A federal judge who previously has sided with arguments for partial-birth abortion and homosexual clubs in public schools ordered jail on Thursday for a Kentucky county clerk who refused to violate her faith and issue marriage licenses to same-sex couples.
Judge David Bunning said fines were not enough punishment for the Christian clerk, Kim Davis.
“Everyone is stunned at this development,” said Mat Staver, founder and chairman of Liberty Counsel, which has been representing her.
“Kim Davis is being treated as a criminal because she cannot violate her conscience. While she may be behind bars for now, Kim Davis is a free woman. Her conscience remains unshackled.”
Staver said Davis “is a woman of strong faith.”
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“She never sought to be in this position,” he said. “She would rather not be in this predicament. But here she is. All she asks is to be true to God and her conscience. And the tragedy is that there are simple ways to accommodate her convictions. Just remove her name from the marriage licenses. That’s all she has asked from the beginning. Today’s events will escalate this debate to a new level. This is not the kind of America the Founders envisioned or that most Americans want.”
The judge also told deputy clerks, according to Kentucky.com, they must start issuing marriage licenses immediately or join Davis in jail.
Bunning, a professing Roman Catholic, said, “Our system of justice requires citizens – and significantly, elected officials – to follow the rules of the courts.”
The judge not only refused to provide what her attorneys described as “due process” for her and protection for her First Amendment religious rights, he also rejected a request from Kentucky Senate president Robert Stivers of Manchester to “delay, withhold or temper his ruling … until the General Assembly has an opportunity to establish new frameworks under Kentucky law.”
AL.com reported that after Davis was jailed, the judge ordered her six deputy clerks to start issuing the licenses and five agreed.
But Bunning’s maneuverings were defeated, the report said, when Davis refused to grant permission for her deputies to take on that authority. She declined the judge’s request to return to court to discuss the accommodations.
WOWK 13 News tweeted the word: “Officially, she’ll spend the night in jail. She refuses to grant authority for deputy clerks. Judge will not lift contempt order.”
The judge also decided to expand on his own the reach of the case, which had specifically cited Davis. He told clerks in other counties where license were not being issued his opinion also applied to them.
Guidance needed
While the Supreme Court’s Obergefell decision in June struck down state marriage laws, it did not create new ones upon which clerks could call for guidance when conflicts arise.
It was Bunning himself who earlier noted that the case was a conflict between two constitutional rights – the enumerated First Amendment religious freedom right and the newly created “same-sex marriage” right.
He, however, did not wait for a resolution of that dispute through the court system, and instead ordered Davis to jail, saying she would be released when she agreed to issue marriage licenses to same-sex couples, violating her faith.
On Wednesday, Davis, who cited “God’s authority” to defy a federal court order for her to issue the licenses, told the judge who issued the order that following his demands would violate her constitutional due process rights as well as the federal Religious Freedom Restoration Act.
WND reported on Tuesday when Davis declined to issue licenses to homosexual duos after the U.S. Supreme Court declined to intervene.
Although the case is pending at the 6th U.S. Circuit Court of Appeals, the immediate dispute has been over whether she must violate her faith and conscience while her case is yet unresolved.
The Associated Press reported Tuesday that a homosexual duo that was denied a license left the Rowan County clerk’s office early Tuesday “red-eyed and shaking,” even though a license could be obtained at more than 100 other locations in the state.
Also on Tuesday, Davis was barraged by catcalls of “bigot” when she met people lined up, waiting for services. That’s when she cited “God’s authority” in continuing to refuse to issue any marriage licenses. She adopted the position so she wouldn’t discriminate against anyone after the Supreme Court created “same-sex marriage” in the Obergefell decision in June.
Liberty Counsel submitted her arguments to Bunning on Wednesday.
“Davis should not be held in contempt because it will violate her due process rights,” they explained to Bunning. “As part of her defense to plaintiffs’ claims against her, Davis has raised in this action individual claims against the Kentucky governor and KDLA commissioner. … These rights and claims were asserted before this court entered its injunction on August 12, 2015, and they are necessarily intertwined with the rights and claims asserted by plaintiffs against Davis.”
