Let me summarize the ACLU’s position on Kim Davis: She’s a government official who refuses to sign marriage licenses for same-sex couples. Her rationale is irrelevant. She needs to abide by the law and do her job. If she can’t, then she must resign.
Liberty Counsel, the group defending Davis, says that she is being “held as a prisoner for her religious beliefs.” In other words, because she has a religious objection to the law, the government ought to accommodate her request to not have to sign marriage licenses. Even if that means sending gay couples (who pay taxes in the county) to the next county over.
Here’s the problem.
That same organization said very different things when gay marriage was illegal and some government officials were giving it a green light in their own municipalities.
Like in 2004, when Liberty Counsel wrote an amicus brief to stop San Francisco Mayor Gavin Newson from issuing marriage licenses to gay couples:
A decision of the Louisiana Supreme Court succinctly explains the
interplay between a petition for writ of mandamus and the lack of standing of
public officials to raise constitutional claims as a defense in a writ proceeding.
These decisions involved mandamus actions brought against public officials to compel the official to perform a purely ministerial duty which the challenged statute required him or her to perform as a public office holder. The rationale of these decisions was that a public official could not refuse to perform a purely ministerial duty required of him or her by the challenged statute on the basis that the statute was unconstitutional. Under this rationale, the public official had no discretion to choose whether to perform or not to perform a purely ministerial duty required of his or her office, and the public official could not interpose, as a defense to the mandamus action, an allegation of unconstitutionality of the statute which mandated the performance. In effect, the decisions compelled the public official to perform the purely ministerial duties required of his or her office until the statute is declared unconstitutional. These decisions, however, did not address whether the public official (if he or she otherwise had standing) can challenge the constitutionality of a statute by means of a declaratory judgment action and, if successful, can thereby eventually relieve himself or herself of being compelled to perform the ministerial duty. Thus, the cited decisions do not govern the situation presented in this case, which is an action by a public official (who is presently performing the ministerial duties required by the statute) for a declaratory judgment to declare the statute unconstitutional, rather than a defense asserted in a mandamus action seeking to require the public official to perform the purely ministerial duties required by the statute.
Wooden v. Louisiana Tax Commission, 650 So.2d 1157, 1159-60 (La. 1995).
Respondents are obligated to follow the marriage laws as currently written. They cannot disobey those laws simply because they do not like the laws and believe they unconstitutionally infringe someone else’s rights.
For this reason alone, the writ relief should issue directing Respondents
to comply with the marriage laws.
Or like that other time in 2004, when Liberty Counsel announced a lawsuit against the mayor of Seattle for ordering the recognition of same-sex marriage:
Attorney Staver of Liberty Counsel commented, “Last week Judge Vincent Bradley issued a clear message against New Paltz, New York, Mayor Jason West. That message not only applies to Mayor West, but also to Mayor Nickels. Any public official who takes an oath of office must uphold state law, and in the state of Washington, the law could not be any more clear — marriage is between one man and one woman. I am astounded at the deliberate disobedience of public officials who are willing to violate their oath, violate the law, and trample on the will of the people, all so that they can push their radical same-sex agenda. Like in New Paltz, New York, law and order will return to Seattle.”
Or like in 2008, when Liberty Counsel fought to stay the issuing of same-sex marriage licenses in California:
While state officials might assume that similar language is unconstitutional and should be stricken, the Supreme Court made it clear in Lockyer that administrative officials cannot make such assumptions to justify refusal to enforce the statutes… Instead, administrative officials must continue to carry out their ministerial duties and enforce statutes until there has been a judicial determination that the statute is unconstitutional.
Or like that time in 2012, when Liberty Counsel said:
“In recent days we have seen stepped-up attacks against free speech,” said Mat Staver, Founder and Chairman of Liberty Counsel. “It is outrageous that a public school superintendent could think he has the right to threaten revocation of a lease because of what the pastor preaches in the pulpit. No public official is above the law. The First Amendment stands as a bulwark against homo-fascism,” said Staver.
Or like that time in 2014, when Liberty Counsel opposed same-sex marriage licenses in Florida:
Mandamus relief is appropriate “to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law. A duty or act is ministerial when there is no room for the exercise of discretion, and the performance being required is directed by law.”
Or like this past January when Liberty Counsel issued this statement about whether Florida clerks had to issue same-sex marriage licenses:
The duties of a Florida clerk of court are ministerial, which means they have no discretion to pick and choose which laws to follow. Until a court with proper jurisdiction rules otherwise, Florida clerks are bound by Florida’s marriage laws, which memorialize in its Constitution the historic, natural definition of marriage as the union of one man and one woman.
Or like this past April when Liberty Counsel opposed giving out same-sex marriage licenses in Alabama:
“Many Alabama probate judges are acting lawlessly,” said Mat Staver, Founder and Chairman of Liberty Counsel. “Alabama probate judges do not have discretion to issue marriage licenses to same-sex couples. Neither the Searcy nor the Strawser Injunction requires Alabama probate judges to issue marriage licenses to same-sex couples,” Staver pointed out.
“The only remedy to this lawlessness is mandamus relief, an order from the Alabama Supreme Court to command probate judges to perform their ministerial duty not to issue marriage licenses to same-sex couples,” Staver concluded.
Or like this past April (again) when Liberty Counsel opposed giving out same-sex marriage licenses in Florida (again):
“The Clerk’s present policy of issuing marriage licenses to same-sex couples violates the public ministerial duty not to issue such licenses under the Florida Constitution and Statutes. The Clerk has no discretion to violate the Constitution of Florida, the laws of Florida, and the clearly expressed will of the People of Florida,” Liberty Counsel told the courts.
“… The Florida public and the rule of law are being injured by the Clerk’s open disregard of her public duties.”
“Florida clerks have no discretion to violate the Constitution of Florida and the clearly expressed will of the People of Florida and hand out marriage licenses to same-sex couples,” said Mat Staver, Founder and Chairman of Liberty Counsel.”
“We are in a constitutional crisis in America. Government officials from county clerks to the President of the United States are ignoring the rule of law and arrogantly creating their own laws,” continued Staver.
So let’s see if I have this right: When elected officials refuse to obey the law in a way that hurts same-sex couples, it’s perfectly okay. It’s just a matter of religious conscience.
But when elected officials disobey the law in order to help same-sex couples, it’s a travesty that must be stopped for all that is good and holy. Your reasons don’t matter.
I can’t decide if Liberty Counsel wants government officials to obey the law or not. And, based on their own statements, I don’t think they know what they want, either.
Maybe for their next publicity stunt, Mat Staver should just debate himself.
(Thanks to Jon for the research)