A federal judge’s order that a county clerk must violate her Christian faith and issue marriage licenses to same-sex couples to meet the constitutional right to homosexual unions newly created by the U.S. Supreme Court now is under challenge at the 6th U.S. Circuit Court of Appeals.
The notice of appeal was filed by attorneys with Liberty Counsel immediately after U.S. District Judge David Bunning ordered Rowan, Kentucky, County Clerk Kim Davis to violate her deeply held religious beliefs, protected by the First Amendment, and issue marriage licenses to same-sex couples.
The judge’s ruling appeared to advance President Obama’s ongoing campaign to replace “freedom of religion” with “freedom of worship.”
WND has reported that for years the Obama administration has referenced the First Amendment constitutional protection in new language.
Most recently, a big list of prominent faith leaders joined to ask Department of Homeland Security Secretary Jeh Johnson to fix a problematic document that references “worship” rather than “religion.”
“We … write to you with deep concern about the wording of the answer to question 51 on the study materials for the civics portion of the naturalization exam. The question asks students to provide two rights guaranteed to everyone living in the United States, and listed among the possible correct answers is ‘freedom of worship.’ We write to you requesting that this answer be immediately corrected to the constitutionally accurate answer – ‘freedom of religion,'” the recent letter said.
“We believe that the wording change we are requesting represents much more than a ‘distinction without a difference.’ Many totalitarian forms of government have allowed for the freedom of worship in their governmental documents but in practice severely restricted individual religious freedoms. The phrase freedom of worship, as it has been used throughout history, articulates an intentionally limited freedom that restricts a citizen’s rights to the four walls of a government-sanctioned house of worship and only for specific times and events.”
The letter was issue by the Weyrich Lunch participants. The group is named after the late chairman of the Free Congress Research and Education Foundation Paul Weyrich.
Bunning wrote that Davis can live out her beliefs privately. But he ruled she cannot exercise her “freedom of religion” publicly. Homosexual activists early Thursday demanded marriage licenses from Davis’ office but were turned away.
“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 ministry 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,” the judge wrote.
“However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk,” he said, citing the same-sex marriage right that was created only weeks ago by the Supreme Court.
Early in President Obama’s tenure in the White House, Catholic Online and other media outlets reported what appeared to be a deliberate attack on the Constitution’s “freedom of religion” protections.
The report noted a crucial change in Obama’s language between his June 2009 speech in Cairo, Egypt, where he spoke of a Muslim America and its “freedom of religion,” and the November 2009 memorial for the Fort Hood soldiers gunned down by a radical Muslim, where he termed it “freedom of worship.”
From that point on, “freedom of worship” has become the term of choice, the report said.
The use of the term in the naturalization process recently drew attention in Congress.
Sen. James Lankford, R-Okla., charged during a recent hearing that included Johnson that the government is “misrepresenting” the First Amendment.
“We in the United States actually have freedom of religion, not freedom of worship,” Lankford said.
See his comments:
He said: “The questionnaire civics test has in it one of these things, ‘What are two rights of everyone living in the United States, and it listed out six different things: freedom of expression, freedom of speech, freedom of assembly, freedom to petition the government, freedom of worship, the right to bear arms. I’d love to see ‘freedom of worship’ switched to ‘freedom of religion.'”
Sarah Torre of the Heritage Foundation said the difference is significant. In practice across America, the “freedom to worship” seldom has been challenged or even questioned. But “freedom of religion” is under direct fire.
Bunning charged that the Supreme Court’s ruling means same-sex couples seeking a marriage license cannot be denied. And his ruling puts the First Amendment’s protections regarding freedom of religion in a secondary position.
Roger Gannam, an attorney with Liberty Counsel, which is representing Davis, submitted a notice of appeal to the 6th U.S. Circuit Court of Appeals immediately. It was accompanied by a motion to the court to stay the ruling pending appeal.
“Davis is entitled to a stay of the injunction entered against her by this court’s August 12, 2015, Memorandum Opinion and Order pending her appeal of that ruling,” it said.
The memo explains: “A SSM license issued on her authorization and bearing her name and imprimatur, substantially (and irreparably) burdens her conscience and religious freedom because it represents endorsement of, and participation in, a proposed union that is not marriage according to her sincere and deeply held religious convictions.”
It said that “searing act of validation would forever echo in her conscience – and, if it happened, there is no absolution or correction that any earthly court can provide to rectify it. … To protect her fundamental, inalienable, and inviolate religious liberties from such coercion, she has filed an immediate appeal of this court’s injunction order.”
