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Court told marriage fight really about targeting Christians

Posted By Bob Unruh
The case of Rowan County, Kentucky, Clerk Kim Davis is not simply about whether same-sex duos can be married in the state.

It’s fundamentally about whether homosexual activists can force a Christian to violate her constitutionally protected rights, contends a consolidated brief filed with the 6th U.S. Circuit Court of Appeals.

The brief disputes the validity of an injunction ordering Davis to issue marriage licenses to same-sex couples in violation of her faith and a decision by U.S. District Judge David Bunning to jail her for nearly a week over the conflict between two constitutional rights.

The case likely will end up before the U.S. Supreme Court. The minority in the 5-4 Obergefell marriage decision in June had warned that it would create such conflicts.

At issue are the differences between the First Amendment-enumerated right to practice religion and the newly created right to “same-sex marriage.”

The brief, filed by Liberty Counsel, points out that Davis “has consistently argued that there were multiple alternatives by which her undisputed sincerely held religious beliefs protected by the Kentucky Religious Freedom Restoration Act and the First Amendment, both of which predate and survive Obergefell, could be accommodated while simultaneously ensuring individuals who are qualified to marry under Kentucky law may obtain valid marriage licenses in Rowan County.”

“Outlasting the Gay Revolution” spells out eight principles to help Americans with conservative moral values counter attacks on our freedoms of religion, speech and conscience by homosexual activists

However, the brief said, the accommodations weren’t good enough for activists.

“In a rush to judgment that promoted expediency over due process, the district court’s original injunction [from Bunning] in this dispute tramples upon Davis’ religious rights in subjugation to plaintiffs’ ‘preference’ for a marriage license authorized by a particular person in a particular county.”

The brief explained, “Under the circumstances here, plaintiff’s purported rights should not trump Davis’ undisputed sincerely held religious beliefs.”

The filing said the case is not about marriage partners, any state ban, whether the state recognizes “same-sex marriage” or whether the plaintiffs could obtain a license.

“Marriage licenses – including licenses issued to same-sex couples — are and have been readily available across Kentucky in more than 130 locations, and plaintiffs are indisputably financially and physically able to drive to those locations to secure a license, as shown by their 60-mile and 100-mile trips to attend court hearings.”

And it’s not about a governor who was helpless. He could have at any point approved the accommodation that ultimately was employed as a result of the many court hearings, the brief said.

“Nor is this case about a county clerk who wants to re-litigate in federal court [the same-sex marriage case].”

It argued that nothing in the Obergefell decision “compels states to accomplish recognition [or equal treatment] of SSM by invading and trampling upon the conscience of individual county clerks, as occurred with the SSM mandate.”

“This case need not be resolved by picking one set of rights to the outright exclusion of another. While plaintiffs continue to demand unrelenting adherence and submission to their orthodoxy of no accommodation whatsoever, Davis has consistently shown from the outset of this case that there are multiple alternatives by which her undisputed sincerely held religious beliefs about marriage can be accommodated, while simultaneously allowing individuals to obtain valid marriage licenses.”

The brief argues the court erred when Bunning acknowledged that Davis had religious rights but simply brushed them aside, when he refused a request brought by Davis for injunctive relief to protect her rights and when he ruled Davis was in contempt and jailed her.

The jailing was done “without affording her appropriate due process, violating her rights under the Federal Religious Freedom Restoration Act, and discarding fundamental principles of federalism and comity by commandeering a state office run by a publicly elected official.”

Even to this day, Kentucky law defines marriage as the union of one man and one woman, because the state legislature has had no opportunity to change the definition since the court decision. In fact, it’s a misdemeanor for a clerk to issue a marriage license to a same-sex couple under the law as written.

The governor simply ordered clerks to start issuing licenses to same-sex couples or resign.

On the release of the Supreme Court’s opinion, Davis had simply stopped issuing any marriage licenses, to treat everyone exactly the same. She had sought an accommodation either from the legislature or the governor to allow her her First Amendment religious freedom rights.

