Tuesday, September 08, 2015

The court decision in the Kim Davis case

After more web searching than I expected it would require, I located the official decision in the Miller v. Davis case which was provoked by County Clerk Kim Davis' refusal to issue marriage licenses to same-sex couples in defiance of the Supreme Court decision in Obergefell v. Hodges (2015). This is the decision that the Supreme Court declined to review and over which Kim Davis, a county clerk in Kentucky, was jailed for contempt of court because she would neither issue marriage licenses to same-sex couples nor allow anyone in her public office to issue them.

The Miller v. Davis decision was made by Judge David Bunning of the US District Court for the Eastern District of Kentucky. Bunning was nominated to the federal bench by Shrub Bush when he was President.

On the basic issue, the decision says:

At its core, this civil action presents a conflict between two individual liberties held sacrosanct in American jurisprudence. One is the fundamental right to marry implicitly recognized in the Due Process Clause of the Fourteenth Amendment. The other is the right to free exercise of religion explicitly guaranteed by the First Amendment. Each party seeks to exercise one of these rights, but in doing so, they threaten to infringe upon the opposing party’s rights. The tension between these constitutional concerns can be resolved by answering one simple question: Does the Free Exercise Clause likely excuse Kim Davis from issuing marriage licenses because she has a religious objection to same-sex marriage? For reasons stated herein, the Court answers this question in the negative.
And I see in the decision that Kentucky's Democratic Governor Steve Beshear had addressed the conscience issue for county clerks in the same way John Kennedy did in 1960 when some Protestants worried about him taking orders from the Pope. Beshear had said in a message to the clerks after the Obergefell decision:

You can continue to have your own personal beliefs but, you’re also taking an oath to fulfill the duties prescribed by law, and if you are at that point to where your personal convictions tell you that you simply cannot fulfill your duties that you were elected to do, th[e]n obviously an honorable course to take is to resign and let someone else step in who feels that they can fulfill those duties.
Bunning's decision address the notion that Davis' acts in her official capacity as County Clerk represent her personal endorsement of such actions as required by law:

As a preliminary matter, the Court questions whether the act of issuing a marriage license constitutes speech. Davis repeatedly states that the act of issuing these licenses requires her to “authorize” same-sex marriage. A close inspection of the KDLA marriage licensing form refutes this assertion. The form does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds. It simply asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law. Davis’ religious convictions have no bearing on this purely legal inquiry. [my emphasis]
The decision further notes, "county clerks’ offices issue marriage licenses on behalf of the State, not on behalf of a particular elected clerk." And:

The Court must again point out that the act of issuing a marriage license to a same-sex couple merely signifies that the couple has met the legal requirements to marry. It is not a sign of moral or religious approval. The State is not requiring Davis to express a particular religious belief as a condition of public employment, nor is it forcing her to surrender her free exercise rights in order to perform her duties. ...

As the Court has already pointed out, Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.
Surprisingly, even some FOX News commentators aren't buying her "Christian persecution" line: David, Fox Panel Destroys Kim Davis' Lawyer For Being 'Stunningly Obtuse' And 'Ridiculously Stupid' C&L 09/08/2015.

Franklin Graham, on the other hand, continues to spew nonsense on the case. (Stoyaz Zaimov, Franklin Graham Slams Donald Trump on Kim Davis Remarks: 'Forefathers Gave Us Freedom of Religion at a Great Cost' Christian Post 09/08/2015)

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