Religious Right legal group Liberty Counsel, which opposes LGBT equality in the U.S. and around the world, has been urging resistance in the form of mass civil disobedience to the Supreme Court’s marriage equality ruling. On Wednesday, a federal court ruled against Liberty Counsel and its client, Rowan County Clerk Kim Davis, who has refused on religious grounds to issue a marriage license to same-sex couples. U.S. District Judge David Bunning issued a preliminary injunction ordering her to do her job and comply with the U.S. Supreme Court ruling.
Bunning, a Bush appointee, stated the issue this way:
At its core, this 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. 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 samesex marriage? For reasons stated herein, the Court answers this question in the negative.
The judge analyzed the case under the U.S. Constitution, the Kentucky state constitution, and the Kentucky Religious Freedom Act (which is patterned after the federal Religious Freedom Restoration Act). He considered and rejected various arguments raised by Liberty Counsel defending Davis’s right to refuse to provide marriage licenses.
Davis contends that “[c]ompelling all individuals who have any connection with the issuance of marriage licenses . . . to authorize, approve, and participate in that act against their sincerely held religious beliefs about marriage, without providing accommodation, amounts to an improper religious test for holding (or maintaining) public office.” The Court must again point out that the act of issuing a marriage license to a same-sex 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. Thus, it seems unlikely that Davis will be able to establish a violation of the Religious Test Clause….
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. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.
Liberty Counsel has filed an appeal of the ruling and requested a stay. Chairman Mat Staver denounced the judge’s ruling:
“Judge Bunning’s decision equated Kim’s free exercise of religion to going to church. This is absurd! 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.”
“Kim Davis cannot license something that is prohibited by her religious convictions,” Staver continued. “To provide a license is to provide approval and places a legal authority behind what is being licensed. The First Amendment protects actions and not mere thought. Kim Davis should not be forced to violate her religious beliefs,” Staver concluded.
This morning, Davis’s office defied the Judge Bunning’s order and turned away gay couples who sought marriage licenses. According to the Associated Press, “Davis wasn't at her office Thursday, but deputy clerk Nathan Davis said the office was advised by its attorneys with the Christian law firm Liberty Counsel to continue refusing same-sex couples as it appeals.”
Last year, after a federal court struck down North Carolina’s ban on same-sex couples getting married, Staver and anti-gay activist Matt Barber urged magistrates in the state with similar religious objections not to resign but to “stand their ground” and refuse to obey the ruling.