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Kentucky Clerk Found In Contempt And Jailed For Refusal To Issue Same-Sex Marriage Licenses

Kimberly Davis

A Federal Judge in Kentucky has found Rowan County, Ky. Clerk Kimberly Davis in contempt of court for her refusal to issue marriage licenses to same-sex couples and placed her in the custody of the U.S. Marshal Service until she agrees to comply with his Order:

ASHLAND, Ky. — A federal judge here on Thursday ordered a defiant county clerk jailed for contempt of court because of her refusal to issue marriage licenses to same-sex couples, despite a Supreme Court ruling against her.

The clerk, Kim Davis of Rowan County, was sent to jail after a hearing before Judge David L. Bunning of Federal District Court. The contempt finding was another legal defeat for Ms. Davis, argues that she should not be forced to issue licenses that conflict with her religious beliefs.

“The court cannot condone the willful disobedience of its lawfully issued order,” said Judge Bunning, who was appointed by President George W. Bush. “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”

Ms. Davis’s stance has put her at the center of political conflict.

The White House press secretary, Josh Earnest, said he had not discussed the developments with President Obama. But he said Ms. Davis should not defy the Supreme Court.

“Every public official is subject to the rule of law,” Mr. Earnest said. “No one is above the law. That applies to the president of the United States and it applies to the clerk of Rowan County, Kentucky, as well.”

Rand Paul, The Republican presidential candidate, told CNN it was “absurd to put someone in jail for exercising their religious liberties.”

At the hearing, Judge Bunning told Ms. Davis, who is an elected official, that she would be released once she agreed to comply with his order and issue the marriage licenses.

Ms. Davis tearfully testified that she had not hesitated to stand by her religious views and defy the courts. “I didn’t have to think about it,” she said. “There was no choice there.”

At the hearing, Ms. Davis, an Apostolic Christian, was asked how she defined marriage.

“Marriage is between one man and one woman,” she replied, before a lawyer asked her whether she had “the ability to believe marriage is anything else.”

Ms. Davis offered a terse response: “No.”

Later, one of the women who has unsuccessfully sought a marriage license in Rowan County, April Miller, told Judge Bunning that Ms. Davis’s stand “marginalizes us again.”

Judge Bunning left little doubt about his thinking, and said Ms. Davis’s explanation for disobeying his order was “simply insufficient.”

“It’s not physically impossible for her to issue the licenses,” he said. “She’s choosing not to.”

Lawyers for the couples had asked Judge Bunning to fine Ms. Davis and not send her to jail, but the judge said he thought that a fine would not be enough to prompt the clerk’s compliance.

As marshals led her from the courtroom, Ms. Davis said, “Thank you, judge.”

The hearing Thursday was the first since the Supreme Court on Monday turned down Ms. Davis’s appeal of an Aug. 12 ruling by Judge Bunning directing her to issue marriage licenses. The justices’ decision was expected to clear the way for same-sex marriages in Rowan County. But on Tuesday, the clerk and her employees again refused to issue licenses in Morehead, the seat of Rowan County.

Within hours lawyers for the couples who had initially sued Ms. Davis asked Judge Bunning to hold her in contempt.

More from the Louisville Courier-Journal:

ASHLAND, Ky. A federal judge ordered Rowan County Clerk Kim Davis into the custody of federal marshals Thursday until she is ready to resume issuing marriage licenses.

U.S. District Judge David Bunning said fines were not enough to force her to comply with a previous order to provide the paperwork to all couples. Bunning said allowing her to defy the order would create a “ripple effect.”

“Her good-faith belief is simply not a viable defense,” he said. “Oaths mean things.”

Bunning said society relies virtually every day on people complying with court orders and that to allow otherwise would create a slippery slope.

The court “cannot condone willful disobedience,” he said. “If you give people opportunity to choose what orders they follow, that is what potentially causes problems.”

Davis, who was tearful at times, testified that she could not obey the order, and that God’s law trumps the court.

“My conscience will not allow it,” she said. “… God’s moral law convicts me and conflicts with my duties.”

After the ruling was announced, cheers and chants erupted outside the federal courthouse in Ashland, where more than 100 protesters had gathered in advance of the hearing.

The court is expected to reconvene at 1:45 p.m., when Davis’ deputies will tell the judge whether they will comply with the order or risk jail.

