BY PAUL SCHINDLER | Kim Davis, a defiant Kentucky county clerk who is refusing to issue any marriage licenses rather than authorize licenses for same-sex couples, was jailed today on the order of US District Judge David L. Bunning.
Davis, the Rowan County clerk, has declined to issue licenses to any couples –– same-sex or different sex –– since the the US Supreme Court’s marriage equality ruling in June. On August 31, the high court, without comment, declined to grant Davis a stay while she appeals a preliminary injunction issued against her by Bunning in a case brought by both same-sex and different-sex couples seeking to marry in Rowan County. For the two days after the Supreme Court rejected her stay motion, the 49-year-old clerk remained steadfast in declining to do what is statutorily required in her job.
Bunning found her obstinance to be contempt of court and ordered that she remain in jail until she agrees to comply with his order that she issue licenses to any legally qualified couple who seek one. The judge gave her deputies several hours to decide whether they would agree to issue licenses or face jail themselves.
On August 1, David Ermold and David Moore, a gay couple who live in Rowan County, presented themselves at Davis’ office for the second time since the Supreme Court's June ruling. When the two men challenged her as to what authority she had for continuing to resist orders from federal courts, she asserted she was acting “under God’s authority.”
The following day, the Liberty Counsel, an anti-gay litigation group representing Davis, posted a statement from her on its website that read, in part, “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision.”
She also asserted, “In addition to my desire to serve the people of Rowan County, I owe my life to Jesus Christ who loves me and gave His life for me.”
In making her case before Bunning in early August, Davis argued she has a constitutional right based on the First Amendment and Kentucky’s Religious Freedom Act to refuse to issue any licenses because of her religious objections to being seen to endorse same-sex marriages. The “authorization statement” she is required to complete on all marriage licenses, she asserted, constitutes “an endorsement of same-sex marriage, which runs contrary to her Apostolic Christian beliefs,” Bunning wrote in his preliminary injunction against her.
Davis’ free exercise rights, Bunning concluded, do not outweigh the state’s interest in upholding the rule of law, under which the plaintiffs were entitled to get marriage licenses. The judge disagreed with Davis’ argument that the “authorization statement” on the marriage license form implied or communicated that she approves of same-sex marriage. It is merely a statement that the applicants are legally qualified to marry, he found.
When Bunning ruled against her, Davis and Liberty Counsel promptly announced plans to appeal the ruling to the Sixth Circuit Court of Appeals and sought a temporary stay from Bunning, which he granted to give her time to seek a longer stay from the appeals court. The Sixth Circuit and later the Supreme Court, however, refused to issue a longer reprieve past the August 31 expiration of Bunning’s temporary stay. Bunning’s preliminary injunction and the refusal of higher courts to grant stays pending appeal clearly signal the view by all the courts that Davis is unlikely to prevail on the merits.
Davis’ defiance has sparked raucous protests for and against her in Rowan County and elsewhere in Kentucky, and media scrutiny has brought to light the fact that she has been married four times to three different men and, according to US News & World Report, conceived twins fathered by husband number one after their divorce. She later remarried the father, but only after squeezing another marriage in between.
At least two other county clerks in Kentucky are refusing to issue marriage licenses, and there are also reports of resistance to the Supreme Court marriage ruling coming out of a few counties in Texas and Alabama.