The self-proclaimed "Christian" Liberty Counsel, identified as an anti-LGBT hate group by the progressive Southern Poverty Law Center, has stepped in to defend rogue Kentucky clerk Kim Davis, who still refuses to issue marriage licenses to same-sex couples in Rowan County.
In an "emergency" motion filed Wednesday, Liberty Counsel asks the federal Sixth Circuit Court of Appeals to indefinitely extend a stay placed on a district judge's order that would have required Davis to perform the full responsibilities of her job.
Davis, who most recently defied a federal court order that required her to issue marriage licenses to all couples, regardless of gender, first made headlines in July, less than a week after the U.S. Supreme Court struck down all remaining state bans on same-sex marriage, including Kentucky's specifically. When David Moore and his fiancé, David Ermold, attempted to obtain a marriage license at the Rowan County Clerk's office July 6, Davis and her employees called police to remove the couple.
Throughout, Davis has maintained that performing the duties of her job and signing a marriage license for two people of the same sex would violate her "deeply held" religious convictions.
At Davis's direction, employees of her office have stopped issuing marriage licenses to all couples in order to avoid issuing marriage licenses to same-sex couples. That prompted four couples — two same-sex and two opposite-sex — to file a federal lawsuit against Davis.
Earlier this month, U.S. District Judge David Bunning ruled that Davis's personal religious beliefs do not entitle her to discriminate against law-abiding citizens seeking her services as a public official.
Judge Bunning's decision ordered Davis and her staff in Rowan County to resume issuing marriage licenses, though it was accompanied by a stay, meaning the order would not take effect until August 31, lest Liberty Counsel wanted to appeal the district court's ruling.
But rather than abide by the federal judge's order, Davis apparently went on vacation, staffers in her office told same-sex couples who sought marriage licenses this month. In her absence, they have continued to refuse to issue marriage licenses to anyone.
Wednesday's filing, at a dense 313 pages, lays out the reasons the anti-LGBT group believes that Davis's personal faith should trump the civil right of same-sex couples to legally marry.
Below, find those right-wing arguments summarized in bold, supported by verbatim text from Liberty Counsel's filing at the U.S. Court of Appeals for the Sixth Circuit.
1. Same-sex marriage isn't really marriage, despite what the Supreme Court says.
"The nature of Davis’ religious objection is more firmly established in history than perhaps any other religious conscience objection because the 'meaning of marriage' as a union between one man and one woman 'has persisted in every culture,' 'has formed the basis of human society for millennia,' and has singularly 'prevailed in the United States throughout our history.' [From Chief Justice John Roberts's dissent in Obergefell v. Hodges.] In fact, the majority in Obergefell conceded that the institution of marriage as exclusively a union between a man and a woman 'has existed for millennia and across civilizations' and this view 'long has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world.' [From Justice Anthony Kennedy's majority decision in Obergefell.] Thus, although the traditional view of marriage was discarded by the majority in Obergefell, that long-held view of marriage provides the historical underpinnings for a religious exemption and accommodation from the redefinition of marriage under the First Amendment and Kentucky RFRA."
2. Signing the marriage licenses of same-sex couples would have "irreversible implications on Davis' conscience," which cannot be rectified by "any earthly court."
"A same-sex 'marriage' ('SSM') license issued on Davis’ authorization and bearing her name and imprimatur substantially and irreparably burdens Davis’ conscience and deeply-held, sincere religious beliefs, which dictate to Davis that such unions are not and cannot be 'marriage.'
"That searing act of personal validation would forever echo in her conscience — and, if it happened, there is no absolution or correction that any earthly court can provide to rectify it. A stay of the Injunction will halt the irreversible implications on Davis’ conscience while this Court reviews Davis’ appeal and the multiple less restrictive alternatives available that do not substantially burden Davis (or the Plaintiffs)."
3. Davis's interpretation of her faith should override the constitutionally guaranteed access to equal protection under the law for same-sex couples, as affirmed by the U.S. Supreme Court in Obergefell.
"In the district court’s view, Plaintiffs’ rights trump Davis’ religious rights. But, unlike Plaintiffs, Davis’ individual liberties are enumerated (not emanations) in the United States and Kentucky Constitutions and the Kentucky Religious Freedom Restoration Act, and, moreover, they are natural liberties tied to religious beliefs that are measured in millennia (not weeks). Such rights deserve a full hearing in this Court. …
"Davis faces significant, irrevocable, and irreversible harm if she is forced to authorize and approve even one SSM license with her name on it, against her religious conscience, for 'it is well-settled that loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'''
4. Same-sex couples can just go to a different county to get married.
"Here, the named Plaintiffs can indisputably obtain a Kentucky marriage license even with this Court’s stay of the Injunction pending appeal, from more than 130 marriage licensing locations spread throughout Kentucky. Without dispute, nothing physically or economically prevents these named Plaintiffs from obtaining a marriage license from any of these locations. Moreover, Davis’ claims are based upon enumerated and individual Constitutional and statutory rights and protections that she holds as a person, which predate and survive Obergefell. ...
"Plaintiffs concede they can obtain Kentucky marriage licenses in another county and from someone other than Davis. They simply chose (and choose) not to. As such, Plaintiffs will not suffer irreparable and irreversible injury if resolution is postponed to await this Court’s decision on the merits."
5. Davis is facing real harm from the court telling her what her religious convictions "should be," while the same-sex couples are facing only "travel inconveniences."
"In concluding that the act of issuing SSM licenses would not severely burden Davis’ religious convictions because such act would not implicate moral or religious approval of SSM, the district court essentially told Davis what her religious convictions should be, instead of recognizing the undisputed fact of what her religious convictions actually are, and that those convictions unmistakably bar her from issuing SSM licenses with her name plastered on them. ...
"Finally, the harm to Davis is not speculative but imminent. The searing act of her conscience is authorizing a SSM license bearing her imprimatur… Plaintiffs insist on having no one other than Davis approve their proposed union; and the district court has ordered Davis to approve SSM licenses. This impending harm to Davis’ conscience outweighs any travel inconveniences on Plaintiffs, who can obtain (or could have already obtained) a marriage license from more than 130 licensing locations across Kentucky while the appeal is pending."
Read the full filing at Equality Case Files.