September 2, 2015 at 5:44 pm EDT | by Chris Johnson
Ky. clerk urges court not to find her in contempt
Kim Davis, gay news, Washington Blade

Rowan Co., Ky. Clerk Kim Davis (Photo courtesy Twitter)

A Kentucky clerk who’s denying marriage licenses to same-sex couples despite multiple court orders on Wednesday urged a federal judge not to find her in contempt ahead of hearing in which she could face penalties for her actions.

In a seven-page filing, an attorney for Rowan County Clerk Kim Davis, an Apostolic Christian who is refusing marriage licenses to same-sex couples out of religious objections, invokes among other things an “impossibility defense” for why she’s unable to comply with court orders.

“In the case at bar, Davis is unable to comply with the August 12, 2015 order…because it irreparably and irreversibly violates her conscience by directing her to authorize and issue SSM licenses bearing her name and approval,” the filing says. “Testimony from Davis, and multiple prior filings in this Court…provide the evidentiary support for her inability to comply with the Injunction, which is on appeal to the Sixth Circuit.”

The attorney who signed the document is Jonathan Christman, a senior attorney with the Florida-based social conservative legal group known as Liberty Counsel. The anti-LGBT group has represented Davis throughout her litigation.

Additional arguments made against contempt charges are they would violate her due process rights, burden her exercise of religion under the Religious Freedom Restoration Act and be intrusive on state affairs.

“It is not as if Kim Davis the individual stops existing while Kim Davis is performing her duties as Rowan County clerk,” the filing says. “Moreover, Plaintiffs sued Davis in her individual capacity seeking punitive damages from her personally. By suing her individually, Plaintiffs concede the relevancy of Davis in her individual capacity as the person occupying the office of Rowan County clerk.”

The filing says options other than contempt are available, such as deputizing a neighboring clerk to issue marriage licenses and removing Davis’ name from the forms.

Also on Wednesday, Kentucky Senate President Robert Stivers, a Republican, filed a motion requesting to file a friend-of-the-court brief to urge the court not to find Davis in contempt until the legislature passes a measure to clarify Kentucky’s marriage laws.

“The focus of Obergefell was solely upon Kentucky’s Constitutional definition of marriage as a union between one man and one woman,” the filing says. “The Supreme Court did not address the effect this would have on KRS Chapter 402, the statutory provisions by which marriage licenses are issued and recorded. It is the position of the Movant that the concept of marriage as between a man and a woman is so interwoven into KRS Chapter 402 that the defendant County Clerk cannot reasonably determine her duties until such time as the General Assembly has clarified the impact of Obergefell by revising KRS Chapter 402 through legislation.”

After U.S. District Judge David Bunning issued an order last month requiring Davis to end the “no licenses” policy in her office, the argument that she couldn’t issue even one marriage license to same-sex couples as her litigation proceeded on appeal was rejected by the judge, the U.S. Sixth Circuit Court of Appeals, and, just this week, the U.S. Supreme Court.

Davis cased marriage operations in her office entirely after the U.S. Supreme Court ruled in favor of same-sex marriage nationwide. Couples seeking to marry in Rowan County sued her in federal court, which prompted Bunning to issue the preliminary injunction requiring Davis to issue marriage licenses to all couples, gay or straight, who seek the documents.

The U.S. Supreme Court denied a stay Monday on the district court order requiring Davis to issue marriage licenses in her office. She and her deputy clerks are required to appear before federal court on Thursday to face charges of contempt for their continued refusal to comply with the order. Attorneys representing the couples suing Davis are seeking fines, not imprisonment, as a penalty for the clerk.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

5 Comments
  • it is coming to look like the courts will have no choice but to eventually just jail her and any clerk within the office that refuses to do their constitution mandated job. like it or not, by my freedom of religion exists; her freedom to force me to be subjugated to her religion does not exist.

    • Well, even the gay couples don’t want her jailed as it will make her a martyr rather they would have her be fined heavily out of her own pocket which could bankrupt her or eventually land her in jail for none payment.

      However, you should realize this only creates a political firestorm that our enemies will exploit to get religious exemption laws to trump GLBT rights passed on the state level with attempts on the federal level. Whether or not that happens remains to be seen. We also don’t know if a religious activist judge can uphold one of these objections someday. It happened in Louisiana on marriage equality which eventually got the issue before the SCOTUS.

      The SCOTUS decided the marriage equality issue in our favor narrowly. Several on the court have religious objections to marriage equality. The balance of the supreme court is in play with the next vacancy and can tip the scales of justice either way.

  • it is apparent to me that Kim Davis is not receiving legit, professional or ethical legal counsel. Numerous courts, appeals, judges and the ultimate US Supreme Court have given the same answer over and over again and that is not going to change. IF Davis had legit attorneys, they would counsel her that the fight is over.

    • That maybe but that won’t stop people like her from trying to make our lives hell and find endless ways to deny justice and ignore the SCOTUS ruling.

      Is the really any different than the shenanigans racists came up with to prevent enforcing Brown Vs. Board of Education and implement integration? They had to send federal troops down to Alabama while George Wallace stood at the entrance to the school trying to deny entry to the first Black student. I don’t think we’ll get federal troops to enforce our rights!

  • This should serve as a wake up call. No matter what the law says or the SCOTUS has interpreted the Constitution to allow, our enemies will continue to come up with endless delays to prevent compliance. They simply won’t roll over and play dead on the issue of marriage equality anymore than they have on abortion.

    Why do so many GLBT people stupidly believe we’ve overcome and arrived? This is an constant struggle just against homophobia no different than the struggle minorities have over racism. The laws may change, the court may declare we have rights but attitudes and hatred linger. This woman Kim Davies is one of many out there.

    What our enemies are trying to do is pit religion against GLBT rights to be free from discrimination. Many may support GLBT equality and rights but many also backup religious freedom. Somehow we must be able to find a way to make it work. All or nothing strategies may not fly here.

    The SCOTUS brought up such concerns over religion during the marriage equality case. Don’t think that won’t be an issue we have to be concerned about in the near future as others invoke religion to deny our rights under the law!

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