MOREHEAD, Ky. — Of the local officials who
refuse to issue marriage licenses to same-sex couples, Kim Davis, the clerk
here in Rowan County, Ky., is the best known, at least for now.
But there is also Charlie Smoak, a former
magistrate in Moore County, N.C. And Nick Williams, a probate judge in
Washington County, Ala. And Molly Criner, a clerk in Irion County, Tex., who
has declared that “natural marriage cannot be redefined by government.”
All of them have argued that as government
employees, they should not be required to recognize same-sex marriage, citing religious objections. And all have
turned, for representation, to Liberty Counsel, a legal nonprofit that has been
on the front lines of the same-sex marriage fight for roughly two decades.
In some ways, these are tough times for the
group, based in Orlando, Fla., which has seen the courts, and Americans in
general, warm to the idea of same-sex nuptials. But by offering pro bono
counsel to defiant Christian public officials, the self-described legal
“ministry” finds itself in demand by social conservatives in the wake of the
Supreme Court ruling in June that, for the first time, legalized same-sex
marriage in all 50 states.
“I think they’re doing excellent work — they’re
standing up to what we see is a new tyranny of judicial supremacy,” said Brian
S. Brown, the president of the National Organization for Marriage, another
group that opposes same-sex unions.
Despite the Supreme Court’s landmark 5-to-4
ruling in the same-sex marriage case Obergefell v. Hodges, social conservatives
have not given up the fight. With Republican allies in state legislatures, they
have been promoting measures that they say would help defend the religious
rights of local government officials who oppose such unions.
Liberty Counsel has taken the lead in
representing a number of public officials who have refused to recognize the
right to same-sex wedlock.
In May, it filed a lawsuit on behalf of a
handful of county magistrates in North Carolina, including Mr. Smoak, and argued
that they should be exempted from performing same-sex marriages on religious
grounds. The suit was withdrawn when the Republican-controlled Legislature
overrode a veto by the state’s Republican governor, Pat McCrory, and enacted a
law allowing them to refuse to aid such unions.
The group announced in July that it was
representing Ms. Criner, the clerk in rural Irion County, Tex., who has also
refused to issue marriage licenses to same-sex couples. Mathew D. Staver,
founder and chairman of Liberty Counsel, said that no legal action had been
filed thus far, and it is unclear whether gay couples have come forward in the
rural county to request a marriage license. (Ms. Criner could not be reached
for comment Wednesday.)
In Alabama, Liberty Counsel has for months
backed some probate judges who balked at issuing marriage licenses to same-sex
couples, and the group in July argued to the State Supreme Court that Alabama
did not have to comply with the Obergefell decision. It noted that the
Wisconsin Supreme Court refused to follow the high court’s 1857 Dred Scott
decision.
As of mid-August, 11 Alabama counties were
refusing to issue marriage licenses to all couples.
In an interview Wednesday, Mr. Staver, who is
also a former dean of the law school at Liberty University, which was founded
by Jerry Falwell, said that the Obergefell decision forced people “to accept
and to promote same-sex marriage.”
He added, “Kim Davis is an example of that, in
that she’s being asked to put her name on a license that is directly against
her religious convictions.”
Legal experts say the chances of a courtroom
victory appear slim for Ms. Davis, an Apostolic Christian who has fought in
federal court to protect what her supporters view as her right to refuse to
issue marriage licenses to same-sex couples. Ms. Davis is to appear Thursday
before a federal judge, who could hold her in contempt for defying the
judiciary.
Even if it is unsuccessful, Ms. Davis’s case may
benefit the conservative cause in other ways, said Jennifer C. Pizer, the law
and policy project director for Lambda Legal, a gay rights group. Losing such
cases, Ms. Pizer said, could have the effect of persuading legislatures that
rules should be changed to accommodate such dissenters.
“There may be an effort here to create martyrs,”
she said.
Ms. Davis garnered national attention Tuesday
when she ignored court rulings and denied marriages licenses to gay couples. On
Wednesday, Ms. Davis rejected a gay couple from Ohio when they, too, sought a
marriage license.
“My roots are all from Kentucky, and from the get-go,
I said, ‘When all the states are legalized, we will come to this state to be
married, where my parents were married,’ ” one of the men, Robbie Blankenship,
said as his partner, Jesse Cruz, looked on in the courthouse.
Ahead of Thursday’s hearing in Ashland, Ms.
Davis’s critics asked that she be fined, but not jailed, for her defiance. In a
filing Wednesday, her Liberty Counsel lawyers asked Judge David L. Bunning of
the United States District Court, to resist calls to hold her in contempt and
to issue an injunction toallow her to avoid issuing licenses while the Sixth
Circuit Court of Appeals considers a lawsuit against Kentucky’s Democratic
governor, Steven L. Beshear.
Also on Wednesday, the president of the Kentucky
Senate, Robert Stivers, said in a court filing that the Obergefell decision had
arguably “invalidated the entire statutory scheme that controls the issuance of
marriage licenses” here. He asked Judge Bunning to avoid punishing Ms. Davis
until the Legislature had time to update the state’s laws.
On Wednesday afternoon, Ms. Davis said she was
“very appreciative” of Liberty Counsel’s aid, but otherwise declined to
comment.
Liberty Counsel, founded by Mr. Staver in 1989,
has roughly 10 full-time lawyers, he said, and has taken up a number of causes
dear to evangelical Christians over the years, including cases determining
rules for protesters at abortion clinics, and the right of students to post
religious-themed fliers in public schools.
Same-sex marriage has been a major theme. Mr.
Staver has stated that homosexuality is “against God’s will” and “rooted in
fractured emotions.” The Human Rights Campaign, a gay rights group, has
criticized Liberty Counsel for opposing legislation protecting L.G.B.T. people
from workplace discrimination, and for defending Scott Lively, an American
evangelist. In a federal lawsuit, a Ugandan gay rights group has accused Mr.
Lively of inciting the prosecution of gay people in that country.
But clients like Judge Williams, in Alabama,
have nothing but praise for the group.
“They don’t believe in backing down; they’re not
going to back down, and a lot of your attorneys who practice in federal court,
they’d just say, ‘Forget it,’ ” Judge Williams said. “It takes a firm like
Liberty that still believes the Supreme Court had no right to rule.”
He added: “When you’re elected, you don’t check
your beliefs at the door. If you’re a true believer, you can’t separate that
from who you are. Liberty gets that.”
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