Kentucky’s Rowan County Clerk, Kim Davis, is refusing to issue marriage licenses to homosexuals in violation of a federal court order, risking contempt of court.
In a hotly contested 5-4 decision on June 26, 2015, the Supreme Court held in Obergefell v. Hodges that the Constitution’s Fourteenth Amendment includes a fundamental right to marry anyone you choose, invalidating laws nationwide defining marriage as between one man and one woman. Since that decision, public officials in some states have declined to issue marriage licenses to two people of the same sex.
Kentucky law designates county clerks as the public officials who issue marriage licenses. Davis claims that her Christian faith teaches that marriage is between a man and woman, so as a matter of conscience she cannot issue the licenses. Of Kentucky’s 120 clerks, 60 signed a petition to Governor Steven Beshear (D) objecting to issuing gay marriage licenses. Many feared losing their jobs, however, and now apparently only three clerks—including Davis, elected as a Democrat, along with the clerks from Casey County and Clinton County—decline to do so.
David Ermold and David Moore are a homosexual couple who attempted to obtain a marriage license Thursday morning, but were unable to do so. The ACLU brought suit on behalf of them and other homosexuals, as well as heterosexuals who currently cannot get a license because Davis has not been in her office and thus stopped issuing licenses altogether. Under Kentucky law, any of those persons could go to any neighboring country and obtain a marriage license from the non-objecting clerks there.
Judge Steven L. Bunning of the U.S. District Court for the Eastern District of Kentucky has ordered Davis to issue marriage licenses. The injunctive order reads in part that Davis, “is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing her duties that she took an oath to perform as Rowan County clerk.”
Federal judges can hold in contempt of court parties to a lawsuit who refuse to obey court orders. Contempt can be civil or criminal, the latter often involving monetary fines and the latter often including jail time. It is also a class-A misdemeanor under Kentucky state law for a public official to refuse to execute the duties of that office.
Many legal experts believe that a person has a right to execute their duties in a manner consistent with their religious beliefs, and the law generally accommodates conscientious objectors on other moral issues, such as Americans who religiously object to using weapons in the military. Kentucky law permits another county official to issue marriage licenses if the clerk is absent, but Bunning refuses to regard Davis as absent on account of her religious beliefs.
Other states are grappling with this issue, though some are handling it differently. For example, county clerks in Texas with a religious objection to gay marriage licenses are not preventing non-objecting deputy clerks in the same office from issuing those licenses. This approach has been praised by some as respecting the individual’s beliefs while not requiring other public officials without such beliefs to follow the objector’s example. Current reporting leaves unclear whether such an option is available under Kentucky law.
Bunning’s order includes the observation, “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 own personal opinions.” The Supreme Court has never had an occasion to rule on religious-liberty rights of those who cannot as a matter of conscience accept a court’s redefining the institution of marriage.
Many supporters of traditional marriage insist that millions of Americans will continue to hold to their Christian beliefs regardless of what the Supreme Court says.