Rowan County Clerk Kim Davis must do her job and issue marriage licenses to couples, or quit.
The Kentucky elected official appears to be one of a few lone holdouts across the country fighting marriage equality at every turn. After many legal appeals, including the U.S. Supreme Court's denial to intervene in the case on Monday, Davis continues to deny marriage licenses to same-sex and straight couples. She is citing her religious beliefs and the Associated Press reported Tuesday that she is denying marriage licenses "under God's authority."
The American Civil Liberties Union filed a contempt motion Tuesday, on behalf of April Miller and her partner, Karen Roberts, and a hearing is scheduled for Thursday. If Davis is found in contempt, she could face fines or jail time. And while many in the LGBT community don't want Davis sent to jail, fearing that it would make her a martyr for the religious right's cause, that's where she belongs if she refuses to perform her duties as a government employee. Because Davis is an elected official, she can't simply be fired, so a contempt motion is the next legal step for same-sex couples to pursue. A recall campaign could be mounted against Davis, but the outcome would be uncertain. It appears that Kentucky, and Rowan County in particular, aren't vanguards for equal rights for LGBT people. She could also be impeached, but that seems unlikely as the Legislature isn't in session now. The New York Times reported that the Kentucky attorney general is determining whether Davis can be charged with official misconduct.
When the U.S. Supreme Court issued its same-sex marriage decision in Obergefell v. Hodges in June, it was focused on civil marriage. There's nothing in the court's ruling about forcing church officials to perform same-sex weddings. The county clerk's job is to follow the law, which now states that same-sex couples are entitled to receive marriage licenses. That's Davis' duty. She can't take her own oath to God and unilaterally declare that she can act under God's authority. The Lord doesn't have a role in the administration of municipal government. When Davis was sworn in to the job, she took an oath to uphold the law, and that's what is at issue here. She is violating her oath by not granting marriage licenses to anyone. Apparently, Davis thought she could avoid charges of discrimination by refusing all couples. Davis is not above the law.
We have no doubt that Davis is sincere in her religious beliefs, and that is certainly her right. But when those beliefs impede her ability to do her secular job, it's unacceptable. Her attorneys from the vehemently anti-gay Liberty Counsel are also urging her to stand firm; they want to see how far they can push their specious "religious freedom" argument.
It's similar to all the cases claiming religious freedom by bakers, florists, and photographers, who are increasingly finding themselves running afoul of anti-discrimination laws. These people have the right to their religious beliefs. The problem arises when they cite those beliefs to refuse their services to customers, which in many places is against the law. That's why they're losing these lawsuits.
It's interesting that the Davis case has spotlighted just how normal same-sex marriage is across the country. There are thousands of county clerks and the vast majority of them are doing their jobs, whether they personally believe in marriage equality or not. Davis and the few like her who are waging their own legal battles are outliers, which we should keep in perspective.
It's also significant that straight couples in Rowan County are also being denied their freedom to marry. If nothing else, while this case plays out, maybe same-sex couples in this conservative area will meet some new allies. There's nothing like being denied one's rights to realize that gays and straights aren't so different after all.