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Kentucky Clerk Arguments Won’t Save South Dakota Employees Who Rebuff Same-Sex Marriage Applicants

The Supreme Court of the United States yesterday refused to block a lower court order that Rowan County, Kentucky, clerk Kim Davis issue marriage licenses to same-sex applicants. This morning, acting “under God’s authority,” Clerk Davis is defying the highest court in the land and continuing to refuse same-sex marriage applicants. Davis will likely be cited with contempt of court.

Davis’s emergency stay application to the Supreme Court uses many of the same arguments I’ve heard as South Dakotans have attempted to defend Attorney General Marty Jackley’s potentially costly argument that public employees retain First Amendment rights to discriminate based on their religious beliefs in carrying out (or choosing not to carry out) their public duties. In some of the purplest prose from the rejected application, Davis’s lawyer likens her religious discrimination to other exercises of religious conscience:

In the Injunction, the district court leaped over boundary lines recently set by this Court in deciding a religious conscience dispute arising in the context of another governmental mandate, by assessing the materiality and substantiality of Davis’ belief while simultaneously conceding its sincerity. Moreover, the Sixth Circuit magnified the outright disregard for Davis’ religious conscience by acting as if she does not retain any individual rights in her role as county clerk. But no court, and especially no third-party desiring to violate religious belief, is fit to set the contours of conscience. For if that were true, a person who religiously objects to wartime combat would be forced to shoulder a rifle regardless of their conscience or be refused citizenship; a person who religiously objects to work on the Sabbath day of their faith would be forced to accept such work regardless of their conscience or lose access to state unemployment benefits; a person who religiously objects to state-mandated schooling for their children would be forced to send their children to school regardless of their conscience or face criminal penalties; a person who religiously objects to state-approved messages would be forced to carry that message on their vehicles regardless of their conscience or face criminal penalties; a person who religiously objects to capital punishment would be forced to participate in an execution regardless of their conscience or lose their job; a person who religiously objects to providing abortion-related and contraceptive insurance coverage to their employees would be forced to pay for such coverage regardless of their conscience or face staggering fines. Each of these prior examples illustrate that the majority who adhere to a general law (regardless of their motivation) do not control the dictates of individual conscience. And in most cases, this Court has been forced to step-in to ensure that the security afforded to conscience by the Constitution remains in place when the crucible of public law and multiple government actors are demanding strict adherence even though true conscience can be accommodated [Jonathan D. Christman, Liberty Counsel, Emergency Application to Stay Preliminary Injunction Pending Appeal, Davis v. Miller et al., 2015.08.28].

Attorney General Jackley, pay close attention. Here’s why each of those analogies fails and will not save a South Dakota county employee from a lawsuit for following your bad legal advice and refusing to process a marriage license for two guys or two gals protected by Obergefell v. Hodges:

  1. “a person who religiously objects to wartime combat would be forced to shoulder a rifle regardless of their conscience or be refused citizenship”—The U.S. has an all-volunteer army; every soldier now chooses to shoulder a rifle and enter combat. Public officials wishing to avoid this conflict of conscience need not apply for public jobs.
  2. “a person who religiously objects to work on the Sabbath day of their faith would be forced to accept such work regardless of their conscience or lose access to state unemployment benefits”—A public employee seeking accommodation for her holy day is not seeking authority to selectively deny service to other citizens. The Sabbath-keeper imposes no discrimination on others.
  3. “a person who religiously objects to state-mandated schooling for their children would be forced to send their children to school regardless of their conscience or face criminal penalties”—This analogy does not refer to a public employee carrying out formal duties of her office. A parent’s private relationship to her children is entirely different from a public employee’s relationships to her public employer and her public constituents. A person who objects to state-mandated schooling who nonetheless applies for and obtains a job in a public school is not allowed to deny services of that employing school to any group of students or parents whom her religion deems sinners. Plus, a person who religiously objects to state-mandated schooling still has to obey the state mandate to provide her children some sort of state-approved education.
  4. “a person who religiously objects to state-approved messages would be forced to carry that message on their vehicles regardless of their conscience or face criminal penalties”—No private citizen is compelled to carry state-approved messages on her vehicle (well, except for the tourism slogans Pierre sticks on our license plates). But a person working for the state and given a state vehicle to drive in the conduct of her duties is obliged to carry whatever message the state places on that vehicle.
  5. “a person who religiously objects to capital punishment would be forced to participate in an execution regardless of their conscience or lose their job”—True. But what compels a person who objects to executions to apply for the job of executioner? And what legal precedent would allow an executioner to decide that she would inject or electrocute or hang or shoot prisoners she personally finds objectionable but usurp the governor’s power of commutation to spare the lives of other death-row inmates whom God tells her don’t deserve death? Executioners must still carry out the state’s death sentences equitably, without regard to their own religious objections.
  6. “a person who religiously objects to providing abortion-related and contraceptive insurance coverage to their employees would be forced to pay for such coverage regardless of their conscience or face staggering fines”—The government has not mandated that public employees personally pay for other people’s abortions and birth control. If the state does dictate that public employees somehow facilitate access to certain health services, public employees do not get to impose their religious beliefs to choose which citizens receive those services.