The document pointed out that those who brought the case have the option to obtain their license in more than 100 other locations but refused in order to bring a complaint against Davis.
The document noted Bunning’s reference to the fact that Davis’ rights “are, in fact, being both ‘threaten[ed]’ and ‘infringe’d]’ by plaintiffs’ demands for her approval of their proposed unions.”
“The court stated that ‘this civil action presents a conflict between two individual liberties held sacrosanct in American jurisprudence,'” the document explains.
Dan Canon, a lawyer representing the same-sex duos, said of the ruling, “It reaffirms the idea that we’ve been trying to stress all along, which is that individual elected officials are not allowed to govern according to their own private religious beliefs.”
Davis halted the issuing of any marriage licenses after the Supreme Court’s ruling in June.
The American Civil Liberties Union then sued her. It argued the homosexual duos should not have to drive anywhere else to get their licenses.
WND reported Davis also has brought a case against her own governor, Steve Beshear, for arbitrarily picking and choosing religious beliefs for exemptions from the law and thus putting her in the position to be a defendant in the current case.
The newest case from Davis asks that Beshear be made liable for any damages that might be assessed against her in the marriage case.
“Beshear is unlawfully picking and choosing the conscience-based exemptions to marriage that he deems acceptable,” says the complaint, brought by Liberty Counsel on behalf of Davis against Beshear.
“For instance, when Attorney General [Jack] Conway refused to defend Kentucky’s marriage laws, Beshear did not admonish Conway that ‘neither your oath nor the Supreme Court dictates what you must believe. But as elected officials, they do prescribe how we must act,’ but Gov. Beshear did so direct county clerks like Davis.”
The complaint also explains, “Beshear did not command Conway that ‘when you accepted this job and took that oath, it puts you on a different level,’ and ‘you have official duties now that the law puts on you,’ but he did deliver this command to county clerks like Davis.”
Further, “Beshear did not publicly proclaim that Conway was ‘refusing to perform [his] duties’ and failing to ‘follow the law and carry out [his] duty,’ and should instead ‘comply with the law regardless of personal beliefs,’ but he did make this proclamation (repeatedly) about county clerks like Davis.
“Beshear did not instruct Conway that ‘if you are at that point to where your personal convictions tell you that you simply cannot fulfill your duties that you were elected to do, then obviously the honorable course to take is to resign and let someone else step in who feels that they can fulfill these duties,’ but he did issue this instruction to country clerks like Davis … Beshear did not ominously declare that ‘the courts will deal appropriately with’ Conway, but he did so declare as to the ‘two or three’ county clerks who are not issuing marriage licenses.”
The issue raised in the complaint is that the state’s attorney general, Jack Conway, earlier had refused to defend the state’s marriage laws, which were challenged in court, because of his beliefs.
He said, “I can only say that I am doing what I think is right.”
Beshear hired outside attorneys to do the job to which Conway was elected.
But when the Obergefell decision was announced, Beshear ordered clerks to start granting marriage licenses to same-sex couples even if it violates the clerks’ religious beliefs. He said they should quit if they couldn’t do what he wanted.
The case is based on the First Amendment’s speech and religion provisions, which even the Obergefell decision recognized, as well as the constitutional ban on a religious test. There are similar provisions in the Kentucky Constitution.
Filed in federal court in Kentucky, the case seeks a ruling that Beshear has violated the Kentucky Religious Freedom Restoration Act, the First and Fourteenth Amendments, and the Constitution’s Article VI.
The case is one of the first to develop since the U.S. Supreme Court created in its Obergefell decision a direct conflict between the new homosexual marriage right and the Constitution’s protection of freedom of religion.
“This case is not about whom a person may marry under Kentucky law. No statewide ban is preventing any plaintiff from marrying whom they want to marry. This case is also not about whether plaintiffs can obtain a Kentucky marriage license. They can. Such licenses, including same-sex ‘marriage’ licenses, are readily available across Kentucky, and plaintiffs can obtain a license from any one of more than 100 counties (including counties surrounding Rowan County, and the counties where multiple court hearings attended by plaintiffs have been held),” said the filing in the fight over the ACLU’s attempts to force Davis to violate her religious faith.
When the Supreme Court announced its marriage decision June 26, Justice Samuel Alito said it “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”
“The decision will also have other important consequences,” he said. “It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”