Attorneys with the Liberty Counsel, which is representing Davis, argued that she met a legal test for protection under federal law because her convictions created a “factual inability” to issue licenses to same-sex couples.

But attorneys for the couples repeatedly pressed her to admit that her policy is the result of a personal choice.

Bunning agreed, saying Davis’ convictions alone were insufficient to meet the test. He also raised concerns that supporters would pay any fine he levied against Davis, hampering its force.

“I don’t do this lightly,” he said. “It’s necessary in this case.”

Though Davis was tearful as she testified how she came to Christ in 2011 following the death of her mother-in-law, she appeared straight-faced as marshals led her out of the courtroom.

As word of the ruling reached demonstrators, supporters broke into cheers and chants.

“I’m glad the court sent a strong message that you have to follow the law,” said Timothy Love of Kentucky, one of the plaintiffs in the Supreme Court case that legalized gay marriage.

Those supporting Davis decried the decision, with one man falling on the courthouse steps to pray.

“It’s very unjust,” said the Rev. Randy Smith, of Morehead. “Religious liberty has been trampled on today.”

This all began, of course, in the wake of the Supreme Court’s decision in Obergefell v. Hodges when Davis, as well as some other officials around the country, made it clear that she would not issue marriage licenses to same-sex couples because of her religious beliefs. Most likely because she quickly realized, or was advised, that singling out gay and lesbian couples would put her in even greater legal jeopardy than she is now, Davis quickly decided that she would not issue any marriage licenses at all, and ordered her deputies not to do so either. Davis wasn’t alone, of course. Several Republican candidates for President, including ch as Ted Cruz, Mike Huckabee and Bobby Jindal, argued that government officials who objected to same-sex marriage should be able to refrain from issuing licenses to same-sex couples, as did the Attorney General of Texas. Clerks in Alabama and Arkansas, Mississippi, and a Judge in Ohio refused to perform their regular duties in marriages involving same-sex couples. The State of Kansas continues to be involved in a legal battle over its own ban on same-sex marriage notwithstanding the Supreme Court’s decision. Davis’s case, though, quickly became the focus of national attention mostly because most of these holdouts have given in and because her attorneys have turned her case into a political cause. In early July, the ACLU of Kentucky filed a lawsuit against Davis on behalf of gay and straight couples who had been refused marriage licenses, and in early August Judge Bunning, a George W. Bush appointee who is the son of former Kentucky Senator Jim Bunning, ruled against Davis and ordered to begin issuing marriage licenses as required by law. Davis continued to refuse to comply with the law, however, and appealed the matter to the Sixth Circuit Court of Appeals, which rejected her request for a stay of Judge Bunning’s ruling. When she further appealed to the Supreme Court, the Justices in Washington also rejected her request, thus bringing us today.

The penalty that Judge Bunning imposed here is the most serve available to a Court when holding a party in contempt, and generally one that is left for the most egregious situations. The Plaintiff’s in the case had merely requested that the Judge impose a fines against Davis that would accumulate until she complied with his Order, but he said from the bench today that he did not believe fines would be sufficient to compel her action due in no small part to the fact that she was receiving monetary support from outside sources. At this point, there isn’t really much that Davis can do other than comply with the Court’s ruling, which she can do merely by agreeing to allow her deputies to issue licenses if they are willing to do so, but so far she has been unwilling to do that. There are reports late this afternoon that the Judge is going to give her one more chance to purge the contempt by authorizing her deputies to act, but given her intransigence to date it seems unlikely that she will be agreeable to this solution since she has rejected it in the past.

Davis isn’t alone in her crusade. At least two other Clerks of Court in Kentucky, Casey Davis and Kay Schwartz, have also said that they will not issue same-sex marriage licenses. It’s unclear if there are any lawsuits pending against those individuals, but one assumes they will be filed eventually given the fact that there is absolutely no legal merit to the arguments that are being raised by those who say Ms. Davis should be free to ignore the law. As Jonathan Adler noted at The Volokh Conspiracy, Davis’s moral objections to same-sex marriage, even if they are sincerely and deeply held, are not justification for her refusal to comply with the law. Moreover, the argument that some of Davis’s supporters have made that she is being forced to implement a Supreme Court ruling is also without merit since, in reality, she is simply being asked to carry the duties of her job as defined by the laws of her state and the Constitution. Pursuant to Obergefell, that includes providing marriage licenses to same-sex couples who otherwise meet the statutory requirements that all people seeking to get married in Kentucky must meet. If she is unable to do that, then she needs to resign. Instead, she wants to keep her job, which includes a reported salary of $80,000 per year, and still impose her religious beliefs on the taxpayers of Rowan County. That’s why she’s sitting in a jail cell today.

