Deliberate religious obstructionism

Despite the ruling by a federal judge that she is required to issue marriage licenses to same-sex couples, Kim Davis, the county clerk of Rowan County in Kentucky, continues to refuse to do so because she says her religious beliefs preclude committing any action that suggests approval of same–sex marriage. The judge has allowed her to continue doing so pending a ruling on an emergency appeal by her to the Sixth Circuit Court of Appeals. I am not sure why the judge allowed this since it is almost certain that she will lose her appeal. Maybe he just wanted to avoid having her and her supporters scream that they are being persecuted for their religious beliefs.

Thanks to reader Tony! The Queer Shoop, I obtained a link to the original ruling by judge David L. Bunning in the Davis case. The actual text of a ruling is valuable because it contains all manner of factual information that is not found in newspaper reports, as well as insights into how the laws and constitutions are applied.

We all know that Christian principles are remarkably flexible in that they can be interpreted to accommodate pretty much anything if you set your mind to it. (A great example is the long Bible-laced rationalizations on Facebook by Todd Courser whose bizarre shenanigans have captured much attention. The comments to his Facebook post were not favorable.) In this case, we find that Davis has clearly gone out of her way to be obstructionist. She had many options that she could have taken that would have enabled her to issue licenses while keeping her religious purity unsullied but which she chose to ignore.

For example, her office has six deputy clerks who are also authorized to hand out the licenses. Four of them share Davis’s objections to handing out licenses to same-sex couples. A fifth is undecided. But the sixth was willing to do so and so that could have solved the problem. But Davis would not allow it because even though her signature would not be on the document, her name still appears on it as the county clerk and she thinks that that alone is sufficient for Jesus to think she approves of the marriage and presumably consign her to everlasting hell.

But the judge made this point.

A close inspection of the KDLA 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. Davis’ religious convictions have no bearing on this purely legal inquiry.

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.

In other words, the license is not an endorsement of the marriage by the clerk. As Bunning emphasizes, “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 ruling specifies the other reasons given by Davis for why she should not be forced to issue licenses.

Davis insists that her policy does not significantly discourage Plaintiffs from marrying because they have several other options for obtaining licenses: (1) they may go to one of the seven neighboring counties that are issuing marriage licenses; (2) they may obtain licenses from Rowan County Judge Executive Walter Blevins; or (3) they may avail themselves of other alternatives being considered post-Obergefell.

All of them were dismissed by the judge. As the judge said, with regard to (1), why should they have to go to another county instead of the one they live in? Also her argument depended upon just a few clerks acting like her. What if many or all the 56 other clerks adopted Davis’s position? Then people might have long trips to get a license or not be able to get one at all. As to (2), the rules allow the county judge to issue licenses only in the absence of the clerk, not because she decided not to do her job. As to (3), he said it is unreasonable to appeal to options that do not as yet exist.

Besides, as the judge said:

Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions. Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent.

When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.

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.”

Davis seems to have created a highly exaggerated opinion of the clerk’s role in the marriage process in order to justify her refusal. Davis’s impression about the importance of her role is similar to what we saw in the case of the Colorado baker. Thanks to reader Leo Buzalsky who provided the link to the opinion of the Colorado Supreme Court, we saw that the baker in that case also had an inflated sense of his own importance in the wedding.

In that opinion, the court said:

The public recognizes that, as a for-profit bakery, Masterpiece charges its customers for its goods and services. The fact that an entity charges for its goods and services reduces the likelihood that a reasonable observer will believe that it supports the message expressed in its finished product. Nothing in the record supports the conclusion that a reasonable observer would interpret Masterpiece’s providing a wedding cake for a same-sex couple as an endorsement of same-sex marriage, rather than a reflection of its desire to conduct business in accordance with Colorado’s public accommodations law.

We recognize that a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage and, in such cases, First Amendment speech protections may be implicated. However, we need not reach this issue. We note, again, that Phillips denied Craig’s and Mullins’ request without any discussion regarding the wedding cake’s design or any possible written inscriptions.

The court pointed out that if a law is neutral and of general applicability, then the lowest rational basis standard applies for judging its constitutionality and the fact that the law just so happens to impinge on someone’s particular religious beliefs is not a sufficient basis for disqualifying it.

In Smith, the Court disavowed Sherbert’s balancing test and concluded that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” The Court held that neutral laws of general applicability need only be rationally related to a legitimate governmental interest in order to survive a constitutional challenge. As a general rule, such laws do not offend the Free Exercise Clause.

A law need not apply to every individual and entity to be generally applicable; rather, it is generally applicable so long as it does not regulate only religiously motivated conduct.

These outcomes will likely not end the legal challenges. These people want to be seen as suffering on the cross along with Jesus, at least metaphorically. If the contempt citations roll in and the possibility of major fines or prison time start to mount, their ardor to be martyrs for Jesus might begin to cool.

In Texas for example, a county clerk Katie Lang who like Davis refused to issue licenses was sued by a gay couple and she lost and the county had to pay the court costs of nearly $44,000 to the couple that sued her. This is what Davis also faces though her legal costs will be higher since she is taking it much further.


  1. mck9 says

    Nitpick: Rowan County is in Kentucky, not Missouri.

    In all fairness, I have trouble telling them apart too — and I live in Missouri.

  2. Robert, not Bob says

    “You can go to the next county over” might be hard, since the whole point is to create a multi-state boycott and make implementing the law impossible.

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