Liberties Reporting on First Amendment freedoms

Not out of the woods yet

Religious Liberty | As legal fees come due in Kim Davis’ case, a once-supportive government seems to waver
by Rachel Lynn Aldrich
Posted 2/12/19, 03:31 pm

For Christians who take a conscientious stand for Biblical marriage, the consequences can ripple on long after court cases are settled. Four years have passed since former Rowan County, Ky., Clerk Kim Davis was sued and temporarily imprisoned for refusing to sign her name to marriage licenses, and more than a year has gone by since a U.S. District Court dismissed the case against her. But her attorneys are still busy defending her rights in court as a battle rages over who should pay the legal fees for the couples who sued Davis and the Rowan County Clerk’s Office. And Davis remains entangled in the state’s political battle over same-sex marriage despite her governor’s earlier show of support.

Davis, a Christian, believes that marriage is between one man and one woman and that signing her name to the license of a same-sex couple would be wrong. In 2015, after the U.S. Supreme Court in Obergefell v. Hodges paved the way for legalized same-sex marriage across the country, Davis stopped issuing all marriage licenses in her job as a county clerk so as not to discriminate against same-sex couples. Some engaged couples (heterosexual and homosexual) sued her, and she spent five days in jail for defying a court order demanding she approve their marriage licenses. A judge released her and ruled that her deputies could issue marriage licenses in her stead, using a form that did not have her name on it, as long as she did not interfere.

Later that year, Kentucky elected Republican Gov. Matt Bevin, who ordered county clerks’ names removed from all state marriage licenses as a gesture of support for Davis. The legislature then passed a law codifying Bevin’s order, and the 6th U.S. Circuit Court of Appeals ultimately ruled the changes to the law made the couples’ suit against Davis moot. The 6th Circuit remanded the case to the U.S. District court to decide on legal fees, which assigned the couples’ $222,000 in costs to the state of Kentucky.

The state, the county, and Davis’ attorney all agree on one thing: The plaintiffs are not entitled to legal fees because they didn’t technically win—their case was dismissed. Even if the court determines the couples’ fees should be paid, Davis likely won’t have to pay them herself. The District Court found that, since she was sued in her official capacity, never as an individual, the government would have to pay the fees. The only question is whether the responsibility belongs to the state or the county clerk’s office. The state’s effort to avoid paying the fees from its coffers has revealed that not everyone working for the governor agrees with Davis’ actions.

While campaigning for governor in 2015, Bevin said he “absolutely supported” Davis, and last year he appeared in a video promoting her autobiography. “I think Kim Davis is without question an inspiration, not only to leaders like myself—people in the public arena and those outside the public arena—but to my children, the children of America,” he said in the video.

But in a court brief filed in the legal fee dispute, attorneys for the state of Kentucky argued it should not have to pay because “only Davis refused to comply with the law as was her obligation and as required by the oath of office she took. The citizens of the Commonwealth of Kentucky should not have to collectively bear the financial responsibility for Davis’ intransigence.” It’s a strange argument from a governor’s office that, by all accounts, still supports Davis.

The governor’s spokesman, Woody Maglinger, did not answer WORLD Digital’s questions regarding the discrepancy between the court documents, which effectively say Davis broke the law, and Bevin’s stated support of her actions. Maglinger forwarded a statement from Bevin’s general counsel, Steve Pitt, saying that the “outside counsel” arguing the case have “taken no position as to whether Ms. Davis acted unconstitutionally,” and, “Governor Bevin does not believe that she has done so and continues to support Ms. Davis’s actions.”

The outside counsel, Palmer G. Vance II and William M. Lear Jr., are holdovers from the administration of the previous governor, Steve Beshear, a Democrat who openly opposed Davis. They are responsible for the court brief that refers to Davis’ “intransigence.” Davis’ attorney, Mat Staver, who is the founder and president of Liberty Counsel, suggested that the outside attorneys were responsible for the tone of the court filings more than Bevin was. Staver told me Bevin “is very supportive, always has been, and still is, of Kim Davis. He’s been a solid advocate … and we have always appreciated him.” Maglinger declined to explain why the governor, if he supports Davis, has maintained attorneys hired by an administration that opposed her. Bevin is up for reelection this November.

The battle reveals how fragile support is for Christian conscience rights. Colorado baker Jack Phillips is back in court defending his right to object to baking a cake celebrating a gender transition even after the Supreme Court ruled in his favor in a dispute over a same-sex wedding cake. For both him and Davis, the court cases are eating up years as they work their way through appeals. Ultimately, the end game for many of these plaintiffs isn’t just securing their own rights—it’s punishing the Christians who exercise their religious liberty.

Associated Press/Photo by Charlie Neibergall (file) Associated Press/Photo by Charlie Neibergall (file) The University of Iowa campus

Court backs Iowa college Christians

A federal judge last week supported a University of Iowa student group’s right to require its leaders to share its Christian beliefs. The university withdrew its approval of a Business Leaders in Christ chapter because it would not grant a leadership position to a student engaging in same-sex relationships. But it recognized Love Works, which requires leaders to sign a “gay-affirming statement of Christian faith.” A U.S. District Court ruled that the selective manner in which the university enforced its nondiscrimination policy made it unconstitutional, and it prohibited the university from withholding recognition of Business Leaders in Christ and other organizations based on their religious beliefs.

