Court Clerk Kim Davis Jailed for Refusing to Issue Same Sex Marriage License

Court Clerk Kim Davis Jailed for Refusing to Issue Same Sex Marriage License September 3, 2015

Photo Source: Flickr Creative Commons by Tori Rector
Photo Source: Flickr Creative Commons by Tori Rector

Kim Davis, the county clerk in Rowan Country, Kentucky, was jailed for contempt of court.

This is a rather interesting situation, since Ms Davis is an elected official. Normally, elected officials who are considered to be failing to perform their duties are dealt with by the voters, or, if the Constitution of their state allows, impeachment proceedings.

The question that comes to mind in this situation is simply whether or not the court is over-stepping its standing in this matter. That is a rather large question which may surface in actual practice if these law-making court decisions keep on coming.

Our Supreme Court has taken on a legislative role in many of its rulings in the past few decades. Each time it has done that, it has gone further than simply taking legislative powers onto itself. It has also taken on the role of a dictatorship by tribunal, since members of the Supreme Court are not elected.

I am interested to see if anyone raises the question as to whether or not the court has the power to imprison elected officials for what it deems a failure to perform their duties. That kind of action broadens judicial powers exponentially.

Right now, the issue is being dealt with as a simple contempt of court. I question whether or not a court can issue an order requiring that elected officials perform their duties in specified ways. In some jurisdictions, where the county clerk is entirely an officer of the court, there would be no question as to the court’s authority to order them to comply with court orders.

But Ms Davis stood for election. So, is she entirely an officer of the court? She is, after all, directly answerable to the people.

For instance, back in the 1980s, the federal courts issued orders about certain requirements concerning population density and facilities for the Oklahoma prisons. There was a riot at one of our prisons and we had to rebuild the prison. During the planning for that, we took the court order into consideration.

But if we had not, the court would not have been able to put any member of the legislature in jail for non-compliance. The federal government could have punished the state of Oklahoma by a withdrawal of funds. The courts might have issued draconian orders putting the prisons under direct federal oversight. There might even have been an attempt to fine the state in some way.

However, none of us who voted on this legislation worried that soldiers were going to come on the House floor and cart us off to jail for non-compliance if we failed to adhere to that court order. Courts don’t — and shouldn’t — control how elected officials do their duties. It is a gross expansion of court powers for them to try.

I realize that the order concerning Ms Davis was directed at her alone. But there is a principle here that I don’t think anyone is looking at carefully enough.

From ABC News:

A Kentucky county clerk, Kim Davis, was jailed today after a judge found her in contempt of court for her refusal to issue same-sex marriage licenses, but five of her deputies said under oath they would comply with the court’s order to issue the licenses.

U.S. District Judge David Bunning ruled against the Rowan County clerk before deputy marshals removed her from the courtroom this morning, and later said he expected the deputies to comply despite Davis’ refusal to authorize them to do so.

Bunning said Davis could be released from federal custody if she complies with the order to resume issuing licenses in the county. She has refused to issue marriage licenses to anyone, arguing that such a move was a way around discriminating against same-sex couples.

The ACLU had asked that she be fined but the judge said he didn’t believe that was enough to force her into action.

Mat Staver, founder and chairman of Liberty Counsel, which is representing Davis, said in a statement, “Everyone is stunned at this development. Kim Davis is being treated as a criminal because she cannot violate her conscience. While she may be behind bars for now, Kim Davis is a free woman. Her conscience remains unshackled.”



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37 responses to “Court Clerk Kim Davis Jailed for Refusing to Issue Same Sex Marriage License”

  1. I used to work for a tech firm, which was bought out by a larger company. I had some ethical qualms about the larger company, and in the process of the restructure, my job description changed into something that I really had no professional desire to become.

    Needless to say, I resigned. What I did not do was insist that I had the right to keep following my original job description, and that my new company should accept that.

  2. I agree Rebecca that her being an elected official makes this a very unique legal animal. I also question whether the judge has to ability to direct her deputies to issue licenses without her authority AND to threaten them with fines or jail if they refuse. Judicial misconduct? She’s the one with the authority to deputize them to act in her absence, not the judge. Unless there is some provision in the county/state law for going around her authority without formal impeachment and removal from office then any licenses issued without her seal are likely going to be invalid.

