Kentucky clerk could head back to court over licenses
Frankfort, Ky. — She’s already spent five days in jail, and now a Kentucky clerk could be back in court soon for altering marriage license forms issued to same-sex couples.
On Monday, lawyers for two gay couples and two straight couples questioned the validity of the new marriage licenses and asked a federal judge to order Rowan County Clerk Kim Davis’ office to reissue them. If she refuses, the lawyers asked the judge to put the office in receivership and have someone else do it.
Davis is prepared to return to jail over her beliefs, according to an interview that aired Tuesday morning on “Good Morning America” — the first she’s given since her refusal to issue licenses gained national attention.
“I have never once spouted a word of hate. I have not been hateful,” she said. She also said the licenses going out of her office now, issued by a deputy clerk, don’t have her authorization and are “not valid in God’s eyes.”
Davis stopped issuing all marriage licenses in June after a U.S. Supreme Court ruling effectively legalized gay marriage nationwide. Two gay couples and two straight couples sued her. A federal judge ordered Davis to issue the licenses, and the U.S. Supreme Court upheld that order.
But Davis refused, citing “God’s authority.” That’s when U.S. District Court Judge David Bunning threw her in jail, prompting a fierce debate in the public square about religious liberty versus the civil rights afforded to all U.S. citizens.
Davis’ office issued marriage licenses while she was in jail, but the licenses did not include her name. Bunning ruled those licenses were valid and released Davis on the condition that she not interfere with her employees. Davis, a Democrat, was greeted at the Carter County Detention Center by a crowd of thousands and a church choir, flanked by her attorney and Republican presidential candidate Mike Huckabee.
But when Davis returned to work last week, she confiscated the marriage licenses and replaced them. The new licenses say they were issued not under the authority of the county clerk, but “pursuant to federal court order.”
On Monday, lawyers for the American Civil Liberties Union wrote that the validity of the altered licenses is “questionable at best,” and the new licenses bring “humiliation and stigma” to the gay couples who receive them. They asked Judge Bunning to order Davis’ office to reissue the licenses. If Davis interferes, the lawyers say Bunning should place her office in a receivership for the purposes of issuing marriage licenses.
“The adulterated marriage licenses received by Rowan County couples will effectively feature a stamp of animus against the LGBT community, signaling that, in Rowan County, the government’s position is that LGBT couples are second-class citizens unworthy of official recognition and authorization of their marriage licenses but for this Court’s intervention and Order,” the lawyers for the couples wrote in a court filing.
Mat Staver, Davis’ attorney and founder of the Liberty Counsel law firm, did not directly respond to the ACLU’s request for Bunning to put the office in a receivership. Staver said he would formally respond to the ACLU’s motion Tuesday. But he noted that Democratic Gov. Steve Beshear said last week that the altered marriage licenses would be recognized by the state.
“Kim Davis has made a good-faith effort to comply with the court’s order,” Staver said. “The ACLU’s motion to again hold Kim Davis in contempt reveals that their interest is not the license but rather a marriage license bearing the name of Kim Davis. They want her scalp to hang on the wall as a trophy.”
Sam Marcosson, a constitutional law professor at the University of Louisville, said such receiverships are “unusual and extraordinary,” generally reserved for situations where other legal remedies are unable to end an ongoing violation of the law. Marcosson described what the plaintiffs are now requesting as a “limited takeover” of her office. The judge could appoint another person to oversee the issuance of marriage licenses, both to ensure that the licenses are issued legally and to protect the deputy clerks, who have the difficult choice to defy their boss or defy a judge.
“It’s almost a worst-case scenario,” he said. “The worst-case scenario would be to send her to jail again.”
The judge has wide discretion on who might be appointed. It could be a lawyer, another Rowan County public official or any citizen the judge trusts to carry out his orders impartially, Marcosson said. He said the judge will likely call a hearing, where he might hear testimony about the process Davis undertook to alter the licenses or the instructions she gave to her deputy clerks.
In her Tuesday interview, Davis was frequently tearful, and she said that she’s received hate mail, with people calling her Hitler and a homophobe. But she says she’s not a hypocrite, despite her own four marriages.
“I haven’t always been a good person,” she acknowledged. But she said that she’s been forgiven, that godly authority trumps all, and that she won’t resign her position.
‘I’m good at my job,” she said. “I have friends who are gay and lesbians. They know where I stand. And we don’t agree on this issue, and we’re OK because we respect each other.”