Kentucky clerk defies Supreme Court on same-sex marriage and could be held in contempt

Rowan County Clerk Kim Davis is greeted as she arrives for work Sept. 1 in Morehead, Ky.

Sept. 1, 2015 5:23 AM PT

When Kim Davis ran her election campaign to replace her mother as Rowan County Clerk in Kentucky, she often argued that the public needed a seamless transition because services including marriage licenses “cannot stop or slow down.” Davis was narrowly elected in 2014 to the top job in the office where she had worked for more than 25 years, rising to become her mom’s principal deputy.

On Tuesday, Davis derailed those services at the clerk’s office in Morehead, Ky., by refusing to issue marriage licenses to all couples -- gay and straight -- because her religious beliefs prohibit same-sex marriage. During a chaotic morning she argued that God gave her the authority to defy even the nation’s highest court, which refused to get involved in the current case after it upheld gay marriage in June.

“To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience,” she said in a prepared statement issued through her attorneys, the Liberty Counsel, based in Orlando, Fla. “It is not a light issue for me. It is a heaven or hell decision.”

A federal judge has set a Thursday hearing to decide whether Davis and her top aides should be held in contempt of court to force them to issue marriage licenses. Davis could be personally fined or even face jail, though the plaintiffs say they just want their marriage license.

The battle has echoes from the days of the African American civil rights struggles of the 1960s when Southern officials refused to follow court rulings on integration. After the U.S. Supreme Court ruled on June 26 that same-sex marriage was a constitutional right, most people thought the issue was resolved.

And in most places, it was, except in a handful of counties in Texas, Alabama and Kentucky, where local officials chose to stop issuing all marriage licenses to avoid granting licenses to same-sex couples.

Lawsuits were filed in several of the states, including against Davis, who stopped issuing licenses days after the Supreme Court decision. Two gay couples and two straight couples sued her, arguing that because she was an elected official she was required to issue the documents despite her religious beliefs. Davis claims she is protected by the state’s version of the Religious Freedom Restoration Act, designed to protect religious expression.

Federal District Judge David L. Bunning disagreed, ruling against the clerk. Last week, the U.S. 6th Circuit Court of Appeals agreed with Bunning.

“It cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court,” the appeals court said.

On Monday, the Supreme Court in a one-line order rejected Davis’ appeal, ending the clerk’s legal fight. It was the first time the court had to deal with a gay marriage issue since its June ruling.

Carl Tobias, a law professor at the University of Richmond who has followed the same-sex marriage issue, said that although a number of clerks around the country say they are uncomfortable issuing licenses, the Rowan County case is the only one to have advanced so far in the courts.

“My reading is that the Supreme Court was pretty clear in late June about the notion of marriage equality,” he said. “I don’t think the religious freedom argument is that strong in this situation.”

The high court’s action also set the scene for Tuesday’s confrontation in Morehead, where Davis turned away several gay and lesbian couples who sought marriage licenses.

It was the third time that David Moore and David Ermold had sought a license from Davis. In televised video of their encounter, Davis told the couple to leave.

“We’re not leaving until we have a license,” Ermold responded.

“Then you’re going to have a long day,” Davis replied.

Davis then retreated into her inner office and closed the blinds, seeking shelter from media cameras and rival demonstrations.

“Praise the Lord!” her supporters shouted. “Stand your ground!”

Other activists yelled, “Do your job!”

The mainly rural county, about 60 miles east of Lexington, has about 23,000 residents.

Davis’ mother served as county clerk for 37 years and her son also works in the clerk’s office.

“I love my job and the people of Rowan County,” Davis stated. “I have never lived any place other than Rowan County. Some people have said I should resign, but I have done my job well.”

Davis’ husband, Joe, told reporters that his wife has received death threats. He said he believed in the 2nd Amendment and was not afraid: “I’m an old redneck hillbilly, that’s all I’ve got to say. Don’t come knocking on my door.”

He pointed to the gay rights protesters gathered outside and said: “They want us to accept their beliefs and their ways. But they won’t accept our beliefs and our ways.”

Davis was elected as a Democrat and has been supported by others including Casey County Clerk Casey Davis, who is riding his bicycle across the state in support of his fellow officeholder. His county is not issuing any marriage license either to avoid the same-sex marrraige issue, and he wants a special session of the Kentucky Legislature to deal with the whole issue.

“Kim Davis is my spiritual sister,” he said, breathing heavily, in a telephone interview from near Elizabethtown, Ky.

“I just climbed a real tall hill in Kentucky to help raise awareness about what is happening to Kim Davis,” he said. “She is a lady and not deserving of going to jail or being fined. All she is trying to do is to live her life as a Christian and that should be her right.”

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