Rowan County clerk Kim Davis is entitled to rejoice that, thanks to an executive order from newly ensconsed Kentucky governor Matt Bevin, her name will no longer have to appear on the marriage license forms dispensed by her office. And — who knows? — once the state legislature gets down to business, dispensing marriage license forms may no longer even be the province of county clerks in Kentucky.
But none of this means that Davis “won,” as the Gawker headline put it.
Seeking to overturn a court order requiring her to dispense the forms after last summer’s Obergefell decision, Davis’ lawyers claimed she had a right to refuse to do so under Kentucky’s Religious Test Clause and its Religious Freedom Restoration Act as well as on free speech grounds. The claims were summarily rejected by federal district judge David Bunning, and both the Sixth Circuit Court of Appeals and the U.S. Supreme Court declined to take up the question. As of today, state officials have no religious right to stand in the way of same-sex couples’ marriages.
What made it appear as though Davis won a signal victory was the smooth transformation of her cause into a fight for an innocuous religious accommodation. Kudos to her backers for a clever maneuver. Brickbats to advocates on the other side for permitting themselves to be out-maneuvered.
After Bunning issued his ruling, Family Foundation of Kentucky executive director Kent Ostrander organized a protest at the state house in Frankfort with the goal of getting then-governor Steve Beshear to change the requirement that marriage license forms include the name of the clerk of the issuing county. “Our message today is Governor, please do your job. Don’t just point your finger at the county clerks and demand that they do theirs,” Ostrander said. “If he’ll do that, then gay and lesbians can get their marriage licenses and the county clerks can be protected. It’s that simple.”
Beshear dug in his heels, refusing either to issue an executive order or to call a special session of the legislature to change the marriage license forms. Same-sex marriage supporters and the A.C.L.U. betrayed not the slightest sympathy for Davis and her folks.
What the latter should have said is, “We understand that there are many people in Kentucky, including state officials, who personally object to same-sex marriage. So long as same-sex couples can obtain marriage licenses easily and on the same terms as opposite-sex couples, we don’t care whether whose names are on the forms. In fact, we think it’s in the interest of the all Kentuckians to provide Davis with the accommodation she says she wants as quickly as practicable. The important thing is that same-sex marriage is now the law of the land in our state.”
Instead, they chose to take their stand on the possible legal irregularity of a governor changing the signature rules on his own say-so — and they continued to do so. “The requirement that the county clerk’s name appear on marriage licenses is prescribed by Kentucky law and is not subject to unilateral change by the governor — conceded by the previous administration in court filings,” William Sharp, legal director of the American Civil Liberties Union of Kentucky, said in a statement yesterday. “Today, however, a new administration claims to have that authority.”
Does the ACLU plan to challenge the new forms in court? Of course not. Will anyone else? And put opposite-sex marriages undertaken with the same forms at equal risk? I very much doubt it. The ACLU & Co. have managed to look like losers when they’re actually big winners. Way to go, guys.