    I was originally against her lawsuit because she shut down the entire office. But as more and more of the legal issues unfold I think her civil disobedience may be a very good thing for exposing judicial incontinence and the increasingly common trampling of the Free Exercise Clause in favor of gay rights. She has more than one legal argument she can make (such as following the law on the books until the legislature re-writes it, not what she is supposed to interpret from O v H) and I think we will see a lot more to come. She seems willing to be a religious martyr and I have to commend her courage in the face of personal sacrifice even if I wouldn’t make the same legal arguments she has made.

  3. The persecution has begun in earnest – earlier more than 99% of Americans had hoped or feared.

  4. As a public employee (not elected), if I can’t in good conscience do my job, I find another job. Aso I’m not really sympathetic to this woman, because she should do her job.

    On the other hand, the Christian haters are out in force and doing what they do. I’ve read that she her objection is to her signature on the license. The gays can have their license if she doesn’t have to sign it. One gay rights activist I engaged today weaseled all the way around the moon until he finally gave a very qualified acceptance of the accommodation. I wonder if that accommodation will be widely accepted.

  5. But did your new job description actually violate a legal right? That’s the issue, not whether you just didn’t want to do what the new job required of you. Not all ethics or morals are the result of protected religious beliefs. I don’t think anyone makes the argument that opposition to ssm isn’t part of formal religious belief for many people.

  6. I would have admired her if she had resigned rather than violate her religious convictions.

    As it did happen, she chose to impose her religious convictions onto the county she was elected to serve, thereby causing inconvenience to all couples who wanted to obtain a marriage license.

    The public has a reasonable expectation that public servants will perform their duties.

  7. There’s nothing legally odd about this. The writ is called “mandamus” — a court directing an official (elected or not) to perform an act.

  8. We are not talking about a personal job but an elected official. Think about what this brings out. Does this mean that anyone who has any Religious Belief can no longer hold any Government or Political position? If so, this is no longer a free country but a totalitarian regime.

  9. If Obama chooses, he can bring in the Justice Dept. The clerk is violating the civil rights rightfully belonging to citizens of the United States of America. FBI. Federal Court. Big House. No parole. No brainer. I don’t think he has the stomach for it. It’s what they should have done to Lester Maddox. George Wallace and Bull Conner. All bigots acting under the color of law.

  10. I was hoping you were going to write about this. Didn’t realize it had escalated to putting Ms. Davis in jail. I have many questions.

    If elected officials refuse to follow any law, what’s to stop all elected officials to deciding other laws violate their conscience?

    Is she refusing to issue licenses to couples who are living together? Is she refusing to issue licenses to couples who are having premarital sex? Is she refusing to issue licenses to couples who are using birth control? If she does issue licenses to these people, why is it okay to say no to the gays?

    How does she reconcile her past (married to 3 men and 2 children out of wedlock with refusing to issue licenses to the gays? She says that she has repented and living Christ-like now. How come the gays aren’t given the same consideration? They could decide she’s right in the future.

    What about separation of church and state?

  11. Very interesting article on the role of the court in disciplining the clerk. Had not thought about the proper proceedings for making her comply with the law and provide the services her public deserves.

  12. Sus, we’ve had lots of instances where elected officials refused to follow the law and did not put them in jail. A big for instance was the refusal of Southern governors to allow black children into white schools during the Civil Rights fight.

    People are so short-sighted, it’s scary. if the courts take on this power to imprison elected officials for what the court deems failure to perform their duties, we have lost government of the people and created government by the judiciary.

    As for her personal motivations, I don’t think they are pertinent to the issue I’m raising. However, I’ve read that she did those things before she converted to Christ. I was once pro choice. But I changed when I converted. Saul of Tarsus held the cloaks of the men who stoned St Stephen. Then he changed. Christianity works that way, you know.

  13. If we start down this road of imprisoning elected officials because we don’t like how they are performing their duties, we will have ended democracy.

    Frankly, I’m a bit appalled by the ignorance about our freedoms and the ease with which people wish them away.

  14. “As for her personal motivations, I don’t think they are pertinent to the issue I’m raising. However, I’ve read that she did those things before she converted to Christ. I was once pro choice. But I changed when I converted. Saul of Tarsus held the cloaks of the men who stoned St Stephen. Then he changed. Christianity works that way, you know.”