 

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Davebo says:

    Though Davis was tearful as she testified how she came to Christ in 2011 following the death of her mother-in-law

    Which mother-in-law?

    Highly-rated. Helpful or Unhelpful: Thumb up 52 Thumb down 2

  2. Tillman says:

    Rand Paul, The Republican presidential candidate, told CNN it was “absurd to put someone in jail for exercising their religious liberties.”

    It’s not a religious liberty to not do your fwcking job.

    Put more elegantly: the people of the great state of Kentucky have erected a judicial system upon which it is paramount that officers of that judicial system comply with its edicts, otherwise it’s not a system, it’s two assholes yelling at each other over jurisprudence.

    See, this is why Nuremberg is horseshit “victors’ justice.” They decided following orders wasn’t a cogent defense since they couldn’t try any of the leaders who committed suicide. No, there’s a moral grounding those jackasses should’ve recognized in themselves and fought the state over, and now every idiot imagines they’re the next German to turn against the Nazis.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 2

  3. Scott says:

    I would almost have sympathy (I said almost because I really don’t) for her using her religious beliefs to deny the issuance of a marriage license. But to me, this is undermined by several facts:

    – She wouldn’t issue to hetero couples. I don’t know how that is justified.

    – She wouldn’t allow her deputies to issue licenses. This is the bigger problem. By using her supervisory authority over her deputies, then she has used the power of the state to impose her religious beliefs and she lost all credibility of her religious liberty argument.

    I think she needs to read Matt 6:24, ” One cannot serve two masters…. You cannot serve both God and mammon” If she has these SHRBs then she should make the choice.

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  4. KM says:

    The Plaintiff’s in the case had merely requested that the Judge impose a fines against Davis that would accumulate until she complied with his Order, but he said from the bench today that he did not believe fines would be sufficient to compel her action due in no small part to the fact that she was receiving monetary support from outside sources.

    So increase the fines to compensate, exponential if allowable. Garnish her wages and set the schedule for years out – that way, when she’s forgotten and the donations dry up, the bills are still there. Fine her, everyone in her office AND the county. Revoke drivers licences, freeze her bank accounts, federalize the office, have her stand on the street corner with a sign saying “I can’t keep a Biblical marriage after 4 tries but won’t let the gays try for the first time!” Get creative but for god sake don’t give her what she wants!

    She’s not going to change her mind; the woman is too busy trying to pound that last nail home for her self-crucifixion. Do not reward her with the martyrdom she craves.

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  5. T says:

    where’s that guy who would write the OTB fan fiction and why isnt he writing about her.

    Like or Dislike: Thumb up 8 Thumb down 0

  6. Ron Beasley says:

    She will soon discover Hell on Earth – prison. Where are all the lions when we need them?

    Like or Dislike: Thumb up 7 Thumb down 3

  7. KM says:

    @T:

    It’s not me but this Twitter feed might whet your appetite:

    https://twitter.com/nexttokimdavis/status/638937536656642048

    It’s based on the other woman in the picture up top. It’s excellent :)

    Like or Dislike: Thumb up 10 Thumb down 0

  8. Mu says:

    Makes you wonder what Rand Paul’s stand is on the sincerely held believes of ISIS terrorists. And is burning heretics like him at the stake covered under his definition of exercising religious freedom?

    Like or Dislike: Thumb up 12 Thumb down 1

  9. gVOR08 says:

    @Mu: You’re confused, boy. We’re talking about Christian privilege here.

    Like or Dislike: Thumb up 10 Thumb down 0

  10. Mu says:

    Burning heretics at the stake IS good Christian privilege.

    Like or Dislike: Thumb up 5 Thumb down 1

  11. Joe says:

    My Church does not believe that the state confers “marriage” within our religious tradition. Marriage within my Church is reserved to the Church. I am very glad that my Church does not farm out those duties to the state because here in America the state does not accept “religious” duties. People who think they are conferring Christian marriage by their state authority sadly overestimate what their state authority is.

