Kentucky Clerk Loses Another Argument Over Refusal To Issue Same-Sex Marriage Licenses
In the latest development in a saga that has been going on since the Supreme Court handed down it’s decision in Obergegell v. Hodges legalizing same-sex marriage two months ago, a Clerk of Court from Kentucky has lost yet another round in her ongoing court battle to continue refusing to issue marriage licenses to same-sex couples:
WASHINGTON — The Supreme Court on Monday refused to allow a county clerk in Kentucky who objects to same-sex marriage on religious grounds to continue to deny marriage licenses to all couples, gay or straight.
In June, in Obergefell v. Hodges, the Supreme Court established a nationwide constitutional right to same-sex marriage. The new case from Kentucky, Davis v. Miller, was the court’s first opportunity to consider whether government officials may refuse to comply with the Obergefell decision on religious grounds.
The case concerns Kim Davis, an elected clerk in rural Rowan County, Ky. After the state’s governor told county clerks to issue marriage licenses to all eligible couples, a federal court rejected Ms. Davis’s argument that she should be excused from the obligation given her religious beliefs.
Ms. Davis’s lawyers filed an emergency application on Friday with Justice Elena Kagan, the member of the Supreme Court who supervises cases arising from the judicial circuit that includes Kentucky. She referred the matter to the full court.
“This is a matter of first impression,” Ms. Davis’s application said, “with far-reaching implications across the country for religious liberty.”
Ms. Davis told the Supreme Court that her Apostolic Christian faith forbade her to affix her name to a document endorsing the view that the marriages of gay men and lesbians were authentic. “This searing act of validation would forever echo in her conscience,” her lawyers told the court.
Ms. Davis should not have to choose between her sincerely held religious beliefs and her livelihood, her lawyers said, particularly when same-sex couples can obtain licenses in other counties. “More than 10 other clerks’ offices are within a one-hour drive of the Rowan County office,” Ms. Davis’s lawyers wrote.
In August, Judge David L. Bunning of Federal District Court in Ashland, Ky., temporarily barred Ms. Davis from “applying her ‘no marriage licenses’ policy to future marriage license requests” submitted by four couples, two same-sex and two opposite-sex, who had sued Ms. Davis.
Judge Bunning issued a stay that was set to expire on Monday. On Wednesday, a unanimous three-judge panel of the United States Court of Appeals for the Sixth Circuit refused to extend the stay for an appeal.
“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 panel said. “There is thus little or no likelihood that the clerk in her official capacity will prevail on appeal.”
While the marriage equality debate has largely died off with the Supreme Court’s decision in June, Davis has been at the center of the small pockets of resistance to the Court’s ruling that continue to persist, largely in the south but also in isolated places elsewhere in the country. Prior to the Court even handing down its ruling, North Carolina’s legislature passed over the Republican Governor’s veto a law that would allow clerks in that state to exempt themselves from having to issue licenses to same-sex couples if they had a religious exemption. After the Court’s decision came down, several Republican candidates for President, such as Ted Cruz, Mike Huckabee and Bobby Jindal, argued that government officials who objected to same-sex marriage should have similar rights, and the Attorney General of Texas told Clerks that they should feel free to ignore the Supreme Court if they had religious objections to same-sex marriage. While most states and most government employees complied with the law,many did not and the summer saw clerks in Alabama and Arkansas, in Mississippi, and even a Judge in Ohio refuse to perform their regular duties in marriages involving same-sex couples and 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.
In Kentucky, meanwhile, Davis quickly became the center of a political and legal storm as she refused to issue same-sex licenses from the moment the Supreme Court’s decision was handed down. Both the Governor and the Attorney General had made it clear to state officials in the wake of the decision that they were now required to comply with the law and recognize the marriages of same-sex couples, but Davis refused to do so and even instructed her deputies to refuse to issue licenses to same-sex couples. As a result, it wasn’t surprising that, just over a week after the Court’s decision was handed down, Davis was being sued by at least one of the couples that she had denied a license to after the Court’s ruling. As I noted at the time, it Davis clearly had no legal leg to stand on. Her argument that performing the duties of the position that she was elected to would violate her religious beliefs was obviously utter nonsense. First of all, her job merely requires her to issue a license, not to perform a wedding ceremony of any kind, so her task is merely ministerial in function and it’s simply absurd to say that signing a piece of paper is somehow a violation of her religious beliefs. In theory, there might be some government positions that would impose a job requirement that would infringe on someone’s First Amendment rights, such as requiring an Orthodox Jew to work on Saturday or punishing a Catholic for wearing a cross necklace, but this is not one of them. Secondly, as a government employee Davis simply doesn’t get the same rights to refuse to ‘do business’ with people that a private businessperson might have. She is required to treat everyone who comes into her office equally, and she is failing to do so.
Given the fact that her arguments entirely lacked legal merit, it’s not surprising that the Federal District Court Judge hearing the matter ruled against her and ordered her to immediately begin issue licenses to all eligible couples regardless of the gender of the people involved. Despite that ruling, though, Davis has continued to refuse to issue marriage licenses and has sought to continue her seemingly hopeless legal battle. Last week, after the presiding Judge briefly stayed her ruling to allow Davis to appeal his decision and seek a stay from the appellate court, the Sixth Circuit Court of Appeals denied her request for stay. That left the Supreme Court as Davis’s final legal option to prevent the ruling from going into effect, and of course now that avenue is closed for her.
