U.S. Supreme Court Settles Whether Clerks Can Refuse to Issue Gay Marriage Licenses

by | September 1, 2015 AT 10:50 AM

By John Cheves

If anyone asks Rowan County Clerk Kim Davis for a marriage license Tuesday -- and a number of couples are expected to, with news cameras following -- she must comply or risk fines, or potentially even jail time.

Late Monday, the U.S. Supreme Court denied Davis' request for a stay in the preliminary injunction that U.S. District Judge David Bunning handed down two weeks ago, ordering Davis to resume issuing licenses despite her religious opposition to same-sex marriage.

Davis, an Apostolic Christian, has refused to issue any marriage licenses since the Supreme Court legalized same-sex marriage in June.

A temporary stay in Bunning's order, which the judge agreed to while Davis appealed, expired Monday. Davis' previous request for a delay was denied last week by the 6th Circuit U.S. Court of Appeals. Her next request, made Friday, went to Supreme Court Justice Elena Kagan, who oversees Kentucky and the rest of the 6th Circuit. Kagan referred the request to the full court, which denied it Monday.

Having reached the end of the road, legally, Davis could face contempt charges if she disobeys Bunning's order.

Simultaneously, Attorney General Jack Conway is weighing a request from Rowan County Attorney Cecil Watkins, who wants a special prosecutor appointed to decide if Davis should be charged with official misconduct for failing to perform her public duties. The offense is a misdemeanor that could bring up to a year in jail, apart from any contempt charges.

Some of Davis' supporters, who gathered outside the Rowan County courthouse Monday to sing hymns, said the clerk would neither obey the court order nor resign her job. Davis, a Democrat, began a four-year term in January.

"Kim Davis is not gonna back down. If she has to go to jail, then she will," said Randy Smith, a local minister. "As she has told me, this is about heaven and hell for her. The only thing she knows to do now is follow the word of God."

Said Flavis McKinney, a retiree who led demonstrators in singing Onward, Christian Soldiers, "Kim has testified to me that it means more to her than anything to know that God is smiling down on her and pointing to her, saying, 'There is one of my children.'"

Davis' supporters said they blame Gov. Steve Beshear for immediately instructing all 120 county clerks to comply with the Supreme Court's same-sex marriage decision. They said Beshear should have waited to act so the next General Assembly, which meets in January, would have time to pass a law protecting the religious freedom of county clerks who don't want to serve same-sex couples.

Only three of Kentucky's county clerks -- those in Rowan, Casey and Whitley counties -- are protesting the Supreme Court decision by refusing to issue marriage licenses. Smith said Davis was singled out for lawsuits from local couples because Rowan County is home to Morehead State University.

"It's a liberal institution, and this cuts to the heart of liberal policies, the liberal agenda," Smith said. "You look at Casey County, you look at Whitley County, they're not getting sued. Why? Because there's no liberal institution there."

Rowan County civic leaders have expressed concern about the national publicity stemming from Davis' continuing protest. On Monday, Morehead State University President Wayne Andrews issued a statement on Facebook proclaiming the school's "support for inclusion and diversity."

"On the issue of same-sex marriage, the United States Supreme Court, the governor of the Commonwealth of Kentucky and the 6th Circuit Court of Appeals have all spoken," Andrews wrote. "We believe elected officials should obey the law and do their jobs."

At a marriage equality protest Monday, next to the pro-Davis demonstration on the courthouse lawn, critics of the clerk said she needed to do the job for which she's paid about $80,000 a year or resign.

Camryn Collins and his wife, Alexis, brought their 6-month-old daughter to the protest. In February, the couple said, one of Davis' deputy clerks issued them a marriage license, although Camryn is transgendered and Alexis is pansexual. So on at least that one occasion, Davis already has enabled a nontraditional marriage, they said.

"She can have her own opinions," Alexis Collins said. "We're not against her having opinions. But they shouldn't interfere with her doing her job."

But Smith, the minister, said true Christians cannot compromise on such matters.

"If you can leave God at the door of your place of employment and then pick him up again on your way home at night, then I don't think you were devout to begin with," Smith said.

(c)2015 the Lexington Herald-Leader (Lexington, Ky.)