Ken Klukowski

Religious Right Attorney Debunks Kim Davis Defenders' 'Religious Liberty' Arguments

Ken Klukowski, the former head of the Family Research Council’s Center for Religious Liberty, admitted on a right-wing radio show last week that Kentucky county clerk Kim Davis was on “shaky legal ground” for ordering her deputies to deny marriage licenses to same-sex couples.

While few legal observers ever thought that Davis had a case — to the point that some suspected that her attorneys must have been deliberately giving her bad advice — Klukowski’s former group, the FRC, has defended Davis and announced today that it will honor her at its upcoming summit for challenging “legal tyranny.”

FRC President Tony Perkins appeared last week at a rally in Kentucky defending the clerk and insisted in an interview with Megyn Kelly of Fox News that Davis was not stopping her deputies from issuing marriage licenses. However, that was exactly what Davis was doing, and Klukowski honed in on that fact in an interview with conservative broadcaster Eric Metaxas last week.

Klukowski told Metaxas that while he is sympathetic to Davis’ plight as a fellow gay marriage opponent, he said that Davis’ refusal to let deputy clerks issue marriage licenses to legally eligible couples was indefensible and incompatible with religious freedom.

He said that by trying to “exercise my governmental authority to order the other public servants here, that they are not going to do this either, that’s where I believe she is on, respectfully, she’s on very shaky legal ground. That would be the difference between a conscientious objector in the military who says, ‘I want to serve my country so I am going to volunteer for the military but because of my faith I don’t believe in bearing weapons.’ He can still serve, he’ll just be assigned to a noncombat role, he’ll never have to pick up a weapon. The equivalent here would be someone saying, ‘I will take command of this infantry unit, I am going to take command of this rifle company, but not only am I not going to fight I am also going to order all the troops under my command that because of my religious objection they are not going to fight either.’”

Metaxas, however, saw it a bit differently, and compared Davis to a Nazi officer who refused a command from Adolf Hitler to send his military unit to murder Jews.

Klukowski responded by saying that Davis’ defenders are turning the First Amendment on its head: “The First Amendment has never been construed as saying that whatever your personal beliefs are that if you are in a position of authority, if your power is in fact a governmental power, the power of the state, that you have the right to make other civil servants, who have their own rights under the First Amendment, to make them act in conformity with your personal religious beliefs. Then you have the issue of, well, what are their religious beliefs? What are their personal beliefs?”

He went on to say that there is no legal precedent saying that officials can “combine” their “personal individual liberty” with “your governmental power to also make other public servants partake in your objection.”

Attacks on Obama's D.C. Circuit Nominations Get More and More Absurd

The New York Times reported this week that President Obama is planning to nominate three judges to fill long-vacant seats on the influential D.C. Circuit Court of Appeals. This is hardly unheard of: every president since Jimmy Carter has placed at least three judges on the D.C. Circuit, and Obama only just had his first nominee confirmed to the court.

But Senate Republicans and conservative activists really, really don’t want President Obama to put any more judges on the D.C. Circuit – perhaps because it is currently dominated by Republican nominees who are intent on rolling back things like clean air regulations, cigarette labeling requirements, and National Labor Relations Board rulings.
So the Senate GOP is threatening to filibuster anybody Obama names to the court and even trying to push through a law permanently deleting the vacant judgeships in order to prevent Obama from filling them.

What has resulted is one of the more bizarre manifestations of Obama Derangement Syndrome. The talking point that Senate Republicans and their allies have landed on to defend this planned obstruction is that President Obama, in nominating judges to existing judicial vacancies as is required by his job, is in fact “packing” the D.C. Circuit in the style of FDR. (Or, in the words of The Wall Street Journal’s editorial board,  like a “king”).

In a column for Breitbart News yesterday the Family Research Council’s Ken Klukowski goes even further, writing that by merely planning to nominate judges to the court – a constitutional requirement of his job fulfilled by every one of his predecessors – Obama has launched an “attack on the independence of the federal courts,” “declared war on judicial independence,” and is “trying to declare law by executive fiat.”

Now that Obama has declared war on judicial independence, Republicans are planning a counter-strategy. There are 13 federal appeals courts. The D.C. Circuit’s caseload is light, while several other circuits are overloaded. Sen. Charles Grassley and Senate Republicans are proposing moving those three seats to courts that could very much use them. Obama would still appoint those three judges, but not to the D.C. Circuit.