    Of course! It works that way for everyone including gay people. To deny their legal rights isn’t going to lead them to Christ.

  15. That isn’t pertinent, either Sus. The question is government of, by and for the people through their elected representatives, and the separation of powers that limits the power of the judiciary. We don’t want to judicial dictatorship. Believe me, you wouldn’t like it.

  16. She should have, IMO, just resigned her position. Part of her elected job is to issue the marriage licenses. If she can’t in good conscience do that—move on.

  17. Actually, she could have had subordinates sign the certificates. That pay off what I read wasn’t true.

  18. She willfully ignored a court order that had been lawfully issued. You can go to jail for that. So yes, a court can jail you for refusing to obey a court order, even if you are an elected official.

  19. We already have judicial dictatorship. I don’t know where Kennedy gets his ideas, but my guess would be scatalogical.

  20. She is being held in contempt of court as the judge ordered her to issue the licenses and she refused. There have been reporters held for over 6 months. I don’t think there is a limit. Maybe when the law changes or the judge dies.

  21. From Rebecca, I’m repeating it because I thought it was important.

    “If we start down this road of imprisoning elected officials because we don’t like how they are performing their duties, we will have ended democracy.

    Frankly, I’m a bit appalled by the ignorance about our freedoms and the ease with which people wish them away.”

    I think this is the definition of fascism. The courts are ignoring the clear will of the people. That is bad.

  22. I’m not sure I agree with her being jailed or that she should have been jailed. I understand that can happen to civilians when that are in contempt of court. While Brandan Robertson at Revangelical might be a little too enthusiastic about Kim Davis being jailed, saying “It’s a win for religious liberty” – – I think that Father Longenecker has the most reasonable way for this to be resolved, “While I respect Kim Davis’ courage and unwillingness to compromise her faith, I think the right course would be for her to resign. The King pursued the matter from the realm of state employee to that of private citizens, and when that happens a Christian must stand his ground. Within the government workplace however, I think the first sacrifice is for the person to resign and look for another job. A resignation is not a compromise and it is not condoning something the religious person cannot condone.” – .

    To all the people that believe that Kim Davis is a martyr and her First Amendment rights are being violated, I think Jennifer D. Crumpton at Femvangelical has the bat take, “No one has to marry gay people, go to gay weddings, or believe same-sex marriage is acceptable within their particular faith tradition. But they also absolutely cannot try to take away civil rights, freedom, justice and liberty from those they disagree with. It’s definitely not what Jesus would do. It’s not illegal to be Christian in America. That is an unintelligent and cowardly claim by people like Mike Huckabee. It is, however, illegal to attempt to enforce your personal beliefs on the public, and to use a government job position to refuse to grant the rights of others.”-

  23. I believe you and many others are misinformed about Davis’ motives because the media, where most of us get our information, is not being very honest. Davis is not trying to ban ssm in her county, she is trying to get the law changed to allow her a religious conscience accomodation that protects her rights while still letting ssm licenses to be issued. One of her suggestions has been to change the law requiring her signature on every license and allowing others who do not object to sign instead, or remove the signature line altogether. All she is asking is that she not be forced to sign the licenses while her request for accomodation goes through legal channels. It seems that if the governor has the power to require clerks to follow O v H and not the man/woman law on the books has also has the power to change the forms as a stop gap until the legislature can re-write the laws. The judge is effectively forcing the staff to issue licenses without her signature now, so why not let that happen with her back in the office doing every other part of her job? She doesn’t have to be in jail to accomplish the issuing of ssm licenses. It’s a pi$$ing match to see who will cave first.

  24. There is no proof that it was lawfully issued nor that the judge has jurisdiction. That’s just your opinion.

  25. This has nothing to do with separation of church and state, which is not in the Constitution, btw. This has to do with Freedom of Religion which has, up until now, been liberally interpreted. There has to be reasonable accommodation of religious belief.
    Btw, a person, any person, can make political decisions based on their religious beliefs. That would be a darn site better than making them based on no beliefs as we have now, to a great extent.

  26. Yes…. my legal opinion. And she has high quality paid legal counsel (free to her) and that havent killed his jurisdiction or the validity of the order. So… I’m right.

  27. Well, I wouldn’t want you to think that I’m just some uninformed quack. These are serious issues. We turn to experts for serious matters like law and medicine.