Homosexuals who are behind a lawsuit against a Christian county employee in Kentucky for declining to issue marriage licenses for same-sex duos are trying to lash out with “irreversible and substantial harm” to her, according to a court filing in one of the first cases 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 a new court filing in the fight over the ACLU’s attempts to force Rowan Clerk Kim Davis to violate her religious faith.
“This case is also not about whether Kentucky will recognize SSM. The Kentucky governor has declared Kentucky will. Instead, this case is about forcing an individual county clerk (Davis) to authorize and personally approve SSM in violation of her fundamental religious liberty and speech rights.”
WND reported earlier when the case was brought, following U.S. Supreme Court Justice Samuel Alito’s warning that the “same-sex marriage” ruling would be used to “stamp out” those who disagree with the progressive agenda.
Rowan County Clerk Kim Davis has declined to issue the licenses because it would violate her First Amendment rights to practice her faith. The ACLU then sued her.
Mat Staver, founder of Liberty Counsel, which is representing Davis, said that despite “the opinion of five black-robed lawyers, the Constitution still governs the United States, and the First Amendment guarantees Kim and every American the free exercise of religion.”
In a response brief to the ACLU’s request for an order targeting the clerk’s religious rights, Liberty Counsel said the case is “a thinly veiled attempt at deeming her religious conscience meaningless and punishing her for even asserting a religious objection to authorizing SSM.”
It continued, “In fact, these plaintiffs sought licenses from Davis only after learning of her religious objections to SSM, and they refuse to obtain a license elsewhere.”
They want, the court filing explains, “to induce irreversible and substantial harm to the religious conscience of Davis.”
“If Davis’ religious objection cannot be accommodated under the circumstances of this case, then elected officials have no real religious freedom when they take public office,” Staver warned.
The brief argues, “There is no constitutional right to have a particular person authorize a SSM license and affix their imprimatur to that permanent public record, especially if that person holds deep religious convictions prohibiting her from participating in and approving of SSM.”
It continued, “Contrary to plaintiffs’ insatiable demands, such individual rights and freedoms so fundamental to liberty are neither surrendered at the entry door of public service nor waived upon taking an oath of office. To suggest otherwise creates a religious (or anti-religious) test for holding office – which the United States and Kentucky Constitutions expressly forbid.”
When the Supreme Court issues its Obergefell decision and the Kentucky governor ordered same-sex “marriages” to be recognized, Davis “discontinued issuing any marriage licenses” in order to make sure “all individuals and couples were treated the same.”
State law, the brief explains, orders that the “government shall not substantially burden a person’s freedom of religion.”
Not, at least, without “clear and convincing evidence that it has a compelling government interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.”
The brief points out that not only does the county executive have the statutory authority to issue such licenses, but a multitude of other locations are available to the plaintiffs within a short drive.
The legal team explains that Davis does not claim her religious freedom is burdened if someone else issues such a license, and that opens the door to a variety of accommodations that protects the First Amendment in the fight.
The brief also notes the Constitution does not allow government to order people what to say – the idea of forced speech – and that’s exactly what is being attempted in Kentucky.
Liberty Counsel has cited a previous dispute between work obligations and religious rights on which the Supreme Court ruled. At that time, then-Justice William Brennan, who was far from a conservative, said in Sherbert v. Verner that to “condition the availability of benefits on this [worker’s] willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.”Roger Gannam, senior litigation attorney for Liberty Council, said the case “is not about couples who want to be married – they can easily get married in Kentucky.”
“This case is about crushing dissent and removing Christian public servants from office. Religion tests for holding elected office are unconstitutional and un-American,” he said.
When the Supreme Court announced its marriage decision June 26, 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.”
A lawyer for the ACLU told the Louisville Courier-Journal the objective of the case is to force the Christian worker to behave according to the dictates of the new social standard.
“Why should they be held to a different standard?”