Clerk sues Kentucky governor over gay marriage directive

AP News
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Posted: Aug 05, 2015 6:23 PM

ASHLAND, Ky. (AP) — A Kentucky clerk, sued for refusing to issue marriage licenses to same-sex couples, has filed her own lawsuit against the governor, claiming he trampled her religious freedom by telling all clerks that they must either issue licenses or resign.

On June 26, the day the U.S. Supreme Court ruled gay marriage bans unconstitutional, Gov. Steve Beshear directed the state's 120 county clerks to comply and begin issuing licenses to all couples.

Rowan County Clerk Kim Davis filed the federal lawsuit against Beshear on Tuesday, alleging that the directive violated her "sincerely held religious beliefs."

Davis and several other clerks refused to issue licenses, and 17 sent signed letters of protest to Beshear's office. The governor maintained they must either adhere to the Supreme Court's ruling or step aside.

Four couples sued Davis last month after she denied them licenses.

The conservative law firm Liberty Counsel filed a third-party lawsuit on Davis' behalf, claiming that the governor should be liable for the couples' claims against her. She also asked the judge to force Beshear to find a way to accommodate her Christian conviction that limits marriage to a union between a man and a woman.

"In no uncertain terms, Governor Beshear's policies and directives are intended to suppress religion — even worse, a particular religious belief," Davis' lawsuit alleges. It adds, "In doing so, Governor Beshear is forcing clerks like Davis to choose between following the precepts of her religion and forfeiting her position, on one hand, and abandoning one of the precepts of her religion in order to keep her position, on the other hand."

Legal experts have said Davis' religious freedom claims are a dubious defense for a public official tasked with performing a civil government function. In the end, experts say, she will likely have to issue the licenses, resign or risk being held in contempt of court, which could carry hefty fines or jail time.

U.S. District Judge David Bunning, who heard arguments last month in the lawsuits the couples filed against Davis, is expected to issue a ruling this month.

The lawsuit Davis filed Tuesday also names Wayne Onkst, commissioner of the Kentucky Department for Libraries and Archives, as a defendant. His office, which is responsible for creating a template for marriage licenses, updated the design to remove references to "bride" and "groom." Onkst declined to comment on Davis' suit.

Davis was elected last November, and argues now that she swore an oath to uphold the state's constitution when it still listed "the millennia-old, natural definition of marriage as the union of one man and one woman."

Last year, a federal judge ruled that definition unconstitutional. Attorney General Jack Conway declined to appeal that decision because he said he could not in good conscience defend discrimination. Beshear hired private lawyers to defend the state's ban on gay marriage, which was ultimately struck down by the Supreme Court in June.

In the lawsuit Davis filed Tuesday, she complained about what she perceives as a double-standard: Conway was allowed to cite his conscience and refuse to perform his duties without consequence, while she is under fire from the public, the state and the courts for doing the same.

"Governor Beshear is unlawfully picking and choosing the conscience-based exemptions to marriage that he deems acceptable," her suit states.

Terry Sebastian, a spokesman for Beshear, responded Wednesday that Davis misunderstands the law.

Kentucky law does not require the attorney general to appeal every case. The state Supreme Court has held that the attorney general has discretion to choose which cases to pursue.

"At the same time, the legislature has placed the duty to issue marriage licenses squarely on county clerks," Sebastian wrote.

The letter the governor issued after the U.S. Supreme Court's decision in June was to advise county clerks of their responsibility to issue licenses to all applicants, including gay ones, Sebastian wrote.

The governor has no legal authority over either the attorney general or the county clerks, he wrote.

"They are all separately elected officials who answer to the courts."