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Kim Davis Basically Surrenders In Same-Sex Marriage Fight

Kimberly Davis

Rowan County, Kentucky Clerk Kim Davis has returned to work, and she’s saying that she will not interfere with Deputy Clerk’s that issue marriage licenses, but questioned validity of those licenses:

MOREHEAD, Ky. — Kim Davis, the Rowan County clerk who was jailed this month for defying a court order that she issue marriage licenses, said Monday that she would not block her employees from processing licenses for same-sex couples.

But she warned that the licenses would be issued without her authorization — she said they would note that they had been processed pursuant to a court order — and she raised questions about whether they would be legal. Ms. Davis, an Apostolic Christian, has objected to processing marriage licenses for same-sex couples because of her religious beliefs.

“Effective immediately, and until an accommodation is provided by those with the authority to provide it, any marriage license issued by my office will not be issued or authorized by me,” Ms. Davis said on Monday, her first day at work since her Sept. 8 release from the Carter County Detention Center. “I want the whole world to know.”

It was not immediately clear how Judge David L. Bunning of the Federal District Court would respond to Ms. Davis’s announcement, which she made outside the courthouse minutes before her office opened. Last week, when Judge Bunning allowed Ms. Davis to go free, he wrote that she should not “interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.”

One of her deputies, Brian Mason, said Monday that he would continue to issue marriage licenses. But Ms. Davis, who sometimes appeared tearful when she spoke, said that while she would not block employees like Mr. Mason from processing licenses, “any unauthorized license that they issue will not have my name, my title or my authority on it.”

Ms. Davis, a Democrat who was elected last year, said she harbored “great doubts” as to whether licenses provided “under these conditions” would be recognized under Kentucky law. She urged Gov. Steven L. Beshear and state legislators to support changes to the state’s statutes that she said would balance her religious beliefs with this summer’s Supreme Court ruling that the Constitution guarantees a right to same-sex marriage.

Mr. Beshear, also a Democrat, has so far refused to convene a special session, but Democrats and Republicans alike are pressing him to do so. If he does not, any legislative fixes will have to wait until at least next year.

The American Civil Liberties Union, which represents couples who sued Ms. Davis, expressed reservations about the clerk’s announcement on Monday.

“Ms. Davis has the absolute right to believe whatever she wants about God, faith and religion — that is her constitutionally protected right,” Amber Duke, a spokeswoman for the group’s Kentucky chapter, said in an email. “But as a government official who swore an oath to uphold the law, she cannot pick and choose who she is going to serve, or which duties her office will perform based on her religious beliefs.”

Ms. Duke noted that some state and local officials, including the Rowan County attorney, have said that the deputy clerks are permitted to issue licenses.

If Davis is sincere in what she is saying here, then it would appear that we’ve reached the end of this standoff, at least as it concerns her non-compliance with Judge Bunning’s order of August 12th and the rulings that have come out since then. In his most recent order releasing her from custody last week, Bunning ruled that Davis must not interfere with the issuance of licenses by the deputies in her office who are willing to do so, and that doing so would subject her to the potential of once again being held in contempt of court. Based on that, and assuming Davis is genuine in what she’s saying her, then she will likely avoid contempt under that order. Her arguments about the validity of the licenses issued by the deputies themselves is another matter. Kentucky law does appear to require that marriage licenses be issued in the name of the Clerk of Court, but there are also provisions that allow the licenses to be issued by others if the Clerk is unable or unwilling to do so. Additionally, both the County Attorney for Rowan County and the Attorney General of Kentucky have opined that the licenses issued by the Clerk’s are valid as issued. Finally, even if there is some question about the validity of the licenses that the deputies have issued, these questions could easily be resolved by either a judicial decree ruling that the licenses are valid, or by legislation. For that reason, I would tend to dismiss the claims that Davis is making here as little more than an effort on her part to make it appear to her supporters that she has in fact not given up, even though that’s exactly what she has done.

