Thoughts in a Haystack

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.