Neither responded.

But a series of plaintiffs sued Davis, despite the fact they could have obtained their licenses from multiple other locations.

“Rowan County is bordered by seven counties, and the clerks’ offices in these counties are within 30-45 minutes from the Rowan county clerk’s office. … More than ten other clerks’ offices are within a one-hour drive of the Rowan County clerk’s office, and these counties are issuing marriage license, along with the two counties where the preliminary injunction hearings were held in this matter.”

Further, the brief explains more of the evidence that the activists in the case were targeting a specific Christian to try to force their agenda.

“Plaintiffs admitted that they never even attempted to obtain a license in any county other than Rowan County, despite the widespread availability of such licenses and even though plaintiffs have the economic means and no physical handicap preventing such travel. … In fact, plaintiffs only attempted to obtain a marriage license from the Rowan County clerk’s office after becoming aware of Davis’ religious objections to SSM.”

Then the district court, Bunning, took sides, too.

“Rather than considering Davis’ and plaintiffs’ requests together and allowing Davis to develop a further evidentiary record on her own request for individual religious accommodation from the SSM mandate, the district court granted plaintiffs’ request for injunctive relief.”

That’s even though Bunning “recognized that ‘this civil action presents a conflict between two individual liberties held sacrosanct in American jurisprudence,’ thereby conceding that Davis’ individual religious rights are being ‘threaten[ed]‘ and ‘infringe[d]‘ by plaintiffs’ demands for her approval of their proposed unions.”

In fact, the district court said, plaintiffs “can obtain marriage licenses from one of the surrounding counties,” the plaintiffs are “not totally precluded from marrying in Kentucky” and “plaintiffs have the means to travel.”

But Bunning struck down Davis’ constitutional rights because the plaintiffs “strongly prefer” to get their licenses from Davis.

“Here … the district court elevated their ‘preference’ to a newfound constitutional right,” the brief argues.

Bunning said all was right because Davis still could believe what she wanted; she just wasn’t allowed to live her beliefs.

When she still refused to violate her faith and issue the licenses to homosexual duos, Bunning jailed her.

The brief explains Bunning violated the Constitution and the Kentucky RFRA by refusing to consider Davis’ own constitutional rights and choosing one of several options in which the homosexual couples could get their licenses and Davis’ rights would be protected.

The brief pointed out that the U.S. Supreme Court’s decision had two conclusions: that states may not absolutely bar “same-sex marriages” as v**ers in a majority of the 50 states had done, and states must recognize “same-sex marriage” like traditional marriage.

Further, Bunning made an issue of telling Davis “what her religious convictions should be, instead of recognizing the undisputed fact of what her religious convictions actually are,” Liberty Counsel explained.

The judge’s approach, the attorneys argue, is “narrow-minded” and ignores “other laws requiring religious accommodation, namely the Kentucky RFRA and First Amendment.”

WND reported when Liberty Counsel asserted the case was not about “gay weddings” but about forcing a homosexual agenda on a Christian.

“Outlasting the Gay Revolution” spells out eight principles to help Americans with conservative moral values counter attacks on our freedoms of religion, speech and conscience by homosexual activists

That comment followed a move by the ACLU, representing the same-sex duos, to demand from the judge an order that Davis re-issue the marriage licenses authorized by her office in her own name while she was in jail.

WND also reported just days ago on a new effort developing in reaction to the Supreme Court’s ruling.

Groups of v**ers are strategizing ways to simply nullify the ruling.

A Kentucky lawyer, Jeff Cobble of the Cobble Law Firm, told WND that there are hundreds and possibly thousands of residents already taking up the discussion of how to nullify the decision.

Multiple arguments and possible moves are being discussed, but he said a couple of counties already have adopted resolutions condemning the action by the justices in Washington and expressing the sentiment that the decision needs to be ignored.

One of those counties, Greene County, recently approved a resolution that says the county is “vehemently opposed to same-sex marriage.”

It asks Tennessee state officials to challenge the Supreme Court ruling however they can.