GRAYSON, Ky. — Kim Davis may have been released from a Kentucky jail Tuesday, but her nearly weeklong incarceration underscores the real risks and pressures facing Christians and others who hold to biblical teachings of marriage in the post-Obergefell United States.
“She can never recover the past six days of her life spent in an isolated jail cell, where she was incarcerated like a common criminal because of her conscience and religious convictions,” said attorney Mat Staver, founder and chairman of the Liberty Counsel. Staver represented Davis.
Speaking to a crowd that gathered for a rally Tuesday following her release, Davis was flanked by Staver and former Arkansas governor and Republican presidential candidate Mike Huckabee. Davis praised God and said: “We serve a living God who knows where each and every one of us is at. Just keep on pressing. Don’t let down, because he is here.”
Davis’ situation also highlights the apparent need for state and federal lawmakers to enact legislation that protects religious freedom and conscience rights, especially when Christians and people of faith — including those in public office and government positions — are faced with the choice of accommodating same-sex “marriage” or compromising their sincerely held religious convictions.
“My hope here is that her example will inspire those of us who aren’t in that same situation to do a lot more on our own, to not be scared of speaking up about marriage in a loving way,” Brian Brown, president of the National Organization for Marriage, told the Register.
On Sept. 3, Davis, a county clerk, was jailed, after a federal judge found her in contempt for refusing to issue marriage licenses to same-sex couples in Rowan County, Ky. On Tuesday, U.S. district court Judge David Bunning lifted the contempt order, saying he was satisfied that five of Davis’ six deputy clerks were fulfilling their obligations to issue marriage licenses to “all legally eligible couples,” including the plaintiffs who had sued Davis in federal court.
Bunning, though, warned Davis not to “interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses.” Bunning ordered that the deputies will report to him every two weeks and that Davis, if she interferes with the issuance of marriage licenses, could face future “appropriate sanctions.”
A Matter of Conscience
Davis did not answer questions when asked by reporters Tuesday whether she would abide by the court order. Staver, her attorney, said: “She’s not going to violate her conscience.”
Davis, an Apostolic Christian, cited her moral beliefs in refusing to issue licenses to same-sex couples. In a Sept. 1 statement, Davis said that issuing a marriage license to a same-sex couple would violate her conscience.
“It is not a light issue for me,” she said. “It is a heaven-or-hell decision.”
The ensuing media coverage raised questions about the obligation of a government official like Davis, who was elected to her position in November 2014, to comply with civil law and the U.S. Supreme Court’s landmark June 26 decision in Obergefell v. Hodges that redefined marriage in the United States to include same-sex couples.
But lost in much of the coverage — which has included details about Davis’ personal life and her previous marriages — is the fact that Davis hoped for an accommodation that would have allowed same-sex couples in Rowan County to receive marriage licenses without her signature on them.
Under Kentucky law, the county clerk is the issuing authority for civil marriage licenses, so Davis’ name is on those licenses. Kentucky does not have an accommodation like other states, such as North Carolina, that allows marriage licenses for same-sex couples to be issued under another official’s authority.
Some Kentucky state legislators have expressed a willingness to address Davis’ concerns and carve out a religious exemption for county clerks. But the state Legislature does not return to session until January. In a court motion, Kentucky Senate President Robert Stivers asked Bunning not to incarcerate Davis until the legislature could amend existing state laws to reflect the post-Obergefell landscape.
However, Kentucky Gov. Steven Beshear, a Democrat who ordered county clerks to abide with the Obergefell decision, has refused to convene the state Legislature into a special session.
“I see no need to spend hundreds of thousands of dollars of taxpayers’ money calling a special session of the General Assembly, when 117 of 120 county clerks are doing their jobs,” Beshear said in a prepared statement.
Kentucky House Speaker Greg Stumbo, D-Prestonburg, and others have proposed measures that would designate officials who preside over the marriage ceremonies themselves as the license-issuing authorities, similar to how local property deeds are filed. Meanwhile, the county clerk would serve as the “depository” for all marriage licenses, said Brian Wilkerson, the communications director for Stumbo.
Wilkerson told the Register that there is no indication the governor will change course and call the Legislature into session. He also noted that such a move would have logistical challenges because the state house and senate chambers are undergoing extensive renovations.
There is still the possibility that Davis’ situation does not require a legislative remedy. Kentucky has a state Religious Freedom Restoration Act that already calls for religious exemptions from existing state laws. The RFRA law compels the state government to find the least restrictive manner that infringes upon religious liberty when a compelling government exists.
“These are all questions of Kentucky law. If it requires all licenses to be issued in her name, Kentucky needs to work that out, and she might have a relevant Kentucky RFRA claim against the relevant state officials,” said Douglas Laycock, a leading authority on religious-freedom issues at the University of Virginia School of Law.
However, the RFRA law in Kentucky does not shield her from being sued in federal court by same-sex couples when they are refused marriage licenses.
“State RFRAs create no defense against federal law, for the very simple reason that the Constitution makes federal law supreme,” Laycock said. “The bottom line here is the difference between what the county has to do — issue licenses — and what Kim Davis has to do — maybe nothing, if her deputies will issue the licenses.”
As far as federal law is concerned, the Rowan County Clerk’s office has to issue marriage licenses to same-sex couples, but individual employees are entitled to “reasonable religious accommodations,” such as a policy that allows same-sex couples to be served by another employee who does not have the same moral convictions.
“So a deputy clerk can do it,” Laycock said. “But someone has to do it.”
Title VII of the federal Civil Rights Act of 1964 — a law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion — says that public and private employers have an obligation to accommodate workers’ religious convictions as long as they do not cause an undue hardship for the employer, such as not being able to find another employee to perform the task. However, the law does not apply to elected officials like Kim Davis.
In court documents filed Sept. 7 with the U.S. Court of Appeals for the 5th Circuit, Davis’ attorneys argued that Beshear’s mandate to all county clerks to issue marriage licenses to same-sex couples violated her rights to free speech.
“Davis faces significant, irrevocable and irreversible harm if she is forced to authorize and approve even one same-sex marriage license with her name on it,” wrote Davis’ attorneys, who attributed her incarceration “in significant part because Gov. Beshear has refused to take elementary steps to accommodate Davis’ undisputed, sincerely held religious beliefs about marriage.”
That Davis does not want her name on same-sex marriage licenses “seems reasonable,” said Charles Camosy, a professor of moral theology at Fordham University.
Speaking from a moral theologian’s perspective, Camosy told the Register that a Christian in a public position such as Davis can decide to not abide by or enforce a law she disagrees with, assuming that the issue is a “very serious matter.”
“As our culture becomes more and more post-Christian,” Camosy said, “our views of many things become less and less intelligible to the surrounding culture, and, therefore, our religious freedom will get curtailed as just so much crazy talk. We need to become more comfortable with this and focus more on our local religious communities than on what the secular state thinks about marriage.”
Meanwhile, Brown, from the National Organization for Marriage, said Davis’ position was in line with the principle that unjust laws merit civil disobedience, as taught by St. Thomas Aquinas in the 13th century and embraced by Rev. Martin Luther King in the mid-20th century.
“The Supreme Court never had the right to redefine marriage,” Brown said. “Marriage is what it was before the Supreme Court decision, and that is the union of one man and one woman. The Obergefell decision is clearly illegitimate.”
Brown, who traveled to Kentucky and planned to meet Tuesday with Davis, said she should never have been thrown into a jail cell for witnessing to the truth of marriage.
Said Brown: “That her physical liberty was sacrificed is profoundly wrong, but her view is that the ultimate freedom is the freedom of conscience. And they haven’t taken that away from her.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.