At this point, it is unclear what Davis will do in response to the Court’s ruling. If she continues to refuse to issue licenses, then she will be in violation of the District Court’s Order and risks being held in civil or criminal contempt, which could end up with her being sentenced to jail for defiance of the Court’s ruling. In addition to those legal issues, there are also reports that the matter has been referred to the Attorney General of Kentucky for possible disciplinary action against Davis. Since the Clerk of Court is an elected position in Kentucky as it is in many other states, Davis cannot simply be fired, but she can be removed from office for a variety of reasons, including refusal to perform her job or violating the law. While Attorney General Jack Conway has largely remained on the sidelines throughout this long summer fight, he would not be able to do so if this matter continues. Of course, Davis could decide to comply with the Court’s order but that seems unlikely. She seems determined to become some kind of a martyr here, so that will require her to remain defiant no matter how illogical that defiance many be.
Update: The Associated Press is reporting that the Rowan County Clerk’s Office is continuing to refuse to issue licenses to same-sex couples:
BREAKING: Kentucky clerk’s office denies marriage license to gay couple despite US Supreme Court ruling.
— The Associated Press (@AP) September 1, 2015
And, apparently she thinks the can appeal to a higher authority than the Supreme Court:
MOREHEAD, Ky. (AP) – Kentucky clerk: Office is denying marriage licenses to gay couples ‘under God’s authority’ — Zeke Miller (@ZekeJMiller) September 1, 2015
More from The New York Times:
A county clerk in Kentucky who objects to same-sex marriage on religious grounds denied licenses to gay couples on Tuesday, despite the Supreme Court refusal to support her position.
The clerk of Rowan County, Ky., Kim Davis, stopped issuing all marriage licenses the day the Supreme Court legalized same-sex marriage in June. After the state’s governor told county clerks to issue marriage licenses to all eligible couples, a federal court rejected Ms. Davis’s argument that she should be excused from the obligation given her religious beliefs.
Ms. Davis’s lawyers filed an emergency application on Friday with Justice Elena Kagan, the member of the Supreme Court who supervises cases arising from the judicial circuit that includes Kentucky. The Supreme Court on Monday declined to intervene in the case, leaving Ms. Davis no legal grounds to refuse to grant licenses to same-sex couples.
But on Tuesday, according to news reports, Ms. Davis again refused to issues marriage licenses to same-sex couples.
Two couples were denied licenses after the office opened, according to The Associated Press, which reported that a deputy clerk told April Miller and Karen Roberts, who came to the office followed by dozens of television cameras, that no licenses would be issued and refused to make Ms. Davis available.
A second couple, David Moore and David Ermold, rejected for a fourth time, demanded to speak with Ms. Davis. “Tell her to come out and face the people she’s discriminating against,” Mr. Ernold shouted, The A.P. reported.
At first, Ms. Davis remained in her office with the door closed and blinds drawn, but she emerged a few minutes later, saying that her office would continue to deny the licenses “under God’s authority,” according to media reports.
Ms. Davis asked Mr. Moore and Mr. Ermold to leave, but they refused to do so.
“We’re not leaving until we have a license,” Mr. Ermold said, according to media reports.
“Then you’re going to have a long day,” Ms. Davis told him.
The next step will be for someone to return to the District Court and ask the Judge to take action based on her refusal to comply with his order.
Update #2: Davis has been summoned to Federal Court on Thursday:
A county clerk in Kentucky who has invoked “God’s authority” and is defying the U.S. Supreme Court by refusing to license same-sex marriage has been summoned along with her entire staff to explain to a federal judge why she should not face stiff fines or jail time.
U.S. District Judge David Bunning moved swiftly Tuesday after a lesbian couple asked him to find Rowan County Clerk Kim Davis in contempt. Davis told several couples and a crowd of supporters and protesters that her religious beliefs prevent her from sanctioning gay marriage, and then retreated again, closing her office door and blinds to the raucous scene outside.
The U.S. Supreme Court declined to intervene Monday night, leaving Davis no legal ground for her continued refusal Tuesday morning. Lawyers for the two gay couples who originally sued her asked the judge Tuesday to find her in contempt, but punish her with only financial penalties, not jail time.
“Since Defendant Davis continues to collect compensation from the Commonwealth for duties she fails to perform,” they asked Bunning to “impose financial penalties sufficiently serious and increasingly onerous” to compel her immediate compliance without delay.
As an elected official, Davis can’t be fired; her impeachment would have to wait until the Legislature’s regular session next year or a costly special session.
Davis rejected David Moore and David Ermold’s license request for a fourth time, and then told them to leave.
“We’re not leaving until we have a license,” Ermold said as reporters and cameras surrounded them.
“Then you’re going to have a long day,” Davis told him, and then retreated into her inner office.
From the back of the room, Davis’ supporters said: “Praise the Lord! … Stand your ground.”
Other activists shouted that Davis is a bigot and told her: “Do your job.”
The sheriff then moved everyone out to the courthouse lawn, where James Yates and Will Smith Jr., who were denied a license for a fifth time, left red-eyed and shaking.
“It’s just too hard right now,” Yates said, choking back tears and holding hands as they rushed to their car.
Thursday should be an interesting day. Meanwhile, here’s video of today’s events in the Clerk’s Office: