For Kim Davis, orange really was the new black.
The Rowan County, Ky., clerk briefly occupied a Carter County Detention Center cell in early September for her steadfast refusal to issue marriage licenses to would-be newlyweds.
Davis, an Apostolic Christian, has refused to issue the licenses since the U.S. Supreme Court’s June verdict in Obergefell v. Hodges, which legalized same-sex marriage nationwide. 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.
That argument 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 deputy clerks began issuing the licenses in her place, 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 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 6th U.S. Circuit Court of Appeals 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, who applied for a licence 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 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 a misconduct charge to the state attorney general.
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.
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. He too demands a religious exemption from issuing marriage licenses to same-sex couples. (A third Kentucky clerk, Whitley County’s Kay Schwartz, has also refused to issue licenses but hasn’t achieved the same publicity and is not facing legal action.)
“‘Issue marriage licenses or resign’ – those were the words,” Casey Davis 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 hasn’t strayed far from the spotlight. In what he described as an attempt to direct attention to Kim Davis’ plight, he recently biked from his home in Pikeville to Paducah, over 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.
Casey Davis and his Kentucky compatriots may not have persuaded Beshear, but they don’t entirely lack political support. After Bunning ordered Kim Davis to jail, GOP presidential candidates eager to court the Religious Right rushed to offer their support.
“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. Sen. Ted Cruz (R-Texas) asserted.
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.”
But 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, Liberty Counsel’s founder, Mat Staver, said he “personally will advocate disobedience to [marriage equality].”
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 monitor the situation. And a Marion County, Ore. 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 sometimes inaccessible to them.
Dr. April Miller of Morehead, Ky., 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 Sept. 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.
When Davis returned to work after her imprisonment, she allowed deputy clerks to issue licenses. But she also claimed that those licenses might be invalid because they lack her signature; she has also continued to press her case in court. (The situation remained unsettled as this issue of Church & State went to press.)
Americans United Executive Director Barry W. Lynn said Kim Davis should return to jail if she continues to deny same-sex couples their rights.
“Davis believes her religious beliefs give her the right to tell others what to do,” 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.”