Kim Davis is the Clerk of the Rowan County Circuit Court, an elected position. Despite taking an oath to enforce the Constitution and the laws of the United States and the State of Kentucky, which requires her to issue marriage licenses, she has refused to issue marriage licenses to same-sex couples. She claims that she would violate her religious beliefs, if she were to issue a marriage license to a same-sex couple. To avoid the appearance of discriminating against same-sex couples, she decided to refuse to issue any marriage licenses. No one has been fooled by this strategy.
In June the Supreme Court of the United States (SCOTUS) held that laws which prohibit same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment, Obergefell v. Hodges, (June 16, 2015). Writing for the majority, Justice Kennedy said,
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
Ms. Davis’s argument is ridiculous because she is claiming that, even though she is an elected public official, her First Amendment right to freedom of religion means she can discriminate against same-sex couples on religious grounds by refusing to issue them a marriage license despite her legal duty to so under Kentucky law and their Fourteenth Amendment right to get married under Obergefell. If public officials are free to discriminate against people on religious grounds, the Fourteenth Amendment would cease to have any meaning.
Moreover, she is out of options. She already lost this argument back in June after the SCOTUS decided Obergefell and a same-sex couple sued her in the United States District Court for the Eastern District of Kentucky seeking an order directing her to issue them a marriage license. Judge David Bunning rejected her religious-freedom argument and ordered her to issue the license. She appealed to the Sixth Circuit and lost. Her application for review by the SCOTUS was rejected.
Now, she’s back in front of Judge Bunning, who has ordered her to show cause why he shouldn’t hold her in contempt of court for continuing to refuse to obey his order to issue a marriage license to same-sex couples.
I do not believe there is any question that he is going to hold her in contempt. She is in contempt. The question is what is he going to do about it.
He can fine her a certain sum of money per day until she complies with his order or he could send her to jail where she would remain until she agrees to issue the licenses. Alternatively, she could resign.
I would send her to jail until she agrees to issue marriage licenses to same-sex couples, or she agrees to resign. I would not fine her because the fine probably would be paid by a right-wing GoFundMe internet site.
Meanwhile, at the hearing today, according to Matt Iglesias at Think Progress, her deputy clerks are willing to issue the licenses, but they are afraid to do so. As the County Attorney Cecil Watkins told Kentucky Court Trial Review, “Davis, does not represent” the county or its values, and he added that he told Davis that he “will not and cannot support” her in her refusal to obey the Constitution.
In an editorial note accompanying its reporting, the Trial Court Review paints a grim picture of life in the Rowan County courthouse after Davis began a symbol of anti-gay defiance. “The takeaways from the Watkins interview are clear. Davis is acting alone in her zealous mission. Her conduct has terrorized not just her staff but everyone that works in the courthouse. And all for a foolish mission aided by out of state charlatan lawyers trying to raise money for their ‘religious liberty’ mission.”
Former Governor of Arkansas, Mike Huckabee, a candidate for the Republican nomination for President in 2016, announced yesterday that he supports Davis. He said the Bible is supreme to the SCOTUS,
Judge Bunning just held her in contempt and ordered her into federal custody where she will remain until she agrees to issue the marriage licenses. He rejected the idea of a fine in part because others would pay it for her.
In effect, she has the keys to the jailhouse door.