Federal lawsuit against Rowan County clerk provides dividing-line for some candidates

08/27/2015 08:44 PM

As Rowan County Clerk Kim Davis continues her self-imposed ban on issuing marriage licenses despite a second federal court’s ruling this week, some Kentucky politicians remain steadfast in their beliefs that either the clerk is breaking the law or the state isn’t doing enough to resolve the matter.

The Sixth Circuit Court of Appeals denied Davis’ motion for a stay on Wednesday as she appeals U.S. District Judge David Bunning’s order mandating she resume issuing marriage licenses. Davis and a pair of other clerks have cited religious objections to same-sex marriage in their decisions to stop issuing marriage licenses.

Attorney General Jack Conway, the Democratic gubernatorial nominee, said the U.S. Supreme Court made the law plain in its June 26 decision legalizing same-sex marriage.

“The law couldn’t be more clear,” he said Thursday before the Kentucky Farm Bureau’s annual ham breakfast. “Now if the legislature wants to come back and change our state statutes to some degree in a narrowly tailored way to allow for religious objections, I understand that. What we can’t do is we can’t allow for delays in a constitutionally guaranteed right that’s now been declared by the Supreme Court.”

The high court’s ruling has galvanized efforts in Kentucky to expand the state’s religious-freedom law as well as opposing forces who want to pass a statewide fairness law, which would prevent discrimination based on sexual orientation and gender identity.

Republican gubernatorial nominee Matt Bevin has been resolute in his stance that the marriage-licensing process should be amended in response to clerks’ religious objections to same-sex marriage, but he brushed aside a question on whether he would support a statewide fairness law, telling Pure Politics, “I’m at the state fair and I think it’s fantastic, and I’m going to go eat some ham.”

Bevin, who spoke at a religious-freedom rally at the Capitol on Saturday, declined a follow-up interview request from Pure Politics after the breakfast.

Sen. Whitney Westerfield, the GOP nominee for attorney general who also spoke at the religious-liberty rally, told reporters Thursday that county clerks opposed to same-sex marriage should be granted some leeway. He noted that Conway, in part, cited his personal view that bans against same-sex marriage were discriminatory when he announced his decision against appealing U.S. District Judge John Heyburn’s original ruling.

“To interfere with religious liberty you’ve got to have a compelling interest, and you have to meet it with the least restrictive means,” said Westerfield, R-Hopkinsville.

“No one would debate that we have a compelling interest. The Supreme Court’s ruled. You’ve got to honor same-sex marriage, but we haven’t met it with the least restrictive means. We can put these forms online, we can have the solemnization authority opened up to any number of individuals, notaries for all I care, but there’s a way to do that, and it can be fixed with an executive order today instead of a costly special session.”

While some clerks and lawmakers have requested a special session to resolve the matter, Gov. Steve Beshear reiterated Wednesday that he would not call lawmakers back to Frankfort.

Westerfield, who chairs the Senate Judiciary Committee, said he planned to hold a hearing on this year’s fairness bill but “we ran out of time” in the 30-day session, “and I didn’t get my request for a December meeting approved” to consider the topic during the interim’s final month — and after voters hit the polls.

“I’m open to hearing testimony about it, but I want it to be evenhanded and fair,” he said. “I think there are some valid arguments on both sides, and I have some conflicts and questions myself as a legislator, but as attorney general, again, if the legislature were to pass it here … I’d enforce it because that’s the job.”

Conway said he has always supported a statewide fairness law, adding that a number of employers now back such statutes.

“When you talk to the CEOs of Fortune 500 businesses and talk about the states where they want to go do business, they want to do business in places that have policies of inclusivity, and when I looked the people of Kentucky in the eye and said, ‘Look, I’m only doing what I think is right,’ I felt it,” he said when asked whether the more than $2 million sought by plaintiffs in the original lawsuit justified his decision not to appeal Heyburn’s ruling, which was ultimately appealed by Beshear via hired attorneys.

“… Not wasting taxpayer resources to defend something that I felt strongly was going to be found unconstitutional I mean, yeah, it was borne out in the end, but I’m not going to gloat about it.”

Correction: A previous version of this report indicated the U.S. Supreme Court ruled on same-sex marriage June 27. The decision came June 26.

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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