ACLU goes after Kim Davis again in new court filing

by Gregory Tomlin, |
Kentucky county clerk Kim Davis (R) and her attorney Matt Staver speak on Fox News Channel's 'The Kelly File' with host Megyn Kelly in New York September 23, 2015. A federal judge had just denied Davis a stay of his order requiring her office to issue marriage licenses to all eligible couples who want one. Davis previously chose to go to jail rather than issue licenses to gay couples. Davis began issuing licenses shortly thereafter, but they were altered to remove the county seal, her name, and had added the phrase, "issued pursuant to a federal court order." | REUTERS/Brendan McDermid

NEW YORK (Christian Examiner) – Same-sex couples who received altered marriage licenses in Rowan County, Kentucky, filed a motion in U.S. District Court Friday asking a federal judge to enforce his orders from Sept. 3 and Sept. 8, which required Clerk Susan Davis to issue marriage licenses to the gay couples.

After the court's rulings earlier in September, Davis spent five days in jail for contempt when she refused on religious grounds to issue the licenses. Davis is a Christian who believes marriage should only be between one man and one woman.

Her attorney had asked for a religious accommodation, but the judge refused and ordered Davis to issue the licenses. Davis, however, soon issued altered licenses without her name or the county seal. They also contained a descriptor that they were "issued pursuant to a federal court order." The same-sex couples now say Davis should reissue the marriage licenses in their original format, bearing both the missing items.

Gov. Steve Beshear could have resolved this marriage license issue a long time ago, but he chose to ignore Kim's plea for help. Gov. Elect [Matt] Bevin has promised to issue an executive order to protect the religious convictions and conscience of Kim Davis.

The new lawsuit comes after outgoing Kentucky Gov. Steven L. Beshear said in a brief last week he could not certify that the new, altered form issued by Davis is legal. However, he said the state "will recognize as valid those properly-solemnized marriages performed pursuant to the altered licenses issued by the Rowan County Clerk's Office, unless directed to do otherwise by this Court or another court of competent jurisdiction."

Attorneys for the governor also wrote he "has no supervisory authority over other elected constitutional officers," punting the decision back to the federal court.

On Friday, the American Civil Liberties Union, which filed the brief on behalf of the same-sex couples, said it joined the governor in his assessment that the content of the new licenses was not supported by state law. According to the ACLU, "absent a court ruling, couples face unnecessary uncertainty as to whether their marriages are valid."

"We continue to fight for the loving couples who hold marriage licenses of questionable validity and for those who are waiting to legalize their unions until this issue is resolved," James Esseks, director of the ACLU's Lesbian, Gay, Bisexual, and Transgender Project, said in a statement.

"Kim Davis has been out of line and in violation of the law since last June. No one should be treated differently under the law because of the religious beliefs of a public official," Esseks said.

Davis remains the sole holdout nationwide after the U.S. Supreme Court created the right to same-sex marriage in a 5-4 decision in Obergefell v. Hodges in June. According to the court filing from the ACLU, Davis' issuance of altered marriage licenses amounts "to a last-ditch attempt to craft an accommodation for herself – one that this Court, the Sixth Circuit, and the Supreme Court all found that she was not entitled to – by engaging in self-help at the expense of Rowan County couples."

"As Governor Beshear has now recognized, Davis' actions have created considerable uncertainty regarding the legality of the altered marriage licenses. They impose significant and ongoing harm on Rowan County couples who are legally eligible to marry but now face doubt and fear that a marriage solemnized pursuant to an altered marriage license could be held invalid at some unknown time in the future. And Davis' actions effectively brand the altered licenses with a stamp of animus against gay people."

Davis' attorney, Mat Staver of Liberty Counsel, said in a brief statement that there is no further need for the court to take action on the licenses because the state has now claimed it recognizes the same-sex marriages as valid, even in their altered state.

"Gov. Steve Beshear could have resolved this marriage license issue a long time ago, but he chose to ignore Kim's plea for help. Gov. Elect [Matt] Bevin has promised to issue an executive order to protect the religious convictions and conscience of Kim Davis," Staver said.

"In light of Gov. Beshear's response and the impending executive order of Gov. Elect Matt Bevin, there is no reason for Judge Bunning to act at this time."

Bevin said on the day he enters office he will order all counties to remove the county clerk's name from marriage licenses. For him to do so, however, Kentucky law – which specifies the content of the licenses – will have to be changed first.