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Kentucky Clerk Jailed Over Same-Sex Marriage Stand

After Kim Davis, an elected county clerk in Kentucky, was placed into federal custody Thursday for defying on religious grounds a judge’s order to issue marriage licenses to same-sex couples, five of her deputies told the judge that they would issue the licenses despite the objections of their boss.

U.S. District Judge David L. Bunning, the son of former Republican Sen. Jim Bunning of Kentucky, told the officials from Rowan County that they should anticipate processing requests Friday, or potentially face jail time, according to the Lexington Herald-Leader. A sixth official, Nathan Davis, who is Kim Davis’s son, refused to comply. Bunning opted not to take legal action against him.

After finding Davis in contempt of court and putting her into the the custody of U.S. marshals, Bunning called her back to court later in the afternoon to see if she would allow clerks in her office to issue licenses in exchange for her release form the neighboring Carter County jail. Davis, through an attorney, said she would not, and will remain in custody indefinitely.

Despite Davis’s refusal, the clerks will be allowed to approve the licenses.

“It’s unfortunate it’s happened this way,” Joe Dunman, an attorney who along with the American Civil Liberties Union, is representing four couples who initially brought legal action against Davis, told CQ. “I don’t want her to spend any time in jail.” He suggested that Davis either resign her office or agree to issue licenses.

“All our clients ever wanted was their marriage licenses, they didn’t want to punish Kim Davis.”

On Aug. 12, Bunning ordered Davis to issue licenses, but stayed his decision pending an expected appeal. Davis, however, was unable to convince either a federal appeals court or the U.S. Supreme Court to side with her. With her options exhausted, she was called back to Bunning’s court after again denying a license to a same-sex couple. 

Religious ‘Conviction’

Liberty Counsel, a Christian-oriented group of attorneys that is representing Davis in court, released a statement regarding the day’s events: “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.”

The group also said on Twitter that Davis was “jailed for the crime of being Christian.”

Davis, elected to her post as a Democrat, was one of the few remaining officials in the country to refuse to issue licenses to same-sex couples following the U.S. Supreme Court’s landmark decision in June, Obergefell v. Hodges. She had told couples seeking licenses that she was operating under “God’s authority” in not issuing the marriage licenses.

In court Thursday, she reiterated her religious beliefs.

“My conscience will not allow it,” Davis, an Apostolic Christian, told the court, according to the Louisville Courier-Journal, adding: “God’s moral law convicts me and conflicts with my duties.”

On Wednesday, Davis told Fox News: “I’m prepared to go to jail.”

The White House reacted to the decision by saying that this was a case of a public official who should not operate above the law.

Rule of Law

“On principle, the success of our democracy depends on the rule of law,” White House spokesman Josh Earnest told reporters. “And there is no public official that is above the rule of law,” Earnest said. Certainly not the president of the United States, but neither is the Rowan County clerk. That’s a principle that is enshrined in our Constitution, in our democracy, and it’s one that obviously the courts are seeking to uphold.”

When asked by a reporter whether it was appropriate for Davis to be sent to jail, Earnest responded: “What’s important is that this is a decision that’s made by a federal judge. And so I would not, from this vantage point, second-guess those decisions. Again, there is the rule of law, and the rule of law is central to our democracy, and its appropriate in this instance for a federal judge to determine the best way to enforce the law.”

Kentucky’s junior U.S. Senator and Republican presidential candidate Rand Paul said there may be a backlash to putting Davis in custody.

“I think it’s absurd to put someone in jail for exercising their religious liberty,” Paul told CNN following the decision. “I think it’s a real mistake and even those on the other side of the issue, I think it sets their movement back.” He believed that Davis’s punishment will “harden people’s resolve on this issue.”

“I think what’s going to happen is that states and localities are just going to opt out of the marriage business,” he said.

Another Republican seeking the party’s nomination for president, former Arkansas Gov. Mike Huckabee, tweeted: “Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country.”

Before Bunning’s decision, Marc Solomon, National Campaign Director for Freedom to Marry, an advocacy group for same-sex marriage, said he wasn’t worried about the prospect of Davis being punished. “She needs to get off her high horse and do her job or find a new one,” he said. “I’m not worried about her getting hauled off to jail, I’m just not. I don’t think there’s going to be significant sympathy.”

Other Hold-Outs

While the case in Kentucky has garnered national attention, statistics compiled by Freedom to Marry found only 15 counties in the entire country continued to deny same-sex couples licenses — two in Kentucky and 13 in Alabama. The Alabama counties have exploited loose wording in the state constitution (officials “may” issue licenses, not “shall”) to deny marriage licenses to all couples.

In addition, Molly Criner, the county clerk in Irion County, Texas, declared in July that based on her religious beliefs she would not be issuing licenses to same-sex couples, but in a CQ interview Thursday, she said that no one had come to the office to obtain a license, only “some reporters posing.”

She wouldn’t say whether she had changed her mind, and would only say that her advice to same-sex couples would be “to come in and bring your photo I.D.” 

And then what? “We would discuss with them their situation at that time.”

And if everything checked out as legitimate?

She wouldn’t say.

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