After dragging her through legal mazes for nearly a decade, a federal district judge has demanded that a Kentucky county clerk who denied “marriage licenses” to same-sex couples now pay a massive fee, atop “damages” already thrown at her by a jury in September.
It’s a battle that, at first blush, goes back to 2015, but it actually has deeper roots, roots that dig all the way back to the late 1800s, to the original concepts of marriage as a societal/religious ceremony, and roots that put into serious question the oft-assumed validity of the fatuous term “marriage license.”
She is Kim Davis, the former clerk of Rowan County, Kentucky, and, despite a 2015 Supreme Court of the United States (SCOTUS) ruling that “legalized” same-sex marriages, Davis refused to certify marriage licenses to same-sex couples, citing her freedom of religion, which is assumed by many to be protected under the First Amendment.
Federal District Judge David Bunning quickly found her in contempt of court and ordered her to spend five days in jail, and then, the lengthy lawsuit process began.
CNN’s Chris Boyette actually runs through the timeline:
“David Ermold and David Moore sued Davis after being denied marriage licenses multiple times by her or her office. In 2022, Bunning ruled Davis violated their constitutional rights, and in September 2023 a jury awarded the couple $100,000 in damages.”
Ahh, but that wasn’t enough. For her terrible transgression, Bunning just ordered Davis to hand over, get this, $260,000 in fees and expenses to the offended plaintiffs’ attorneys.
Looks like some lawyers aren’t having trouble paying their university loans…
And it looks like, once more, the winners in the so-called “justice” system are the court staff (who, regardless of how well they operate, always get to receive tax money for their salaries and can impose “fees” as they see fit) and those who, either intentionally, or unintentionally, do not question the highly questionable idea that the state has any appropriate role in “licensing marriage.”
First, one must note that Ms. Davis’ First Amendment defense was slightly off-base because the First Amendment prohibition against abridging the freedom of religion only applies to Congress, not the states. It was not until 2022 that Congress made things that much more unconstitutional by passing their “same-sex marriages must be recognized as legal” nonsense called “The Respect for Marriage Act.”
So, when looking at this case, both temporally, and constitutionally, it is the Kentucky Constitution should guide people on the freedom of religion issue, and it just so happens that the state constitution DOES promise protection of religious freedom.
BUT, in 2015, the SCOTUS ruling in Obergefell v. Hodges struck down Kentucky's statutory and constitutional bans on same-sex marriages, and Governor Steve Beshear and Attorney General Jack Conway announced that they would abide by the court's order.
And the so-called justification for the SCOTUS ruling, Judge Bunning’s orders of fines and fees, as well as the September jury decision, all hinge on the main legal argument that same-sex marriage advocates long have been making. They have claimed, and many continue to claim, that the Fourteenth Amendment’s “equal protection clause” commands states (and their employees, such as Ms. Davis) to treat gay couples the same as heterosexual couples when it comes to the issuance of marriage licenses.
Thus, if one were to accept their argument, Ms. Davis would be breaching the Fourteenth Amendment, and her argument about “religious freedom” likely would be seen as weak, since she is a state employee. (That, itself, is a large matter that raises further questions about what are called "unconstitutional conditions" imposed on people getting things -- like jobs -- from government; for example, can a government mandate that employees do not wear crucifix necklaces?)
But close observers long have noted the grievous error in reading “equal treatment” when faced with the words EQUAL PROTECTION in the Fourteenth Amendment.
Protection, in a political sense, was seen by the founders and those who wrote the Fourteenth Amendment, as being quite different from the government offering a special “blessing”, like a marriage license, to people.
The term “protection” is supposed to conform with the traditional Lockean idea that groups of people create political institutions to protect folks from aggression by other people. Of course, in philosophy class, I have to call out John Locke’s error in supposing that civilians can be protected by a polis, because the only way a polis can exist is by forcing people to pay for the so-called “protection,” but that’s the general idea on which the US political system is based. Though it’s logically and morally flawed, the US foundation is that government can take your money to protect you from other people, not take your money to give things to other people.
Thus, as I wrote for the Mises Institute in 2006:
“A state-sanctioned marriage is a government-proffered benefit, granting unique government treatment by law, and forcing certain actions by private industry under the law. It grants the sole license of conducting legal marriages to a select few, and excludes others from operating freely to conduct legal marriages. These facts alone stand in sufficient contravention to the concept of individual liberty to warrant opposition to state-licensed marriage. George and Martha Washington never had a marriage license, and most Americans didn't need them until the mid-1800s. It is likely they would be appalled by the degree to which we have gotten the government involved in a sacred religious ceremony.”
And, thus, the 2015 SCOTUS decision in “Obergefell,” the 2022 “Respect for Marriage Act” (which also infringes on the First Amendment protection of religious liberty), and the subsequent jury/court actions against Ms. Davis all stand as tragic mistakes that reinforce massive, widespread misapprehensions regarding the Equal Protection Clause, the First Amendment, the original rationale for so-called “just government,” and even the overbearing claim that people have to get “licensed” by the state to be married.
The only area where Ms. Davis might have been challenged on constitutional grounds is seen in the US Constitution’s “full faith and credit clause,” found in Article Four. Under that clause, any legally binding contract from one state must be recognized as legally binding in all others, and, as a result, if Ms. Davis had been approached by same-sex couples who’d been “married” in other states, her oath to the US Constitution would have obligated her to recognize their out-of-state marriage as valid.
It's all an ugly mess, smeared with the contemporary makeup of long-misread constitutional clauses, long-misused and misunderstood terms such as “protection” and “rights,” and long-held false beliefs that government has any appropriate place “licensing” anything.
As I noted in my Mises piece, and as Ryan McMaken wrote in 2011, marriage licensing began in the late 1800s as a tool to block white people and black people from “legally” marrying. It, like all forms of licensing, is an evil that should be exposed and repudiated, not promoted through fatuous claims of “equal protection,” when the only thing being protected is the perpetuation of political power over people who should not have to put government above God.
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