As a kid who grew up in the 1980’s, I always thought that the Halloween and Friday the Thirteenth movie franchises were totally formulaic, totally predictable, totally silly, and totally fun. These are the movies the Scream franchise got all wry about: you know exactly what’s going to happen and you still get the thrill, the scare, the frisson of the moment anyway.
One of the most predictable parts always occurs at the movie’s dénouement: the surviving Protagonist(s) defeat(s) The Baddy in a Climactic Fight, and escape(s) to apparent safety. Out on a boat on the lake, or in the safety of their car, or something. And you know it’s going to happen. The Baddy appears out of nowhere, rising up out of the lake or popping up in the back seat of the car or something. He’s somehow inexplicably survived what the Hero thought had been the final battle, and makes one last attempt to kill the Protagonist, catching her totally by surprise because she’s literally the only one in the entire theater who didn’t see it coming. (He nearly succeeds but is actually defeated at the last possible moment.)
Well, that’s a pretty decent analogy to what’s happening in Morehead, Kentucky right now with respect to the newly recognized Constitutional right of same-sex couples to marry.
Shortly after the U.S. Supreme Court’s Obergefell v. Hodges decision recognizing a Federally protected due process and equal protection right to same-sex marriage, Kentucky’s governor, Steve Beshear, took a meeting with the County Clerk of Casey County, Kentucky, who is fortuitously named Casey Davis.
Mr. Davis told Gov. Beshear that he held a deep and sincere religious objection to same-sex marriage and could not, in good conscience, involve himself in the issuance of a marriage license to a same-sex couple. Gov. Beshear said, in effect, “too bad, you need to go do your job.” Beshear did it by way of an open letter to every clerk of every county in the Commonwealth of Kentucky.
But the post-SCOTUS vanguard of SSM opposition’s rear-guard action wound up being to another Kentucky County Clerk, Kim Davis of Rowan County. Ms. Davis chose to reconcile her faith and her official obligations by not issuing marriage licenses at all, to anyone. Her plan worked: when a same-sex couple tried to get a marriage license at their local courthouse,¹ one of her deputy clerks told them “Don’t bother coming down here.” So, they hired a lawyer and filed what seems like a righteous lawsuit.
As as inevitably as Michael Meyers popping out of the locker as the Protagonist pauses to catch her breath and collect herself in the last scene of the horror movie, Davis retained the services of Liberty Counsel, and made a filing in the lawsuit asserting that she is entitled to act as she has because she’s a Christian.
Specifically, Ms. Davis invokes the Kentucky Religious Freedom Restoration Act, Ky. Rev. Stat. § 446.350, which is the functional twin of the Federal Religious Freedom Restoration Act. This law provides:
The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A “burden” shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.
Fascinatingly, absent from the lawsuit is any invocation of the Federal RFRA at all. I presume that Liberty Counsel invoked the state RFRA rather than the Federal RFRA, because Davis’ legal claim seeks to enjoin the Governor of Kentucky from requiring her to issue the SSM license. But the relief sought by the plaintiffs, against Davis, is an order of a Federal judge compelling her to issue the license; the Supremacy Clause strongly suggests that a Federal Court can find that if the Kentucky RFRA conflicts with a ruling of the U.S. Supreme Court interpreting the U.S. Constitution, the Supreme Court decision is the superior and prevailing law. This lacuna is particularly baffling in light of Liberty Counsel’s previous success deploying RFRA in their Burwell v. Hobby Lobby Stores, Inc. challenge to the PPACA’s contraception mandate.
An interesting angle here is the use of the word “government.” Both the Federal RFRA and the Kentucky RFRA begin their operative language with the phrase “Government shall not substantially burden a person’s freedom of religion.”² But the Federal RFRA defines the term “government” such that this phrase “includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity [D.C., Puerto Rico, etc.]” I can find no cognate definition in the Kentucky RFRA. We’re just supposed to know what the Kentucky legislature meant when it used the word “Government.” Personally, I would interpret that to mean the governmental apparatus of the Commonwealth of Kentucky, and to not include a Federal Court since the Kentucky Legislature lacks any substantial power over such a court’s jurisdiction or its exercise of its judicial power. Maybe you can come up with a different way of looking at this than me.
