The Kentucky county clerk jailed by U.S. District Judge David Bunning after she refused to issue marriage licenses to same-sex couples in violation of her constitutionally protected religious beliefs is asking an appeals court to vacate the judge’s order.
The request from Kim Davis to the 6th U.S. Circuit Court of Appeals explains that a subsequent change in state law is giving her the exact accommodation she requested throughout the dispute. Bunning abruptly jailed her with no opportunity to argue her case and then threatened her deputies with penalties if they also refused to issue the licenses.
The motion submitted on her behalf by Liberty Counsel argues that on July 14 – only two weeks before the case is scheduled for oral argument – Kentucky Senate Bill 216 will take effect, “modifying Kentucky law regarding the issuance and authorization of marriage licenses and, as a result, moot Davis’ consolidated appeals.”
The bill “modifies the Kentucky marriage licensing scheme to remove entirely a county clerk’s name, personal identifiers, and authorization from any license, thereby providing through a change in the law the very religious accommodation Davis sought from the beginning of this litigation.”
The motion called the bill, passed unanimously by the Kentucky Legislature and signed by Gov. Bevin, “an exercise of appropriate and responsible lawmaking.”
“It also renders Davis’ appeals from the district court’s orders moot and therefore deprives this court of appellate jurisdiction over her appeals.”
The filing said the court, in dismissing the appeals, “should also follow its normal course of vacating the district court’s orders on appeal.”
Earlier court filings pointed out that Bunning ignored protections for Davis, the clerk in Rowan County, in both the state and the federal Religious Freedom Restoration Act in his activism for “gay marriage.”
“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,” the court record reveals.
“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 case centers on the U.S. Supreme Court’s creation of “same-sex marriage” last summer. In Kentucky, county clerks issue licenses, and Davis decided to suspend issuing any marriage licenses, so all comers would be treated alike. She asked for the simple accommodation of removing her name and title from the marriage licenses, but then-Gov. Steve Beshear refused.
Then, despite the fact that licenses could be obtained in nearby counties, same-sex activists sued her.
“From the beginning, Kim Davis requested the very accommodation for her religious convictions that the Kentucky legislature passed and which Gov. Matt Bevin signed into law. The previous governor could have made the same accommodation but refused to do so. Instead, he was willing to violate deeply held religious convictions about marriage in order to press his ideological agenda. Now that Kim Davis obtained the accommodation she has always requested, we notified the court of appeals that the case has become moot and no further legal proceedings are needed. We are very pleased with this outcome,” said Mat Staver, chairman of Liberty Counsel.
Davis, in a statement released by Liberty Counsel, said,: “I am thankful to the legislators for passing this law, to Gov. Matt Bevin for signing it, to Liberty Counsel for representing me, and most of all to Jesus Christ who redeemed me and is my solid rock on which I stand. I am pleased that I can continue to serve my community as the Rowan County Clerk without having to sacrifice my religious convictions and conscience.”
An earlier filing explained Bunning even refused to allow Davis due process in the case.
Staver had explained earlier: “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. 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.”
When Bevin took office, he immediately took executive action to protect Davis and other county clerks. The legislature’s bill means the order can’t be reversed by a future governor.
Liberty Counsel previously contended activists targeting Davis because they wanted to force their agenda on Christians.
“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 licenses, along with the two counties where the preliminary injunction hearings were held in this matter.
“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],” a court filing argues.
The Kentucky case is just one of many of its kind nationwide in which plaintiffs are arguing the U.S. Supreme Court decision conflicts with the Constitution and, therefore, is invalid.
Some has pointed out that two of the Supreme Court’s majority in the case, Ruth Ginsburg and Elena Kagan, publicly advocated for same-sex marriage while the case was active by performing same-sex ceremonies.
They had been asked to recuse themselves from the case but refused.