What essentially amounts to a surrender on Davis’s part isn’t the end of this matter, of course. The underlying case that brought Davis to Court to begin with is still under appeal to the Sixth Circuit Court of Appeals, for example. While it seems highly unlikely that she will fare any better than they she did in her efforts to stay the impact of Judge Bunning’s ruling, it’s apparent that both she and her lawyers will continue to pursue whatever legal avenues they can for as long as they can. Additionally, it’s worth noting that there are two other counties in Kentucky whose Clerks are also refusing to issue same-sex marriage licenses. The actual status of the situation in either of those counties is unclear, but it seems obvious that if their resistance continues we will see lawsuits arising in those cases as well. Additionally, there are apparently still isolated pockets of resistance to the Court’s ruling in states such as Alabama, Mississippi, and Kansas. How long it will take to resolve these matters is unclear, but it’s likely that there will be another Kim Davis out there before long.

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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. Scott says:

    Yes, it appears Davis is using some face-saving words like she hasn’t authorized the licenses, etc. But, in essence, her words are irrelevant. Hopefully, she will fall back into obscurity.

    Meanwhile, here in Texas, the state estimated some 2500 same sex licenses have been issued.

    http://www.mysanantonio.com/news/texas/article/About-2-500-same-sex-marriage-licenses-issued-in-6501912.php

    Like or Dislike: Thumb up 9 Thumb down 0

  2. James Pearce says:

    an effort o her part to make it appear to her supporters that she has in fact given up, even though that’s exactly what she has done.

    Though the surrender is not unconditional, we should accept it. Here’s why: Whatever accommodations are granted to religious conservatives, the ability to deprive gay people of marriage licenses will not be one of them.

    So take her name off the license. If that makes her happy (and it won’t, not really) then give her that small victory. I totally support people of strong religious conscience recusing themselves from bureaucratic functions. Better that than trying to leave their stamp.

    Like or Dislike: Thumb up 11 Thumb down 1

  3. Nikki says:

    Raw Story is reporting that at least one Kentucky lawmaker is questioning whether the state’s elected clerks and jailers are even worth the money, since non-elected officials can easily take over their duties. The article says some jailers don’t even have jails in their counties, but are still paid 40K a year.

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 0

  4. NW-Steve says:

    I’m not convinced she has surrendered. It wouldn’t amaze me to see some kind of idiotic legal action from her and her so-called lawyers, with the purpose of invalidating the licenses that have already been issued by the deputy clerks.

    Like or Dislike: Thumb up 8 Thumb down 1

  5. Franklin says:

    Are only the permits issued to same-sex couples going to be marked with the court order statement? That’s interference right there.

    Like or Dislike: Thumb up 7 Thumb down 0

  6. Ron Beasley says:

    It’s absurd that she is getting 80K a year for not obeying the law and doing her job. She should go back to the trailer park where she belongs.

    Hot debate. What do you think? Thumb up 17 Thumb down 7

  7. C. Clavin says:

    @Ron Beasley:
    I don’t think there is any reason to be insulting people who live in trailer parks.

    Highly-rated. Helpful or Unhelpful: Thumb up 27 Thumb down 3

  8. ernieyeball says:

    “.., any marriage license issued by my office will not be issued or authorized by me,” Slim Kim*

    As Rowan County Clerk, she is her office isn’t she? Therefore no matter what she says those marriage licenses are issued or authorized by her unless she resigns.

    *This is a reference to her understanding of the United States Constution.

    Like or Dislike: Thumb up 2 Thumb down 1

  9. jpe77 says:

    I disagree w/ that assessment. From the start, she’s asked for a procedure by which she wouldn’t have to put her name or office on the “authorized by” line (as required by KY statute). By directing her deputies to write “authorized by federal court order” in lieu of “authorized by Kim Davis” or “authorized by Rowan County clerk,” she’s engaging in a self-help reasonable accommodation.

    IOW, what she’s doing now is what she wanted all along.

    Like or Dislike: Thumb up 1 Thumb down 5

  10. ernieyeball says:

    @jpe77:.. From the start, she’s asked for a procedure by which she wouldn’t have to put her name or office on the “authorized by” line (as required by KY statute).

    As I noted above that procedure has always been available to her.
    She can resign.

