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Constitutional Expert and Attorney on the One Area in Which Defiant Kentucky Clerk Could Be on 'Very Shaky Legal Ground

Constitutional Expert and Attorney on the One Area in Which Defiant Kentucky Clerk Could Be on 'Very Shaky Legal Ground

"It has put all levels and all branches of government in a quandary."

A constitutional expert said he believes that defiant Kentucky county clerk Kim Davis is on solid footing when it comes to seeking a faith-based exemption to providing gay marriage licenses, but said there's one key area in which she's on "very shaky legal ground."

Ken Klukowski, senior counsel and director of strategic affairs at the Liberty Institute — a firm not affiliated with Davis' case — told TheBlaze that no American should be forced to forfeit his or her fundamental rights to serve in public life.

"Kim Davis has personal First Amendment rights, and for her to say, 'I do not want to be personally involved with creating same sex marriages,' she has that right," Klukowski said. "The Constitution requires that the government accommodate her ... if possible."

But Klukowski said Davis and her attorneys with the (similarly named) Liberty Counsel have used a potentially problematic argument in her initial order that deputy clerks not issue gay marriage licenses.

Surrounded by Rowan County Sheriff's deputies, Rowan County Clerk Kim Davis, center, with her son Nathan Davis standing by her side, makes a statement to members of the media at the front door of the Rowan County Judicial Center in Morehead, Ky., Monday, Sept. 14, 2015. Davis announced that her office will issue marriage licenses under order of a federal judge, but they will not have her name or office listed. (AP Photo/Timothy D. Easley)

Klukowski said there's never been a case clearing the way for an individual to attach personal beliefs and combine them with his or her official powers.

"[That] is something that resides exclusively in her office," he said. "That is where she is probably overreaching in saying that she can project her personal religious faith through the powers of her office to make other government employees who do not share her faith live in accordance with her faith."

Klukowski, who defends Davis' decision to seek the removal of her name from licenses, placed blame for the controversy on the Supreme Court's gay marriage ruling, which he said created a scenario in which religious liberty concerns were left unaddressed.

"It's the Supreme Court, who by delving into this issue and constitutionalizing this matter, sat it in immediate tension to free, fundamental rights that are found in the text of the Constitution," he said. "It has put all levels and all branches of government in a quandary as to how to vindicate the Constitution's fundamental rights of religious liberty, since the majority opinion did not spell any of that out."

As far as a solution goes, Klukowski said while Kentucky's Democratic Gov. Steve Beshear held the power to call the legislature into session to remedy the debate over religious freedom and same-sex nuptials, he declined to do so, leaving the matter to the courts.

"This could have been fixed in a matter of days," he said, saying there are reasonable accommodations that can and should be made.

Klukowski had tough words for some conservatives who have held that Davis, among others, does not reserve the right to refuse to grant gay marriage licenses due to her role as a public official.

Rowan County clerk Kim Davis uses the copy machine in the Clerk of Courts Office on her first day back to work after being released from jail, at the Rowan County Courthouse September 14, 2015 in Morehead, Kentucky. (Photo by Ty Wright/Getty Images)

"Conservatives who believe that Christians have to forfeit their conscience in order to serve in modern America, they're misguided and uninformed regarding the meaning and the scope of the First Amendment," he said. "It trumps all other legal authorities, period."

He also pushed back against others who have compared Davis' refusal of gay marriage licenses to individuals who might preclude interracial couples from marrying.

"There are over 400 Christian denominations in the United States," Klukowski said. "Not a single one says that a black person can't marry a white person ... so it's a counter-factual boogeyman."

Klukowski said the U.S. is badly in need of an educational campaign to help citizens understand what their rights are under the First Amendment — rights that he described as being "generous, expansive rights to protect peoples' consciences."

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