Religious freedom in court: Kentucky clerk refused gay marriage license

On Monday, a federal judge is expected to hear a case involving an eastern Kentucky county clerk who refused to issue any marriage licenses.

Eight people, including two same-sex couples, on Thursday sued the clerk who refused to issue marriage licenses following the U.S. Supreme Court ruling legalizing gay marriage, the Kentucky chapter of the American Civil Liberties Union said.

The lawsuit, filed in federal court in Ashland with the legal support of the ACLU, claims Rowan County Clerk Kim Davis has purposefully violated the plaintiffs' rights. The lawsuit also named the county.

Prior to the Supreme Court decision, same-sex marriages were banned, but Governor Steve Beshear directed county clerks to begin accepting those applications hours after the ruling.

The plaintiffs seek to create a class action suit to force Davis to issue licenses to all eligible couples.

"When our laws are updated or changed, government officials have a duty and a responsibility to impartially administer those laws," Michael Aldridge, the ACLU state executive director, said in a statement.

Davis could not be reached to comment on Thursday, but in an interview with Reuters on Tuesday she said her religious beliefs prevented her from issuing marriage licenses to gay and lesbian couples. She also said she knew a lawsuit was likely coming.

"I've thought a lot about what's going to happen and what to do," she said, when asked if she's considered resigning. "I've just been praying about it. You know, if this is a fight I need to stay and fight, then I'll fight. If it's something that's bigger than me and bigger than everyone else, we'll just see about it when it comes."

While the couples who filed suit could have applied for a license elsewhere in the state, Aaron Skaggs, a plaintiff in the case, said it was important to be accepted in his own community.

Rowan is not the only Kentucky county that has stopped issuing marriage licenses. Billy Joe Lowe, the clerk of Green County, told WFPL-FM on Thursday that when his office resumes issuing licenses next week, it will not accept applications from same-sex couples.

Elsewhere, a Tennessee county on Monday named a temporary county clerk after the person in the position resigned rather than issue same-sex marriage licenses that she said violated her religious beliefs.

In Decatur County, 100 miles southwest of Nashville, Tennessee, Mayor Mike Creasy said in a statement on Monday he disagreed with the U.S. Supreme Court's recent ruling that the U.S. Constitution gives same-sex couples the right to marry, but that he would enforce the law.

He appointed Jack Martin to serve as temporary county clerk until the county commission names a permanent successor to Gwen Pope.

The Supreme Court's ruling on June 26 prompted Pope and two staff members to resign in protest. Creasy said Pope "did not feel like that she could issue marriage licenses to persons of the same sex. Ms. Pope, as a result, tendered her resignation, effective July 5."

When Pope announced her resignation last week, she told the Jackson Sun she was not doing it to draw attention to herself and her workers.
"It's for the glory of God," she said to the newspaper. "I honestly believe God will take care of us."

The Decatur County Commission will vote on July 13 on the permanent replacement for Pope, the mayor's office said. That person will then fill the other open posts on the staff.

Chris Sanders, Tennessee Equality Project executive director in Nashville, said with this change, no county in the state was refusing to perform same-sex marriages.

One Texas county initially resisted issuing marriage licenses for same-sex couples before reversing its decision.

As The Christian Science Monitor reported, there may be legal wiggle room for religious objectors to same-sex marriage:

The GOP attorney general of Texas, Ken Paxton, outlined a legal position in which he said federal and state “religious freedom restoration acts,” as well as the religious freedom rights guaranteed by the First Amendment, “may allow accommodation of [county clerks’ and employees’] religious objections to issuing same-sex marriage licenses.” He made the comments in a letter to state officials.

The legal test for any burden placed on religious liberty, according to federal law and at least 19 state laws, is that the burden is the “least restrictive means” available to ensure a “compelling state interest.” If there are other authorized individuals available to issue marriage licenses within a county office, Mr. Paxton reasoned, state officials should be able to maintain their conscience.

While Paxton came under fire for his assessment of what he called a “lawless” high court ruling, some legal experts found his reasoning sound.

“If, for instance, there are two clerks in an office, only one of whom objects to same-sex marriage, it would be consistent with [the Supreme Court ruling] to allow the non-objector to issue same-sex licenses – as long as this practice neither stigmatized same-sex couples nor imposed significant burdens on them,” wrote Kermit Roosevelt, professor at the University of Pennsylvania Law School, in an op-ed piece for CNN.  

“And in this sense, Paxton is right,” Professor Roosevelt continued. “The state of Texas must issue same-sex marriage licenses, but in appropriate circumstances, individual clerks may be excused.”

(Reporting by Tim Ghianni in Nashville, Tennessee; Editing by Ben Klayman and Lisa Lamber and Eric Walsh)