Did Liberty Counsel do right by Kim Davis?

The University of Kentucky-trained lawyer whose Christian legal ministry represents Rowan County Clerk Kim Davis says he would never advise a client to break the law.

But critics of Mathew Staver and his Orlando-based Liberty Counsel say that in standing by her as she defied federal court orders, the lawyers may have violated their duty to tell her she had no case.

“I think you have an ethical responsibility to tell your client she doesn’t have a legitimate cause of action,” retired Rowan Judge John Cox said.

New York University Professor Stephen Gillers, who has written widely on legal ethics, said a lawyer may not “understate the risks … to advance the lawyer’s own interests … or ideological agenda.”

Citing attorney-client privilege, Staver, the founder and chairman of Liberty Counsel, who has likened acceptance of the Supreme Court’s gay marriage decision to turning over a Jew to the Nazis, refused to say what advice he gave Davis, who was jailed Thursday for contempt of court.

But he said she made her own decisions, and that Liberty Counsel, a nonprofit group supported by tax-deductible contributions, has not used her to raise money. He said it has spent more on her defense than her cause has generated.

Staver, a 1987 graduate of UK's law school, founded Liberty Counsel in 1989. He and his wife Anita, an attorney, run it today. Its website describes the Liberty Counsel as an international nonprofit litigation, education and policy group dedicated to advancing religious freedom, the sanctity of life and the family.

The Rev. R. Albert Mohler Jr., president of the Southern Baptist Theological Seminary, said: "Every major social movement in America has looked to the assistance of lawyers" and "Liberty Counsel, along several other religious liberty advocates, are representing Christian citizens who very much need and deserve that representation. And for that, we should be grateful."

But the Southern Poverty Law Center last year added Liberty Counsel to its list of “anti-gay hate groups” for propagating “known falsehoods” about gays and lesbians that have been discredited by scientists. The center also cited Liberty Counsel's promotion of so-called conversion therapy, which claims to convert homosexuals into heterosexuals through means that the American Psychological Association has denounced as harmful.

Staver, a former Seventh-day Adventist pastor who until last year was the law school dean at the late Rev. Jerry Falwell’s Liberty University, said in an email interview that “neither I nor LC hates gays. How can I hate someone for whom Jesus Christ died and loves?”

Staver himself has argued two cases at the U.S. Supreme Court — he lost a 2005 decision in which the court held that a Ten Commandments display at the McCreary County courthouse was unconstitutional.

Its staff of 10 attorneys have won cases allowing Bible study groups and the Fellowship of Christian Athletes to meet in public high schools after hours. It successfully defended a couple in Kissimmee, Fla., where a homeowner’s association allowed lawn ornaments and Greek statues but tried to force them last year to remove two small statues of Mary and Jesus.

Liberty Counsel, which raised $4.1 million in donations last year, is one of several Christian legal advocacy groups that include the larger, Scottsdale, Ariz.-based Alliance Defending Freedom. But Greg Lipper, an attorney for Americans United for Separation of Church and State, said it goes further than others in advocating for “open defiance of existing judicial decisions.”

He cited the Rowan case as an example — it “laid bare the extremism of the group," he said — and one in Alabama in which Liberty Counsel filed briefs with the Alabama Supreme Court urging that it ignore Supreme Court orders on gay marriage.

“Liberty Counsel is among the most irresponsible of ‘Religious Right’ organizations,” Lipper said. “ADF at least tries to fit its legal arguments within existing law” while “Liberty Counsel openly flouts it.”

Staver says the allegation is belied by its “83 percent win record.”

He also said Liberty Counsel “would never counsel a client to violate the law.”

But writing in Slate, Mark Joseph Stern, who covers legal and lesbian and gay issues, said Liberty Counsel seemed to be “taking Davis for a ride, using her doomed case to promote itself and its extremist principles.”

He said that its application to the Supreme Court for a stay on her behalf, which denounced the court’s gay marriage Obergefell ruling, seemed like an “anti-Obergefell rant dressed up as a legal document.”

Staver said Liberty Counsel was no harsher in denouncing the 5-4 decision than the four justices who dissented from it.

DePaul University law professor Jeffrey Shaman said Liberty Counsel’s lawyers had an obligation to advise her she was likely to lose the case but that she had the right to pursue it anyway.

“Many cases are brought to make some kind of statement, and there is nothing wrong with it, as long as the client is apprised and agrees with it,” Shaman said. “It is the client’s case.”

Besides litigating court cases, Liberty Counsel has fought against gay marriage in Africa, Europe and South America, and last year launched a Pastors and Patriots Initiative, in which ministers travel the country to hold church rallies and talk to other pastors.

A stalwart in the culture wars, the group in 2000 threatened legal action against a public library in Jacksonville, Fla., for giving a “Hogwarts’ Certificate of Accomplishment” to young students who had read “Harry Potter and the Goblet of Fire” in its entirety.

“Witchcraft is a religion and the certificate of witchcraft endorsed a particular religion,” Staver said at the time; he says now that a library should “no more do that than issue a certificate of confirmation or baptism.”

Staver appears regularly on TV; last year he gave interviews to more than 100 media outlets, made multiple appearances on Fox News' "The Kelly File" and was a guest on Glenn Beck's The Blaze TV, according to Liberty Counsel’s annual report.

The report says it began that year by issuing an “urgent call for active Christian citizenship” in midterm elections and by the end of the year “we gave God praise for the stern repudiation American voters gave to the radical Obama agenda.” It added that “our liberties are still in peril under the most tyrannical administration in American history.”

On Liberty Counsel’s radio show, “Faith and Freedom,” Staver predicted that the Boy Scouts of America’s recent decision to lift its ban on gay leaders would turn it into a “playground for pedophiles” with “all kinds of sexual molestation,” according to transcript published by Right Wing Watch.

Addressing the gay marriage decision on the same show, he said it would mark either the “beginning of a revival and renewal and perhaps revolution” or “the end of this country and the end of civilization.”

He also said that everyone will have to make a decision on the ruling.

“It’s like the Nazis come to someone … seeking out a Jew,” he said. “Will I obey God and resist this evil opinion or will I ultimately continue in my complicit silence and just go along to get along?”

Reporter Andrew Wolfson can be reached at (502) 582-7189 and awolfson@courier-journal.com

