Kentucky Clerk Kim Davis Jailed for Contempt of Court; Office Will Issue Licenses on Friday

Law Professor Says the Case Could Go Away

Kim Davis, the Rowan County, Kentucky clerk who refused to issue marriage licenses to same sex couples, was found in contempt by a federal judge, who ordered that Davis be held in jail. Judge David L. Bunning rejected Davis’s argument that issuing licenses to same sex couples infringed on her religious beliefs. Davis is an Apostolic Christian. The standoff between Davis and the federal court has attracted a great deal of attention and has become a rallying point for conservative Christians who see their freedom of religion as being under attack by the federal government.

Davis disagrees with the U.S. Supreme Court’s 5-4 decision in Obergefell v. Hodges that requires states to recognize marriage between people of the same sex. She has refused to issue licenses to same sex couples and cited “God’s authority” for her refusal to issue the licenses.

Davis had testified that marriage should exist between a man and a woman. Judge Bunning said that Davis’s good faith belief in the rightness of her position is not a “viable defense.” He added that, “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”

Prof. Steven Vladeck

Prof. Steven Vladeck

Law Professor Steven Vladeck points out that Kentucky law allows the executive judge of the county court to issue marriage licenses if the clerk is unable to do so. Being in jail “is a pretty good reason” why a clerk could not issue a license. The question now, says Vladeck, is whether the judge will issue licenses. If he does, “presumably that provides the relief the plaintiffs are looking for, and the case goes away.” If not, then things will continue as they are. However, Vladeck believes there will be a resolution “sooner rather than later.”

Five of the six deputies who work for her have said that they would begin issuing licenses tomorrow, although the status of such licenses may be questionable if the clerk disagrees with the actions of her deputies.

[Update, September 4, 2015: A gay couple today received a marriage license from the Rowan County, Kentucky clerk’s office.]

Stephen I. Vladeck is a Professor of Law at American University Washington College of Law. His teaching and research focus on federal jurisdiction, constitutional law, and national security law. The Legal Broadcast Network is a featured network of Sequence Media Group.

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