“Particularly when free speech is involved, the uneven application of any policy risks the most exacting standard of judicial scrutiny,” U.S. District Judge Stephanie M. Rose wrote in her ruling.

Eric Baxter, counsel at Becket, which represented Business Leaders in Christ, called the decision “a win for basic fairness,” adding, “It is also an eloquent plea for civility in how governments treat Americans in all their diversity. As a governmental body bound by the First Amendment, the university should have never tried to get into the game of playing favorites.”

Some universities have avoided this issue by adopting “all-comers” policies that require student organizations to allow any student to become a member or leader of a group regardless of status or beliefs—a policy that pushes many Christian groups off-campus to maintain their Biblical identities. In 2010, the U.S. Supreme Court upheld the constitutionality of Hastings College’s “all-comers” policy when the Christian Legal Society chapter cited its stance on traditional marriage as a bar to leadership for those engaging in same-sex relationships. —Steve West

Facebook/First Lutheran Church Facebook/First Lutheran Church First Lutheran Church in St. Paul

Shelter from the cold

The City of St. Paul, Minn., and historic First Lutheran Church reached a settlement last week rescinding land use restrictions that severely limited the church’s ministry to the homeless and poor. The church’s basement serves as the home of Listening House, a drop-in center for the homeless.

When neighbors complained, the city passed a resolution severely limiting the number of people the homeless outreach could serve. The church filed suit, claiming that the ministry was part of its free exercise of religion and that the city ordinances violated the Religious Land Use and Institutionalized Person’s Act, a law that prevents local governments from imposing land use restrictions on religious organizations without a compelling interest.

“Today’s settlement agreement protects our rights as a church to live out our religious mission,” said Pastor Chris Olson Bingea. “We hope … other churches in the city of Saint Paul will have an easier time securing their rights in the future.” —S.W.

iStock/monkeybusinessimages iStock/monkeybusinessimages

Obvious reversal

Cupertino, Calif., the Silicon Valley home of Apple and other tech firms, is not the most hospitable place for Christians. When students at Homestead High School sought permission to start a Fellowship of Christian Athletes club, their application was denied. Student leaders rejected the proposed club for suggesting it was “not open to anyone” and for its “Christian focus.”

That’s when the Pacific Justice Institute’s Dennis Faigal got involved. Faigal contacted the school district’s superintendent, reminding him of the Equal Access Act, a 1984 federal law that provides that if a school has at least one student-led extracurricular club that meets outside of class time, it must allow other clubs to have equal access to meeting spaces and school publications—even religious clubs. The district superintendent quickly overruled the student leadership. —S.W.

Rachel Lynn Aldrich

Rachel is an assistant editor for WORLD Digital. Follow Rachel on Twitter @Rachel_Lynn_A.

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  • JerryM
    Posted: Tue, 02/12/2019 05:34 pm

    "...plaintiffs are not entitled to legal fees because they didn’t technically win"

    Perhaps I am missing something... Why then is charging the plaintiffs not under consideration?

  • Laura W
    Posted: Mon, 02/18/2019 08:10 am

    Because they didn't lose either. (I think each party wound up responsible for its own legal fees.)

    Posted: Wed, 02/13/2019 09:24 am

    From the git go my take on this has been simple. If you have a cushy govt job in an economically depressed area AND that govt clerk job demands that you do something which violates your conscience or biblical principles YOU QUIT THE JOB. No need for any elaboration etc. She is/was a govt employee. The position/description statement of the job presumably was explained to her at the outset. I'm opposed to same sex "marriage" for reasons most World readers would likely agree to, BUT I also believe if she cant do her mission the clear and obvious thing to do is resign.

    If she owned a business she would of course be free to conduct it consistent with her own morals and principles. As a govt employee however that right simply doesnt apply. No one has to work for the govt at any level if they do not want to. And her record as a multiply divorced woman if accurate makes her a poor defender of biblical marriage standards. 


    Posted: Fri, 02/15/2019 12:28 am

    That's a rather sad perspective, particularly coming from a Christian. I'm a labor-and-delivery nurse planning to train as a midwife--if I'm asked to participate in abortion procedures because the practice/hospital chooses to do them, should I quit instead of asking for a religious exemption?  If I had encouraged my spouse to have an abortion in the past, does that automatically disqualify me from speaking out against it today? I lived in Kentucky when this was going on, and what the media reports often leave out is that Kentucky law protected the actions of Davis, under our own form of RFRA. Gov. Beshear just chose not to enforce it, even though Davis pleaded with him to do so. When Bevin took office and removed county clerks' names from the certificates, he was doing what Beshear could have but chose not to, under religious freedom protections that apply to goverment workers too. It would be more helpful if brothers and sisters in Christ spent less time examining everyone else's past sins and calling for believers to leave any arena where they disagree with something, and more time looking at the merits of the claim and advancing religious protections in our country. The government belongs to all the people in America, not just those willing to condone the cultural trends of the day. 

  • Laura W
    Posted: Mon, 02/18/2019 08:14 am

    Not to mention the fact that the description of her position when she took it didn't include anything about issuing marriage certificates for homosexual unions, because that court case is what started the whole thing. (I'd have to check, but I wouldn't be surprised if when she took the job it was back when none of us could have reasonably foreseen that things would change so fast.)