Now, I don’t want to fault Liberty Counsel for not being clever, because they found an intriguing stratagem out there on the board. You see, Section 5 of the Kentucky Constitution, as does the Federal Constitution and every other state’s constitution as far as I know, prohibits religious tests for holding of public office. Do you see the theory yet? When Governor Beshear says to the various county clerks, “Issue the licenses or resign,” he’s saying that should you subscribe to a religion that prohibits you from participating in granting an SSM license, you are not eligible to hold the office of County Clerk in Kentucky. Thus, only non-Christians, or at best Christians of certain kinds of religious beliefs, can hold this office.
That may well be the most intriguing of the various legal theories in Davis’ cross-action against the Governor. I have a hard time seeing the official issuance of a marriage license as an act of religious exercise or expression, or even of forced speech. That’s because I don’t see Rowan County Clerk Kim Davis as acting on her own behalf when she performs an official function of her office. She’s acting on behalf of Rowan County, Kentucky, in an official capacity — and not on behalf of Kim Davis the person in her personal capacity. Rowan County, Kentucky, has no religious beliefs, and engages in no religious practices or religious speech. (Well, it ought not to, at least if you ask me, and we can get into the issue of what it looks like when a rural Kentucky county engages in religious speech some other day.)
So the religious test issue is interesting, in part for its novelty, and in part because it’s the sort of thing that’s easy to agree with. The office of county clerk should be open to people of all denominations of all faiths, all manner of faiths, and to people no faith at all. Of course, the reason for prohibiting religious tests for the holding of public office is substantially related to the fact that the public office must be evenhanded and neutral with respect to the religious beliefs of its constituents. A Christian and a Jew and a Muslim and an atheist in Rowan County, Kentucky, are all equally entitled to the same kind and quality of governmental services from the county, and if members of certain religions are preferred or prohibited from holding office, that facilitates the use of religious as a means of unfairly dispensing governmental services.
I’m still strongly predisposed to hold against Davis here. She swore an oath to uphold the Constitution and laws of the United States of America and of the Commonwealth of Kentucky, and that includes laws she doesn’t particularly like for whatever reason. She offers some language that having sword that oath with the (optional) affirmation, “So help me God,” she conditioned that oath upon the congruence of good morality and the laws she is tasked to uphold; to her, SSM is bad morality and therefore she’s out or at least in a pickle.
My quick answer to her would basically the same as the Governor’s: “The office is open to you. You hold the office. Now go discharge the office. Go do your job and issue the marriage license. Dozens of other Christians hold similar offices right alongside you, and they’re issuing the licenses.” But of course, that last argument gets to how RFRA is interpreted and applied in the post-Hobby Lobby world: it doesn’t matter that the overwhelming number of other Christians have reconciled themselves to whatever dichotomy between their personal religious beliefs and the law as they might perceive and are complying with the law — Davis may subjectively state that her individual faith is that she is obligated to oppose the license in any way available to her including directing her subordinates to not sign and file public documents. Then the burden shifts to Kentucky, or perhaps the District Court, to explain why even though she can’t even, she still has to do her job.
Bringing us, at the end, to the final battle, the one after Jason pops out of the ice chest or wherever he was hiding.
Is there a compelling governmental interest in requiring the county to issue these licenses? Damn skippy there is. Marriage is a fundamental right. A generation’s worth of political and legal activity established that the Equal Protections Clause of the Fourteenth Amendment to the United States Constitution apply to same-sex marriages. Fulfilling our government’s highest and most fundamental laws is necessarily a compelling interest.
Is making the county clerk issue the marriage license the means least restrictive to her religious liberty of fulfilling that interest? If she holds the office by which those licenses are issued (which it is, one way or another), then there is literally no other way available for applicants, who are legally entitled to a license, to get one.
Judge Burt Likko would find against County Clerk Kim Davis and in favor of the SSM applicants and Governor Beshear. This, of course, isn’t much of a surprise. But then again, seeing the Bad Guy reappear for one last stab at the Hero in the last scene of a horror movie isn’t much of a surprise, either.
¹ When I moved to Tennessee, I was initially a bit surprised to find that the “courthouse” in your typical suburban or rural county did not actually house any courts. Those are found in buildings with names like “County Justice Center.” The “courthouse” is where courts used to be but now are occupied entirely by county administrative offices. In California we’d call that a “County Building.” Later travels indicated similar things happening in Alabama and North Carolina. I presume the same is true in Kentucky, which in many respects is a very close cultural cousin to Tennessee.
² They both go on to enact the Sherbert v. Verner two-step, four-element test to determine whether a substantial burden exists, and if so, whether that burden survives strict scrutiny. As I’ve opined elsewhere, it’s ridiculously easy for a plaintiff to prevail under the manner that the Supreme Court applied that test in Hobby Lobby.
Burt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.