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Clerk freed, her appeals on same-sex marriage go on

A federal judge in Kentucky on Tuesday ordered the release from jail of Rowan County Clerk Kim Davis, saying that it is now clear that same-sex couples in the county will not be barred from obtaining licenses to marry.  The judge also gave the local official a stern warning against further interference with such licensing.  Davis’s appeals of the judge’s rulings against her, as well as her challenge to the Kentucky governor’s actions on the marriage issue, apparently will go on in higher courts.

Davis, the central figure in a highly visible conflict between religious belief and public duty, has spent most of five days in the Carter County Detention Center in Grayson, a federal prisoner because she was found in contempt last Thursday by U.S. District Judge David L. Bunning of Ashland.  She was jailed for civil contempt, which meant an indefinite term, for violating the judge’s earlier order to begin issuing marriage licenses to same-sex couples.  As an Apostolic Christian, she has said, she believes as a matter of religious faith that marriage is for one man and one woman only.

Although the Supreme Court in late June, in the case of Obergefell v. Hodges, gave same-sex couples an equal right to marry, Davis was not found in contempt of the Supreme Court.   When Judge Bunning turned her over to federal marshals last week, he was applying the Obergefell decision, but only enforcing his own August 12 order that Davis had no choice but to grant licenses to same-sex couples who otherwise were legally qualified to marry.

With Davis in the detention center, to try to force her to comply with that order, the judge was told by five of her six deputies that they would issue licenses to legally eligible couples, rather than face contempt charges themselves.  A sixth clerk, who is Davis’s son, has been excused from that obligation.  After the judge received a report earlier Tuesday from lawyers for several couples that they had, in fact, succeeded in obtaining licenses from one of Davis’s deputies, the judge then lifted his “prior contempt sanction.”   He ordered Davis herself not to interfere, directly or indirectly, with any actions by her deputies to issue licenses, and he threatened “appropriate sanctions” if she were to do so.  Earlier, before her jailing, Davis had ordered her deputies to abide by her “no marriage licenses” policy because she said no such licenses could be issued without her signature, which she refused to provide.

The judge did not resolve a question about whether the licenses issued without Davis’s explicit support were legal, saying in a footnote that the couples’ lawyers had not claimed that there was any legal defect in the licenses their clients had received since Thursday.

The five clerks willing to issue licenses, the judge said, must file a report every fourteen days, until they were excused from that by the judge.

Meanwhile, Davis’s lawyers have three separate appeals now pending in the U.S. Court of Appeals for the Sixth Circuit, challenging either Judge Bunning or Kentucky Governor Steve Beshear.  Davis has contended that the governor illegally ordered her and all county clerks to begin issuing marriage licenses to carry out the Obergefell decision.  The governor did write a letter to all county clerks after that decision, saying that state officials would move promptly to facilitate such marriages, but the governor’s lawyers have insisted that he had no authority to order the clerks explicitly to do anything.   His lawyers are now seeking to have Judge Bunning dismiss the Davis lawsuit against the governor, and other state officials.

Among Davis’s other complaints against the governor is his refusal to call the state legislature into a special session to consider giving public officials who object to same-sex marriage a religious exemption from having to carry out any public duties to which they object.

Among other appeals still pending at the Sixth Circuit is Davis’s direct challenge to the finding of contempt that sent her to the detention center.   With her challenges apparently continuing, it remains possible that her case may return to the Supreme Court.  The Justices refused last week to spare her from carrying out Judge Bunning’s order.   Her lawyers have not tried since then to put her case back before the Supreme Court.

After her release Tuesday afternoon, according to local news stories, Davis spoke to a group of supporters who had gathered at the detention center, and she once again insisted that she had been acting only in obedience to her duty to God.

Recommended Citation: Lyle Denniston, Clerk freed, her appeals on same-sex marriage go on, SCOTUSblog (Sep. 8, 2015, 6:55 PM),