The Supreme Court on Monday turned down a Kentucky county clerk’s request to be excused from issuing marriage licenses to same-sex couples, the court’s first involvement in a series of legal battles that have erupted since gay couples won the right to marry.
The court, without comment, turned away a request by Kim Davis, the elected clerk of Rowan County in northeast Kentucky, who faces fines or even jail time if she doesn’t begin issuing marriage licenses Tuesday. Davis, a devout Apostolic Christian who opposes same-sex marriage, has argued that doing so would violate her religious liberties.
Davis’s resistance has led to the most prominent of a number of legal skirmishes that have broken out since the high court decided in June that same-sex couples have a constitutional right to marry. The ruling was implemented relatively smoothly at first but lately has encountered resistance, particularly in the South.
Two counties in Texas and about a dozen in Alabama are also refusing to issue marriage licenses to same-sex couples, according to gay rights groups. In Mississippi, two same-sex couples are challenging a state law barring gay couples from adopting children. And in Florida, a couple has sued over a state agency’s refusal to name both of them as parents on their child’s birth certificate.
Gay rights groups say this backlash is to be expected. Following Justice Anthony M. Kennedy’s forceful opinion establishing no legal distinction between gay and straight married couples, gay activists expect the cases eventually to be resolved in favor of gay rights.
David Ermold, right, attempts to hand Rowan County clerks a copy of a U.S. District Court ruling instructing the county to start issuing marriage licenses to same-sex couples. (Timothy D. Easley/AP)
But the dogged resistance in some corners suggests that the battles may drag on for some time. And it suggests that there will be continuing pressure on courts to balance the constitutional rights of gay couples to marry with the rights of public officials and others who say condoning same-sex marriage violates their religious beliefs.
Davis — who stopped issuing licenses to all couples, gay and straight — had not indicated late Monday how she would respond to the court’s decision. If she refuses to comply, she could be held in contempt, leading to daily fines or jail time. At a recent rally, Davis adopted a defiant tone, asking for prayers to “stand firm.”
Mat Staver, chairman of Liberty Counsel, a Christian legal group that is representing Davis, demurred earlier Monday when asked how she would respond if she lost.
“She’s not going to resign, but to issue a marriage license is a direct conflict with her religious convictions,” he said. “So it would put her in a real Catch-22 over having to make a decision about her convictions.”
A lightning rod and a hero
Of the many firefights over same-sex marriage, the dispute in Rowan County, about an hour east of Lexington, has proceeded the fastest and drawn the most attention. Davis, 49, a Democrat, was a little-known public servant who toiled quietly as a deputy clerk for 26 years. After being elected to the top post in November, she took the reins from her mother, who had served as Rowan County clerk for the previous 37 years, according to local news reports.
Today, she is a lightning rod. Protesters have flocked to the courthouse in the county seat, Morehead, often gathering around her office window to chant and wave signs. At least once, they pressed a megaphone against the glass.
Same-sex couples come in regularly to attempt to apply for marriage licenses; one couple recorded an encounter with Davis’s staff in a video that went viral. Staver said Davis has also been the subject of death threats. In one case, he said, a person called pretending to be from the office of the state attorney general and began threatening the clerk when she got on the phone.
For others, however, Davis has become a hero. She was greeted with raucous applause when she appeared at a rally at the capitol in Frankfort in support of her and two defiant clerks from other Kentucky counties. One of them, Casey Davis, who is no relation, has embarked on a 450-mile bicycle ride across the state to draw attention to Kim Davis’s plight.
“This lady, she’s a good lady,” Casey Davis said via cellphone from a hilltop in Anderson County on Monday afternoon, near the halfway point of his cycling trip from Pikeville to Paducah. “There are people who deserve to go to jail. She is not one of them.”
Casey Davis said he and the other clerk are not facing any legal trouble because no one has sued them for refusing to issue a license to a same-sex couple. The situation is different in Rowan County, which has a population of about 23,000 people and is home to Morehead State University.
Six couples who tried unsuccessfully to get marriage licenses from Kim Davis’s office have filed suit. In early August, U.S. District Court Judge David L. Bunning rejected Davis’s argument that she was being forced to violate her religious beliefs by issuing and signing the marriage licenses.
The clerk is “simply being asked to signify that couples meet the legal requirements to marry,” and that does not impinge on her religious freedoms, Bunning wrote. “Her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.”
A panel of the U.S. Court of Appeals for the 6th Circuit agreed, and Davis faced a Tuesday deadline to open her office to all couples seeking to marry.
A devout Christian
In her defense, her lawyers described Davis in a court filing as “a professing Apostolic Christian who attends church worship service multiple times per week, attends weekly Bible study, and leads a weekly Bible study with women at a local jail.” It says she fasted and prayed for weeks before deciding that she would not issue marriage licenses to gay couples.
Her lawyers say there are more than 130 locations around the state where same-sex couples can get licenses, including seven counties neighboring Rowan. They also argue that other steps could be taken to accommodate Davis’s religious beliefs.
For example, a clerk from a neighboring county could be deputized to issue licenses in Rowan County. The state could remove all references to a clerk’s name on marriage licenses. Or lawmakers could overhaul the way Kentucky licenses marriages.
On Friday, Davis formally requested a stay of the lower court’s ruling from Justice Elena Kagan, the Supreme Court justice who oversees the 6th Circuit.
Kagan referred the matter to the entire court, which turned down Davis’s request Monday evening without noted disagreement.
Alice Crites contributed to this report.
Sandhya Somashekhar is the social change reporter for the Washington Post.