    The problem with Ms. Davis’s SHRB is that she entirely misunderstands the limited, civil nature of her authority. Even her assertion that this aspect of her job is affected by her SHRB is an attempt to foist her religion onto her county office.

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  12. C. Clavin says:

    So the woman with three divorces and two kids out of wedlock isn’t going to be allowed to judge who should and should not be married.
    Good.
    Justice served.
    Next….

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  13. Mikey says:

    “My conscience will not allow it,” she said. “… God’s moral law convicts me and conflicts with my duties.”

    Then do the honorable and proper thing and RESIGN.

    She could then move to a country where God’s law is the basis of the national law, like Saudi Arabia or Iran. She’d be pleased with both, as they simply kill gays outright.

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  14. Scott says:

    Although I agree with the judge and the action taken, I think the rabble (that’s us) should refrain (as I read on some blog) from slut-shaming and hilly-billy shaming. That serves no purpose.

    Like or Dislike: Thumb up 11 Thumb down 2

  15. Tillman says:

    @Mu: *cough* Excuse me, but it’s a Catholic thing. And apparently an Anglican thing. Looks like the Orthodox did it a couple of times too.

    And if you’re referring to burning witches, that was more a European thing. Americans prefer hanging. Let no one think Americans burned witches, but we totally hanged them.

    @Mikey: Didn’t you listen to Mahmoud? There are no gay people in Iran.

    Like or Dislike: Thumb up 2 Thumb down 0

  16. M. Bouffant says:

    @Scott: It’s not “slut-shaming”, it’s hypocrite shaming.

    Like or Dislike: Thumb up 13 Thumb down 0

  17. Gustopher says:

    I wish her all the gravy from the wingnut gravy train that she can slurp down. Every dime she gets for playing martyr is one less dime that could effectively oppose things like goodness and progress.

    Book deals, lecture circuits, anything else she can grab… The sanctimonious and disapproving delight of this horrid, bitter lady is a small price to pay for a small decrease in wingnut effectiveness.

    Like or Dislike: Thumb up 4 Thumb down 0

  18. bill says:

    weird, i just scanned the blog here but there’s no mention that she’s a democrat….even from the louisville paper.

    Like or Dislike: Thumb up 0 Thumb down 10

  19. anjin-san says:

    @bill:

    We don’t give passes to Democrats who are assholes.

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  20. Kylopod says:

    @anjin-san: It wouldn’t at all surprise me if she shows up as a Fox News contributor. There are quite a few “House Democrats” on the network, and I really have no idea what Davis’s political views are beyond her opposition to SSM. Checking Wikipedia, it appears that Rowan County is majority Democrat, but a “Democrat” in Kentucky doesn’t necessarily bear much resemblance to the standard image of a Democrat in the nation as a whole. Remember, this is the state where the “Democratic” candidate for Senate refused to answer whether she voted for Barack Obama.

    Like or Dislike: Thumb up 9 Thumb down 0

  21. MarkedMan says:

    I thought I saw where the judge was willing to let her out as long as she allowed her junior clerks to issue licenses and she refused that, but now I can’t find the link. Any know? Because that certainly shifts this from personal beliefs to using her office to enforce those beliefs on others.

    Like or Dislike: Thumb up 4 Thumb down 0

  22. grumpy realist says:

    If you want to despair about American civics knowledge, go over to TAC and read the comments on Rod’s articles concerning this issue. (Rod himself is being perfectly reasonable, by the way. He knows that you can’t allow everyone to just interpret laws as they feel like it.)

    I really want to take a chunk of the US that doesn’t have much population (say, Kansas), dump all the Rushdooney types into it, set up a whole bunch of video camera, and wall off the whole place. Then we could all watch while the idiiots war over which version of “Gawd’s laws” gets set up to rule.

    I also want to see these idiots go up to get their driver’s licenses renewed at the DMV and get slapped down by someone who shakes his head and says he can’t do that because his religion forbids him from issuing driver’s licenses to [fill in blank] and religious freedom, doncha know, and too bad you have to drive five hours to the next DMV. Maybe then they would get an effing clue.

    Like or Dislike: Thumb up 9 Thumb down 0

  23. Paul L. says:

    Does the same standard apply to the State AGs in PA and CA, who would not do their jobs and defend their states Defense of marriage laws.

