September 3, 2015 at 10:37 PM
ASHLAND, Ky. — For a moment there, it looked as though Kim Davis might stay out of jail.
The 49-year-old Kentucky county clerk, who grabbed the national spotlight by refusing in the face of multiple court orders to begin issuing marriage licenses to same-sex couples, had been given an out.
She could remain a free woman, the judge said, if she gave permission to her deputies to sign the certificates in her stead. The judge gave her time to consult with her attorneys.
But when the court reconvened after a short recess Thursday, Davis was not in her seat. An attorney explained that Davis, an Apostolic Christian, “does not grant her authority nor would allow any employee to issue those licenses.”
And so Davis consigned herself to jail, sparking a fresh round of legal wrangling and political calculation in the face of the most audacious display of defiance on the issue of same-sex marriage since the Supreme Court declared in June that gay couples had a constitutional right to wed.
On one hand, Davis’s situation is rare. For the most part, even the most ardent opponents of same-sex marriage have followed the law, with gay rights groups reporting that the vast majority of county officials across the country are issuing marriage licenses to all couples, gay and straight.
But on the other hand, the prospect of a wife, mother and longtime public servant sitting in jail to defend her beliefs will probably inflame the debate over how to balance the rights of gays to marry with the ability of people of faith to freely exercise their religion.
The plaintiffs in the case, two gay couples and two straight couples who were denied marriage licenses, had not asked for jail time for Davis but rather sought stiff fines. During the hearing Thursday, U.S. District Judge David L. Bunning said he did not believe fines would be sufficient to compel Davis to follow his order because her supporters could raise money on her behalf.
So Bunning ordered Davis to be taken into custody and ordered five of her six deputy clerks to begin issuing licenses to all couples on Friday morning. The lone exception: deputy clerk Nathan Davis, Kim Davis’s son.
“No one wants Kim Davis in jail,” Ria Tabacco Mar, a staff lawyer with the American Civil Liberties Union, which is representing the couples, said in a statement. “Our clients simply want to get married in the county where they live and pay taxes.”
Davis’s actions have divided the Republican presidential contenders, most of whom have remained silent on the issue this week. Several candidates who are trying to appeal to the evangelical Christian base pounced, accusing the Supreme Court as well as Bunning of judicial overreach.
“I stand with Kim Davis. Unequivocally,” Sen. Ted Cruz (Tex.) said in a statement. “I stand with every American that the Obama Administration is trying to force to choose between honoring his or her faith or complying with a lawless court decision.”
But even some candidates who have expressed concern about government intrusion into religious rights suggested that the principle at stake in the Davis case was not so much religious freedom as a public servant refusing to do her job.
“I have real concerns about ensuring that religious liberty is protected in this country,” New Jersey Gov. Chris Christie (R) told reporters during a campaign stop in New Hampshire. “I’ve also said that people who are in government jobs need to do their jobs.”
Davis’s stance has increased pressure on state officials, some of whom have called for a special session to adjust state law to accommodate Davis. Some proposals on the table include removing the clerk’s signature line from marriage certificates, or allowing wedding officiants to sign them instead.
But the legislature does not meet until January, and Gov. Steve Beshear (D) has resisted calls for a special session, arguing that it would not be cost-effective to convene the General Assembly simply to accommodate Davis and the two other clerks in the state who are refusing to issue licenses.
Some critics have called for Davis’s removal from office, but legal experts say that would be difficult. Davis was elected to her post and therefore has no supervisor who could fire her. She could be removed through a recall election or impeached by the legislature, neither of which seems probable.
Some critics are seeking to have criminal charges filed against Davis, which would make removal easier.
A person held in civil contempt by a federal judge may stay behind bars for up to 18 months, or less if a judge becomes satisfied that the person is no longer disobeying a court order. A person may be held longer if a judge finds the person in criminal contempt and issues a formal sentence.
Davis is being held at the Carter County Jail in Grayson, about 30 minutes from Ashland. A booking photo shows the bespectacled clerk wearing a steely expression and a sea-foam-green top, her long brown hair pulled back into a clip.
The Christian legal organization representing her, Liberty Counsel, will probably appeal the judge’s finding of contempt.
The drama began much earlier in the day, when hundreds of supporters and critics of Davis gathered outside the Carl D. Perkins Federal Building in this town on the Ohio River where Kentucky meets Ohio and West Virginia. Some of Davis’s supporters came from as far away as Oklahoma, and many expressed the view that homosexuality is a sin.
“God’s going to send judgment,” said Gary Potter of South Shore Church of God in Greenup County, Ky. “God loves everybody, but if you’re a murderer or a homosexual, you’re going to hell.”
Inside the courthouse, Bunning, a Republican appointed to the bench by President George W. Bush in 2002, made clear that a different tone would reign in his courtroom. Noting that his office had received “2,000 to 3,000 phone calls, for and against” this issue, Bunning noted that “personal opinions, including my own, are not relevant to today.”
Still, the proceedings took a deeply personal turn when a tearful Davis took the stand to discuss her religious conversion on Jan. 23, 2011.
Davis, who has been divorced three times, said she’d “done a lot of vile and wicked things in my time. His mercy touched me that night, and I knew it would never be the same.”
Under questioning from her attorney, Davis went on to express her opposition to same-sex marriage, which she said was “not of God” and contrary to natural law and therefore not something that she could condone.
Bunning was unswayed, noting that Davis took an oath to uphold the nation’s laws.
“I have my own greatly held religious beliefs,” said Bunning, who is Catholic. “But I took an oath. Oaths mean things.”
He continued: “The idea of natural law superseding this court’s authority would be a dangerous precedent indeed.”
“Thank you, Judge,” Davis responded, just before U.S. marshals took her into custody.
Bunning then called on Davis’s deputy clerks, assigning them each a public defender. One by one, he asked whether they would be willing to sign marriage licenses for same-sex couples. All but one agreed; Bunning did not level the question at Davis’s son.
Bunning then ordered Davis to return to the courtroom. He told her attorney that if she agreed to permit her deputies to sign marriage certificates for all comers then she may be “purged” of her contempt and allowed to go home.
But Davis did not come back.
Correction: An earlier version of this story described the plaintiffs as four gay couples. This version correctly states that two couples are gay and two are staight.
Higdon is a freelance writer. Somashekhar reported from Washington. David Weigel, Alice Crites and Katie Zezima in Washington contributed to this report.