Kentucky and Colorado Judicial Rulings Affirm Rights of Same-Sex Couples

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 17, 2015

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Courts in Kentucky and Colorado issued rulings last week that rejected religious-based objections to serving gay couples in public and private settings.  While neither ruling is binding across the entire country, they reinforce the trend of disfavoring sexual orientation discrimination by the American judiciary.

Kentucky Federal Court Denies Objection by Marriage Clerk

A federal judge in Kentucky rejected a county clerk’s claim that she could not be forced to issue marriage licenses to same-sex couples.  The clerk, citing her religious objection to gay marriage, argued that forcing her to act against her religious beliefs was a violation of her constitutional right to free speech and religious freedom.  The issue arose when Kim Davis refused to follow the Supreme Court’s order from Obergefell v. Hodges and denied marriage licenses to same-sex couples who attempted to exercise their legal right to marry.  Davis, who also instructed clerks underneath her to refuse marriage licenses, stated that because her name was on the official marriage document issued by the state of Kentucky it appeared that she supported the union even though her “Apostolic Christian” faith rejects gay marriage.

After turning to the judiciary, the couples who were denied licenses were granted an injunction from a federal district judge in Kentucky which will force Davis and the clerks under her supervision to issue the licenses.  The federal judge noted that Kentucky clerks are required by state law to issue licenses, meaning that Davis was obligated under the conditions of her job to oblige same-sex couples the official marriage documents.  Citing the Supreme Court, the judge held that gay couples have a fundamental right to marry, and Davis could not deny them that right in her capacity as a representative of the state of Kentucky.

Responding to Davis’s arguments that her speech was violated and her religious practices “substantially burdened,” the court determined that she was not obligated to continue her position as a county clerk.  The opinion noted that the speech represented within legal marriage documents is not individual speech, but is a position held by the state of Kentucky and a county clerk is not authorized to change the message based on his or her individual beliefs.  Further, the court found that Davis’s freedom to quit her post meant that her religious practices were not substantially burdened to the point where she could defy a Supreme Court mandate that gay couples have the right to marry in every county across the country.

Colorado State Court Allows Fine to Christian Baker who Refused Gay Couple

In Colorado, a state appeals court ruled that a Christian baker could be fined for refusing to provide a cake for a same-sex wedding.  The proprietor of a Denver bakery argued that forcing him to accommodate gay couples violated his First Amendment rights by compelling him to act against his religious beliefs.  The dispute began in 2012 when Charlie Craig and David Mullins attempted to purchase a cake from Masterpiece Cakeshop in order to celebrate their upcoming nuptials with family and friends.  The owner, Jack Phillips, explained that he did not design cakes for same-sex weddings, but offered to sell them any other baked good the couple wanted.  Craig and Mullins subsequently filed a complaint with the Colorado Civil Rights Commission, which prohibits discrimination on the basis of sexual orientation, and Phillips was issued a fine that he appealed to the state’s appellate court.

According to Phillips, his cake decoration is an art form that he uses, in part, to honor God.  Phillips believes that God would be displeased if he designed cakes for same-sex couples, and argued that compelling him to do so is a violation of his constitutional right to freedom of religion. The Colorado appellate court rejected Phillip’s argument, and said that the state’s Civil Rights Commission was within its authority to fine him, holding,” We conclude that the act of same-sex marriage is closely correlated to Craig’s and Mullins’ sexual orientation, and therefore, the [administrative law judge] did not err when he found that Masterpiece’s refusal to create a wedding cake for Craig and Mullins was ‘because of’ their sexual orientation, in violation of [Colorado law].”  The court stated that Phillips is free to post a disclaimer on his website that he does not condone same-sex marriage, but he cannot deny gay couples his services.

Rulings Consistent with Judiciary Position on Gay Marriage

While both rulings are likely to generate disagreement from opponents of gay marriage, neither are particularly surprising given the recent history of same-sex decisions in state and federal courthouses.  Of the two legal issues presented, the Colorado ruling – which echoes similar rulings in New Mexico and Oregon – raises the most controversy because it denies private business owners the ability to refuse service to same-sex couples based on religious objections to the unions.  While courts have consistently disfavored discrimination based on sexual orientation by business owners, it is likely that the issue will have its day in a higher federal court before coming to complete resolution.

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