A county clerk in Kentucky who has been sued for declining to issue marriage licenses since the Supreme Court's Obergefell decision now has turned the legal focus onto 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 new case filed by Kim Davis, the clerk in Rowan County, asks that Beshear be made liable for any damages that might be assessed against her in the marriage fight.
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"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.
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"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 simply 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 simply hired outside attorneys to do the job to which Conway was elected.
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But when the Obergefell decision was announced, Beshear ordered clerks to start granting same-sex "marriage" licenses even if it violates their religious beliefs. He said they should quit if they couldn't do what he wanted.
Davis, who had pleaded with the governor and lawmakers to set up a special legislative session to protect her religious rights, simply declined to issue any licenses and has explained duos can obtain them from any of the 100 or so other officials in the state who can issue them.
A spokesman in the governor's office, Terry Sebastian, responded to WND's request for a comment, saying, "We are reviewing Ms. Davis' filing, but it appears at first glance that she doesn't understand the interrelationship between the governor, the attorney general, the county clerks and the legislature. The attorney general is not required to appeal every case. The Kentucky Supreme Court held that he is statutorily vested with the discretion as to which cases to pursue. At the same time, the legislature has placed the duty to issue marriage licenses squarely on county clerks. The governor's letter to county clerks following the United States Supreme Court's decision striking down bans on same-sex marriage advised the county clerks of their obligations to issue marriage licenses to all applicants regardless of their sexual orientation. The governor has no legal authority over either the attorney general or the county clerks. They are all separately elected officials who answer to the courts."
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"Gov. Beshear's policies and directives are specifically targeting clerks like Davis who possess certain religious beliefs about marriage," the case explains. "This targeting is demonstrated by the exemption Gov. Beshear granted to Attorney General Conway when he was unwilling to defend Kentucky's marriage laws – after 'pray[ing] over this decision' – pursuant to Conway's own personal beliefs and feelings about 'doing what I think is right' and 'mak[ing] a decision that I could be proud of.'
"Beshear's targeted and discriminatory marriage policy pronouncements constitute government-imposed pressure on Davis to act contrary to her religious beliefs, and expose Davis to potential liability if she refuses to compromise her religious beliefs and violate her conscience," it explains.
"Governor Beshear is unlawfully picking and choosing the conscience-based exemptions to marriage that he deems acceptable," said Mat Staver, chairman of Liberty Counsel.
"In no uncertain terms, Governor Beshear's policies and directives are intended to suppress religion – even worse, a particular religious belief," Liberty Counsel's complaint points out. "Thus, although Attorney General Conway was given a pass for his conscience about marriage without any threats of repercussion, clerks like Davis are being repeatedly told by their governor to abandon their religiously informed beliefs or resign."
"Simply put, Gov. Beshear is making secularism a litmus test for holding office in Kentucky," said Staver. "The governor is forcing clerks like Davis to choose between following the precepts of her religion and forfeiting her position, on the one hand, and abandoning one of the precepts of her religion in order to keep her position, on the other."
It explains, "Because of Gov. Beshear's open declaration that Davis has no such [religious] rights, Gov. Beshear has exposed Davis to the plaintiffs' underlying lawsuit, in which the plaintiffs claim a constitutional right to a Kentucky marriage license issued specifically by Davis. Governor Beshear is not only liable to Davis for plaintiffs' claims, but is also obligated to effect Kentucky marriage licensing policies that uphold Davis' rights of religious conscience."
Beshear, in fact, imposes a substantial burden on Davis' religious rights without any compelling government interest, it explains.
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, too.
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.
It asks that any "relief" awarded in the underlying action be assessed against the governor.
WND reported earlier when Liberty Counsel argued in the original dispute that homosexuals behind the case are trying to lash out with "irreversible and substantial harm" to Davis.
The fight is 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 the filing in the fight over the ACLU's attempts to force 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.
Davis has declined to issue the licenses because it would violate her First Amendment rights to practice her faith. The ACLU then sued her.
Staver 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."