    Highly-rated. Helpful or Unhelpful: Thumb up 15 Thumb down 0

  11. C. Clavin says:

    I’d like to know how anyone as ignorant and stupid and as bigoted as Davis makes twice the median income in her state and 2-1/2 times the average income in her county?

    Like or Dislike: Thumb up 14 Thumb down 2

  12. Just 'nutha ig'rant cracker says:

    @Nikki: A tangible suggestion on reducing the size and scope of government. How far will the Kentucky GOP (or anyone else) run with it?

    Like or Dislike: Thumb up 4 Thumb down 0

  13. jpe says:

    @ernieyeball:

    That’s true and also uninteresting. The question at bar is whether her decision to change the procedures for marriage licenses will be ratified after-the-fact by the legislature, governor or state court pursuant to RFRA.

    Like or Dislike: Thumb up 0 Thumb down 2

  14. C. Clavin says:

    @jpe77:
    She is still collecting a salary for services not rendered.
    In other words she is a fraud…as most religious zealots are.

    Like or Dislike: Thumb up 15 Thumb down 2

  15. ernieyeball says:

    @C. Clavin:..I’d like to know how anyone as ignorant and stupid and as bigoted as Davis makes twice the median income in her state and 2-1/2 times the average income in her county?

    This question can only be answered by the voters of Rowan County, Kentucky.

    Like or Dislike: Thumb up 6 Thumb down 0

  16. Tillman says:

    Sincerely held religious beliefs! Not worth possibly sinking ~$80k a year with excellent benefits.

    Gay marriage isn’t quite the moral abomination that gladiatorial combat to appease poor people from revolting against a cruel authoritarian state was for the early Christians. The first difference between them is gay marriage isn’t a moral abomination, the second difference is only one of them kills people. I guess in that light, it’s not worth giving up a comfy job for.

    Like or Dislike: Thumb up 9 Thumb down 1

  17. ernieyeball says:

    @jpe:..Whooo R U? jpe or jpe77?

    Her religious freedom does not need 2 B restored. She has had it all along.

    …her decision to change the procedures for marriage licenses.

    So if the Rowan County, Kentucky Clerk can arbitrarily change the procedures pertaining to marriage licences can the holder of that office also “purge voter rolls” on a whim and claim it is a function of religious freedom?

    As county clerk I am responsible for providing many services to the people of Rowan county. These duties include general categories of clerical duties of the fiscal court: issuing and registering, recording and keeping various legal records, registering and purging voter rolls, and conducting election duties and tax duties.
    “Slim” Kim Davis

    http://rowancountyclerk.com

    Like or Dislike: Thumb up 4 Thumb down 1

  18. Just 'nutha ig'rant cracker says:

    @C. Clavin: Because you can’t get top quality civil servants for McDonald’s counter service money? At least, that’s how the GOP in my state explained the need for higher salaries in government.

    Like or Dislike: Thumb up 2 Thumb down 1

  19. KM says:

    @jpe77:

    By directing her deputies to write “authorized by federal court order” in lieu of “authorized by Kim Davis” or “authorized by Rowan County clerk,” she’s engaging in a self-help reasonable accommodation.

    I disagree. If that was her personal signing action, then whatever (not gonna happen since she’s not issuing anything herself). However, she cannot tell others how to sign. If one of the deputy clerk’s were to put “authorized by Rowan County clerk”, it would still be accurate, legal and none of her concern because the authorization comes from the auspices of the office, not a single person. She even acknowledges this with the snide “court order” and not “Judge Bunning” – the authority here isn’t the judge, but the Court and what the Court says, goes. Therefore, the Clerk’s Office is the issuing party and the deputy clerks can put whatever they please on the dotted line if Miss Kimmy doesn’t want her name there.

    They have rights, too. It’s their choice to sign according to their conscious and sense of law… or is that privilege only for the boss?

    Like or Dislike: Thumb up 13 Thumb down 1

  20. jpe says:

    @KM: It has to be authorized by the clerk, not the office of the clerk. When the statutes want to refer to the office, they are clear in doing so. See, eg, KRS 62.210, distinguishing the “office of the clerk” from the clerk.

    Novel argument, but it’s hard to see it prevailing.

