Thoughts in a Haystack

Kim Davis, the Rowan County (Kentucky) Clerk who stopped issuing marriage licenses to all couples so she didn't have to issue them to icky gays, is approaching the end of the line at breakneck speed. The question now is whether she will apply the brakes before it is too late.

A little history in case you haven't been following my deathless prose of late … The ACLU sued Davis on behalf of two same-sex and two opposite-sex couples who had been denied marriage licenses by Davis. A conservative Republican District Court Judge, David Bunning, appointed by George The Lesser W. Bush, issued a preliminary injunction requiring her to resume issuing marriage licenses to both same-sex and opposite-sex couples. Thereafter, he did grant her a temporary stay until August 31st to seek a stay from the Sixth Circuit Court of Appeal. On last Wednesday, August 26th, the Sixth Circuit denied her request.

Not one to recognize when she's licked give up, Liberty Counsel filed an emergency petition on her behalf with Justice Kagan, seeking a stay from the Supreme Court.

For those interested in reading the 50 pages of her emergency petition to Justice Kagan, you can find it here.

I have to admit that the Liberty Counsel attorney, Jonathan D. Christman, did as well as he could with a bad set of arguments. This bit, however, shows the paucity of the argument:

[T]he district court leaped over boundary lines recently set by this Court in deciding a religious conscience dispute arising in the context of another governmental mandate, by assessing the materiality and substantiality of Davis’ belief while simultaneously conceding its sincerity. Moreover, the Sixth Circuit magnified the outright disregard for Davis’ religious conscience by acting as if she does not retain any individual rights in her role as county clerk … no court, and especially no third-party desiring to violate religious belief, is fit to set the contours of conscience. 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 ...

Notice the several leaps in logic? In the Hobby Lobby case, the court said that the government, when dealing with non-governmental individuals (somehow including closely-held for-profit corporations … nevermind) had to use the “least restrictive” method to achieve its legitimate goals. But then they go on to argue that a public official has the same right to demand the “least restrictive” method of achieving its legitimate goals (i.e. following the Constitution) by telling the citizens of Rowan County (as they do elsewhere in the Brief) to go to the next county over to get their license. Requiring citizens to exert extra effort to get the services they are entitled to is the “least restrictive” way to protect Davis' religious prejudices beliefs? And who are those mean ol' “third-party[s] desiring to violate [her] religious belief”? Why none other than the citizens of the county, gay and straight, who won't haul their asses to some other county so our precious snowflake doesn't have to issue a government form which she is being paid by taxpayers like them to issue.

But my favorite is the war analogy. So, if you sign up with the Army as a platoon leader when there is no war but then a war starts, you can refuse to go fight while still retaining your position as a platoon leader?

I don't think so …

Anyway, the Supreme Court must have been as impressed as I was. Liberty Counsel filed the petition on behalf of Davis on Friday, August 28th, and, despite the fact that Justice Kagan referred the petition to the full court, it was denied today, Monday, August 31st. As far as I know, the court did not even request a response from the plaintiffs (it didn't), which I believe is rather unusual.

But bullshit by any other name ...
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Update September 1, 2015: It is reported that Davis is still refusing to issue licenses “on God's authority.” She better be able to get God to show up in court when Judge Bunning holds the contempt hearing.

Fans in the area are bracing for the worst.
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Further Update September 1, 2015: The plaintiffs have moved to hold Davis in contempt of court and Judge Bunning has scheduled a hearing for this coming Thursday at which time sanctions could be imposed.

As I noted before, there has been very petty resistance to the same-sex marriage decision in Obergefell v. Hodges.

Texas dragged its feet, after Obergefell, before amending the death certificate of a man legally married in New Mexico to reflect his relationship to his deceased spouse, when the man is, himself, dying, preventing him from straightening out their estates. Texas Attorney General Ken Paxton is now begging the Federal court not to hold him in contempt.

Next up is Kim Davis. Davis is the Rowan County (Kentucky) Clerk who has refused to issue marriage licenses to either opposite or same-sex couples, despite the fact that there is one clerk in her office who has no religious objection to issuing same-sex licenses.

US District Judge David Bunning issued a preliminary injunction requiring Davis to issue the marriage licenses but stayed it until August 31st to give Davis a chance to try to get a further stay from the Sixth Circuit Court of Appeal. The Sixth Circuit has now denied Davis a stay pending her appeal. The money quote from the Sixth Circuit:

The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court. There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal.

To anyone with a lick of sense, it is over … but Davis has displayed no ability to get her tongue anywhere in the vicinity of reality.

It'll get interesting if and when there are contempt proceedings. The state has ordered her to issue the licenses and the county has denied any power to require her to issue them. That leaves her, as a practical matter, the only one to pay any contempt sanctions. However, the judge could bring the state in and say "It's your responsibility to issue the license in Rowan County ... work it out!"

I wonder when and if Liberty Counsel will tell her "If you get cited for contempt, we won't pay any sanctions, even though we advised you to defy the court."

And so it goes …

Some states and localities have been resisting the Supreme Court's decision in Obergefell v. Hodges, that found that, under the Fourteenth Amendment, LGBT people had the right to marry on the same basis as heterosexual couples.

The resistance has often been incredibly petty. For example, Texas refused, after Obergefell, to amend the death certificate of a man legally married in New Mexico to reflect his relationship to his spouse, when the spouse is, himself, dying, preventing him from straightening out their estates. It took threats of contempt proceedings to get the state to comply.

Apparently the answer to WWJD is “be an asshole!”

