Mat Staver and Kim Davis

Kim Davis and Mat Staver in 2015. Davis is the one on the left. She had just been released from the hoosegow after agreeing to allow deputies to sign off on marriage license applications.

via WDKY

Monday morning I received an email from Mad Mat Staver, hate group leader of Liberty Counsel. Staver is trying to diminish a couple of appeals court rulings. For years Staver vigorously argued that Davis had won the case. Staver characterized the ACLU’s effort to recover fees a “‘Hail Mary’ request.”

On Friday, the United States Court of Appeals for the Sixth Circuit ruled 3-zip that Kim Davis can be sued personally for having frustrated the constitutional rights of gay couples seeking marriage licenses from the then Rowan County, KY Clerk.

The Court also upheld a lower 2017 lower court ruling that the Commonwealth of Kentucky must pay $224,000 in legal fees incurred by gay couples who sued. Attorneys for Governor Bevin (a Davis supporter) argued that Kim Davis was responsible for those legal fees.

That brings me back to Staver’s communique (linked from the email) which reads, in part:

Davis will continue to argue that she is not liable for damages because she was entitled to a religious accommodation (which Gov. Bevin and the legislature granted), and that her actions did not violate clearly established rights. The Supreme Court can strike down a law but not rewrite it. As the then-president of the Kentucky Senate argued in an amicus brief, the laws of the Commonwealth on marriage were “shredded” by the Supreme Court’s ruling, and the legislature had to enact new legislation. The duties of a clerk in the area of marriage is governed in every aspect by the laws of the Commonwealth.

Just a reminder. Originally Davis proclaimed that “No homosexual couple will ever obtain a marriage license from this office.” Staver was an early adviser and knew that would not fly so they shifted the objection from gay couples to the fact that Davis’ name was on the marriage license as the county clerk.

As an elected official Davis was not “entitled” to a religious accommodation. The fact that the legislature subsequently removed the county clerks’ names from marriage licenses is irrelevant. Davis was required to uphold the Constitution of the United States and the Supreme Court determined that gay couples have a constitutional right to marry.

Staver has balls to write that Davis’ “actions did not violate clearly established rights.” Once the Supreme Court handed down its ruling in Obergefell v Hodges marriage equality was a clearly established right. Marbury v. Madison (which most high school students are taught about) makes the Supreme Court the final arbiter of the Constitution.

That was further challenged after the Supreme Court desegregated public schools. In 1958 Arkansas made the same idiotic arguments that Staver is making; essentially that their state constitution prevails over a Supreme Court ruling. Eventually this became Cooper v. Aaron. The Supreme Court ruled that the Supremacy Clause of the Constitution made the Constitution the supreme law of the land. They reiterated that Marbury allows “judicial review” which makes Supreme Court rulings the final determinant of constitutionality.

Kentucky’s amicus brief in Obergefell represents the losing argument and has no bearing. As for the duties of a county clerk she is obliged to obey the Constitution of the United States.

Staver’s statements could — but won’t — subject him to professional discipline. He is directly misinforming the public.

I do not know if Davis has any assets. However, she deserves to pay a personal price for her bigotry as an elected official. Davis used her authority to disadvantage gay couples and that was reprehensible.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.