Can Kentucky County Clerk Escape Contempt Finding in Gay Marriage Block?

The county clerk who is refusing to issue marriage licenses to same-sex partners in Kentucky told a gay couple, along with the crowd of people supporting them and opposing her on Sept. 1, she would refuse their request for a marriage license “under God’s authority.”

“In addition to my desire to serve the people of Rowan County, I owe my life to Jesus Christ who loves me and gave His life for me. Following the death of my godly mother-in-law over four years ago, I went to church to fulfill her dying wish. There I heard a message of grace and forgiveness and surrendered my life to Jesus Christ. I am not perfect. No one is. But I am forgiven and I love my Lord and must be obedient to Him and to the Word of God,” Davis said in a statement released Sept. 1.

“I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word,” she added.

The judicial system has not been able to stop her. Davis refuses to pay the slightest bit of attention to the seven justices of the Supreme Court who legalized same-sex marriage. Nor has Davis been swayed by a series of lower court rulings that have gone against her.

Kentucky Gov. Steve Beshear (D) isn’t the man to stop Davis. He told the people of Kentucky there is nothing he can do about Clerk Davis.

“There are obviously strong feelings on both sides of this issue, but the United States Supreme Court has spoken and same-sex marriage is now legal in Kentucky and the rest of the United States. Regardless of whatever their personal feelings might be, 117 of our 120 county clerks are following the law and carrying out their duty to issue marriage licenses regardless of gender. Same-sex couples are now being married in Kentucky and such marriages from other states are now being recognized under Kentucky law,” Beshear said in a statement issued Sept. 1.

“The future of the Rowan County Clerk is now in the hands of the courts. The legislature has placed the authority to issue marriage licenses squarely on county clerks by statute, and I have no legal authority to relieve her of her statutory duty by executive order or to remove her from office,” he added.

“The General Assembly will convene in four months and can make any statutory changes it deems necessary at that time. I see no need to spend hundreds of thousands of dollars of taxpayers’ money calling a special session of the General Assembly when 117 of 120 county clerks are doing their jobs.”

The Kentucky Legislature could always impeach Davis and force her from office. But impeachment is more of a nuclear option that by design is a very difficult mission to accomplish.

Not even people promising to kill her will be enough to stop Davis. She issued a statement through her attorneys at the Liberty Counsel on Tuesday in which Davis refused to cower from the numerous death threats she claims to have received.

“I have received death threats from people who do not know me. I harbor nothing against them. I was elected by the people to serve as the County Clerk. I intend to continue to serve the people of Rowan County, but I cannot violate my conscience,” Davis said in her statement.

The American Civil Liberties Union and the ACLU of Kentucky believe the judicial system is still the best, and hopefully, last resort.

Even though Davis has refused to follow the Supreme Court ruling and a number of other court rulings, ACLU attorneys believe they have one more legal option.

The ACLU filed a motion with the U.S. District Court of the Eastern District of Kentucky on Tuesday asking that Davis be held in contempt of court for refusing to abide by the August court decisions that went against her refusal to issue marriage licenses to gay and lesbian couples. That hearing is scheduled for Thursday.

Davis, through the Liberty Counsel, argued in a brief today that finding her in contempt would violate her right of due process as other motions are pending. “Davis has not been afforded all of the requisite constitutional protections for those facing criminal allegations and she therefore specifically demands herein and does not waive any and all rights of those accused of crimes, including but not limited to her right to a jury trial,” the brief states. “…Any contempt finding in this matter is premature and improperly intrusive and invasive into state affairs.”

But the ACLU does not want Davis thrown in jail. Rather, they are asking for financial penalties, hoping that will be the straw that breaks her resolve.

However, legal expertise aside, it would seem Davis’ determination comes not from fear of financial loss or even the loss of liberty that a jail sentence would impose.

“It is a matter of religious liberty, which is protected under the First Amendment, the Kentucky Constitution, and in the Kentucky Religious Freedom Restoration Act. Our history is filled with accommodations for people’s religious freedom and conscience. I want to continue to perform my duties, but I also am requesting what our Founders envisioned – that conscience and religious freedom would be protected,” Davis said. “That is all I am asking.”