Another practitioner of petty is Rowan County (Kentucky) Clerk Kim Davis. Davis has refused to issue any marriage licenses, to same-sex or opposite-sex couples, because she has the proverbial “sincerely held religious belief” that same-sex marriage is icky wrong. The ACLU sued Davis in Federal court, on behalf of two same-sex and two opposite-sex couples who want to get their marriage licenses in their home county. US District Judge David Bunning, nominated by George W. Bush, has now issued a preliminary injunction requiring Davis to issue the marriage licenses. Judge Bunning put the issues as follows:

[T]his civil action presents a conflict between two individual liberties held sacrosanct in American jurisprudence. One is the fundamental right to marry implicitly recognized in the Due Process Clause of the Fourteenth Amendment. The other is the right to free exercise of religion explicitly guaranteed by the First Amendment. Each party seeks to exercise one of these rights, but in doing so, they threaten to infringe upon the opposing party’s rights.

According to Judge Bunning, the rather obvious answer is:

The tension between these constitutional concerns can be resolved by answering one simple question: Does the Free Exercise Clause likely excuse Kim Davis from issuing marriage licenses because she has a religious objection to same-sex marriage?

[Spoiler alert: No!]

Davis' first excuse “defense:” is that “neighboring counties” are issuing marriage licenses and she, as a special snowflake (emphasis on the “flake”), shouldn't be made to do her job because other people are doing it elsewhere. The judge notes that "57 of the state’s 120 elected county clerks have asked Governor Beshear to call a special session of the state legislature to address religious concerns related to same-sex marriage licenses” and that, if Davis is allowed to refuse to perform her duties, what might today be an inconvenience could become a substantial interference with the right to marry. Besides, not everyone in Rowan county might have the means to travel even to nearby counties. Anyway, as the judge notes, “why should they be required to do so?”:

The state has long entrusted county clerks with the task of issuing marriage licenses. It does not seem unreasonable for Plaintiffs, as Rowan County voters, to expect their elected official to perform her statutorily assigned duties. And yet, that is precisely what Davis is refusing to do. Much like the statutes at issue in Loving and Zablocki, Davis’ “no marriage licenses” policy significantly discourages many Rowan County residents from exercising their right to marry and effectively disqualifies others from doing so.

Davis next tries to fob her duty off on the county's judge/executive but, under state law, he would only be allowed to issue marriage licenses in Davis' “absence,” which does not obviously include her refusal to issue licenses while performing the rest of her duties. Similarly, Davis suggests that there have been proposals to permit online issuance of marriage licenses directly by the state but, while such an option might be available “someday,” it is not available today.

At the heart of Davis' claims is the contention that issuing a marriage license “authorizes” it and, therefore, is “speech.” Au contraire, Judge Bunning replies:

[T]he Court questions whether the act of issuing a marriage license constitutes speech. Davis repeatedly states that the act of issuing these licenses requires her to “authorize” same-sex marriage. A close inspection of the KDLA (“Kentucky Department of Libraries and Archives”) marriage licensing form refutes this assertion. The form does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds. It simply asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law. [Emphasis added]

In any event, any “speech” associated with the license can be considered the government's.

The State prescribes the form that Davis must use in issuing marriage licenses. She plays no role in composing the form, and she has no discretion to alter it. Moreover, county clerks’ offices issue marriage licenses on behalf of the State, not on behalf of a particular elected clerk.

Even if the license is considered Davis' speech, government employee's speech is restricted more than the general public's. Government employees can speak “as a citizen on a matter of public concern,” but not “if the employee’s speech was made pursuant to his or her official duties.” But Davis is not claiming the right to speak out in public … indeed, she has been allowed to do that often and loudly … she is demanding the right not to “speak” by refusing to to do her official duties. Does that count as Davis speaking out as a citizen on a matter of public concern?:

The logical answer to this question is no, as the average citizen has no authority to issue marriage licenses. Davis is only able to issue these licenses, or refuse to issue them, because she is the Rowan County Clerk. Because her speech (in the form of her refusal to issue marriage licenses) is a product of her official duties, it likely is not entitled to First Amendment protection.

As to Davis' claim that the state has created a “religious test” for office in violation of Article III, Section 3 of the Constitution, Judge Bunning replies:

The Court must again point out that the act of issuing a marriage license to a samesex couple merely signifies that the couple has met the legal requirements to marry. It is not a sign of moral or religious approval. The State is not requiring Davis to express a particular religious belief as a condition of public employment, nor is it forcing her to surrender her free exercise rights in order to perform her duties.

Lastly, Davis invokes the Kentucky Religious Freedom Restoration Act. Judge Bunning points out:

Davis again argues that the [Governor] Beshear directive substantially burdens her religious freedom without serving a compelling state interest. The record in this case suggests that the burden is more slight. As the Court has already pointed out, Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities.

And, of course, “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” So there is a compelling public interest in protecting LGBT people's rights and issuing legally required marriage licenses is not a substantial burden on her religious rights.

In short, Judge Bunning systematically demolished the arguments made by Liberty Counsel on Davis' part. Liberty Counsel is led by Mat Staver, who Ed Brayton fondly calls the worst lawyer in America not named Larry Klayman. Staver's group has told Davis to defy the judge's order, even though there is no stay at this point. According to Staver:

Christianity is not a robe you take off when you leave a sanctuary,” said Staver. “The First Amendment guarantees Kim and every American the free exercise of religion, even when they are working for the government.”

In other words, Christians can use the government to impose their beliefs on everyone else.

David Ermold and David Moore, who have been partners for 17 years, went to the Rowan County Clerk's office after Judge Bunning's order but were turned away. Ermold said:

I will say that people are cruel, they are cruel, these people are cruel. This is how gay people are treated in this country. This is what it’s like. This is how it feels.

He's right. This is nothing but an exercise in cruelty.