Ken Klukowski, the former head of the Family Research Council’s Center for Religious Liberty, admitted on a right-wing radio show last week that Kentucky county clerk Kim Davis was on “shaky legal ground” for ordering her deputies to deny marriage licenses to same-sex couples.
While few legal observers ever thought that Davis had a case — to the point that some suspected that her attorneys must have been deliberately giving her bad advice — Klukowski’s former group, the FRC, has defended Davis and announced today that it will honor her at its upcoming summit for challenging “legal tyranny.”
FRC President Tony Perkins appeared last week at a rally in Kentucky defending the clerk and insisted in an interview with Megyn Kelly of Fox News that Davis was not stopping her deputies from issuing marriage licenses. However, that was exactly what Davis was doing, and Klukowski honed in on that fact in an interview with conservative broadcaster Eric Metaxas last week.
Klukowski told Metaxas that while he is sympathetic to Davis’ plight as a fellow gay marriage opponent, he said that Davis’ refusal to let deputy clerks issue marriage licenses to legally eligible couples was indefensible and incompatible with religious freedom.
He said that by trying to “exercise my governmental authority to order the other public servants here, that they are not going to do this either, that’s where I believe she is on, respectfully, she’s on very shaky legal ground. That would be the difference between a conscientious objector in the military who says, ‘I want to serve my country so I am going to volunteer for the military but because of my faith I don’t believe in bearing weapons.’ He can still serve, he’ll just be assigned to a noncombat role, he’ll never have to pick up a weapon. The equivalent here would be someone saying, ‘I will take command of this infantry unit, I am going to take command of this rifle company, but not only am I not going to fight I am also going to order all the troops under my command that because of my religious objection they are not going to fight either.’”
Metaxas, however, saw it a bit differently, and compared Davis to a Nazi officer who refused a command from Adolf Hitler to send his military unit to murder Jews.
Klukowski responded by saying that Davis’ defenders are turning the First Amendment on its head: “The First Amendment has never been construed as saying that whatever your personal beliefs are that if you are in a position of authority, if your power is in fact a governmental power, the power of the state, that you have the right to make other civil servants, who have their own rights under the First Amendment, to make them act in conformity with your personal religious beliefs. Then you have the issue of, well, what are their religious beliefs? What are their personal beliefs?”
He went on to say that there is no legal precedent saying that officials can “combine” their “personal individual liberty” with “your governmental power to also make other public servants partake in your objection.”
