Kim Davis: 'Gay marriage' judge blew decision

Kim Davis

A Kentucky county clerk who was jailed by U.S. District Judge David Bunning for refusing his orders to issue marriage licenses to same-sex couples in violation of her conscience is arguing before an appeals court that Bunning's injunctions – and even the contempt order he issued that put her in jail – must be reversed because they violated her religious liberty.

Kim Davis has been represented by Liberty Counsel since her case began shortly after the U.S. Supreme Court expanded the legal definition of marriage.

She suspended issuing marriage licenses from her office so everyone would be treated the same, stating plainly her objections to being forced by the state to violate her faith. She also asked for a reasonable religious accommodation but was refused by former Gov. Steve Beshear. When Republican Matt Bevin became governor, she was granted the accommodation of removing her name from the licenses.

Davis was jailed by Bunning for contempt and released after nearly a week because her deputies, who also had been threatened by the judge, were issuing licenses to same-sex couples as demanded.

But Bunning's orders should be reversed, contends an appeal filed with the 6th U.S. Circuit Court of Appeals.

"The district court charted a course intent merely on vindicating its own authority, which evidences a criminal contempt sanction," the brief argues. "This conclusion can be readily drawn from the record because the district court [Bunning] deprived Davis of her personal liberty while simultaneously not knowing, and refusing to decide, whether the marriage licenses the court was ordering to be issued (over Davis' objection and without her authorization) would even be valid under Kentucky law.

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"Despite relinquishing any responsibility for the validity of marriage licenses, the district court nonetheless proceeded to place Davis in immediate federal custody – a most severe sanction and deprivation of her personal liberty," it says. "Whether the contempt is characterized as criminal or civil, Davis was not afforded proper procedural safeguards and due process."

In fact, Bunning should have recognized that both state and federal Religious Freedom Restoration Acts protect Davis, the brief argues.

"Here … the district court … never considered the federal RFRA as applied to its finding of contempt, and it never entered any subsequent order addressing Davis' federal RFRA defense to contempt," it says.

"The federal RFRA provides that 'government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability,' except that 'government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling government interest.'"

The fact that same-sex couples might have to drive half an hour to another county to obtain such a license simply is not a burden for them, the brief contends.

"The mere act of having to 'travel to another county' to exercise a right constitutionally protected under the Fourteenth Amendment (such as the right to marry) is not, on its face, sufficient to establish a federal constitutional violation. Nor does the record in this matter demonstrate that such travel was any actual burden on these plaintiffs."

It continues: "Moreover, 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.

"The plaintiffs repeatedly claim that they have a 'right' to receive a marriage licenses 'in their county of residence' – but there is no such right guaranteed by the Fourteenth Amendment."

Mat Staver, chairman of Liberty Counsel, told the court that more than six months after filing this lawsuit, the plaintiffs "still fail to provide constitutional grounds for the district court's newfound fundamental right to have a marriage license personally signed, authorized, approved, and issued by a particular person in a particular county, irrespective of the burdens placed upon that individual’s freedoms and undisputed, sincerely held religious beliefs about marriage."

"Our Founding Fathers believed in the right to follow one’s conscience so much that they protected religious liberty in the First Amendment. The first Americans traveled to this faraway land for the right to exercise their religion according to their own hearts, not government mandate," Staver said. "From the Mayflower Compact to the Supreme Court’s ruling in Obergefell, no court precedent or legislative mandate says that same-sex marriage must be held at every wedding venue, photographed by a specific photographer, celebrated by all bakers, or, in this case, licensed by a particular clerk. Then and still today, Americans enjoy the free exercise of religion and the freedom to follow Biblical principles in their personal and professional lives."

WND reported late last year that Bevin, by the stroke of his pen, resolved a significant part of the case. He exempted county clerks from the requirement that their names be on marriage licenses issued by counties.

His order states: "To ensure that the sincerely held religious beliefs of all Kentuckians are honored, Executive Order 2015-048 directs the Kentucky Department for Libraries and Archives to issue a revised marriage license form to the offices of all Kentucky County Clerks. The name of the County Clerk is no longer required to appear on the form."

The legal team that represented Davis said it was a simple fix that should have been done long ago.

The governor's order noted that the Kentucky Constitution still states, "Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky," which is in conflict with the U.S. Supreme Court.

But the order also points out that the Kentucky Religious Freedom Restoration Act forbids the government to "substantially burden a person's freedom of religion."

State lawmakers had appealed to Bunning to recognize that while the Supreme Court changed precedent, it would take some time for state laws and practices to follow, but he ignored their pleas for time to address the problem.

Liberty Counsel previously explained 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 legal team suggested activists in the case were targeting a specific Christian, Davis, to try to force their agenda.

"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 [same-sex marriage]."