Although a federal judge has dismissed three lawsuits against Kim Davis, a Kentucky county clerk who refused to grant marriage licenses to same-sex couples, the religious liberty of officials in other states continues to face legal challenges.
Federal judge David Bunning, who jailed Davis for five days last year, closed the court’s files on all cases against her Aug. 18 and ordered them removed from the docket.
“The ACLU [American Civil Liberties Union] wanted to pursue the case and continue it against Kim Davis to seek damages and attorney’s fees and costs,” said Davis’ attorney Mat Staver, founder and chairman of Liberty Counsel, a legal organization specializing in religious liberty cases. “We opposed that, and the judge ultimately granted our request and dismissed … all three cases that were filed against her … It’s a significant development.”
Davis’ case prompted Kentucky’s state legislature last year to create a marriage license form that did not require county clerks’ signatures, codifying an executive order by then-newly elected Republican Gov. Matt Bevin.
Staver told Baptist Press “about half” of U.S. states have adopted some form of religious liberty protection that appears to protect state and local officials who object on religious grounds to sanctioning same-sex marriages. However, only a “minority” of those states, including Utah and North Carolina, have granted explicit protection to officials whose consciences do not allow them to solemnize same-sex marriages.
“What you’re starting to see is a major pushback against religious freedom when it comes to the issue of colliding with … same-sex marriage,” Staver said, “which is a startling development and frankly a frightening development.”
Among local developments:
– Some county clerks in Texas continue refusing to issue marriage licenses to same-sex couples, Staver said, noting he knows of no legal challenge to the Lone Star State’s county clerks.
– In 2015, Utah legislators adopted a bill allowing county clerks to opt out of solemnizing same-sex marriage licenses and a separate law requiring marriage licenses to be granted to all couples while allowing room for individual counties to craft religious liberty protections, Deseret News reported.
– North Carolina’s Senate Bill 2, adopted last year over Gov. Pat McCrory’s veto, continues to face legal challenges from plaintiffs who allege magistrates should not be allowed on religious grounds to recuse themselves from performing same-sex marriages and that assistant and deputy registers of deeds should not be recused from issuing marriage licenses.
Thus far, 31 magistrates have recused themselves from weddings, but no same-sex couple has been denied a wedding or been forced to delay their wedding, according to the Christian Action League of North Carolina.
“I’m very thankful that the North Carolina General Assembly worked to protect religious liberty in our state,” Christian Action League executive director Mark Creech told Baptist Press (BP). “… The problem that exists is the federal judiciary that is so adept at ruling against [laws] like this and limiting people’s religious liberty.”
– Some Alabama probate judges likely continue not to issue marriage licenses, said Eric Johnston, an attorney who advises the Alabama Citizens Action Program, an auxiliary of the Alabama Baptist Convention.
Alabama probate judges have no specific “statutory protection” of their religious liberty related to same-sex marriages, Johnston told BP. “But the judges still have the right to object to doing something that violates their religious beliefs.”
Currently no legal challenge to Alabama probate judges is pending, Johnston said.
– A Mississippi law that, among other provisions, allowed public officials to recuse themselves from sanctioning same-sex marriages was struck down June 30 by a federal judge. The law required state officials “to ensure that the performance or solemnization of any legally valid marriage is not impeded or delayed as a result of any recusal.”
– The Wyoming Supreme Court heard oral arguments last week on whether to remove from office a municipal judge and part-time magistrate who told a reporter her Christian faith would preclude her from officiating a same-sex wedding.
The high court also could fine Judge Ruth Neely $40,000 and ban her for life from the Wyoming judiciary, WORLD News Service reported. A decision could be weeks away.
Staver, of Liberty Counsel, said that moving forward, one key question will be whether courts allow general religious freedom bills to be applied to the right of public officials not to sanction same-sex marriages.
Courts, Staver said, are “not necessarily following the rule of law and [are] becoming more ideologically driven.”
(EDITOR’S NOTE – David Roach is chief national correspondent for Baptist Press, the Southern Baptist Convention’s news service.)