Kentucky clerk offers a few ways to get out of jail and refuse marriage licenses to gays

Sept. 7, 2015 4:45 PM PT

Attorneys representing Rowan County Clerk Kim Davis, jailed for refusing to heed a judge’s order and issue marriage licenses to same-sex couples because of her religious opposition, asked a federal appeals court on Monday to free her and force the governor of Kentucky to make accommodations for her Christian beliefs.

The emergency motion to the U.S. 6th Circuit Court of Appeals came as Davis spent her fifth day in jail as ordered by federal District Judge David L. Bunning, who found her in contempt on Thursday. Lawyers for Davis have already appealed the contempt order.

On Monday, the lawyers argued that Gov. Steve Beshear failed to accommodate Davis’ religious beliefs by refusing to take steps that would allow her name and title to be removed from the licenses. Also, attorneys asked that the state rather than the county issue the marriage licenses so that Davis would not have to deny same-sex couples. Bunning has already rejected a similar request.

“The governor’s refusal to take elementary steps to protect religious liberties has now landed Kim Davis in jail,” her lawyer Mat Staver said in a statement. “As a prisoner of her conscience, Davis continues to request a simple accommodation and exemption from the governor.”

How to get Davis out of jail without her having to recant has become a thorny situation as fundamentalist Christians and some Republican presidential candidates have rushed to her defense. Mike Huckabee, a Baptist minister and former governor of Arkansas, has scheduled a support rally for Davis on Tuesday in Kentucky. The couples who sued her had requested fines, not jail time.

Davis has repeatedly argued that her fundamentalist Christian views against gay marriage prevent her from signing or even having her name on marriage licenses requested by gay couples.

Kentucky law requires marriage licenses be issued under the authority of a named and elected county clerk. Beshear has said the dispute is between Davis and the federal courts, and he has refused to get involved.

“The Legislature has placed the authority to issue marriage licenses squarely on county clerks by statute, and I have no legal authority to relieve them of their statutory duty by executive order,” Beshear said in a statement issued after Bunning found Davis in contempt.

“The General Assembly will convene in just four months and can make any statutory changes it deems necessary at that time,” the governor said. “I see no need to spend hundreds of thousands of dollars of taxpayers’ money calling a special session of the General Assembly when 117 of 120 county clerks are doing their jobs.”

None of the other clerks who have stopped issuing marriage licenses have been sued, making Davis the test case in Kentucky. In other states such as Texas where clerks objected to same-sex marriage, other office personnel issued the licenses so that the rights of same-sex couples would not be violated.

Davis stopped issuing all marriage licenses the day after the U.S. Supreme Court in June held that same-sex couples have a constitutional right to marry. Two gay and two straight couples sued Davis and Bunning ordered her to issue the licenses. The U.S. Supreme Court upheld his ruling last week.

But Davis still refused to issue the licenses, leading to Bunning’s contempt finding. Five of her deputy clerks agreed to follow the judge’s order and issued marriage licenses to three gay couples Friday. Davis contends those documents are invalid because she didn’t authorize them.

Bunning has indicated that Davis could spend at least a week in jail, but contempt sentences are open-ended and depend on whether Davis says she will obey the judge. Bunning had offered to release Davis from jail if she promised not to interfere with her deputy clerks, but Davis refused.

Her lawyers filed an appeal of the contempt order Sunday, arguing that Davis’ due process was violated by her being ordered to jail.

“I doubt that the appellate judges will be persuaded that Judge Bunning failed to accord Davis due process, as he gave her plenty of notice and allowed her to speak fully in open court,” Carl Tobias, a professor at the University of Richmond School of law, said Monday. Tobias has been closely following the same-sex marriage battles in recent years.

“Those judges are also unlikely to find that the sanction imposed was too harsh, as she had notice of what he might do and district judges have broad discretion in imposing sanctions for clear violations of court order,” he said.

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