A federal judge ruled Wednesday that Kentucky county clerk Kim Davis is required to process marriage licenses for all couples. Thursday morning, she violated that order by refusing to process a same-sex marriage license, suggesting she could soon be held in contempt.
As clerk for Rowan County, Davis refused to have her name on same-sex couples’ marriage licenses because of her religious beliefs and so decided her office would not process licenses for any couples. According to District Judge David L. Bunning, Davis’ job of authorizing valid marriage licenses does not violate her religious liberty nor her freedom of speech. “Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions,” he writes. “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.”
Davis’ primary objection was Gov. Steve Beshear’s (D) directive ordering county clerks to comply with the Supreme Court’s Obergefell ruling. She has separately filed suit attempting to hold him responsible for any costs she might face from the same-sex couples’ suits. But Bunning found that the directive simply “serves the State’s interest in upholding the rule of law” and upholding Obergefell.
Davis claimed Beshear’s directive requires her to “authorize” same-sex marriage, which violates her religious beliefs. Bunning refutes this claim: “The form does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds. 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. Davis’ religious convictions have no bearing on this purely legal inquiry.” It’s the government’s speech to authorize the marriage, not Davis’.
Bunning also addressed the claim that this job requirement creates a religious test for the office of County Clerk, a point also made in a satirical video posted this week by Focus on the Family’s CitizenLink. Because Davis’ job is simply to confirm that a couple has met the legal requirements to marry, “it is not a sign of moral or religious approval,” nor is Kentucky requiring her to “express a particular religious belief as a condition of public employment” or “forcing her to surrender her free exercise rights in order to perform her duties.” She is free to practice her religion however she wishes, but “her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.”
In her response, Davis had offered three alternatives to avoid doing her job: couples could go to a neighboring county to get married, they could obtain licenses from Rowan County Judge Executive Walter Blevins, or there could be new ways of obtaining licenses implemented. Bunning did not find any of them to be amenable.
While it’s true couples could go to other counties, “there are individuals in this rural region of the state who simply do not have the physical, financial or practical means to travel.” Moreover, Davis’ plan would only work if the other counties are issuing licenses. If she were allowed to refuse to issue licenses, so too would clerks in all other counties. “What might be viewed as an inconvenience for residents of one or two counties quickly becomes a substantial interference when applicable to approximately half of the state.”
Judge Blevins, on the other hand, is only empowered by Kentucky law to issue marriage licenses “in the absence of the county clerk, or during a vacancy in the office.” Davis suggested that she should be considered “absent” for purposes of this statute, but Bunning concludes, “While this is certainly a creative interpretation, Davis offers no legal precedent to support it.” Moreover, Blevins would “likely be exceeding the scope of his office” if he completely assumed her duties.
As for other avenues for obtaining licenses, such as an online marriage licensing system, they simply don’t exist yet. “While these options may be available someday, they are not feasible alternatives at present.”
Davis has appealed the decision and asked for a stay of the injunction, but she has not yet successfully obtained a stay. Thus, her refusal to issue a license Thursday morning was in clear violation of Bunning’s order. Though courts that hold a defiant party in contempt are supposed to exercise the “least possible power” necessary to end that defiance, Davis could face fines or even be jailed until she agrees to comply with the Constitution.