“Each of these prior examples,” says Davis’s emergency application, “illustrate that the majority who adhere to a general law (regardless of their motivation) do not control the dictates of individual conscience.” But these prior examples all miss the point that we are talking about the obligations of public employees to carry out their duties in equal service to all citizens.

Public employment is a privilege, not a right. Securing that privilege requires surrendering certain First Amendment rights, which apply only to citizens, not to individuals acting as arms of the state. Those whose beliefs compel them to discriminate against certain citizens need not apply for public employment. Kim Davis will likely soon lose her public employment in Kentucky. Any South Dakota public employee who follows Attorney General Jackley’s advice will likely end up in the same situation.

60 Comments

  1. rwb 2015-09-01

    Corey, great analysis, but I doubt that Marty will get it. The concepts you present are not small enough to fit on a bumper sticker.

    You can explain it to him, but unfortunately you can’t understand it for him.

  2. mike from iowa 2015-09-01

    I believe Wisconsin wingnuts did away with employees guaranteed right to one day a week off work. So workers might well face having to work Sundays.

  3. mike from iowa 2015-09-01

    Kim Davis believes in the sanctity of marriage so much she is on her fourth one.

  4. 96Tears 2015-09-01

    Cory – Your arguments shoot down all the examples except, perhaps, the first one which is military duty to shoot to kill. In a war where the draft is used, the government could not compel someone to shoot people, but those who didn’t want to fight had to apply for conscientious objector status. This argument might have legs for the Clarence Thomas types on the USSC, but not for the swing deciders as it is still apples and oranges in comparing someone who has choice to become a public official through employment and someone who is compelled to serve in the military by law.

    I enjoy watching these dumb Republicans dig in and double down on yet another issue that polarizes them from the majority of Americans.

  5. caheidelberger Post author | 2015-09-01

    The draft still kills Davis’s analogies. Show me a county clerk who’s been drafted, and she has an argument.

    RWB, I’m glad you think I’m on the right track. I’ll keep this post handy to submit as an amicus curiae brief when some poor sap in Meade County discriminates against a gay biker couple.

  6. leslie 2015-09-01

    yesterday was deadline to comply with Fed ct order. today there should be news.

  7. Porter Lansing 2015-09-01

    Bigotry cannot be overruled by an individual’s religious consciousness. Group rights trump individual rights when discrimination is taking place. e.g. Many whites in Jim Crow southern states believed they had a God given right to segregate themselves and their children from African Americans. Supreme Court denied that assertion in 1954 in Brown v. Board of Education, the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

  8. mike from iowa 2015-09-01

    Davis appears in court on Thursday,I believe. ACLU filed contempt action against her.

  9. O 2015-09-01

    I suppose that is the risk one runs of being a public employee: your job duties have to coincide with the public law. If there is an individual’s moral stand against gay marriage, then work in a religious setting where your moral stand coincides with job you want (or want not) to do.