    Like or Dislike: Thumb up 0 Thumb down 8

  24. James Pearce says:

    @Paul L.:

    Does the same standard apply to the State AGs in PA and CA, who would not do their jobs and defend their states Defense of marriage laws.

    Did the State AGs in PA and CA have a court order compelling them to do so?

    No?

    Okay then.

    Like or Dislike: Thumb up 8 Thumb down 0

  25. MarkedMan says:

    Yep, I found the quote in the NYTimes

    The clerk, Kim Davis of Rowan County, Ky., was ordered detained for contempt of court and later rejected a proposal to allow her deputies to process same-sex marriage licenses that could have prompted her release.

    So this isn’t really about her personal beliefs preventing her from issuing the license. Instead she feels that she should be allowed to use the power of her office to enforce her personal beliefs on others. Can’t say I’m surprised. Fundamentalists, whether Islamic, Hindi, Christian, are usually about telling others how to live their lives.

    Like or Dislike: Thumb up 8 Thumb down 0

  26. al-Ameda says:

    @Paul L.:

    Does the same standard apply to the State AGs in PA and CA, who would not do their jobs and defend their states Defense of marriage laws.

    Welcome to the Christian can of worms world.
    Would a Christian county clerk be justified in refusing to issue a marriage license to a person he or she knows to be an adulterer?

    Like or Dislike: Thumb up 4 Thumb down 0

  27. DrDaveT says:

    @grumpy realist:

    I also want to see these idiots go up to get their driver’s licenses renewed at the DMV and get slapped down by someone who shakes his head and says he can’t do that because his religion forbids him from issuing driver’s licenses to [fill in blank] and religious freedom, doncha know, and too bad you have to drive five hours to the next DMV.

    Exactly.

    I consider it an egregious failure of media competence that none of Ms. Davis’s supporters who have been intereviewed on-camera have been asked the follow-on question that begins “So you would be OK with it if you went to the DMV and…”

    Like or Dislike: Thumb up 7 Thumb down 0

  28. Kylopod says:

    @DrDaveT: @grumpy realist: The fact is that the right is definitely not consistent about this matter. In 2009, Bobby Jindal made a statement against a justice of the peace who refused to issue a license to an interracial couple.

    http://www.rightwingwatch.org/content/bobby-jindals-amazing-hypocrisy-kentucky-clerk-case

    I actually remember this case when it was in the news. The man’s remark that he was not a racist because he let black people come into his home and use his bathroom became a running joke in the commenting section to Ta-Nehisi Coates’ blog where I used to hang out. From that point on, whenever there was a story about a bigot who doesn’t recognize he’s a bigot, we would say sarcastically “He lets them use his bathroom.”

    Like or Dislike: Thumb up 5 Thumb down 0

  29. slimslowslider says:

    @grumpy realist:

    I always enjoy your comments over at the Dreheradise. And yeah, the comments from a lot of the regulars are amazing. And I still have no idea what EliteCommInc is talking about. Ever.

    Like or Dislike: Thumb up 2 Thumb down 0

  30. Just 'nutha ig'rant cracker says:

    @al-Ameda: More importantly, doesn’t such a clerk have an obligation to their immortal soul to check the records to the degree possible to insure that the clerk is not guilty of “sinning by omission?”

    Like or Dislike: Thumb up 0 Thumb down 0

  31. bill says:

    @anjin-san: there’s a difference? but really, no mention in any msm reports about this- that has to cut into the heart a bit huh?! she did have to run against a republican to win her slot, yet the msm avoids this issue like it never happened. your party has to have some sort of class doesn’t it? granted its roots are still fascist, despite the purported image change.

    Like or Dislike: Thumb up 0 Thumb down 5

  32. Barry says:

    @slimslowslider: “And I still have no idea what EliteCommInc is talking about. Ever.”

    There are a number of people there whose grandparents left reality, and they’ve been migrating further away ever since.

    Like or Dislike: Thumb up 2 Thumb down 0

  33. slimslowslider says:

    @Barry:

    I am starting to have way too many favorites over there. The amount of perceived persecution is through the roof with some of ’em. Moral Kombat!

    Like or Dislike: Thumb up 1 Thumb down 0

  34. Pamela Kelley Leitzell says:

    She misses the major, most important point, she should ask herself what would Jesus do ? He is about love and inclusion ! Live God like. The God that is in us. Love and inclusion !

    Like or Dislike: Thumb up 0 Thumb down 0