The cost of ending the legal battle over Rowan County Clerk Kim Davis’ refusal to issue marriage licenses to same-sex couples may exceed $220,000 – and Kentucky taxpayers currently are on the hook.
U.S. District Judge David Bunning has ordered that the couples who sued Davis over her refusal to fulfill her elected duty are entitled to recoup attorney fees. Since Davis was acting in an official capacity and the state primarily regulates the issuance of marriage licenses, Bunning ruled the state must cover the fees, not Davis personally or Rowan County.
“Davis represented the Commonwealth of Kentucky when she refused to issue marriage licenses to legally eligible couples,” Bunning wrote. “The buck stops there.”
A spokesman for Kentucky Gov. Matt Bevin (R) – a supporter of Davis – told the Lexington Herald-Leader that state officials were reviewing the ruling and considering whether to appeal. Davis’ attorneys at the legal group Liberty Counsel said they would appeal, even though they were pleased she wasn’t being held personally responsible for the debt.
To recap: After the U.S. Supreme Court’s landmark Obergefell v. Hodges ruling made marriage equality the law of the land in June 2015, Davis said her religious beliefs prevented her from fulfilling her elected duty to issue marriage licenses to same-sex couples. She declared that she and her staff would not issue licenses to any couples, gay or straight, apparently in the misguided belief this was a legally sound maneuver to avoid recognizing marriage equality.
So not only did Davis want to discriminate against same-sex couples and treat them like second-class citizens, she withheld the fundamental right of marriage from all county residents.
“The First Amendment is not the personal plaything of Kim Davis or any other government official,” AU’s executive director, Barry W. Lynn, said amidst the legal battle. “No official has the right to deny constitutional rights to others simply on the basis of their own religious beliefs.”
After ignoring orders from then-Gov. Steven L. Beshear (D) and Judge Bunning to issue the licenses, Davis was sent to jail for a few days for failing to comply with a court order. In her absence, the office began issuing marriage licenses. She was released from jail on orders that she not interfere with the process. However, there were questions about whether the licenses being issued were legal since the language on them was altered, namely because the Rowan County Clerk’s Office and Davis’ name were removed.
A lawsuit brought by four couples – two same-sex, two heterosexual – continued and AU filed a friend-of-the-court brief in December 2015, arguing Davis’ actions were unconstitutional.
“Davis has no right to mold the conduct of the County Clerk’s Office to fit her personal religious beliefs,” AU’s brief reads. “When acting in her capacity as Rowan County Clerk, Davis may not override the constitutional rights of Rowan County’s citizens. The Constitution is the law of the land; Davis’s religious beliefs are not.”
But the same week AU filed its brief, newly elected Republican Gov. Bevin issued an executive order declaring that county clerks’ names did not have to appear on Kentucky marriage licenses. That effectively ended the case – except for the fight over who should cover the legal fees of the couples who originally could not get Rowan County marriage licenses.
The flap in Rowan County was not isolated. Attempts to misuse religious freedom as an excuse to discriminate against LGBTQ people and others continue across the country. The U.S. Supreme Court this fall will hear arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a Colorado bakery cited religious beliefs in refusing to make a wedding cake for a same-sex couple. Also pending before the high court is a review of the similar State of Washington v. Arlene’s Flowers case, in which a flower shop refused to provide flowers for a same-sex couple’s wedding. And just this week a Pennsylvania bridal shop has been in the news for again refusing to serve a same-sex couple. (To learn more about AU’s work to protect religious freedom and equal protection under the law, visit our Protect Thy Neighbor project.)
AU has filed friend-of-the-court briefs in both the Masterpiece and Arlene’s Flowers cases, and we’ll continue to fight against attempts to misuse religion as an excuse to discriminate. Religious freedom – the right to believe or not as you see fit – is a fundamental American value. And finding a partner to love and to marry is a fundamental part of the American dream for many. Our country’s laws should respect those basic rights.
Failure to do so can be expensive – as Kentucky residents may soon learn.