    I hope those denied sue the state with its deep pockets for discrimination, then, after getting its checkbook out, I would guess that states will be more cautious about allowing their employees “choices” on following the law.

  10. Deb Geelsdottir 2015-09-01

    I was listening to NPR and they said there are actually 3 Kentuckians in her position who are refusing to do their job of issuing marriage licenses. A guy is bicycling around the state trying to drum up and activate supporters. I wonder if he thinks he’s starting another rebellion?

    Anyway. Citizens do not get to pick and choose the rights of others based on their opinions, beliefs, prejudices, or anything else. Our rights as American citizens are “inalienable.” Period.

  11. John 2015-09-01

    Davis’s county commissioners and governor should fire and jail her. Her episodic nonsense makes the county and state rife for a Section 1983 lawsuit, violation of civli rights, and no pockets are deeper than are government pockets, ask any first-year law student. Davis’s obstinance and governmental bigotry should cost her county and state millions, perhaps tens or hundreds of millions.

  12. caheidelberger Post author | 2015-09-01

    But John, commissioners can’t fire Davis. She was elected by the people. Apparently she would have to be impeached by the Kentucky Legislature.

    Worth noting: Davis appears to have run the defense Kurt Evans has suggested for the Jackley accommodation policy, that a balky clerk places no burden on couples as long as the state has many other offices where couples can obtain their licenses, but the court rebuffed that argument:

    Davis argued before the courts that her refusal to issue licenses was not a major burden for any couple because Kentucky has more than 130 other marriage-licensing locations in other county clerks’ offices and branches. But federal district and appeals court judges refused to grant her wish, forcing Davis to seek the Supreme Court’s intervention [Mike Wynn and Andrew Wolfson, “Gay Couples Ask Judge to Punish Defiant Clerk,” USA Today, 2015.09.01].

    At the point where a public official claims she is acting under God’s authority and not the state’s, she is abusing her office and should step down.

  13. caheidelberger Post author | 2015-09-01

    Deb, I think I would greatly enjoy biking around the state trying to drum up rebellion—a nice, gentle, democratic rebellion. Perhaps if South Dakota clerks start making a fuss, I should bike to their courthouses.

  14. W R Old Guy 2015-09-01

    There was a segment on PBS this afternoon on this case. A law professor at one of the Universities in Kentucky pointed out that her case is has no standing on religious freedom grounds as she is not endorsing a marriage. She is only certifying that the applicants have met the requirements of the laws of Kentucky for marriage.

    There apparently are some state legislators in several states discussing passing laws to do away with state issued marriage licenses. It would seem to me that there would be many legal issues in doing so.

  15. Kurt Evans 2015-09-01

    Cory writes:
    >“Davis appears to have run the defense Kurt Evans has suggested for the Jackley accommodation policy, that a balky clerk places no burden on couples as long as the state has many other offices where couples can obtain their licenses …”

    Where would you say I’ve suggested that defense, Cory?

  16. grudznick 2015-09-01

    Mr. H, if you were to bike to every courthouse you would probably be the first. Maybe the first fellow to bike to every county. Can you take off the month to do it this fall?

  17. Rorschach 2015-09-02

    Kim Davis got knocked up by her third husband while she was married to her first husband. So she committed adultery. Got divorced. Didn’t marry the father of her twins (right away). Married husband #2 first. Then left husband #2 for husband #3 who knocked her up when she was married to husband #1. Unfortunately for husband #2, since he had adopted husband #3’s kids, husband #2 got stuck paying child support even after Kim Davis married husband #3 – the kids’ father. Then she divorced husband #3 and married husband #4. Ahhh, the sanctity of marriage. Oh the need to make sure others follow the Bible’s teachings!

  18. caheidelberger Post author | 2015-09-02

    WR—interesting point! If we look at what exactly her signature certifies, then we see all the more how baseless her religious grandstanding is.

    Rohr, do we have reliable documentation on the claims about Davis’s own sullying of the institution of marriage?

    Grudz, I suspect such lengthy bike rides will have to wait until Junior is a little more independent.

