Kentucky clerk cites 'God's authority' over Supreme Court on gay marriage. What now?

The Supreme Court denied Kentucky clerk Kim Davis’s emergency appeal, granting her no 'asylum for her conscience.' On Tuesday, the Rowan County clerk again refused to issue licenses to same-sex couples.

Timothy D. Easley/AP
Rowan County Clerk Kim Davis (r.) talks with David Moore following her office's refusal to issue marriage licenses at the Rowan County Courthouse in Morehead, Ky., Tuesday. On Thursday, a federal judge held Davis in contempt and ordered her jailed for refusing to comply with a federal ruling.

Rowan County, Ky., court clerk Kim Davis has for months defied the United States Supreme Court’s ruling on gay marriage, citing biblical principle. On Tuesday, she took her decision to hold “God’s authority” above the law of the land to the next level, in a bold move defying the Supreme Court directly.

A day after her legal options ran out as the Supreme Court declined to take up her appeal, Ms. Davis denied the marriage license of James Yates and Will Smith Jr., saying they’d have to wait "a long time" for the piece of paper that bestows the benefits of marriage upon eligible couples.

As dueling groups of protesters chanted “Praise the Lord!” and "Do your job!" Davis asked the couple to leave the courthouse.

Davis's lawyers have argued that forcing her to issue licenses to same-sex couples would infringe on her First Amendment right to freedom of religion. But courts have uniformly ruled against her. While it appears Davis’s legal options may have run out, her decision to continue to deny licenses has energized religious opponents of gay marriage.

Any punishment levied against her will likely only raise her profile as a religious martyr, says University of Minnesota constitutional law professor Brian Bix. But the endgame is now fairly clear.

“I’m surprised she hasn’t been held in contempt yet,” says Professor Bix, who contributed an amicus brief to the Supreme Court’s gay marriage decision. “I respect people’s sincere religious beliefs, but she has a job as a government official, and it’s not for her to refuse to do her job.”

Davis refused to issue marriage licenses to any couples – gay or straight – after the June Supreme Court ruling that affirmed gay marriage as a constitutional right in America.

The Obergefell ruling was controversial, but has for the most part been implemented seamlessly into the daily work that goes on in America’s courthouses.

Davis has emerged as one of a few exceptions to that rule, deciding that a “searing act of validation [of gay marriage] would forever echo in her conscience,” as her lawyers argued to the court.

Federal courts, however, have had little patience for Davis’s stance, including that the act of marrying someone against her religious principles would violate her First Amendment rights.

In a ruling last month, which Davis appealed, US District Judge David Bunning wrote that the clerk “has arguably [violated the First Amendment] by openly adopting a policy that promotes her own religious convictions at the expense of others.”

In the past, Supreme Court orders on issues ranging from school desegregation to interracial marriages have seen states and officials stand firm in resistance. In response to the Brown school desegregation ruling, some Southern states tried, unsuccessfully, to close public schools and in favor of all-private-school districts. After the 1967 Loving decision, which legalized interracial marriage, some court clerks in the South refused to issue the licenses, but complied after federal courts intervened.

A more recent parallel to Davis’s defiance is Alabama Supreme Court Judge Roy Moore’s decision 12 years ago to defy the 11th Circuit Court of Appeals by refusing to remove a Ten Commandments monument from the court building. In that case, the Alabama Court of the Judiciary, which oversees legal officials in Alabama, removed Moore from office in 2003. (He won reelection back to the Supreme Court in 2012, where he last year, before the Supreme Court ruling, defied a lower federal court’s order for the state to issue marriage licenses to same-sex couples after finding a state ban unconstitutional.)

But Davis has taken her religious objections to a new level, at least in the modern era. She is an Apostolic Christian who goes to church three times a week and mentors female prisoners. Her defiance has turned her into a modern-day Paul, her husband, Joe Davis, said on Tuesday.

The push by religious liberty groups – including the tax-exempt nonprofit Liberty Counsel that is representing her – to challenge the US judiciary at the highest levels is likely engineered at least in part to energize Americans who want Davis to "stand firm" on her decision. The image of "a middle-aged woman being hauled off to jail for purportedly following her conscience would send thousands of anti-gay Americans reaching for their pitchforks (and checkbooks)" to support legal efforts to rebuff gay marriage rights, Mark Joseph Stern notes in Slate.

Davis supporters say they understand she may face jail time. But “at the end of the day, we have to stand before God, which has higher authority than the Supreme Court,” Randy Smith, the leader of a group of Davis supporters, told the Associated Press.

Such a stance, legal experts say, undercuts a straightforward rule of American governance under the Constitution – that the government can’t function if state officials don’t comply with the law.

“I would hope that even those who think that private citizens should have the right to discriminate [on religious grounds] would recognize that there’s a difference between employees of the public sector and private citizens,” says Brian Leiter, a University of Chicago Law School professor and author of “Why Tolerate Religion?” “To the extent that [Davis] becomes a martyr for anything, it speaks ill for those arguing for religious liberty. The fact is, she’ll probably end up in jail unless she comes to her senses, or at the very least be out of a job.”

Consequences for Davis may be stacking up. While the failure of the Supreme Court to issue a stay in her case applies only to a small set of plaintiffs, a broader refusal could make her liable for compensatory damages and attorney’s fees. “She’s looking at a bunch of consequences, but she’s in immediate defiance only in respect to the particular plaintiffs,” says Douglas Laycock, a religious studies professor at the University of Virginia, and an expert on religious liberty.

Judge David Bunning has called Davis and her entire staff to a hearing on Thursday morning in Ashland, Ky. Plaintiffs have asked Judge Bunning to impose "serious and increasingly onerous" financial penalties on Davis, but noted that they do not want Davis to go to jail.

Still, Davis is not alone among court clerks to raise religious concerns about the Supreme Court ruling – although so far, she has taken the matter to the furthest extreme. Texas Attorney General Ken Paxton, in a statement after the Supreme Court ruling, suggested that court clerks can decline to put their name on a marriage license, but that they have to find a proxy to sign the documents.

Davis’s defiance has taken its toll on gay couples hoping to marry in their hometown of Morehead, including Mr. Yates and Mr. Smith, who tried and failed for the fifth time on Tuesday to get their marriage license certified by the state of Kentucky.

According to the Associated Press, the couple “left [the courthouse] red-eyed and shaking.”

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