Clashes over religious freedom, LGBT rights will continue in governor's race and 2016 session

08/16/2015 03:03 PM

Kentucky’s place as a flashpoint for contention between LGBT-rights advocates and religious-freedom supporters will continue beyond next year’s legislative session, with recent U.S. and state history giving both sides reasons for optimism.

Rowan County Clerk Kim Davis’s refusal to issue marriage licenses after the U.S. Supreme Court legalized same-sex marriage has drawn national attention to Kentucky. That prompted the American Civil Liberties Union to file a federal lawsuit against Davis, who cited religious objections to same-sex marriage for her office’s new policy.

U.S. District Judge David Bunning issued a preliminary injunction on Wednesday ordering Davis to resume issuing marriage licenses, which Davis has appealed to the Sixth Circuit Court of Appeals. She’s also requested a stay on Bunning’s order.

The marriage-licensing process may change regardless of the ultimate decision in federal court.

Republican gubernatorial candidate Matt Bevin reiterated his proposal for an online system on the secretary of state’s website to print licenses and have them notarized during a speech at a Greater Louisville Inc. luncheon Friday, and Democratic Attorney General Jack Conway “is willing o look at a legislative solution in a regular session that upholds the Supreme Court decision and allows county clerks some flexibility so we can all move forward,” his campaign said in a statement to Pure Politics.

“You could also pick it up in hard copy at the clerk’s office,” Bevin said in response to an audience question. “It could then be solemnized, which is the word used for making this official and legally binding, it could be solemnized by a notary public, by a justice of the peace, by a magistrate, by the county clerk if they were so inclined, by any pastor that wanted to as well.

“Anybody authorized to solemnize that could do so. It would then be brought and filed by the county clerk’s office the same way we do a deed, a mortgage, a lien or anything else. Everybody’s covered. Everybody gets what they want.”

An outcome to the underlying issue of exercising religious opposition to same-sex marriage in Kentucky, however, remains to be seen.

Bills have been prefiled for the 2016 legislative session to cover marriage licensing and solemnization in the state’s religious freedom law, which overcame a veto by Gov. Steve Beshear en route to enactment in 2013.

And additional proposals are forthcoming, said Martin Cothran, senior policy analyst for The Family Foundation of Kentucky. The group has established a fund for legal defense and religious-freedom legislation and is holding a rally at the Capitol Saturday, which Bevin is scheduled to attend.

The GOP nominee said Friday that he would support measures to codify protections for private-sector businesses opposed to same-sex marriage on religious convictions.

“Religious liberty applies to all Americans,” said Bevin, who did not respond to questions from WAVE-TV and The Courier-Journal during his post-luncheon remarks. “… I think to the extent that we need to clarify that, then let’s do it. There’s way’s in which we can do that so that everybody is served. Nobody needs to be boxed out, and that means nobody regardless of their opinion on anything. We need to protect people equally under the law.”

But specific legislative proposals are unclear.

While Cothran sees a friendly political landscape within the General Assembly, he’s also aware of the fiery backlash from businesses like Walmart, Apple, the National Basketball Association and NASCAR that caused Indiana and Arkansas to quickly alter their religious-freedom law and bill, respectively, earlier this year.

Conway’s campaign and an official with the ALCU of Kentucky alluded to the public outcry when asked about additional protections for private-sector businesses in religious freedom proposals.

“The U.S. Supreme Court has spoken on the issue of same-sex marriage, and Attorney General Conway believes it’s time to move forward because the good-paying jobs are going to states with policies of inclusivity,” Conway spokesman Daniel Kemp said in a statement.

Conway’s refusal to appeal a federal court ruling last year that struck down Kentucky’s constitutional ban on same-sex marriage has been criticized by Bevin on the campaign trail, and Davis has cited Conway’s decision as justification for her actions in court filings. Conway has cited prosecutorial discretion, saying that an appeal to the late U.S. District Judge John Heyburn’s decision would likely be unsuccessful and a waste of tax dollars.

For Cothran, the case of Indiana should be seen as a rallying point of sorts. Gov. Mike Pence signed an amendment to the state’s religious-freedom law in April, a week after its enactment, clarifying that the statute could not be used as a legal defense for discriminating against business patrons based on sexual orientation or gender identity, as The Indianapolis Star reported.

“Your leaders need to stand up for these laws against the criticism that people who don’t respect basic constitutional protections are going to bring against them,” Cothran said in a phone interview Saturday. “That’s what happened in Indiana. We had a crisis of courage I think, and we think we’ve got some legislators here in Kentucky who will stand up for the right thing and not back down in the face of criticism from the political left.”

Derek Selznick, director of the ACLU of Kentucky’s Reproductive Freedom Project, hopes to see a similar response from Kentucky’s business community if amendments for private-sector businesses are proposed for the state’s religious-freedom law.

The ACLU and Fairness Campaign have pushed for a statewide fairness law for years, and Selznick said sees support building for such legislation.

“We feel that is patently unfair,” he said of potential amendments to the religious-liberty law in a phone interview Saturday. “Unfortunately there’s only a couple of cities around the state, nine I believe at last count, where you are guaranteed basic protections such as not to lose your job if you’re LGBT or denied housing or public accommodation. We don’t believe writing discrimination into law is a good idea in any sense, and we would definitely fight those matters.”

“If you look around the country, we’ve seen some of these laws be proposed, even stronger than what we already have in Kentucky, and there has been quite a backlash to them,” Selznick continued. “Simply put, it’s bad for business.”

When asked about proposals regarding marriage licenses, Selznick said those charged with issuing such licenses should not “be able to discriminate, period. That’s why we have them in court right now, and we will fight efforts to try and write that into state law.”

Verbiage on a more specified amendment hasn’t been decided, Cothran said, but he’s already spoken with supportive lawmakers in “preliminary” talks ahead of next year’s session.

He also cited the 2013 General Assembly’s overwhelming vote to override Beshear’s veto of Kentucky’s current religious freedom law when asked about an amendment’s political prospects.

“I think the political landscape has changed a little bit even since the Indiana debate in favor of people concerned with religious freedom,” Cothran said. “… Indiana’s a fairly conservative state, but Kentucky’s a very conservative state, and so I think you get a little bit of a different situation here. I think most people here are going to support, strongly support religious-freedom legislation.”

A statewide fairness bill, which would add protections for sexual orientation and gender identity in the state’s civil rights law, faces long odds in the legislature, but it may receive its first-ever vote after House Judiciary Chairman John Tilley, D-Hopkinsville, told Pure Politics in July that a fairness bill is “worthy of consideration of a hearing and a vote this session.”

Selznick declined to comment on talks he’s had with lawmakers regarding religious-liberty proposals, instead focusing on his group’s efforts for LGBT protections.

“We’ve seen momentum in years past, we’ve gotten some hearings on it, and we truly hope that, as always, this will be the year that we can make something happen,” he said.

Kevin Wheatley

Kevin Wheatley is a reporter for Pure Politics. He joined cn|2 in September 2014 after five years at The State Journal in Frankfort, where he covered Kentucky government and politics. You can reach him at kevin.wheatley@charter.com or 502-792-1135 and follow him on Twitter at @KWheatley_cn2.

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