Either of two judges in Oregon could become the next Kim Davis by taking a stand for what they see as their religious freedom to refuse to perform same-sex marriages.
The Oregon Commission on Judicial Fitness and Disability will hold hearings in November concerning the case of Marion County Circuit Court Judge Vance Day, who has been refusing to perform same sex-marriages.
Patrick Korten, a spokesman for the legal firm Day has hired, told the Oregonian the judge never prevented a gay couple from getting married, as Kim Davis did in Kentucky by refusing to issue marriage licenses.
Instead, Davis simply referred gay couples to other judges who would perform the ceremonies.
“For him as a religious matter it’s not something that he wished to participate in, and he doesn’t have to,” Korten said. “He has First Amendment rights, just like everybody else.”
The other Oregon judge who sees declining to marry gay people as a matter of conscience, Judge Thomas Kohl, said in an email that he will no longer perform weddings as a judge “for faith-based reasons.”
By refusing to perform all marriages, Kohl should be able to avoid a state investigation.
Oregon law allows judges to perform marriages, but does not require them to do so.
Kohl and Day are certainly not the only local officials across the U.S. who are following the lead of Kim Davis and declining to sanction gay marriages.
However, Hamilton County, Tenn., Judge Jeffrey Atherton has taken a different tack to express his displease with the Supreme Court’s ruling.
Atherton refused to grant a divorce to a couple in August because he said the Supreme Court must clarify when “a marriage is no longer a marriage.”
“The Tennessee Court of Appeals has noted that Obergefell v. Hodges affected what is, and must be recognized as, a lawful marriage in the State of Tennessee. This leaves a mere trial level Tennessee state court judge in a bit of a quandary,” Atherton wrote in his decision.
“The conclusion reached by this Court is that Tennesseans have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage, and, thereby, at minimum, contested divorces.”
The Obergefell v. Hodges decision’s impact is not only being felt in Oregon and Tennessee.
Texas Attorney General Ken Paxton (R) said in a non-binding opinion following the Supreme Court decision on gay marriage that local officials were within their rights to deny same-sex couples marriage licenses. But he also warned they could face jail time or lawsuits.
One county clerk in Texas followed Paxton’s advice and declined to issue marriage licenses to same-sex couples. Katie Lang and Hood County were sued. They lost. The marriage licenses were issued and the county wound up paying more than $40,000 in legal expenses.
So, what are politicians to do about government officials who are so troubled by gay marriage that they are willing go to jail?
The North Carolina legislature took preemptive action following the June Supreme Court ruling on gay marriage by approving a religious exemption law. But opponents say rather than being a piece of legislation with a loophole, the law is itself a loophole through which government workers can escape the demands of the Supreme Court decision that legalized gay marriage.
Sarah Preston, the acting executive director of the North Carolina chapter of the American Civil Liberties Union, said Senate Bill 2, which only became law after the state Senate overrode Gov. Pat McCrory’s veto of the legislation, accomplished nothing more than to provide an escape valve for government workers opposed to gay marriage.
“Extremist lawmakers have passed discrimination into law, allowing government officials to deny marriage services to virtually any couple,” said Preston. “This shameful backlash against equality will make it harder for all couples in our state to marry and force many to spend what is supposed to be a happy day trapped in a maze of government offices.”
But Senate President Pro Tem Phil Berger (R), who sponsored the legislation, said it allows county employees to follow their religious beliefs without giving up their jobs.
“Religious freedom is a fundamental right guaranteed under our state and federal constitutions – and one that our state’s public servants shouldn’t have to leave at the door,” Berger said in a statement posted on his Facebook page.
“This bill strikes a critical balance to make sure the freedoms granted to some under recent court orders do not erase the constitutionally-protected rights of others.”
Yet, even the best of intentions can backfire. Because of a technicality, the law has created a new kind of problem in North Carolina’s McDowell County.
Under the North Carolina legislation, any court official who recuses himself from performing a gay marriage can’t perform any kind of a marriage for six months.
Here’s the problem: So many government officials have taken advantage of the religious exemption legislation in McDowell County there are no magistrates left to perform any kind of a marriage – same-sex or traditional.