    Like or Dislike: Thumb up 0 Thumb down 2

  21. ernieyeball says:

    @jpe:..When the statutes want to refer to the office, they are clear in doing so. See, eg, KRS 62.210, distinguishing the “office of the clerk” from the clerk.

    So which of the Kentucky Revised Statutes distinguishes “jpe77” from “jpe”?

    Like or Dislike: Thumb up 0 Thumb down 2

  22. al-Ameda says:

    @jpe:

    That’s true and also uninteresting. The question at bar is whether her decision to change the procedures for marriage licenses will be ratified after-the-fact by the legislature, governor or state court pursuant to RFRA.

    Why should she have the ability to ‘establish her religious beliefs as the basis for conducting government business?

    The First Amendment provides that the government shall not establish a religion. Presumably Ms. Davis, as an elected government official, cannot use her position to interpret laws so as to be consonant with, and conforming to, her religious beliefs.

    Like or Dislike: Thumb up 11 Thumb down 1

  23. DrDaveT says:

    @jpe77:

    By directing her deputies to write “authorized by federal court order” in lieu of “authorized by Kim Davis” or “authorized by Rowan County clerk,” she’s engaging in a self-help reasonable accommodation.

    I agree that this is the net effect. On the other hand,

    IOW, what she’s doing now is what she wanted all along.

    I disagree with this. What she wanted all along was to block gay marriages while keeping her job. She has now settled for keeping her job while making sure the whole world knows that if it were up to her she would block gay marriages, and implying that there might be something fishy about the licenses her office is issuing that don’t have her name on them.

    Like or Dislike: Thumb up 14 Thumb down 0

  24. anjin-san says:

    @DrDaveT:

    implying that there might be something fishy about the licenses her office is issuing that don’t have her name on them.

    And is this a violation of the terms of her release?

    Like or Dislike: Thumb up 6 Thumb down 1

  25. ernieyeball says:

    @al-Ameda:..Presumably Ms. Davis, as an elected government official, cannot use her position to interpret laws so as to be consonant with, and conforming to, her religious beliefs.

    This would be “legislation by County Clerk”.
    Maybe “jpe” or “jpe77” (whoever they are) can cite a clause in the USCon or the Constitution of the Commonwealth of Kentucky that would permit this.

    Like or Dislike: Thumb up 4 Thumb down 1

  26. Jpe77 says:

    What she wanted all along was to block gay marriages while keeping her job.

    Nah. If you read her first letter to the governor prior to all this (it was appended to her complaint), this is exactly what she asks for.

    Like or Dislike: Thumb up 0 Thumb down 8

  27. C. Clavin says:

    @Just ‘nutha ig’rant cracker:
    Perhaps…but she seems better qualified for MacDonalds counter service than civil service that shes unwilling to provide.

    Like or Dislike: Thumb up 1 Thumb down 1

  28. Tyrell says:

    @Ron Beasley: $80,000 and lives in a trailer ? Something wrong there somewhere.

    Like or Dislike: Thumb up 0 Thumb down 0

  29. Grewgills says:

    @Tyrell:
    Maybe it’s a really nice trailer.

    How’s a Kentucky divorce like a tornado?
    .
    .
    .
    .
    .
    .
    Somebody’s gonna lose a trailer.

    Like or Dislike: Thumb up 4 Thumb down 0

  30. ernieyeball says:

    @Tyrell:..Go West Ty.

    Here’s where the County Clerk of Los Angeles County lives on the weekends.
    The list price of $84,500 does not include $887/mo lot rental. One can only hope it includes trash pick up.
    http://www.mhbay.com/mobile-homes/568712-super-clear-2-bedroom-2-bath-for-sale-in-compton-ca

    Like or Dislike: Thumb up 0 Thumb down 0

  31. Just 'nutha ig'rant cracker says:

    @C. Clavin: Won’t argue that with you. In fairness also, I have to note that in my state, the argument I made was given while I was still young, and the GOPers in control at the time ran out of raise money just as the doubled the salaries of the state representatives. Functionaries’ raises were postponed until the next legislative session where those in power discovered that they had spend so much raising the Guv’s and legislature’s salaries that there was no money available for any more raises.

    I stopped voting for Republicans after that.