It takes legislation to create or move federal judgeships, so this is shaping up as a major part of the battle over courts that are independent of political manipulation.

There are only 80 slots on the Supreme Court’s docket every year. For 20,000 federal appeals each year, whatever the appellate court says is the final word. Obama is hoping that if he can overhaul the judicial balance of the court, his unprecedented claims of federal power might withstand court challenges. From Obamacare to EPA requirements, labor rules, and IRS rules, all these topics and more are going before the D.C. Circuit.

Obama cannot enact major liberal legislation now that he’s lost the House and might also lose the Senate next year. Instead, he’s trying to declare law by executive fiat. Whether he gets away with it likely turns on whether he can change Senate rules and then pack the D.C. Circuit with sympathetic judges.

This attack on the independence of the federal courts should be of concern to all Americans.


'Religious Liberty' Panelist: Compromise is of the Devil

The Family Research Council hosted a panel discussion Wednesday on religious liberty in America.  If you have paid any attention at all to the frantic warnings from FRC’s Tony Perkins that tyranny is on the march, you could have guessed what was coming.  The overall theme of the conversation was that the HHS mandate for insurance coverage of contraception is a dire threat to religious freedom in America.  So are the advance of marriage equality and laws against anti-gay discrimination – or the “sexual liberty agenda.”

The panel featured three lawyers: Adele Keim of the Becket Fund for Religious Liberty, Kellie Fiedorek of the Alliance Defending Freedom (formerly known as the Alliance Defense Fund) and Ken Klukowski of the Family Research Council.

Keim talked about Becket’s client Hobby Lobby, which is suing the Obama administration over the contraception mandate.  Or as Keim insisted on calling it, the contraception/abortifacient mandate. Keim argued that business owners are no less deserving of religious accommodation than churches or religiously affiliated nonprofits, saying “Americans do not lose their First Amendment rights when they go to work.” Of course by the standard she was invoking, many Americans could find their own rights and access to health care dictated by the religious beliefs of their employer.

The ADF’s Fiedorek focused on the “great peril” to religious liberty posed by the “agenda to expand sexual liberty and redefine marriage.”   She said in the conflict between sexual liberty and religious liberty, "people of faith" are "the ones being marginalized." She recounted a litany of such “persecution,” including now-familiar stories of a New Mexico photographer and a Colorado baker who were penalized under state anti-discrimination laws when they declined to serve same-sex couples celebrating commitment ceremonies.  Fiedorek compared cases in which businesses are required not to discriminate against gay couples to requiring an African American photographer to take pictures at a KKK event or a Jewish baker to create a cake decorated with a swastika.  She called it “particularly atrocious” that Catholic social service agencies were being required to abide by anti-discrimination ordinances – and were being “forced” to close.  She began and closed her presentation with quotes from the movie Chariots of Fire, ending with one that includes, “Don’t compromise. Compromise is a language of the devil.”

Klukowski talked about the role of religious freedom in the settling of America and the founding of the U.S.  And he recycled ridiculous religious right charges that the Obama administration believes not in freedom of religion but in the narrower “freedom of worship,” a notion that he said would be “profoundly disturbing” to the founding fathers.

The most interesting question from the audience focused on implications of the Bob Jones University case, and on whether the racialist Christian Identity movement could make the same religious liberty claims the lawyers were defending.  Why, the questioner asked, couldn’t the “conscience” rights the lawyers wanted for business owners not be claimed by a Christian Identity-affiliated business owner to deny doing business with African American people or interracial couples?

After a moment of awkward silence, Klukowski said that in the Bob Jones case, the Supreme Court had said the university could continue its racially discriminatory policies, but that its tax exemption was a benefit conferred by the government and could therefore be removed, especially in light of the post-civil war constitutional amendments addressing racial discrimination.  Klukowski did not directly address whether and how that principle could, would, or should apply to the current conversation about anti-gay discrimination.  He gave a confusing statement about what he said was the right of a business owner to throw someone out of their store for wearing a certain T-shirt or carrying a Bible.  The First Amendment, he says, allows people to be jerks in their private lives, but it was not clear whether he meant that the relationship between a business and its customers was “purely private” or falls into the category of public accommodation.

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