Kim Davis told a court in July that she “prayed and fasted” over whether to grant marriage licenses to same-sex couples. On Thursday, the Rowan County, Ky., clerk defied a federal court order, setting up a constitutional showdown over religious beliefs versus the right of gay couples to marry in their hometown.
Ms. Davis’s religious objections to gay marriage should have no impact on her official role as a government notary, US District Judge David Bunning ruled on Wednesday, ordering her to immediately start issuing the paperwork. But Davis’s office sent two gay couples away empty-handed on Thursday morning, as protesters outside the courthouse held up signs that read, “clerk not clergy.”
Democratic Gov. Steve Beshear has told Davis to do her job or resign. So far, she has refused.
The case is illustrative of a building First Amendment clash in the wake of the historic Supreme Court ruling that legalized gay marriage in June, legal experts say.
Calling the Kentucky clerk rebellion “fairly unprecedented,” University of Minnesota law professor Brian Bix notes that the June Supreme Court ruling making gay marriage a nationwide right has steered the country into a difficult transition period. A key challenge, he says, is how to carve out accommodations for those with religious objections while not trampling on people’s rights.
“People are allowed to have whatever moral principles they like, but if you sign up to do a job you have to do the job,” says Professor Bix. “If the Kentucky clerk’s office wants to excuse someone from giving out these sorts of licenses, that might be possible, as long as another competent clerk can step in. But accommodations … cannot be done in a way that forecloses citizens coming to get their legal entitlements.”
While most county clerks began issuing licenses to same-sex couples immediately after the landmark Obergefell verdict in June, a few government officials in the 13 states whose gay marriage bans were invalidated by the Supreme Court, continue to wrestle with the way legal obligations clash with personal beliefs.
On Monday, the Ohio Supreme Court’s Board of Professional Conduct told Municipal Judge C. Allen McConnell that his personal beliefs about gay marriage cannot interfere with his official duty to perform marriages. The order is not legally binding, but could be a guiding document for the Ohio Supreme Court.
And there may be more lawsuits in Kentucky. Last month, Casey County, Ky., clerk Casey Davis told reporters he also has refused to hand out marriage licenses. He’s one of 17 clerks who have officially protested.
After the Supreme Court ruling in June, Texas Attorney General Ken Paxton told county clerks in Texas that they don’t have to sign marriage licenses if they have religious objections. But he added that to do so without providing an immediate accommodation could land them in legal trouble.
“We find that although it fabricated a new constitutional right in 2015, the Supreme Court did not diminish, overrule, or call into question the First Amendment rights to free exercise of religion that formed the first freedom in the Bill of Rights,” Mr. Paxton said in a statement.
The question of religious accommodation is not a new one and extends beyond the question of same-sex marriage. For example, a federal court in Washington State last week ruled that pharmacists who object to “morning-after” birth control pills don’t have to fill such prescriptions, but someone else has to be on hand to give out the drugs. Perhaps the most high-profile decision in recent memory was the Supreme Court’s Hobby Lobby decision in 2014. In that case, the justices ruled 5-to-4 that family-owned corporations could not be compelled to purchase insurance coverage that included contraception for their employees under the Affordable Care Act.
Bix compared the post-Obergefell tensions to the aftermath of the 1967 Loving v. Virginia decision by the Supreme Court, which declared interracial marriage bans in 16 states unconstitutional. After Loving, federal court judges had to intervene to compel courts in Georgia, Louisiana, Arkansas, Mississippi and Alabama to issue marriage licenses for interracial couples. But in an essay for the Daily Beast, Peter Wallenstein writes that, in fact, “the old laws went away with barely a whimper.”
“People [after Loving] said they had strong religious or ideological principles against interracial marriage, but today we wouldn’t stand for” someone denying Americans the right to marry across racial lines, says Bix.
For her part, Davis describes herself as an Apostolic Christian who counsels prison inmates and goes to church three times a week. Though she says she believes sex outside of marriage is a sin, she doesn’t question couples about their sexual activity before handing them a marriage license.
In her view, she told Judge Bunning last month that “God’s holy word” is the highest law. When asked who has the final say on constitutional matters, she paused, then said, “I don’t know.”
In his ruling, Bunning challenged Davis’ claim that her First Amendment rights are being violated, writing that “Davis has arguably [violated the First Amendment] by openly adopting a policy that promotes her own religious convictions at the expense of others.”
Bunning also rebuffed Davis’ argument that marriage applicants could just go to another county to get their marriage licenses. He said they have a right to get married in their hometown.
The stakes are immense, the judge added: “Our form of government will not survive unless we, as a society, agree to respect the US Supreme Court’s decisions, regardless of our personal opinions. Davis is certainly free to disagree with the court’s opinion, as many Americans likely do, but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent.”
Her counsel immediately filed an appeal Thursday and told her to stand fast as the court battle plays out. The standoff could end with Davis being held in contempt of court, which carries both civil and criminal penalties.
On Thursday, James Yates, who wants to marry his partner, William Smith, left the courthouse for a second time without a marriage license.
“I still get frustrated sometimes, but then I take a deep breath and go on,” Mr. Yates told the Associated Press. “I know it's going to get resolved. It's just a matter of when.”