled Davis’s assertion that her wishes fall within the protections the founding fathers wished to put in place by writing the Constitution. He began by quoting from her September 1st written statement: “She says, ‘I want to continue to perform my duties, but I am also requesting what our Founders envisioned,’—which is ridiculous—‘that conscience and religious freedom would be protected.’ Yeah, it’s protected, but not when you’re working for the government, because the Congress—and people who are exercising the rights under the government—cannot abridge your religious freedom.”

It was an interesting point on which to conclude the group’s discussion on Kim Davis: That her desire to not issue same-sex marriage licenses is not protected by the Constitution, for the express reason that she is acting as an agent of the government. The government, and those who act on its behalf, cannot act to restrict the constitutionally protected freedoms of others—in this case, for same-sex couples to be granted a marriage license. Kim Davis’s argument fails, not because the government wishes to curtail her freedoms, but because the government is obliged to curtail its own actions, and the actions of its executors while they act on its behalf.

So, definitely an interesting discussion on this week’s All Things Legal. We hope that it proved equally interesting to you, and that it provided food for thought.

Update: On September 8th, Kim Davis was released from jail. She plans to return to work this week, but was instructed not to obstruct the issuing of marriage licenses. There has been some speculation that she intends to once again suspend the issuing of licenses when she resumes work, and she and her attorneys claim that the licenses issued in her absence are not valid. It’s probably safe to say that this isn’t the last time that Kim Davis will be in the news.

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