Same-sex couples in a small eastern Kentucky county got everything they wanted in a ruling from a federal judge on Aug. 17, except for one sentence and except marriage licenses.
U.S. District Judge David Bunning denied Rowan County Clerk Kim Davis’ request to delay his ruling from last week ordering her to issue marriage licenses to gay and lesbian couples. That ruling followed the U.S. Supreme Court’s decision in June legalizing same-sex marriage nationwide. However, Bunning then delayed his own decision, effectively granting Davis’ request while also denying it.
“If the Court decided to delay enforcement of its Order while Davis pursues an unpromising appeal, it would essentially give Plaintiffs a favorable legal ruling with no teeth and prolong the likely violation of their constitutional rights,” Bunning wrote.
But Bunning acknowledged that “emotions are running high on both sides of this debate” and said he would delay his ruling while Davis appeals to the 6th U.S. Circuit Court of Appeals.
Attorneys on both sides disagreed about the implications.
Dan Canon, representing the gay couples, said Davis remains under the judge’s original order.
But Mat Staver, who represents Davis and is the founder of Florida-based Liberty Counsel, said the convoluted order essentially grants her request for more time.
What is clear is that Davis will continue refusing to issue marriage licenses to anyone in this county of about 23,000 people, home to Morehead State University in the Appalachian foothills of eastern Kentucky. Until the case is resolved, no new wedding can be legally recognized in Rowan County unless the couple obtain a marriage license somewhere else.
“This is not something I decided because of this decision that came down,” Davis testified in federal court last month. “It was thought-out and, you know, I sought God on it.”
The U.S. Supreme Court’s decision in June legalized same-sex marriage nationwide. But it also “ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”
Bunning, and now the court of appeals, are left with the narrow issue of whether that ruling infringes on a local elected official’s religious beliefs.
Bunning says no, arguing that Davis is “free to believe that marriage is a union between one man and one woman, as many Americans do.”
“However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk,” he wrote last week.
Davis’ lawyers compare her to other religious objectors, such as a nurse being forced to perform an abortion, a noncombatant ordered to fire on an enemy soldier, or a state official forced to participate in a convicted prisoner’s execution.
Clerking has been a family business in Rowan County. Davis worked for her mother for 27 years before replacing her in the elected post this year, and her son Nathan now works for her. He personally turned away a gay couple last week.
Around the United States, most opponents of gay and lesbian marriage rights are complying with the high court. Some other objectors in Kentucky submitted to the legal authorities after Democratic Gov. Steve Beshear told them to begin issuing licenses to same-sex couples, or resign.
Kim Davis is one of the last holdouts, and apparently the first to be challenged in federal court, putting her and tiny Rowan County in the middle of one of the country’s largest social upheavals.
Davis wants Kentucky lawmakers to allow county clerks to opt out of issuing marriage licenses for religious reasons. But the governor has declined to call a special session. Davis faces fines and possible jail time for contempt of court if she loses her challenge and still refuses to issue licenses. But she can only be impeached from her $80,000 a year job by the legislature, and impeachment proceedings are unlikely even after the lawmakers reconvene in January.
Davis, through her attorney, declined to be interviewed. Acquaintances describe her as easygoing but reserved. She hid behind her attorneys to avoid being photographed in a courthouse hallway and had to be told to speak up from the witness stand.
Shortly after she took office in January, she said she wrote every state lawmaker she could and pleaded to change the law, to no avail. So, on June 26 – the day the U.S. Supreme Court legalized same-sex marriage nationwide – Davis told her staff not to process any more licenses until further notice, no matter who asked.
Under Kentucky law, marriages must be licensed by a county clerk, who first determines if the couple meet all legal requirements – such as being unmarried, and old enough. And because every license issued in Rowan County is under her authority, she feels she can’t delegate the job to a non-objector.
“If I say that I authorize that, I’m saying I agree with it, and I can’t,” Davis told the court.
Rowan County Judge Executive Walter Blevins can issue marriage licenses if the clerk is “absent,” but the term is undefined in state law. Both Blevins and Bunning decided Davis not issuing licenses for religious reasons does not mean she is absent. That leaves Davis, for now, firmly in control.
Davis said her beliefs on sin are shaped by “God’s holy word” in the Bible, and that she attends church “every time the doors are open.” She also leads a weekly women’s Bible study at the county jail.
“I love them. They’re the best part of my Monday,” Davis said.
Davis testified that the Bible teaches that marriage is between one man and one woman and that sex outside of marriage is a sin. Court records indicate Davis herself married when she was 18 in 1984, filed for divorce 10 years later, and then filed for divorce again, from another husband, in 2006.
Many Christians believe divorce also is a sin, and an attorney for the same-sex couples repeatedly questioned her about this in court. Asked if she would religiously object to issuing a marriage license to someone who has been divorced, she said, “That’s between them and God.”
Davis has not said how she would react should she lose her appeal.
“I’ll deal with that when the time comes,” she said.