KY Clerk Testifies in Faux Religious Freedom Case

KY Clerk Testifies in Faux Religious Freedom Case July 22, 2015

One of at least two remaining Kentucky county clerks still refusing to issue licenses for same-sex marriages testified on Monday in federal court in a suit filed against her over that refusal. To call her arguments and those of Liberty Counsel, which is representing her, absurd would be an understatement.

A federal judge heard testimony Monday from Rowan County Clerk Kim Davis, who stopped issuing marriage licenses because same-sex marriage violates her religious beliefs…

Davis has said she cannot issue marriage licenses to same-sex couples because it would violate her religious beliefs. Some clerks have asked Democratic Gov. Steve Beshear to call a special session of the state legislature to address the issue. Beshear has declined, citing the cost to taxpayers.

On Monday, Davis was on the stand for about an hour and 20 minutes. She was questioned by her attorneys and the attorneys representing the plaintiffs.

While on the stand, Davis was asked several questions, including how she’s done her job as county clerk, where her objection comes from and who has the final say when it comes to the constitution.

Davis told the court she’s an apostolic Christian and her religion says that marriage can only be between a man and a woman. She says her right to freedom of religion affords her the ability to deny same-sex licenses because she believes the wording on the certificate means she’s authorizing the license. Davis said that is something she can’t do.

“If I authorize it, I’m saying I agree with it. I can’t do that,” she said.

Both false and inconsistent. What if a zoning clerk issued a permit to build a Muslim mosque or an office for a humanist group? Would they be agreeing with those things by authorizing them? Of course not. The government does not endorse everything it permits and neither do those who work for the government. Her job is to issue licenses for things that are legal to do, not to those things that she agrees should be done. And she refused to answer any questions on similar situations:

An attorney representing the couples who are suing Davis asked her how far a clerk could take their religious beliefs when it comes to denying licenses.

He asked, for example, whether a clerk could refuse a license if they did not believe interracial marriage was biblical. He also asked whether a clerk could deny a license to someone who wanted to get remarried after a divorce.

Davis said she couldn’t speak for anyone else and didn’t answer any hypothetical questions.

Nice try, but your attorneys will certainly have to answer those questions when the judge asks them to. If you are advancing this theory of religious freedom that says any individual who works for the government has a constitutional right to refuse to do their job if it violates their religious beliefs, those hypothetical scenarios are absolutely relevant. Where do you draw the line? The argument they’re advancing makes it impossible to draw any such lines. It permits any government employee to engage in discrimination any time they want against anyone they want.

The arguments from her attorneys were no better:

Davis’ attorney, Roger Ganham, said the plaintiffs had traveled from Rowan County to Boyd and Kenton counties for the hearings, and could have gone to another county for the license.

“This case is not about these plaintiffs’ desire to get married. This case is about the plaintiffs’ desire to force Kim Davis to approve and authorize their marriage in violation of her Constitutionally-protected religious beliefs,” Ganham said.

Why is that in any way relevant to the legal question in the case, though? Would he take that same position if it was, say, a Muslim DMV clerk refusing to issue a driver’s license to a woman because his religious beliefs said women shouldn’t drive? Would he then be arguing that the case isn’t about discrimination because she could just go to another DMV office? Of course not, if for no other reason than because Liberty Counsel cares only about the “freedom” of Christians.

Her attorneys only have two choices here. They can admit that their arguments would allow all those other identical situations, which they know will undermine their case because it essentially guts all non-discrimination laws, or they can try to make some pretextual argument for why those situations are different, which would contradict their primary argument about the inviolability of all claims of “religious freedom” and would almost certainly ring hollow to the judge, who would know damn well they don’t mean it. I’ll be interested in seeing which argument they attempt to make.

The other clerk refusing to issue licenses to gay couples is no smarter:

Davis is not the only Kentucky clerk to refuse marriage licenses after the U.S. Supreme Court legalized same-sex marriages in all 50 states. She and some other county clerks want the legislature to create an alternative way for same sex couples to get marriage licenses.

Casey County Clerk Casey Davis has pushed for the state to issue marriage licenses online. He met with Gov. Steve Beshear earlier this month to urge the governor to consider that and inquire about holding a special legislative session to tackle the issue. Beshear’s office has said it will not hold a special session. Shortly after their meeting, Casey Davis said the governor told him to issue marriage licenses to same-sex couples or resign. Casey Davis was in the courtroom Monday morning to support Kim Davis.

“He so bluntly told me to do mine or quit. I’m going to ask him to do his job or quit. That’s what his job is, so at this time, he needs to call that special session and get this taken care of before litigation, before more costs to local communities and the state. All the fees and things that are going out are going to far exceed the cost of a special session,” Casey Davis said.

Except that passing such a law would change nothing at all. This suit is filed in federal court, not state court, and no state law that they might pass would change that. The issue is whether the clerks’ actions violate the 14th Amendment equal protection clause, so even if they did pass a state law that allowed it, all those lawsuits would still happen — and they’re still going to lose them.

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