It should be noted at the outset that the lawyers for local couples suing Rowan County Clerk Kim Davis for marriage licenses specifically requested of the Court:
“Since defendant Davis continues to collect compensation from the commonwealth for duties she fails to perform, plaintiffs urge the court to impose financial penalties sufficiently serious and increasingly onerous to compel Davis’ immediate compliance without further delay,” Sharp wrote.
The reasoning behind this is that the ACLU did not want to make Kim Davis a “martyr” for her Christian beliefs with the Christian Right, who always believe that they are being “persecuted” for their particular brand of Christian beliefs. As one commentator noted, the Plaintiff’s did not want to give Davis the opportunity to write a Letter from a Birmingham Jail – Rev. Dr. Martin Luther King, Jr. with which to rally the Christian Right organizations pushing for a broadened definition of “religious liberty” aka a license to discriminate.
I would argue that Kim Davis is not exactly the sympathetic plaintiff that her lawyers, the Liberty Foundation, would prefer for this “religious liberty” case. Kentucky Clerk Fighting Gay Marriage Has Wed Four Times:
The Kentucky county clerk facing potentially stiff penalties for refusing to issue same-sex marriage licenses has been married four times, raising questions of hypocrisy and selective application of the Bible to her life.
The marriages are documented in court records obtained by U.S. News, which show that Rowan County Clerk Kim Davis divorced three times, first in 1994, then 2006 and again in 2008.
She gave birth to twins five months after divorcing her first husband. They were fathered by her third husband but adopted by her second. Davis worked at the clerk’s office at the time of each divorce and has since remarried.
Despite the plaintiffs’ specific request not to incarcerate, the Lexington Herald-Leader reports, Federal judge jails Rowan County Clerk Kim Davis for refusing to issue marriage licenses:
Faced with the threat of jail, five deputies of Rowan County Clerk Kim Davis told a federal judge Thursday that they will comply with his order to issue marriage licenses starting Friday morning.
The only holdout was deputy clerk Nathan Davis, who is the son of Kim Davis.
Earlier Thursday, U.S. District Judge David Bunning ordered Kim Davis jailed after finding her in contempt of court for ignoring his order to issue marriage licenses.
Bunning initially ordered Davis to remain in jail until she agrees to comply with his Aug. 12 order, but he scheduled a new hearing for 3:30 p.m. to reconsider that decision after her deputies said they would issue licenses in her absence.
Outside, cheers erupted as news of Bunning’s decision reached dozens of marriage equality protesters.
Bunning told Davis he has his own religious beliefs as a Catholic, but public officials must respect the law.
“In this country, we live in a society of laws,” Bunning said. “Our system of justice requires citizens — and significantly, elected officials — to follow the rules of the courts.”
Plaintiffs in the case had asked Bunning to fine Davis, but they specifically requested that he not jail her. Bunning, though, said fines would not work because others might raise money to pay the penalty on her behalf.
A prescient point: Religious Right organizations have raised crowd source funding for anti-gay bakers as part of their “religious liberty” license to discriminate legal crusade. Fundraising Effort For Anti-Gay Bakery Breaks Records.
Lawyers for Davis stated in a brief filed late Wednesday that she has broad political support in Kentucky.
“Leading Kentucky legislators from both parties in both houses uniformly agree that the legislature needs to address the entire marriage scheme in light of (the Supreme Court decision), but also agree that Davis’ religious beliefs should be, and can be, accommodated. Both gubernatorial candidates in Kentucky have indicated an intent to support county clerks’ individual rights,” wrote Jonathan Christman, one of Davis’ attorneys.
Senate President Robert Stivers, R-Manchester, also filed a brief in the case late Wednesday asking Bunning to “delay, withhold or temper his ruling in this case until the General Assembly has an opportunity to establish new frameworks under Kentucky law.”
Possible legislative responses to the clerks’ protest have been discussed, including removing clerks’ names from marriage license paperwork to make them feel less personally involved, or transferring the authority to issue marriage licenses to a state agency. However, lawmakers are not scheduled to convene until January.
This is simply buying into the Religious Rights’ argument to broaden the meaning of ‘religious liberty” into a license to discriminate. Libertarian lawyer Jonathan Adler writes about U.S. Supreme Court Justice Antonin Scalia’s recommendation for Clerk Davis: resign. Why Kim Davis should resign:
In the wake of the Supreme Court’s decision in Obergefell v. Hodges, Kentucky Gov. Steven Beshear ordered all county clerks in the state to issue marriage licenses to same-sex couples, but Davis refused. A federal district court ordered her to comply and issue such licenses, and she still refused. She sought relief in federal court, and even sought relief from the Supreme Court, but to no avail. She now risks contempt.
No justice publicly dissented from the Supreme Court’s denial of Davis’s plea for relief, and this was not surprising. The law on this point is clear. Davis cites her religious conscience as the excuse for her intransigence, but she is wrong to do so. That’s not only my view, but the view of no less than Justice Antonin Scalia.
Davis has a right to observe and adhere to her religious beliefs, but she does not have a right to her job as county clerk. The latter obligates her to follow federal law, including the applicable judgments of federal courts, and it is now the law of the land that the Constitution bars state governments from refusing to recognize same-sex marriages on equal terms with opposite-sex marriages. If, as Davis claims, her religious convictions bar her from issuing such a marriage license, she should resign.
Note: The Rowan County Clerk’s office appears to be an entitlement within the Davis family. “Kim Davis succeeded her mother, Jean W. Bailey, who was Rowan County clerk for nearly 40 years until she retired. Davis was one of her mother’s deputy clerks for much of that time, just as her 21-year-old son, Nathan, now works as one of her deputies.” This weighs against Davis voluntarily resigning her position.
Now Scalia has not, to my knowledge, said anything directly about Davis’s actions, but he has addressed the question of what public officials should do when their official obligations conflict with their religious conscience. Writing in “First Things” in 2002, Scalia explained that if he were to conclude that the death penalty is fundamentally immoral, he should no longer serve on the bench.
[W]hile my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral. . . .
[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty” and if that fails, lead a revolution. But rewrite the laws he cannot do.
Davis is in a similar position. Her official position obligates her to take part in the state’s licensing and recognition of marriages. Insofar as the state’s definition of an acceptable marriage differs from her own, Davis is obligated to follow the state’s rule so long as she maintains her current office.