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Liberty Counsel went on to challenge the judge.
“However, after acknowledging such rights … this court refused to consider them … effectively denying preliminary injunctive relief. … an order that is now also on appeal,” the brief said.
“To enter contempt sanctions when this court refused to permit Davis the opportunity to vindicate her individual rights and claims against Gov. Beshear, and while the terms and validity of the injunction continue to be actively litigated, fails to provide the ‘procedural safeguards afford by the due process clause.'”
Liberty Counsel also pointed out to the judge that “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings.”
“She therefore specifically demands herein and does not waive any and all rights of those accused of crimes, including but not limited to her right to a jury trial,” the attorneys said.
Additionally, the attorneys said “any contempt order issued by this court, which will substantially burden Davis’ religious exercise for the same reasons she is unable to comply with the injunction, must satisfy the strict scrutiny analysis required by the federal Religious Freedom Restoration Act.”
In essence, that means the government can “burden” a person’s religious rights only for overwhelmingly important reasons and not at all if there are alternative accommodations.
The court was told that, for example, the state could provide an “opt-out” for marriage licensing, “permitting recusal of officials from ‘issuing’ lawful marriage licenses ‘based upon any sincerely held religious objection.'”
A neighboring clerk could be deputized to issue the licenses, Davis’ name could be removed from the licenses, the state could distribute the licenses online or Davis simply could be deemed “absent” so the license could be issued by another county office, Liberty Counsel said.
“Finally, any contempt finding in this matter is premature and improperly intrusive and invasive into state affairs … ‘The federal courts in devising a remedy take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution,'” Liberty Counsel said.
While the Obergefell decision “effectively obliterated Kentucky marriage law, leading Kentucky legislators from both parties in both houses uniformly agree that the legislature needs to address the entire marriage scheme … but also agree that Davis’ religious beliefs should be (and can be) accommodated.”
On Tuesday, when asked on whose authority she would not issue licenses, Davis replied, “Under God’s authority.”
One homosexual activist said, “We’re not leaving until we have a license,” AP reported.
“Then you’re going to have a long day,” Davis reportedly said.
In a statement Davis released shortly after her office opened Tuesday, she said the fight is about religious liberty.
“I have worked in the Rowan County Clerk’s office for 27 years as a deputy clerk and was honored to be elected as the clerk in November 2014, and took office in January 2015. I love my job and the people of Rowan County. I have never lived any place other than Rowan County. Some people have said I should resign, but I have done my job well. This year we are on track to generate a surplus for the county of $1.5 million,” she said.
“In addition to my desire to serve the people of Rowan County, I owe my life to Jesus Christ who loves me and gave His life for me. Following the death of my godly mother-in-law over four years ago, I went to church to fulfill her dying wish. There I heard a message of grace and forgiveness and surrendered my life to Jesus Christ. I am not perfect. No one is. But I am forgiven and I love my Lord and must be obedient to Him and to the Word of God.”
She said the she will continue to serve the people of the county who elected her.
“I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word. It is a matter of religious liberty, which is protected under the First Amendment, the Kentucky Constitution, and in the Kentucky Religious Freedom Restoration Act. Our history is filled with accommodations for people’s religious freedom and conscience. I want to continue to perform my duties, but I also am requesting what our Founders envisioned – that conscience and religious freedom would be protected. That is all I am asking. I never sought to be in this position, and I would much rather not have been placed in this position. I have received death threats from people who do not know me. I harbor nothing against them. I was elected by the people to serve as the county clerk. I intend to continue to serve the people of Rowan County, but I cannot violate my conscience.”
The ACLU of Kentucky, which is representing the same-sex duos, immediately told a federal judge he has no choice but to hold Davis in contempt of court. The organization demanded fines.
U.S. Supreme Court Justice Elena Kagan, who oversees the 6th 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.
Staver has 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 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.
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.”
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