MOREHEAD, Ky. – A clerk in a rural Kentucky county continued to refuse marriage licenses to same-sex couples today, in defiance of a mounting pile of federal court orders that reject her claim that her Christian faith should exempt her from licensing a gay union.
Rowan County Clerk Kim Davis will now ask the United States Supreme Court, which two months ago legalized gay marriage across the nation, to delay the mandate to issue licenses until her appeal is complete, a process that could drag out for several more months.
“It’s getting tedious. We get torn down, built back up, torn down, built back up,” said David Ermold. He and his partner, David Moore, have been rejected by Davis’ office twice. “It’s emotionally draining that this keeps happening over and over.”
Days after the Supreme Court’s same-sex marriage ruling, Davis announced that her religious convictions prevented her from sanctioning a gay marriage, so refused to issue licenses to any couple, gay or straight.
The American Civil Liberties Union sued her last month on behalf of four couples. U.S. District Judge David Bunning ordered Davis to issue marriage licenses two weeks ago. He later delayed that ruling until Aug. 31 or until the U.S. 6th Circuit Court of Appeals issued a ruling. The appeals court did so on Wednesday, denying Davis’ appeal.
But a deputy clerk in Davis’ office today told William Smith Jr. and James Yates, a couple for nearly a decade, that the office believes Bunning’s delay remains in effect until Aug. 31. He refused to give his name or give them a license.
“The court of appeals did not provide any religious accommodation rights to individuals, which makes little sense because at the end of the day it’s individuals that are carrying out the acts of the office,” said Mat Staver, whose religious law firm Liberty Counsel is representing Davis. “They don’t lose their individual constitutional rights just because they are employed in a public office.”
Davis, meanwhile, sat in her office with the door closed. She talked on the phone, ignoring the commotion as Yates and Smith, trailed by television cameras, poured in through the door and demanded answers.
Her appeal to the nation’s highest court will fall to Justice Elena Kagan, who oversees the 6th Circuit. Kagan, a liberal judge, sided with the majority this summer when it rules gay marriage bans unconstitutional.
Kagan could reject it outright in a matter of days, which would exhaust Davis’ options for appeal, said Sam Marcosson, a constitutional law professor at the University of Louisville.
“Once the stay is denied then the question will be right there on the front burner of whether she will comply because there will be no further avenue for her, no further roads she can cross or take to try to delay,” Marcosson said.
The question will then become what Davis will choose to do.
She has said she will not resign and pledged to never issue a license to same-sex couples. She can only be removed from office if the state Legislature impeaches her, which is unlikely.
If she continues to ignore the courts’ orders, the couples’ attorneys are likely to ask Bunning to hold her in contempt of court, which triggers a new round of hearing, evidence and testimony.
The law offers the judge wide discretion on how to force her hand: he can sanction her with fines, or order that she be jailed.
Activists with signs and rainbow umbrellas lined up along the street outside her window, shouting “Do your job.” Later, Davis temporarily closed her office for “computer upgrades,” and posted a note on the door that the office would reopen in an hour.
Casey County Clerk Casey Davis, also opposed to issuing licenses to same-sex couples, got on his bike at 4:30 a.m. today and began cycling more than 450 miles across the state to bring attention to Davis’ predicament. It will take him an estimated 44 hours to complete.
“I cannot let my sister go to jail without my doing something to let others know about her plight,” Casey said in the statement. Although the two are not related by blood, The Family Foundation says they are bonded by religious conviction.
Yates and Smith say that they have conviction, too.
Two months ago, the day after the U.S. Supreme Court legalized gay marriage across the nation, Yates got down on one knee and proposed to Smith, his partner of nearly a decade.
They wanted to plan a summer wedding, so went days later to Davis’ office for a license, and were turned away. That first time, they were shocked by the rejection. When they were rejected a second time, the shock turned to anger.