Op-Ed

Beshear's inaction caused Kim Davis controversy

If Rowan County Clerk Kim Davis decides to let her deputies continue granting marriage licenses, the hubbub should wind down. If she somehow chooses to interfere, expect a new round of fireworks.
If Rowan County Clerk Kim Davis decides to let her deputies continue granting marriage licenses, the hubbub should wind down. If she somehow chooses to interfere, expect a new round of fireworks. AP

The nation has been focused on Kim Davis for three months. Like her or not, it seems as though she has been the center of every story and in the frame of every photo or video taken. Shucks, even the pope met with her.

But as a result, the entire nation has missed the point.

In fact, the Bluegrass Poll released earlier this month confirms that even Kentuckians have missed the point.

The reason for all of this commotion is not Davis, but Gov. Steve Beshear. Bluntly, he violated and continues to violate Kentucky law.

Kentucky government, by law, may not burden someone's religious liberty unless it "proves by clear and convincing evidence" two things: it "has a governmental compelling interest" and it "has used the least restrictive means to further its interest."

Before anyone ties their underwear into knots, no one is arguing against the compelling interest generated by the Supreme Court. It has indeed, rightly or wrongly, redefined marriage.

But the state's failure with the second point is equally as apparent: What did Beshear do to accommodate the county clerks' deeply held religious convictions?

Can he prove anything on that count?

"Do your job or resign" has been his kindest message. Or, "I'll let the courts and clerks work this out." This has translated to mean: "I'll allow the state's county clerks to be sued by the ACLU both professionally and personally, including for court costs, attorney fees and 'punitive damages.'"

Is being sent to jail for religious beliefs a "least restrictive means"? Most would suggest the opposite.

Clearly, Kentucky state government, with Beshear as its head, has not lived up to its legal responsibilities.

The fact that a judge has created some solution indicates that a solution could be found, but more importantly, that Beshear didn't find it. (And didn't try.)

To clinch the point about the state's responsibility to use the "least restrictive means," one needs only examine the local mandate fiscal impact estimate drafted by the Legislative Research Commission in 2013 and given to all legislators when House Bill 279 was being considered.

Quote: "Additionally, the least restrictive alternative required of the local government may be minimal (the cost), for example, in adjusting the timing of certain events in a jail, or significant (the cost), for example, if it requires hiring additional staff or paying overtime for other staff to do a job that an employee declines to do because of religious beliefs."

In August, the four leaders of the General Assembly — two Democrats and two Republicans — understood this, saying that they were willing to help the county clerks.

But with no regular session of the legislature scheduled, it was Beshear's job to do.

Does it surprise you that he vetoed the bill that established this standard?

Worse, does it bother you that he has been ignoring it? (He is not above the law.)

Does it trouble you that he overlooked Attorney General Jack Conway's refusal to appeal a ruling against the state constitution's marriage amendment and spent state dollars to hire private attorneys for that responsibility, but did not offer anything to the clerks?

The bottom line is this: Beshear is an American, and he can believe anything he wishes. The problem Kentucky is facing now is that he not only has beliefs, but he tries to force them on everyone else — in this case, through inaction.

And that inaction allowed the ACLU to attempt to punish Davis for her conscientious beliefs. This is viscerally un-American and legally unconstitutional.

Davis did not go to jail for what she did; she went to jail because of what Beshear did not do.

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