A legal team defending Rowan County, Kentucky, Clerk Kim Davis’ refusal to issue marriage licenses to same-sex couples in violation of her faith is countering another offensive against her by the ACLU.
The ACLU now wants to make the case a class-action suit, a move that would be appropriate in cases in which the plaintiffs’ needs were met, but the needs of others, similarly situated but not party to the case, had not been met.
But that’s not the situation in the Davis case, according to a new court filing by Liberty Counsel, which has been working with the clerk.
“From the outset of this case, Davis has consistently argued that there were multiple alternatives by which her sincerely held religious beliefs could be accommodated, without being burdened, while simultaneously allowing individuals to obtain valid marriage licenses in Rowan County. One of those proposed solutions is now in place, with the approval and authorization of the Kentucky governor, and this current status quo also embodies the reasonable steps and good faith efforts taken by Davis to comply with this court’s orders without violating her conscience,” Liberty Counsel said.
“But, unsatisfied with the status quo, plaintiffs are apparently looking to stir up controversy where it does not exist, perhaps to drive-up their own attorneys’ fees in this litigation,” Liberty Counsel wrote.
The lawyers explained that anyone who wants a marriage license in Rowan County now can get one from Davis’ deputies, as Davis is guarding her religious rights by not providing them personally.
So there’s no controversy there, Liberty Counsel said.
A class-action suit, besides being unnecessary, would “needlessly multiply the litigation in this court while Davis’ consolidated appeals are decided by the Sixth Circuit,” the filing said. “Moreover, because plaintiffs actually possess marriage licenses before any class has been certified, they no longer have a personal stake in class certification proceedings seeking injunctive or declaratory relief.”
The brief noted that the plaintiffs might not even qualify as representatives of a class because “their claims are not typical, adequate or representative of the persons they seek to represent.”
The brief told the court: “Plaintiffs’ motion to reopen class certification proceedings should be denied because marriage licenses are being issued in Rowan County. Thus, there is no longer a ‘no marriage licenses’ policy in effect at the Rowan County Clerk’s Office, and Davis is not interfering with the issuance of marriage licenses by her deputy clerks to all legally eligible couples. In short, there is absolutely no need, let alone an emergent one, for any class certification proceedings.”
The current situation developed when the ACLU, in a reversal, submitted a demand for a class action case. The discussion had arisen earlier, but the strategy was delayed with the judge’s approval.
Davis’ challenges in court, mostly over orders that she violate her faith and constitutionally protected religious rights by issuing licenses to same-sex marriage couples, are now pending at the Sixth U.S. Circuit Court of Appeals.
She spent five days in jail for refusing to violate her faith and issue the licenses on the orders of U.S. District Judge David Bunning.
The ACLU had recently launched another attack on Davis, contending that she must personally provide the documents for marriage licenses.
“Gay” couples say that because Davis is redacting her name from the documents, she’s violating Bunning’s order, particularly the part where he said she could leave jail, but only on the condition she not interfere with the issuance of marriage licenses anymore.
Lawyers representing the “gay” couples filed a motion in court, alleging Davis is non-compliant with a federal order, Reuters reported. Attorneys with the ACLU of Kentucky says the licenses should either be the old style, with the proper office reference, or the clerk’s office should be fined.
Mat Staver, the attorney for Davis, said that filing was little more than a witch hunt.
“The ACLU’s motion to again hold Kim Davis in contempt reveals that their interest is not the license but rather a marriage license bearing the name of Kim Davis,” he said, Reuters reported. “They want her scalp to hang on the wall as a trophy.”
Bunning has already ruled the licenses issued while Davis was in jail, absent her name, are valid, a view the governor has confirmed.
At the Sixth Circuit, three judges denied Davis’ recent request for an injunction against the governor in her effort to obtain an accommodation for her faith.
But judges John Rogers, Bernice Donald and Damon Keith left alive her lawsuit, refusing a demand from the governor that it be dismissed.
Staver said the next step should be a full briefing and oral arguments.