  19. Lynn 2015-09-02

    Rorschach,

    Will the Duggars including Josh travel to Kentucky to help argue for Kim Davis? Fire & Brimstone for others but not for us doggonit!

  20. Lynn 2015-09-02

    Lets see if the Kentucky legislature does anything about this. Otherwise it’s going to be costly for Kentucky taxpayers and their public image.

  21. Rorschach 2015-09-02

    Cory, the information is only as reliable as the public documents kept on file in Ms. Davis’s own office which have now been publicized. And Lynn, had Josh Duggar not been caught on Ashley Madison he would have been standing in front of the cameras in Kentucky defending Clerk Davis.

    Where’s PP and the press release blog while this big “sanctity of marriage” debate is going on? He’s laying low. Too low.

  22. caheidelberger Post author | 2015-09-02

    I figured Kurt would require documentation. Would you say, Kurt, that you suggested that defense in our conversation on July 5:

    The individual who performs the service is an agent of the state, but why do you demand that the service be performed by the specific government official whose conscience is violated rather than by someone else? [Evans, DFP comment, 2015.07.05].

    And later in the same thread on July 10:

    Suppose Jerauld County and Sanborn County each have three employees whose job descriptions include processing marriage licenses, and one employee in each of those counties is unable as a matter of conscience to personally issue a same-sex license. Suppose each county can reorganize job descriptions in such a way that there’s no picking and choosing who gets service.

    If Jerauld County reorganizes job descriptions in that way, do I understand correctly that you won’t oppose it? And if Sanborn County fires the employee whose conscience would be violated, do I understand correctly that you say the county is justified?

    It seems we’ve come full circle to something like my original question. If another employee is available to perform the service, WHY is Sanborn County justified in ending an employee’s career and depriving her of her livelihood? What benefit accrues to anyone that counterbalances the potential chaos inflicted on the terminated employee and her family? [Evans, DFP comment, 2015.07.10]

    Do I mischaracterize your position, Kurt? If so, I apologize and welcome clarification.

  23. Rorschach 2015-09-02

    If Clerk Davis is following her version of God’s law and puts that ahead of the laws of man, why is she denying marriage licenses to heterosexual couples? Doesn’t she believe the Bible provides for heterosexual couples to marry?

  24. happy camper 2015-09-02

    You would think that her county commissioners would order her to do her job. Do we know what they’ve tried or not tried to do? As Lynn says why would they want the exposure? If they can’t command her, why wouldn’t they make public statement they want her to do her job? Are they sympathetic? If she’s elected they can’t fire her I’ve read, but she’s not president of her own country.

  25. mike from iowa 2015-09-02

    According to reports,Kim Davis had twins-sired by her third husband.but.they were adopted by her second husband. Hubby Numero 4-0 has a gun and is willing to use it. Don’t knock on his door or else.

  26. mike from iowa 2015-09-02

    Make that $2 in 5 days.

  27. mike from iowa 2015-09-02

    @Crone: Actually, it’s more convoluted than that. She gave birth to twins five months after divorcing Husband #1–but they were conceived by the guy who became Husband #3. Husband #2 adopted them legally. Then they divorced and she married Husband #3 (the father of the children) and then divorced him to remarry Husband #2. Got that?

    I am too easily amused; but, then, I’m not a gay man trying to get married in that county, either.

  28. leslie 2015-09-02

    hc-vast kentucky right wing conspiracy: all elected officials (i know she is a religious democrat-not so sure she has matured yet since re-birth)

  29. mike from iowa 2015-09-02

    Good link,Deb. Scalia can always say when he was younger,his youthful indiscretions led him to say stuff that aren’t his views today. Wingnut’s youth seems to run into forties and later ages.

  30. Deb Geelsdottir 2015-09-02

    In answer to Cory’s question: Yes, we can say that Roundsy endorses blatant disregard for oaths, the judicial system, and the United States Constitution.

