Court told marriage fight
really about targeting Christians, Lawyers
for Kim Davis file opening brief with 6th Circuit, by Bob Unruh, 11/3/15, WND
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.”
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 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 ‘threatened‘ and ‘infringed‘ 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 voters 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.
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 voters 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.
http://www.wnd.com/2015/11/court-told-marriage-fight-really-about-targeting-christians/
Comments
Getting US citizens to accept
homosexuality as “normal” was listed in the 45 goals written by the Communist
Party of America in 1920 as restated in 1968. The Davis case was the forerunner
for cases forcing Physicians to perform abortions or lose their licenses.
Christianity is under attack by our government and has been since the 1960s.
Norb Leahy, Dunwoody GA Tea Party
Leader
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