A Kentucky county clerk who is refusing to issue marriage licenses to same-sex couples despite this summer’s Supreme Court ruling that such marriages are a civil right is now asking the high court to cut her a break.
Attorneys for Rowan County clerk Kim Davis are petitioning the Supreme Court for an emergency order protecting her from being fired until her lawsuit against Gov. Steve Beshear (D) is resolved. Earlier Friday, the Rowan County Attorney formally requested that the state government charge Davis with misconduct, the first step in ousting her from her post.
Davis’ core argument is that granting a marriage license to a same-sex couple would violate her religious beliefs. Since this summer’s high court ruling on marriage makes it illegal to grant licenses to heterosexual couples while denying them to same-sex couples, Davis is simply refusing to issue them to anyone — and appealing every court decision that goes against her, perhaps in hopes of putting her religious liberty argument before the country’s ultimate legal arbiter.
Hours after the court’s June decision in Obergefell that same-sex couples have the same right to marry as heterosexual ones, Davis stopped issuing marriage licenses entirely. Multiple same-sex couples who were denied licenses by Davis’ across-the-board licensing freeze have sued her, and she has appealed initial defeats in those cases. After Beshear ordered her to either issue licenses to both hetero and same-sex couples or resign her post, Davis sued the governor’s office in hopes of persuading the courts that even playing a small bureaucratic role in facilitating same-sex weddings would violate her right to religious freedom.
Specifically, Davis points to Kentucky law’s requirement that marriage licenses bear the signature of the county clerk — and therefore make her an active participant in bringing a same-sex marriage into being. Davis appears to consider such participation irredeemably sinful: “If it happened, there is no absolution or correction that any earthly court can provide to rectify,” SCOTUSBlog quotes her complaint as saying.
Davis is making a novel argument in seeking the emergency order from the nation’s top judges. She is employed by the people of Kentucky, and one of the duties her job exists to perform is the granting of marriage licenses to qualified couples. Davis is apparently arguing that her civil rights protect her from being terminated for misconduct over her nonperformance of a key duty of the job for which she is paid.
In previous lower court rulings, Davis has suggested that same-sex couples can either go to a neighboring county or seek the signature of a different Rowan County official. She has also suggested that the state could change the law about marriage license signatures, removing the requirement that she sign her name to couples she finds sinful. The lower-court judge has rejected all three arguments.
As an elected official, Davis is difficult to fire. Friday’s request for misdemeanor official misconduct charges against her by the Attorney General begins a slow process that could only actually kick her out of office if the state legislature votes to impeach her. She has also risked contempt charges by continuing to refuse to issue licenses in defiance of a court order. If the Supreme Court grants her request from Friday night, it would keep her in office until her suit against Beshear is ultimately resolved — potentially even by The Nine themselves.
Update:
On Monday, the Supreme Court rejected Davis’ petition.