Rowan County Clerk Kim Davis remains in jail this week as she continues to refuse to issue marriage licences to Kentucky couples in violation of a federal court order because of her opposition to same-sex marriage.
Her story has attracted national media attention, and most of the Republican presidential candidates have chimed in too. In fact, Mike Huckabee will be in Kentucky today today to join other conservative groups in an #ImWithKim rally for “religious liberty.”
Many questions, rumors, and talking points from both sides have confused the matter. Here are five myths about where things stand for Davis, and why you shouldn’t be fooled by them:
Myth #1: Marriage licenses issued without Davis’ signature are invalid.
When U.S. District Court Judge David Bunning held Davis in contempt last week, he gave her a pretty generous offer: he would save her from jail if she simply allowed her deputies to issue the marriage licenses. She refused, and the deputies began issuing the licenses on Friday anyway. There is a question, however — that even Bunning acknowledged — as to whether the licenses are valid without her name on it.
Certainly her lawyers, the grandstanding Liberty Counsel, have insisted that the licenses are “void.” According to Liberty Counsel head Mat Staver, “They are not worth the paper that they are written on.” This narrative certainly keeps the stakes high for his client and makes it seem like there is merit to refusal to participate in issuing licenses.
However, a simple sentence found in Kentucky law seems to clear things up. According to statute 61.035, “Any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.” If Davis can issue licenses, so can her deputies. There is little to suggest that these licenses would or could ever be rejected as legal and binding.
Myth #2: Davis is just like all of the officials who refused to enforce or defend bans on same-sex marriage.
While some conservatives like Rep. Steve King (R-IA) have compared Davis to the likes of Rosa Parks, many marriage equality opponents are instead juxtaposing her with the many officials who either ignored or refused to defend state bans on same-sex marriage.
The Heritage Foundation’s Daily Signal published a list of 10 such comparisons last week, eight of whom were governors or attorneys general who refused to defend their state bans from challenges in court. All of those eight officials had a sworn duty to the U.S. Constitution, which motivated their decisions not to defend the bans, decisions that were totally within the discretion of their positions. They all still enforced the bans in the meantime.
Heritage offered only two examples of individuals who actually refused to enforce a same-sex marriage ban, neither of whom compare to Davis. One was D. Bruce Hanes, the Register of Wills in Montgomery County, Pennsylvania. In 2013, a year before Pennsylvania’s ban on same-sex marriage was overturned, he began issuing marriage licenses to same-sex couples. Eventually, a state judge ordered him to stop issuing licenses. Hanes appealed, but followed the ruling.
The other example was former San Francisco Mayor Gavin Newsom, who issued over 3,000 marriage licenses to same-sex couples in early 2004 despite California’s ban on same-sex marriage still being in place. Newsom called Mike Huckabee out on Twitter this weekend for defending Davis and the two rehashed Newsome’s actions in 2004. Newsom made the point that though it’s true he violated California law — “because we believed the law at that time violated equal protection clause of constitution” — once the court ordered him to stop issuing licenses, he did. “I was never in contempt of court — unlike Kim Davis.”
Contempt is what makes Davis unique. She wasn’t exercising discretion as empowered by her position, and when the court ordered her to obey the law, she disobeyed. That is why she is in jail.
Myth #3: Kentucky could accommodate Davis without forcing her to resign.
The Heritage Foundation’s Ryan T. Anderson opined in a New York Times op-ed Monday that the state of Kentucky could have helped accommodate Davis so that she didn’t have to choose jail. He first blamed the Supreme Court for its marriage equality ruling — as he is wont to do — but then suggested that Gov. Steven Beshear (D) didn’t do what he could when requiring state officials to abide by the Obergefell ruling. This would have required calling the Kentucky legislature back for a special session to pass legislation changing how marriage licenses are issued. Davis has filed her own suit against Beshear claiming that he should be blamed for any problem she faces related to her inability to issue licenses.
Anderson praised a North Carolina law passed before the Supreme Court decisions — and over the governor’s veto — allowing magistrate judges to refuse to officiating marriages. “Perhaps a similar solution could be found in Kentucky,” Anderson wrote, “by removing an individual clerk’s name and title from a marriage license.”
