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.