They Shall Not

Sarah E. Jones January/February 2016

Kim Davis has become a symbol. To some, she represents a stubborn bigotry; to others, she’s a twenty-first-century American heroine.

It’s an unlikely fate for the Rowan County, Kentucky, clerk, who labored in relative obscurity until the U.S. Supreme Court’s June verdict in Obergefell v. Hodges, which legalized same-sex marriage nationwide.

Davis, who identifies as an Apostolic Christian, objects to same-sex marriage on religious grounds. That conflicted with her legal responsibilities as an elected official, so she ceased issuing marriage licenses—to anyone, regardless of sexual orientation. She also blocked her six deputy clerks from doing so in her stead, arguing that because her name appears on each marriage certificate issued by the county, her religious-freedom rights would still be violated. Her refusal earned her a semi-permanent spot in the headlines for months.

But her arguments didn’t sway U.S. district judge David L. Bunning.

“In this country, we live in a society of laws,” Bunning told her. “Our system of justice requires citizens—and significantly, elected officials—to follow the rules of the courts.”

He then ordered Davis to jail for violating the latest court order to issue licenses. Five of her six deputy clerks began issuing the licenses in her stead, so Bunning released Davis on the condition she’d stop interfering with their ability to do so.

By the time the clerk appeared in front of Bunning, she’d exhausted her legal options.

The American Civil Liberties Union of Kentucky sued Davis in her official capacity, on behalf of four couples denied a marriage license by her office. Davis quickly filed a suit of her own. Represented by the Liberty Counsel, she sued the state’s Democratic governor, Steve Beshear, for allegedly violating her religious-freedom rights by ordering the state’s clerks to issue licenses to same-sex couples.

The courts disagreed. One by one they ordered her to issue the licenses. After she failed to convince the U.S. Court of Appeals for the Sixth Circuit to grant her the exemption she sought, Davis appealed to the Supreme Court for relief. It was a futile effort: The justices unanimously denied her request to stay the order.

So she violated it.

“I’m not being disrespectful to you,” she told David Ermold and David Moore in August. “I just want you all to know we are not issuing marriage licenses today pending the appeal in the Sixth Circuit.”

“Under whose authority?” they asked.

“Under God’s authority,” Davis responded. “I’m willing to face my consequences, and you all will face your consequences when it comes time for judgment.”

She then asked the pair to leave because they were “interrupting business.”

Critics have argued that throughout her interactions with couples and the courts, Davis has made it clear that she believes her personal religious beliefs supersede the Supreme Court’s interpretation of the Constitution.

Despite this, Davis is not out of a job. She’s an elected official, which means the state legislature must vote to impeach her. Rowan County attorneys have already begun that process by referring to the state attorney general for a misconduct charge.

It’s a daunting process. According to BuzzFeed News, Kentucky hasn’t voted to impeach a public official since 1916. Davis might be the next. She might also not be the last: two more Kentucky county clerks have also refused to issue licenses.

Whitley County’s Kay Schwartz told WFPL News, an NPR affiliate, that she is issuing licenses to heterosexual couples, but not to same-sex couples. She doesn’t appear hungry for the limelight. “Don’t stir this, please,” she begged the station. Until someone sues Schwartz for her actions, she’s likely to get her wish.

But another Kentucky clerk decided to take a more public stand.

Casey Davis, who clerks in Casey County and is no relation to Kim, also believes that Beshear trampled the Rowan County clerk’s rights—as well as his own. Like Kim, Casey is demanding a religious exemption from issuing marriage licenses to same-sex couples. To date, he hasn’t succeeded.

“‘Issue marriage licenses or resign’—those were the words,” he told reporters after a July meeting with the governor. “I can’t quit . . . I have a mortgage to pay.”

No one has sued Casey Davis for his stance yet, but he’s stayed in the headlines. In what he described as an attempt to direct attention to Kim Davis’ plight, he recently biked from his home in Pikeville to Paducah, more than 400 miles away.

“I cannot let my sister go to jail without my doing something to let others know about her plight,” he told WKYT, a local CBS affiliate.

Kim Davis is now out of jail, but her legal saga struggles on. By presstime, she continues to alter marriage licenses issued by the county. Each license bears the signature of a notary public in place of her own, and the ACLU says that may violate Bunning’s order to issue the licenses.

Meanwhile, Kim and Casey both appeared at this year’s Values Voter Summit to garner further support for their religious freedom claims.