    Like or Dislike: Thumb up 1 Thumb down 0

  32. Just 'nutha ig'rant cracker says:

    @Just ‘nutha ig’rant cracker: The most ironic thing about it was that we had elected a former Weyerhauser executive (CEO if I recall correctly) who ran on running the state like a business and being so rich that he wouldn’t be affected by the blandishments of lobbyists.

    He didn’t turn down his salary increase, however. He said that it was because if he didn’t take it, the next guv wouldn’t be able to have it either. (Heh, heh, heh.)

    Like or Dislike: Thumb up 1 Thumb down 0

  33. James Pearce says:

    @jpe77:

    IOW, what she’s doing now is what she wanted all along.

    Is it though? She went to jail so that gay marriages can proceed in her county, only without her signature?

    @Jpe77:

    If you read her first letter to the governor prior to all this (it was appended to her complaint), this is exactly what she asks for.

    This is after the SC turned her away and she spent 5 days in jail.

    So this isn’t a “this is what she always wanted” situation so much as it is a “this is what she will accept in defeat” situation.

    Like or Dislike: Thumb up 9 Thumb down 0

  34. michael reynolds says:

    Yeah, jail’s a bitch, even when you think you’re a martyr.

    Like or Dislike: Thumb up 4 Thumb down 0

  35. bill says:

    @michael reynolds: in “morehead” no less……

    Like or Dislike: Thumb up 0 Thumb down 0

  36. Lynn says:

    There are reports that the licenses issued to gay couples are different than those issued to straight couples in that they have have been altered to read “pursuant to federal order.” There are, according to some, continued questions about their validity.

    The forms have been forwarded to the ACLU.

    Like or Dislike: Thumb up 3 Thumb down 0

  37. Lynn says:

    And the ACLU has expressed concern.

    Like or Dislike: Thumb up 1 Thumb down 0

  38. Scott O says:

    Apparently a cushy job trumps eternity in hell.

    Like or Dislike: Thumb up 1 Thumb down 0

  39. J-Dub says:

    @Scott O:

    Apparently a cushy job trumps eternity in hell.

    So it comes down to reality vs fantasy and once again “faith” is exposed as nothing but “hope” and not many people are willing to wager this life on mere hope.

    Like or Dislike: Thumb up 3 Thumb down 0

  40. C. Clavin says:

    @Just ‘nutha ig’rant cracker:
    To be clear…I’m not against her salary…just that someone this stupid and ignorant doesn’t deserve it.

    Like or Dislike: Thumb up 1 Thumb down 1

  41. DrDaveT says:

    Nobody seems to be talking about the fact that putting her name on the marriage licenses of homosexuals is not, in fact, forbidden by her religion.

    There are lots of religions, and lots of variants of each one. Some of them include proscribed or required behaviors:
    * Jews and Muslims are forbidden to eat pork and other foods
    * Muslims and Mormons are forbidden to drink alcohol
    * Mormons are forbidden to use caffeine or other stimulants
    * Hindus of certain castes are forbidden to kill certain animals
    * Some sects of Judaism forbid shaving the forelock, uncovering the head in public, etc.
    * Sikh men must not cut their hair, and must wear turbans
    * Muslims must pray certain prayers at certain times each day
    * Catholics must attend Mass every week and every holy day
    * Catholics must confess their sins to a priest at least once a year
    * Etc.

    Even those sects of Christianity that carry over (some of) the Old Testament law do not have any requirements or restrictions relating to other people’s behavior. (Well, unless you count the requirement to kill witches and homosexuals, which doesn’t seem to be practiced these days.) Any aversion Ms. Davis has to putting her name on certain documents is purely a personal foible — it is not required by any doctrine, tradition, or scripture of her professed religion.

    Like or Dislike: Thumb up 4 Thumb down 0

  42. Barry says:

    @C. Clavin: “I’d like to know how anyone as ignorant and stupid and as bigoted as Davis makes twice the median income in her state and 2-1/2 times the average income in her county?”

    The same way that her mother held the job for almost thirty years, passed it on, and she hired her own son – corruption.

    Like or Dislike: Thumb up 6 Thumb down 0