The nation has been focused on Kim Davis for three months. Like her or not, it seems as though she has been the center of every story and in the frame of every photo or video taken. Shucks, even the Pope met with her. But as a result, the entire nation has missed the point. In fact, the Blue Grass poll released recently confirms that even Kentuckians have missed the point.
The reason for all of this commotion is not Kim Davis, but Gov. Steve Beshear. Bluntly, he violated Kentucky law.
Kentucky government, by law, may not burden someone’s religious liberty unless it “PROVES by clear and convincing evidence” two things: 1) it “has a governmental compelling interest” and 2) it “has used the least restrictive means to further its interest.”
No one is arguing against the compelling interest generated by the Supreme Court—it has indeed, rightly or wrongly, re-defined marriage.
But the state’s failure with the second point is equally apparent: What did Gov. Beshear do to accommodate the County Clerks’ deeply-held religious convictions? Can he “prove” anything on that count?
“Do your job or resign” has been his kindest message.
Or, “I’ll let the courts and clerks work this out.” This has translated to mean: “I’ll allow the state’s County Clerks to be sued by the ACLU both professionally and personally, including for court costs, attorney fees and ‘punitive damages.'”
Is being sent to jail for religious beliefs a “least restrictive means”? Most would suggest the opposite.
Clearly, Kentucky state government has not lived up to its legal responsibilities. The fact that a judge has created some solution indicates that a solution could be found, but more importantly, that Gov. Beshear didn’t find it.
To clinch the point about the state’s responsibility to use the “least restrictive means,” one needs only examine the Local Mandate Fiscal Impact Estimate drafted by the Legislative Research Commission in 2013 and given to all legislators when House Bill 279 was being considered—it had already contemplated Kim’s situation!
Quote: “Additionally, the least restrictive alternative required of the local government may be minimal (the cost), for example, in adjusting the timing of certain events in a jail, or significant (the cost), for example, if it requires hiring additional staff or paying overtime for other staff to do a job that an employee declines to do because of religious beliefs.” (Emphasis added.)
In August, the four Leaders of the General Assembly understood this—two Democrats and two Republicans—saying that they were willing to help the County Clerks. But with no regular session of the legislature scheduled, it was Gov. Beshear’s job to do.
Does it surprise you that he vetoed the bill that established this standard? Worse, does it bother you that he has been ignoring it?
Does it trouble you that he over-looked Attorney General Conway’s refusal to defend the State Constitution’s marriage amendment and spent state dollars to hire private attorneys to do Conway’s responsibilities, but did not offer anything to the clerks?
The bottom line is, Gov. Beshear is an American, and he can believe anything he wishes. The problem Kentucky is facing now is that he not only has beliefs, but he tries to force them on everyone else … in this case, through inaction. That inaction allowed the ACLU to attempt to punish Davis for her conscientious beliefs.
Kim Davis did not go to jail for what she did; she went to jail because of what Gov. Beshear did not do.
Kent Ostrander is executive director of The Family Foundation of Kentucky.