But as the Huffington Post’s Michelangelo Signorile countered, North Carolina’s law wouldn’t have actually protected Davis if mimicked in Kentucky. That law only protected those judges who officiate the marriages, not the clerks who file the paperwork. Anderson also ignores that 32 judges have opted out, which has limited the issuing of licenses in some counties to a narrow window of just ten hours per week, inconveniencing many couples.
If anything, Anderson’s example reminds just how weak Davis’ case is. As Bunning explained in his original ruling against her, Davis’ job in no way requires her to “condone or endorse same-sex marriage” in any way. “It simply asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law.” In other words, Davis’ primary responsibility is paperwork and filing, not authorizing or officiating.
If any official who refused to simply acknowledge the legal existence of same-sex marriage had to be accommodated, it could greatly undermine Obergefell‘s guarantee that same-sex couples have access to “civil marriage on the same terms and conditions as opposite-sex couples.”
Myth #4: Gov. Beshear can do something to remedy Davis’ predicament.
On Monday, Davis filed a new appeal in her suit against Gov. Beshear, claiming that his “mandate” on issuing marriage licenses to same-sex couples should be put on hold.
But Beshear did not issue a mandate; he simply issued guidance for implementing Obergefell. Specifically, the letter he sent to county clerks explains, “Neither your oath nor the Supreme Court dictates what you must believe. But as as elected officials, they do prescribe how we must act.”
Davis’ attorneys at the Liberty Counsel allege that Beshear “has refused to take elementary steps to accommodate Davis’ undisputed sincerely-held religious beliefs about marriage.” But, ignoring Bunning’s qualifiers, they claim that she has been “coerced” to “authorize and personally approve” same-sex marriage. Thus, they argue that the federal courts should block Beshear’s “mandate,” which would hypothetically entail pausing same-sex marriage across the entire state.
All of the solutions would either require someone else to do Davis’ job (such as “deputizing a neighboring county clerk” to issue licenses in her county) or a legislative revision of how marriage licenses are issued in Kentucky (such as modifying the form to remove her name). Some of them, like deeming her “absent” so that the chief executive of the county can issue the licenses, have already been rejected by Bunning, who pointed out that “this is certainly a creative interpretation,” but “Davis offers no legal precedent to support it.”
The Liberty Counsel has painted Beshear as the individual somehow capable of accommodating Davis, but all that he did was implement Obergefell as the law of the land, and he certainly can’t unilaterally overturn that.
Myth #5: Conservatives can help free Kim Davis.
On Tuesday, Mike Huckabee will join the Family Research Council (FRC), National Organization for Marriage (NOM), and Concerned Women for American in an #ImWithKim “Liberty Rally” at the Carter County Detention Center where Davis is being held. One of the speakers will be Pastor Joshua Feuerstein, who in July encouraged Christians to oppose same-sex marriage by remembering that “my First Amendment right is guaranteed by my Second Amendment right.” Several schools have closed to accommodate the traffic congestion the rally is expected to cause.
NOM has launched a petition supporting Kim Davis and has started a crowdsourcing fund to raise money for Davis, because “we cannot turn our back on people like Kim Davis who show incredible courage to stand up to the powerful elite who insist that we abandon the truth of marriage.” Under the subject line “Help free Kim Davis from jail,” FRC similarly invited supporters to sign a petition to Beshear “asking him to issue an accommodation to Kim Davis allowing her to live and work according to her beliefs.”
In an op-ed Tuesday at Fox News, Huckabee seems stunned that the law authorizes Davis “to issue homosexual couples a marriage license.” He complains that she was not offered bail, but there is no such thing as bail when a person is in contempt of court. “I refuse to sit silently as our Constitution is torched and the courts violate our fundamental rights,” he wrote. “We did not fight a revolution against the tyranny of one unelected monarch so we could surrender our freedoms and abandon our Constitution to the tyranny of five unaccountable, unelected lawyers.”
But all that these conservatives are doing is building their membership lists in hopes of later fundraising money for themselves. As Huckabee reveals, their fight is still with the Supreme Court’s ruling, not anyone in Kentucky, and there is no conceivable path for them to actually overturn Obergefell.
Tuesday’s rally will probably galvanize even more of the incendiary anti-gay rhetoric that has already been common among Davis’ supporters — like “homo love is hate” — but it won’t actually change Davis’ fate. She is in violation of a federal court order, and her choices remain to follow it, resign so that she is not obligated to do so, or remain in jail until her term is up and someone is elected to replace her as county clerk.