  31. caheidelberger Post author | 2015-09-02

    Funny: I think we Dems might lose more votes trying to hang that line on Rounds and incurring the wrath of SDGOP voters who think Jackley is fighting the right Crusade than we would lose by endorsing medical cannabis, yet I am willing to fight this fight. Hang that oath-breaking on Rounds and Jackley! Thune, where do you stand on county employees putting their god’s authority above the Constitution? Isn’t that a Christian form of Sharia Law?

  32. mike from iowa 2015-09-02

    Duggar is in long term rehab. This time he is helping build a motel instead of a house.

  33. Rorschach 2015-09-03

    Ms. Davis is going to court today, if she shows up, to face the music for her contempt of court. If found in contempt she could get fines or jail, or both. I don’t think fines will do the trick because wealthy bigots will pay it for her allowing for further delays to both straight and gay couples who want a license in her county. Jail is going to be necessary I believe. We’ll see shortly what the judge thinks.

  34. mike from iowa 2015-09-03

    Davis’ lawyer said yesterday that there were other people in the courthouse who could issue licenses. No details. Davis needs contempt citation like Susan McDougal got where she stayed in jail until she rolled over on Clintons.

  35. jerry 2015-09-03

    Davis is now in custody, good place for her.

  36. jerry 2015-09-03

    With that dingbat out of the way, lets see if the rest of her office will comply with the law.

  37. Bill Dithmero 2015-09-03

    Its not even close to over. The only way she can be removed from office is 1. resignation, or 2. impeachment by the Kentucky legislature. The legislative leaders have allready made the commitment not to do so.

    It looks like things wont change until the state gets through giving the ACLU lawyers enough money.

    The Blindman.

  38. Porter Lansing 2015-09-03

    It’s KENTUCKY!!!! She’d sell gays a license if they were also cousins.

  39. Kurt Evans 2015-09-05

    Cory had written:

    Davis appears to have run the defense Kurt Evans has suggested for the Jackley accommodation policy, that a balky clerk places no burden on couples as long as the state has many other offices where couples can obtain their licenses …

    I’d asked:

    Where would you say I’ve suggested that defense, Cory?

    Cory replies:

    I figured Kurt would require documentation. Would you say, Kurt, that you suggested that defense in our conversation on July 5:

    The individual who performs the service is an agent of the state, but why do you demand that the service be performed by the specific government official whose conscience is violated rather than by someone else? [Evans, DFP comment, 2015.07.05].

    And later in the same thread on July 10:

    Suppose Jerauld County and Sanborn County each have three employees whose job descriptions include processing marriage licenses, and one employee in each of those counties is unable as a matter of conscience to personally issue a same-sex license. Suppose each county can reorganize job descriptions in such a way that there’s no picking and choosing who gets service.

    If Jerauld County reorganizes job descriptions in that way, do I understand correctly that you won’t oppose it? And if Sanborn County fires the employee whose conscience would be violated, do I understand correctly that you say the county is justified?

    It seems we’ve come full circle to something like my original question. If another employee is available to perform the service, WHY is Sanborn County justified in ending an employee’s career and depriving her of her livelihood? What benefit accrues to anyone that counterbalances the potential chaos inflicted on the terminated employee and her family? [Evans, DFP comment, 2015.07.10]

    Do I mischaracterize your position, Kurt? If so, I apologize and welcome clarification.

    There’s nothing in either of those quotations about a “balky” clerk. The employees with religious objections are explicitly not responsible for processing marriage licenses, one because her job description is changed and one because she’s fired.

    There’s also nothing in either of those quotations about the number of other offices where couples can obtain their licenses. I could have presented the competing scenarios for the same employee in a single county. I separated them into two counties mainly for the sake of clarity.

  40. leslie 2015-09-06

    ALEC and Kochs are likely behind Jackley and Ms. Davis’ stand: Alec in 1985 warned: “1984 Democratic Party Platform supports legislation to avoid discrimination of “sexual orientation.” State Factor, .04.1985

    Tennessee domestic court judge Atherton has done the same thing last week, refusing to grant a divorce (straight) last week because of SCOTUS gay marriage ruling

  41. leslie 2015-09-06

    Kentucky amended its constitution to “one man/one woman” in 2004 and SD followed in 2006, setting this confrontation up as its political/social conservative long term strategy.

