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.