In Rowan County, Kentucky, clerk Kim Davis, who has been married four times, has been under fire for refusing to issue marriage licenses to same-sex couples because of her religious beliefs. Two different couples have sued her, but in addition to seeking a dismissal of those cases, she filed a suit of her own this week against Gov. Steve Beshear (D), claiming that he violated her rights by instructing her to do her job.
Since the Supreme Court’s ruling that brought marriage equality to all 50 states, Beshear has been adamant that county clerks, as elected officials, have a sworn obligation to serve all citizens equally. In July, he remarked, “When you voluntarily decide to run for office, and you win, and you raise your hand and you take the oath… that oath doesn’t say, ‘I will uphold the parts of the Constitution that I agree with and won’t with the parts I don’t agree with.’”
According to Davis and her lawyers at the anti-LGBT Liberty Counsel, Beshear’s letter to the county clerks ordering them to comply with Obergefell violated her religious beliefs: “The Comonwealth of Kentucky, acting through Governor Beshear, has deprived Davis of her religious conscience rights guaranteed by the United States and Kentucky Constitutions and laws, by insisting that Davis issue marriage licenses to same-sex couples contrary to her conscience, based on her sincerely held religious beliefs.”
It goes on to blame Beshear for having “exposed” Davis to the lawsuits she now faces from same-sex couples, arguing that he is liable for her claims and “is also obligated to effect Kentucky marriage licensing policies that uphold Davis’s rights of religious conscience.”
Under Kentucky law, county clerks are required to issue and sign every marriage license. As the suit notes, “no marriage license can be issued by a county clerk without her authorization and without her imprimatur.” Because of her religious belief that “marriage” is “exclusively a union between one man and one woman,” Davis “can neither authorize nor approve the ‘marriage’ of a same-sex couple according to her conscience,” because “even calling the relationship of a same-sex couple ‘marriage’ would violate her deeply and sincerely held religious beliefs. Nor can Davis allow her name to appear as the source of authority and approval for any marriage license issued to a same-sex couple because providing such approval would violate her sincere religious beliefs and convictions.”
The Liberty Counsel contends that Beshear was targeting “clerks like Davis” who oppose same-sex marriage, suggesting hypocrisy because he didn’t similarly issue orders to Attorney General Jack Conway (D) to appeal the state’s ban on same-sex marriage after Conway decided not to. Beshear, the suit alleges, “is unlawfully picking and choosing the conscience-based exemptions to marriage that he deems acceptable.” Specifically, “Although Attorney General Conway was given a pass for his conscience about marriage without any threats of repercussion, clerks like Davis are being repeatedly told by their Governor to abandon their religiously-informed beliefs or resign.”
But that’s not actually a parallel comparison. Attorneys general typically have discretion whether to continue defending state laws that have been ruled unconstitutional. Conway’s decision is no different, for example, than the Obama administration’s decision not to defend the Defense of Marriage Act. Moreover, Beshear appealed anyway — his authority to do so indicative of the fact that Conway’s decision was legitimate. Most importantly, it’s not unconstitutional for an Attorney General not to defend a state law, but it very much is unconstitutional under Obergefell to deprive a same-sex couple of access to marriage. Davis is trying to make the case that she is the victim of “target and discriminatory marriage policy pronouncements,” when she is the one violating the constitutional rights of citizens.
If Davis loses her suits to the same-sex couples, she demands that Beshear pay the damages on her behalf. This is perhaps the most counter-intuitive expectation possible. If Davis loses, it would be because the court found her in violation of her duties. All that Beshear did was order her to do her job — the very thing that would have prevented her from being sued — so it’s unclear why any court would then humor her notion that he was somehow responsible for her losses. She undermines her own case by making that demand.
According to the Liberty Counsel’s Mat Staver, “Governor Beshear is making secularism a litmus test for holding office in Kentucky.” But the litmus test for Davis is actually fulfilling her constitutional obligations post-Obergefell, which grants same-sex couples access to marriage “on the same terms as accorded to couples of the opposite sex” and “equal dignity under the law.”