Rowan County Clerk Kim Davis, who is being sued for refusing to issue marriage licenses because of her opposition to gay marriage, is now suing Gov. Steve Beshear for allegedly infringing on her religious freedom.
In her lawsuit, filed Tuesday in U.S. District Court, Davis blamed Beshear for instructing the state's 120 county clerks to comply with the U.S. Supreme Court decision in June striking down Kentucky's same-sex marriage ban and legalizing gay marriage nationwide.
Beshear should have let Davis and other clerks opt out if they felt morally uncomfortable providing licenses to same-sex couples, she said. By telling the clerks to obey the Supreme Court, he made them vulnerable to being sued, as she herself was sued by groups of her constituents demanding same-sex and opposite-sex marriage licenses, she said.
"The Commonwealth of Kentucky, acting through Governor Beshear, has deprived Davis of her religious-conscience rights guaranteed by the United States and Kentucky constitutions and laws, by insisting that Davis issue marriage licenses to same-sex couples contrary to her conscience, based on her sincerely held religious beliefs," Davis said in the suit.
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Attorney General Jack Conway cited his own moral beliefs last year when he refused to defend the state's gay-marriage ban in the federal appeals courts, without being criticized by Beshear, Davis said. Instead, Beshear hired private attorneys to replace Conway.
Davis seeks protection under the state's religious-freedom law, passed by the General Assembly in 2013 over Beshear's veto. The law protects "sincerely held religious beliefs" from infringement unless there is "a compelling governmental interest." Because her oath of office included the phrase "so help me God," Davis said, she believed she never would have to "act in contradiction to the moral law of God."
She also asks that Beshear be forced to pay any damages she faces from the lawsuits filed against her by her constituents. U.S. District Judge David Bunning is expected to rule in coming days on a request by Davis' constituents for a preliminary injunction ordering her to resign or resume issuing marriage licenses.
Beshear spokesman Terry Sebastian said Wednesday that the governor's office was reviewing Davis' lawsuit, "but it appears at first glance that she doesn't understand the interrelationship between the governor, the attorney general, the county clerks and the legislature."
"The attorney general is not required to appeal every case. The Kentucky Supreme Court held that he is statutorily vested with the discretion as to which cases to pursue," Sebastian said. "At the same time, the legislature has placed the duty to issue marriage licenses squarely on county clerks."
In an interview, Davis' attorney said Beshear misinterpreted the Supreme Court's decision in the marriage case. The court ordered all states to recognize same-sex marriage, but it did not require every local official to do so, said Roger Gannam, a lawyer with the Liberty Counsel, a religious advocacy group.
Beshear could have allowed some county clerks to issue same-sex marriage licenses if they did not object and others to refuse if it troubled their consciences, with same-sex couples traveling to accommodating counties if necessary, Gannam said.
"It's certainly not a constitutional violation to make people drive one county away to get a license," Gannam said.
But Joe Dunman, a lawyer for the couples suing Davis, said the clerk mistakenly portrays herself as a victim of religious discrimination, when she is, in reality, the person practicing it. Citizens of Rowan County have a right to public services at their own courthouse, Dunman said.
"The case to me is very simple: She is infringing on the constitutional rights of our clients because of her own religious beliefs," Dunman said. "She swore in her oath of office to uphold the Constitution, and the Supreme Court has decided what the Constitution says here. She doesn't get to ignore it just because she doesn't like it."