Celebrations ensued Friday in Morehead, Ky., as gay couples who had waited 10 weeks for their marriage licenses finally received them. But sitting in jail half an hour away, Kim Davis, the Rowan County, Ky., clerk who had stood in their way, claimed their licenses are void without her signature.
Davis’s continued defiance of the Supreme Court’s ruling in June that made same-sex marriage legal in all 50 states was not surprising, since she has made clear she believes her Apostolic Christian faith puts “God’s authority” over any edict of the US Supreme Court, which interprets the US Constitution. And Davis has been adamant that, unless Kentucky changes the law, she has the right, as elected head clerk, to usurp the Supreme Court to make sure no such licenses are issued from her bailiwick.
After continuing to refuse court orders, Federal Judge David Bunning on Thursday jailed Kim Davis for contempt and ordered her deputies to issue the licenses. They began to do so on Friday.
To be sure, the Supreme Court's decision in favor of same-sex marriage in the the Obergefell v. Hodges case invalidated Kentucky’s gay marriage ban. But the Kentucky legislature hasn’t actually replaced the voided language, throwing Davis, her lawyers argue, into a gray zone.
“We do not have a statutory definition of marriage,” Ky. state Senate President Robert Stivers said this week. Until the legislature codifies the Supreme Court’s edict, Kentucky’s current laws operate under “a total lack of guidance, or potentially maybe disarray," he added.
“It’s bigger than this clerk’s issue,” Kentucky House Speaker Greg Stumbo told reporters.
It’s that gray zone that Davis has exploited since she decided after the Obergefell decision to stop issuing any licenses whatsoever. Her main point has been to say that the First Amendment’s freedom of religion protections applies equally to public officials as citizens.
But her strongest legal point is that the paperwork confusion caused by Obergefell has caused her to have to follow rules that don’t currently exist. The marriage form, for example, asks licensees for information about the “female” partner.
To be sure, the Supreme Court has in the past ruled that government officials have to put duty above personal beliefs and faith. In a 2002 law review article, Justice Antonin Scalia, writing about judges faced with having to decide an execution, says that a judge “has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty -- and if that fails, lead a revolution. But rewrite the laws he cannot do.”
Kentucky law allows deputies to issue licenses when the head clerk is unavailable, as she certainly is at the moment.
But even Federal District Judge David Bunning, when asked about whether the licenses issued after Davis’ incarceration would be legal, he said he didn’t know, but ordered them to be issued anyway.
The applicants paid a $35.50 fee, and got a receipt But the licenses did not include the clerk’s signature. For their part, Davis' s attorneys said they’re not "worth the paper they are written on.”
Supporters say Davis has the right to fully abide by her faith, even at the office, especially as it’s up to the legislature, or a state executive, to either change the marriage license forms or set up a different system, such as online applications.
Gov. Steve Beshear has resisted calling a special session to do so, citing his attorney general’s view that the 197 county clerks in Kentucky current issuing marriage licenses to same-sex couples are doing so correctly. But that means unless Davis decides to rethink her defiance, she could remain in jail until the legislature does rewrite the law so that her name is not attached to certificate paid for by a same-sex couple. The legislature doesn’t meet again until January.
“I applaud her courage,” says constitutional law scholar John Eastman, who is at Chapman University. “She confronted what I call a Thomas More moment, and she’s demonstrated her saintliness in how she’s responded to this.”
Davis’s critics says she has that right as long as it doesn’t interfere with her duty to issue paperwork to eligible individuals.
“I don’t think this is a hard case at all,” says Brian Leiter, author of “Why Tolerate Religion?” “I’m not surprised she’s lost everywhere; she ought to be fired. The government can’t function if officials of the state do not comply with the law. That’s a pretty simple rule.”
The defiant story of a rural Kentucky clerk holding the Bible over the Constitution has gripped Americans for weeks, as it’s become symbolic of a country struggling to define new rights for homosexuals while retaining the rights of those of religious faith who do not accept homosexuality as a norm.
Several Republican presidential contenders, including Scott Walker and Ted Cruz, lined up in support of Davis as they seek support from evangelical voters. “Having Kim Davis in federal custody removes all doubt of the criminalization of Christianity in our country,” said former Arkansas Gov. Mike Huckabee. “We must defend religious liberty and never surrender to judicial tyranny.”
Other candidates, including Donald Trump and Chris Christie, have said Davis needs to issue the licenses or step aside.
But mostly, the events in northeast Kentucky have hit home because of the high-stakes human impacts that Davis’s actions have unleashed.
Davis’ s own marital missteps before she converted to Apostolic Christianity four years ago have raised questions of hypocrisy. Images of gay couples being denied civil documents despite the high court’s ruling have been riveting, culminating with the drama on Thursday. Davis was booked into an Ashland, Ky., jail as hundreds of dueling protesters milled about outside.
Judge Bunning has said he wants to release Davis as soon as possible. But it’s unclear how that could happen without Davis returning to the office and ordering her deputies to stop issuing the licenses.
Meanwhile, eight couples, six of them same-sex, received their marriage licenses on Friday, ostensibly meaning they’re eligible for all legal benefits bestowed upon Americans who willingly enter into such a contract.
“I think it shows that equality is everywhere,” said William Smith, who received a license legally binding him to his partner, James Yates, told The New York TImes. “This is where we live. This is where we pay taxes. This is our home.”