  42. caheidelberger Post author | 2015-09-06

    Kurt, the Kentucky clerk has tried very hard not to allow the accommodations you speak of. She has refused to allow other members of her staff to handle such applications and has turned applicants away with the intent of denying them government service. She is attempting to assert from jail that licenses issued in her absence by her office are invalid. Whatever discussion we’re having about accommodation does not apply to what Davis is seeking, which is the authority to use her public position to impose her religious belief on others. That’s a big dang problem.

    Riding that circle back to the start, I contend that Jerauld, Sanborn, and every other county is perfectly within its rights to create job description and to require that every applicant agree to fulfill it. I do not believe the county has an obligation to rewrite its job descriptions to allow religious beliefs to dictate who serves which citizens.

    …But I could be wrong. Deb sends me this really detailed WaPo column on the accommodations possible in the Davis case, accommodations that South Dakota clerks seeking to play Jackley’s game will want to review:

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/

  43. bearcreekbat 2015-09-06

    That is an interesting link to analysis by an outstanding and highly respected legal writer, Eugene Volokh. Many thanks to Deb for bringing it to your attention and to you Cory for posting it.

  44. caheidelberger Post author | 2015-09-06

    Volokh leans conservative, but he makes what seem to be reasonable points, worth considering.

  45. Kurt Evans 2015-09-08

    Cory wrote:
    >“Whatever discussion we’re having about accommodation does not apply to what Davis is seeking, which is the authority to use her public position to impose her religious belief on others.”

    According to the article at the link you posted in the same comment, she says she’d be content with modifying the license “to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.”

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/

    You and I have a strong disagreement about who’s imposing upon whom, Cory.

  46. mike from iowa 2015-09-09

    Who the F*** does this cretin think she is? This is what you get when you mix religion and politics.

  47. caheidelberger Post author | 2015-09-09

    Kurt, she has imposed her religious will on numerous citizens, and she would not tell the judge yesterday that she would stop. She thinks she is fighting a great religious crusade, when really she is making a case for Sharia and jihad.

  48. Deb Geelsdottir 2015-09-09

    I have read that people like Hucklebee want to pretend that Davis is the equivalent of Rosa Parks. I also read a disputation that said, No, she is more like George Wallace. To the latter I say, “Amen!”

  49. bearcreekbat 2015-09-09

    Watching Huckabee’s behavior during the news coverage of Davis’ release made me wonder whether Davis had any awareness of how she was being used by opportunists like Huckabee and Cruz. It seems so obvious that Davis is nothing more than a tool for these guys to try to gain media attention for their failing campaigns.

  50. Bill Fleming 2015-09-09

    I agree, Bat. What in the world was Huckabee even saying? It’s as though he’s never even read the Constitution. In fact, he actually sounded like he wanted to do away with it completely… at least the 1st Amendment (establishment clause) and the Judicial branch of Government (authority of the court). If he keeps that up, he just might get his wish to spend 8 years in prison. Maybe he can brush up on his civil lessons while he’s in there. ;-)

  51. bearcreekbat 2015-09-09

    And to think Bill, that our junior Senator has already joined the Huckabee camp. It gives my right brain headaches!

  52. mike from iowa 2015-09-09

    Hucksterbee had his own microphone,for crying out loud.

  53. caheidelberger Post author | 2015-09-09

    Huckabee also had an aide block Ted Cruz from getting to the stage with him and Davis, since, as Huckabee said, his campaign staged the event:

    http://talkingpointsmemo.com/livewire/huckabee-blocked-cruz-kim-davis-rally

    Kim Davis unleashes anarchy: now deputy Brian Mason says he won’t follow her orders if she comes back to work and tells him not to issue a marriage license.

    This is why we rule by laws, not by the whims if individual public employees. We have to be able to count on public employees respecting the authority of their elected bosses, and we have to count on our elected officials acting according to the laws we write, not their own religious preferences.

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