They don’t lack for political endorsements.

“I stand with Kim Davis. Unequivocally. I stand with every American that the Obama Administration is trying to force to choose between honoring his or her faith or complying with a lawless court opinion,” U.S. Senator Ted Cruz (R-Tex.) asserted in a statement released after Bunning ordered her to jail.

He continued, “Kim Davis should not be in jail. We are a country founded on Judeo-Christian values, founded by those fleeing religious oppression and seeking a land where we could worship God and live according to our faith, without being imprisoned for doing so.”

Cruz later appeared at a jailhouse rally organized to celebrate her release. To his chagrin, another GOP candidate turned that rally into a campaign stop. Former Arkansas governor Mike Huckabee escorted Davis from the detention center, and told an adoring crowd he wanted to take her place.

“If you have to put someone in jail, let me go,” he announced. “Every one of us will have to decide whether we want to keep this great country or whether we want to surrender and sacrifice it to tyranny.”

Other endorsements prove more elusive. In late September, the Liberty Counsel announced that Pope Francis met with Kim during his U.S. tour as a show of support for her cause. The Vatican swiftly tried to squash that claim; its spokesman, Frederico Lombardi, confirmed the meeting but said that it should not be construed as a papal endorsement.

To some observers, the case is little more than wish fulfillment for the Religious Right. Its leaders have long predicted Christian persecution in post- Obergefell America.

In March the Liberty Counsel’s founder, Mat Staver, said he “personally will advocate disobedience to it [marriage equality].”

And Kim Davis and her Kentucky compatriots aren’t the only government officials to take up the cause.

In Alabama, nine counties still refuse to issue marriage licenses to couples regardless of sexual orientation; Americans United’s legal team continues to pursue legal action to get them to comply with the law. And a Marion County, Oregon, judge is currently under investigation by a judicial ethics commission for refusing to perform any weddings rather than preside at a same-sex ceremony.

These refusals, coupled with legislative attempts in several states to create legal loopholes for public officials who seek to exempt themselves from complying with the Obergefell verdict, have created an uneven legal landscape for couples in many municipalities.

Those couples now occupy a strange paradox: Marriage equality is the law of the land, but the rights it guarantees are sometime inaccessible to them.

Dr. April Miller of Morehead, Kentucky, lived that paradox when Kim Davis refused to grant her a marriage license. Miller recently told Church & State why she decided to take the matter to court.

“We went to get our marriage license in Rowan County because we are residents here,” Miller, a professor of special education at Morehead State University, said. “This is where we have lived, worked, played, volunteered, voted, and paid our taxes for exactly nine years. This is our community.”

She explained that she and her fiancée, Karen Roberts, had originally planned to marry in July but were unable to do so thanks to Kim Davis.

“We had seen the news that our county clerk was not issuing marriage licenses to anyone,” Miller said. “This report made me quite angry, and I found it incredible that after the wait for this ruling, someone who was opposed to it would block my right to purchase a marriage license.”

Miller turned to the ACLU, and in short order she and Roberts became one of four plaintiff couples. On September 4 Miller and Roberts finally received their marriage license and are in the process of planning their wedding. The matter is settled—for now.

Most Rowan County deputy clerks are willing to issue licenses to same-sex couples, and Bunning has ordered Kim Davis not to interfere. But she might violate the court’s order again. “She loves God, she loves people, she loves her work, and she will not betray any of those three,” Staver told CNN after Davis’ release. “She’ll do her job good. She’ll serve the people . . . and she’ll also be loyal to God, and she’s not going to violate her conscience.”

“Davis believes her religious beliefs give her the right to tell others what to do,” Americans United executive director Barry W. Lynn remarked. “Her efforts to pose as a ‘religious freedom’ martyr are laughable. If she really believes she can’t do her job, she ought to do the honorable thing and resign.”

This case brings into sharp focus the need to uphold true religious freedom. Of course same-sex marriage offends Bible-believing Christians, but the same laws that uphold the civil right to same-sex marriage also protect Christians and those of a variety of other faiths. The dynamic impelling the Kentucky case is a false view of America as politically a Christian nation. No one should have the right to compel others to their belief or deny others their rights under law. —Editor.

Article Author: Sarah E. Jones

Sarah E. Jones is communication associate for Americans United for Separation of Church and State, Washington, D.C.