The full U.S. Supreme Court, including two justices who openly performed “same-sex wedding” ceremonies while the issue was before them, on Monday denied a Kentucky county clerk’s request for a stay of a judge’s order that she issue marriage licenses to same-sex couples.
Rowan County Clerk Kim Davis’ attorneys with the nonprofit Liberty Counsel had asked for a stay as her case developed at the 6th U.S. Circuit Court of Appeals.
Liberty Counsel founder Mat Staver said Davis would report to work on Tuesday and “face whatever she has to face.”
He told reporters, “She’s going to have to think and pray about her decision … she certainly understands the consequences either way.”
Justice Elena Kagan, who oversees the district, was one of two justices, along with Ruth Ginsberg, who defied conventional judicial ethics and performed a “same-sex wedding” while the Obergefell case establishing the legality of same-sex marriage was under consideration.
She had received the request for a stay in the Davis case and referred it to the whole court.
But the justices refused to consider Davis’ constitutional religious rights and, without comment, refused to act.
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Those who have raised complaints about Davis’ refusal to issue licenses to same-sex couples pointedly have bypassed more than 100 other locations in Kentucky where they could obtain licenses.
Liberty Counsel has noted that even the district court, which issued the order against Davis, admitted that the case presented a “conflict” between “two individual liberties held sacrosanct in American jurisprudence.”
One was the enumerated right to religious freedom, the other the newly created marriage right.
Staver had argued: “Providing religious conviction accommodations is not antithetical for public employees. Throughout our history, the courts have accommodated people’s deeply held religious beliefs.
“The Supreme Court’s marriage opinion does not suggest that religious accommodations cannot be made or that people have a fundamental right to receive a marriage license from a particular clerk,” he continued, referencing the original opinion.
“There is absolutely no reason that this case has gone so far without reasonable people respecting and accommodating Kim Davis’ First Amendment rights,” he said.
“The SSM Mandate demands that she either fall in line (her conscience be damned) or leave office (her livelihood and job for three decades in the clerk’s office be damned). If Davis’ religious objection cannot be accommodated when Kentucky marriage licenses are available in more than 130 marriage licensing locations, and many other less restrictive alternatives remain available, then elected officials have no real religious freedom when they take public office.”
The courts have misbehaved already, the document argues.
“No court, and especially no third-party desiring to violate religious belief, is fit to set the contours of conscience,” Liberty Counsel argued. “For if that were true, a person who religiously objects to wartime combat would be forced to shoulder a rifle regardless of their conscience or be refused citizenship; a person who religiously objects to work on the Sabbath day of their faith would be forced to accept such work regardless of their conscience or lose access to state unemployment benefits; a person who religiously objects to state-mandated schooling for their children would be forced to send their children to school regardless of their conscience or face criminal penalties; a person who religiously objects to state-approved messages would be forced to carry that message on their vehicles regardless of their conscience or face criminal penalties; a person who religiously objects to capital punishment would be forced to participate in an execution regardless of their conscience or lose their job; a person who religiously objects to providing abortion-related and contraceptive insurance coverage to their employees would be forced to pay for such coverage regardless of their conscience or face staggering fines.”
Those are examples showing “that the majority who adhere to a general law” do not “control the dictates of individual conscience.”
The Obergefell decision, in fact, recognized the religious rights of Americans, even while creating the new right to “same-sex marriage.”
“Obergefell unanimously held that First Amendment protections for religious persons remain despite SSM,” Liberty argued.
Davis had stopped issuing any marriage licenses, in order not to discriminate, following the Supreme Court’s creation of the new marriage right.
She also has filed a separate lawsuit against her governor for violating her religious rights.
In Obergefell, the four dissenting Supreme Court justices – John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito – all warned that creating the new right of same-sex “marriage” would war against the existing right of religious exercise embedded in the U.S. Constitution.
“And here we are, two months later, and it is already happening,” Staver said.
Liberty Counsel warned two years ago, Staver said, that religious freedom would be replaced by the new “right” to a “same-sex marriage.” They were roundly criticized by the left for resorting to “scare tactics” and “conspiracy theories.”