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I don’t even know where to start. I am so humbled and feel so blessed that the people put so much confidence in me. My words can never express the appreciation, but I promise to each and every one that I will . . . follow the statutes of this office to the letter.
Kentucky clerk Kim Davis spoke those words upon being elected Rowan County clerk last November, a position her mother held for 37 years. But now, in her first year on the job, Davis has already broken her promise, coming under nationwide scrutiny for refusing to issue marriage licenses to same-sex couples in her jurisdiction.
In explaining her actions, Davis recently said that same-sex marriage “is not a light issue for me. It is a Heaven or Hell decision.” She explained, “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.”
Say what you will about Davis and her interpretation of how God defines marriage (Davis herself has been divorced 3 times), but this marriage license holdout gives rise to a broader legal conundrum. For staunch supporters on either side of the debate, Davis—and countless others like her—have exposed a seemingly irresoluble constitutional struggle that will most likely reach the Supreme Court for ultimate determination.
Fundamental constitutional rights: Religion vs. marriage
On the one hand, the Supreme Court decided long ago that religious freedom is a fundamental constitutional right rooted in both the First and Fourteenth Amendments. On the other hand, the Court announced on June 25, 2015, that the right to marry, which applies to both opposite- and same-sex couples, is also a fundamental constitutional right rooted in the Fourteenth Amendment.
Both rights are now afforded equal protection of the highest order under the law—a conflict which may eventually force the high Court to prioritize one over the other, especially given the well-publicized contention by many religious groups that same-sex marriage is incompatible with the teachings of their faith.
What happens next?
First, a bit of procedural background: Legally speaking, Davis first exposed herself to liability by denying a marriage license to same-sex applicants subsequent to the holding in Obergefell v. Hodges. Davis filed a lawsuit in a U.S. district court arguing that she should be excused from performing any part of her job that violates her “sincerely held” Apostolic Christian beliefs. Notwithstanding the merits of that claim (which are seemingly questionable, given her marital track record), her request was denied by the district court judge and denied again by the U.S. Court of Appeals for the Sixth Circuit. The Supreme Court refused to hear her case altogether, and Davis was left without a legal leg to stand on, thereby requiring her to begin issuing licenses.
After officially refusing again, Davis drew the blinds in her office and, as of September 1, 2015, has refused to issue any marriage licenses whatsoever in Rowan County, citing a dedication to treating all applicants equally.
So what can Kentucky taxpayers, lawmakers, or members of the executive branch do to either remove Davis from office or force her to perform the requirements of her job?
According to Kentucky Governor Steven L. Beshear, there is nothing his office can do, and the “future of the Rowan County clerk is now in the hands of the courts.” With the governor apparently powerless, wrongfully denied license applicants could turn to the local state court to obtain an order forcing the clerk to perform her duties as required under the Kentucky Revised Statutes.
However, this option may prove futile given Davis’s insistence upon upholding her beliefs despite the mandates of her job description. After all, if the Supreme Court requiring nationwide marriage equality wasn’t enough to get Davis to issue a marriage license to a gay couple, it’s unlikely a Rowan County court order will have any influence on her either.
The likely best option for Kentucky taxpayers is to strongly urge lawmakers and local municipal authorities to begin the process of impeaching Davis, an elected official whose salary is entirely funded by taxpayer dollars. Under Kentucky law, a clerk may face impeachment for failing to uphold her oath of office, which includes defending the state and federal constitutions.
Moreover, Davis is also in direct violation of a court order requiring her to uphold the tenets of her job, which could place her in danger of a contempt of court citation (i.e., jail time).
Time will tell what ultimately befalls Davis in her quest to advance her personal notions of biblical marriage while in office as the county clerk of Rowan County. Let’s just hope she doesn’t need a (fifth) marriage license anytime soon.
Photo courtesy of Ty Wright/Getty Images
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