Kim Davis’s lawyers just filed an emergency appeal with the U.S. Court of Appeals for the Sixth Circuit, challenging U.S. District Judge David Bunning’s holding Davis in contempt of court, and ordering her taken into immediate federal custody by federal marshals.
This is now the fourth day that she is spending behind bars for refusing to issue marriage licenses to same-sex couples, citing her Christian belief that marriage is between a man and woman.
As Breitbart News has previously reported, Davis is on solid legal ground in claiming that the First Amendment protects her from having to issue marriage licenses as the elected county clerk, but is on much shakier legal ground by also claiming the governmental power to order her deputy clerks—five of whom do not share her religious-faith objection—from issuing those licenses in her absence. The power to order deputy clerks to do or not do something belongs to the office she holds, not to her as a person.
In my legal opinion, Judge Bunning overreacted by throwing Davis is jail. Ordering a person to be jailed for contempt of court is a federal judge’s “nuclear option,” reserved for the most extreme situations. If Davis is mistaken on the law, it is an honest and mistake made in good faith, and so using the ultimate form of contempt power is unwarranted.
Davis faces an uphill battle on appeal, however. A federal appellate court reviews a trial court’s contempt ruling only for an abuse of discretion. Bunning overreacted, but given that Davis made clear that no lesser form of motivation (such as imposing a fine, which Davis’s supporters likely would have paid at no cost to Davis personally) would compel her to issue the licenses, some appellate judges might think Bunning was not egregiously out of bounds by deciding to try his harshest option. Whether the Sixth Circuit decides that Bunning’s actions rise to the level of abusing his discretion may depend on which three judges on the Cincinnati-based appeals court are assigned as the panel to review this appeal.
If Kentucky officials act quickly, marriage licenses could be issued in Davis’s Rowan County without her name and without her approval, which would both preserve her personal First Amendment rights while also producing an outcome that the plaintiffs in this lawsuit should fully accept.
Christianity teaches clearly and unequivocally that marriage is between a man and woman, and has done so for two thousand years. Faithful Christians will never abandon that belief regardless of what any government tells them. Federal and state authorities in this country must recognize and respect this reality. Regardless of the Sixth Circuit’s decision, America must not become a place where Christians are sent to jail for peacefully exercising their faith, even when they are partially mistaken on the correct understanding of the First Amendment.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.