Election boosts county clerk in marriage battle

The county clerk in Kentucky who was jailed for refusing to issue marriage licenses to same-sex couples has been given a boost by the unexpected election of a conservative governor.

Republican Matt Bevin pulled off a stunning victory on Tuesday and will be inaugurated as governor early in 2016.

His defeat of Democrat Jack Conway, 53-44 percent, makes him just the second Republican governor of Kentucky in more than 40 years.

Bevin, regarded as an outsider, unsuccessfully challenged Sen. Mitch McConnell in a U.S. Senate race last year. Conway is the sitting attorney general.

Bevin's election could have a significant impact on the case of Kim Davis, the Rowan County clerk who was jailed by U.S. District Judge David Bunning for nearly a week for refusing his order to issue licenses to same-sex duos in violation of her Christian faith.

Even before the June Supreme Court decision establishing "same-sex marriage," Davis had been lobbying Gov. Steve Beshear, a Democrat, and lawmakers for a simple accommodation to enable her to avoid violating her religious principles.

The governor, instead, ordered her to issue the licenses or resign from her elected position.

Bevin, in contrast, visited Davis while she was jailed by Bunning and proposed a plan to accommodate her religious beliefs.

Davis said of Bevin's election in a statement released by Liberty Counsel: "I congratulate Matt Bevin on his win. I am ecstatic. He is such a genuine and caring person. I will be forever thankful that he came to visit me while I was in jail. At a clerks' meeting he hugged me and said he was praying for me. I am looking forward to his leadership as our new governor."

Her Liberty Counsel lawyers said the same-sex marriage issue undoubtedly played a role.

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"The election was not even close. The lopsided victory for Matt Bevin stunned most political pundits. There is no question that the issue of religious freedom and same-sex marriage played a role in the results. The people favor traditional values and marriage, and they are tired of the political elites represented by Governor Beshear who are out of touch with ordinary, God-loving citizens," said Mat Staver, chairman of Liberty Counsel.

"We look forward to working with Governor-elect Matt Bevin to accommodate the religious convictions of Kim Davis and other Kentucky clerks. Finally, we will have common sense and the Constitution prevail in Kentucky."

When Bunning ordered Davis jailed, Bevin said in a statement campaign that such draconian actions were "utterly unnecessary."

"There is a simple solution that would respect the rights of every Kentuckian. I first put this solution forward many weeks ago," he said.

"Why the cowardly silence from our Attorney General, Jack Conway? Jack Conway violated his oath of office as attorney general when he refused to defend our state in court. Where was our governor then demanding his resignation? The double standard applied in this case is reprehensible. Jack Conway refused to defend our state constitution and now he is refusing to stand up for the religious liberties of our county clerks. This is unconscionable and, as governor, I will stand up for all Kentuckians, not just the ones who agree with me."

In his plan announced weeks earlier, Bevin said Beshear should have immediately provided an accommodation for people of faith.

"When the Supreme Court changed Kentucky's definition of marriage, it also changed the job description of our county clerks and other officials currently involved in the state sanctioning of marriage," he said at the time.

"It is understood that Kentucky must uphold the new law and find a way to process and recognize same-sex marriage. However, that does not mean we must do so at the expense of the constitutionally afforded religious liberties of other Kentucky citizens. It is not a matter of one or the other, but rather of both. Equal protection under the law means exactly that."

He continued: "It is incumbent upon the governor and the Kentucky legislature to represent all of the Commonwealth's citizens, and uphold their individual liberties. To the extent those liberties come into conflict, such as in the case here, we should look for the least restrictive means to providing necessary government services. "

Bevin pointed out that the Supreme Court's creation of same-sex marriage left many laws and standards in doubt, and he would want to work with lawmakers to clear that up.

Ultimately, he said: "I believe the government should be out of the marriage business altogether. We can comply with the law while protecting our citizens' rights to freedom of religion simply by separating the religious covenant of marriage from the legal, contractual relationship established by marriage as recognized by the state.

"The two are separate and they should be treated as such. Two consenting adults should not need to ask for permission from the government to enter into a contractual relationship – a license should not be needed. As with other contracts, the government's role should be limited to recording, interpreting, or enforcing such contracts in times of dispute."

He said in the interim, marriage license templates should be posted online so people can download them, fill them out and file them, "just like a mortgage, a lien, a deed, etc. "

WND reported just a day ago the initial filing by Liberty Counsel with the 6th U.S. Circuit Court of Appeals in which Davis is challenging Bunning's decisions throughout the case, including his injunction, his modifications to the injunction, his contempt ruling and the jail sentence.

The brief contends the case is not fundamentally about same-sex marriage but instead about whether homosexual activists can force a Christian to violate her constitutionally protected rights.

The case likely will end up before the U.S. Supreme Court. The minority in the 5-4 Obergefell marriage decision in June had warned that it would create constitutional conflicts.

At issue are the differences between the First Amendment-enumerated right to practice religion and the newly created right to "same-sex marriage."

The brief, filed by Liberty Counsel, points out that Davis "has consistently argued that there were multiple alternatives by which her undisputed sincerely held religious beliefs protected by the Kentucky Religious Freedom Restoration Act and the First Amendment, both of which predate and survive Obergefell, could be accommodated while simultaneously ensuring individuals who are qualified to marry under Kentucky law may obtain valid marriage licenses in Rowan County."

However, the brief said, the accommodations weren't good enough for activists.

"In a rush to judgment that promoted expediency over due process, the district court's original injunction [from Bunning] in this dispute tramples upon Davis' religious rights in subjugation to plaintiffs' 'preference' for a marriage license authorized by a particular person in a particular county."

The brief explained, "Under the circumstances here, plaintiff's purported rights should not trump Davis' undisputed sincerely held religious beliefs."

The filing said the case is not about marriage partners, any state ban, whether the state recognizes same-sex marriage or whether the plaintiffs could obtain a license.

"Marriage licenses – including licenses issued to same-sex couples — are and have been readily available across Kentucky in more than 130 locations, and plaintiffs are indisputably financially and physically able to drive to those locations to secure a license, as shown by their 60-mile and 100-mile trips to attend court hearings."

It argued that nothing in the Obergefell decision "compels states to accomplish recognition [or equal treatment] of SSM by invading and trampling upon the conscience of individual county clerks, as occurred with the SSM mandate."

"This case need not be resolved by picking one set of rights to the outright exclusion of another. While plaintiffs continue to demand unrelenting adherence and submission to their orthodoxy of no accommodation whatsoever, Davis has consistently shown from the outset of this case that there are multiple alternatives by which her undisputed sincerely held religious beliefs about marriage can be accommodated, while simultaneously allowing individuals to obtain valid marriage licenses."

The brief explains the real dispute in the case.

"Rowan County is bordered by seven counties, and the clerks' offices in these counties are within 30-45 minutes from the Rowan county clerk's office. … More than ten other clerks' offices are within a one-hour drive of the Rowan County clerk's office, and these counties are issuing marriage license, along with the two counties where the preliminary injunction hearings were held in this matter."

The brief presents more of the evidence that the activists in the case were targeting a specific Christian to try to force their agenda.

"Plaintiffs admitted that they never even attempted to obtain a license in any county other than Rowan County, despite the widespread availability of such licenses and even though plaintiffs have the economic means and no physical handicap preventing such travel. … In fact, plaintiffs only attempted to obtain a marriage license from the Rowan County clerk's office after becoming aware of Davis' religious objections to SSM."