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    The Rule of Law

    marriageequalityAs efforts to exclude LGBT couples from marriage continue in a handful of locales mostly in the South, the language of United States District Judge David Bunning’s recent ruling rejecting Rowan County Kentucky Clerk Kim Davis’ attempt to use her religious beliefs to justify discrimination is encouraging.

    Judge Bunning, a conservative George W. Bush appointee whom Kentucky Senator Mitch McConnell recommended for the bench, held in a strongly worded opinion that Davis may not refuse to issue marriage licenses because of her “Apostolic Christian” belief that same-sex couples should not be able to marry. As the court made clear, Davis’ personal beliefs do not enable her to violate her sworn duty as a public official to enforce the United States Constitution’s guarantees of liberty and equality.

    Central to the Bunning’s ruling was his recognition of the United States Supreme Court’s landmark Obergefell v. Hodges decision holding that LGBT Americans, just like other Americans, have a “fundamental” constitutional right to marry the person they choose. The Judge quoted the decision, stating: “the right to marry is a fundamental right inherent in the liberty of the person, and…same-sex couples may not be deprived of that right and that liberty.” A government official may interfere with the fundamental right to marry only if a “compelling government interest” justifies the official’s actions and such actions are narrowly tailored and essentially the only way that such a compelling interest may be satisfied.

    To defend her actions, Davis suggested somewhat cavalierly that same-sex couples in Rowan County could simply go to another nearby county to marry. The court quickly rejected that argument, observing that if other county clerks did the same, same-sex couples could effectively be barred from marrying in Kentucky. More fundamentally, Bunning observed that the plaintiff couples in the lawsuit—both gay and straight couples—“live, work, socialize, vote, pay taxes and conduct other business in and around” Rowan County. Quite simply, Rowan County is their home.” Couples should not be forced to go somewhere else to marry. Further, Bunning recognized that some residents of the county, where the poverty rate is 28.6 percent, may lack “the physical, financial or practical means to travel” elsewhere to marry.

    Judge Bunning then squarely rejected Davis’ claim that the Commonwealth had an interest in protecting her religious liberty that justified her depriving couples of their fundamental constitutional rights. The Court noted that Davis herself had “arguably committed…a violation” of the First Amendment’s prohibition on “establishment” of a government religion “by openly adopting a policy that promotes her own religious convictions at the expenses of others.” In essence, Davis had no right to declare “Apostolic Christianity” the law of Rowan County.

    Moreover, Judge Bunning recognized the paramount importance of the “rule of law” to our country. He quoted the Supreme Court’s insight that “[t]he rule of law, evenly applied to minorities as well as majorities…holds society together.” Bunning elaborated: “Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions. Davis is certainly free to disagree with the Court’s opinion…but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent.”

    Neither was Judge Bunning persuaded by Davis’ slightly different formulation of the same argument—namely that the Commonwealth of Kentucky’s requiring her to follow the Supreme Court’s marriage equality decision violated her First Amendment right to the “free exercise” of her religion. Judge Bunning noted that “free exercise” claims may pertain to two different things: a person’s “freedom to believe,” which is “absolute,” or a person’s freedom to “act” on such a belief, which is far from absolute. “[T]he protection of society” requires that people are not always free to act on whatever their religious beliefs might be.

    Under Supreme Court precedent, government actions that are “neutral” and apply “generally” to everyone and are not intended to target a person’s religious beliefs rarely if ever violate the First Amendment. Judge Bunning observed here that Kentucky’s “goal is simply to ensure that the activities of the Commonwealth are consistent with U.S. Supreme Court jurisprudence” and did not “aim to suppress” religion. The Supreme Court’s marriage equality decision applies neutrally to everyone with respect to the civil institution of marriage and has nothing to do with targeting the religion of Ms. Davis or anyone else. Quoting the Supreme Court, Judge Bunning stated “that an individual’s religious beliefs do not ‘excuse…[a person] from compliance with an otherwise valid law…’” and that Kentucky clearly has interest in ensuring the rule of law and protecting its citizens’ constitutional right to “‘personal choice regarding marriage…inherent in the concept of individual’” freedom.

    Judge Bunning also held correctly that the federal Religious Freedom Restoration Act (“RFRA”), at issue in the U.S. Supreme Court’s Hobby Lobby decision, did not apply here because the statute applied only to actions of the federal government, and not to state and local governments. Similarly, the Judge rejected Davis’ claim that the Commonwealth had violated Kentucky’s state RFRA statute, modeled after the federal RFRA. In explaining his reasoning regarding the state RFRA, Judge Bunning summarized well his entire opinion in the case.

    As Rowan County clerk, Kim Davis is merely “asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.”

    We look to Judge Bunning’s incisive decision to serve as an example to other courts as they are asked to consider similar issues and to fulfill their duty to ensure compliance with the rule of law and respect for the constitutional rights of all Americans, including LGBT Americans.

    John Lewis and Stuart Gaffney, together for three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. They are leaders in the nationwide grassroots organization Marriage Equality USA.