Posts Tagged ‘marriage licenses’

Kentucky county clerk-gay marriage license conflict presents many complex issues for court and state

September 3, 2015

UPDATE: 9/13/15 Davis was let out of jail after five days by the federal Judge Dunning after her clerks issued marriage licenses to straight and gay couples without her name on them, only in the name of Rowan County & conditioned it on her not interfering with her assistant clerks and the assistant clerks giving him a status report every two weeks. She will return to work on 9/14/15 & will be jailed if she interferes with her assistant clerks. She was not asked and did not promise not to interfere.

UPDATE: 9/4/15 Attorneys for Rowan County clerk Kim Davis filed a petition to the Kentucky Supreme Court for an emergency order protecting her from being fired until her lawsuit against Gov. Steve Beshear is resolved Rowan County Attorney formally requested that the state government charge Davis with misconduct, the first step in ousting her from her post.

KRS 522.020 and KRS 522.030 deal with official misconduct in the first and second degree, respectively. “A public servant is guilty of official misconduct in the first degree when, with intent to obtain or confer a benefit or to injure another person or to deprive another person of a benefit, knowingly commits an act relating to his office which constitutes an unauthorized exercise of his official functions or refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office or violates any statute or lawfully adopted rule or regulation relating to his office,” according to KRS 522.020.

Official misconduct in the first degree is a Class A misdemeanor and is punishable with imprisonment not to exceed 12 months and fines of $500.

Official misconduct in the second degree is a Class B misdemeanor and carries a potential punishment of up to 90 days imprisonment and fines of $250.

UPDATE: 9/4/15 David’s husband quoted her from jail stating

“It’s a matter of telling [Federal Judge] Bunning he ain’t the boss”

and “God’s moral law conflicts with my job duties.”

When asked if she would resign, her husband stated: “God no!” This is a clear statement that she will NOT follow the law in the U.S. and will continue even to defy a court order.  The judge needs therefore to punish her appropriately with the maximum punishment for contempt of court and her continued disrespectful attitude toward the judge and court – jail until she is removed from office or states she will comply with the law. The assistant clerks, except for Davis’ son, who states he is Catholic.


9/2/15 – Kim Davis, a Kentucky  Rowan County Clerk and Apostolic Christian, is refusing to do her job and issue marriage licenses regardless of sexual preference. She states that because she wants to avoid discrimination charges, she has refused since June to issue any marriage licenses. Now as she violated a federal court order to do her job and issue the marriage licenses as well as refused to not interfere with the assistant clerks issuing the licenses, the federal judge had no choice but to put her in jail.

She could get out of jail by resigning or by agreeing to allow an assistant clerk to issue the licenses, but she refuses because the form has ner name on it.  Other states such as Hawaii have on line forms. The legislature or Chief Executive of the county could allow the assistant clerk or chief executive to put their name on the form. The state could write an “opt-out” law that states that if she feels her religious faith is compromised in her job, that another person can be assigned to do it such as the assistant clerk or chief executive.

Presently the marriage licenses issued by the assistant clerks should be valid as they are authorized by the county chief executive who is allowed to act in her stead while she is unavailable.  He should then issue a memorandum to her documenting that he has acted for her records, making the issuance of the licenses legal.

Under Kentucky law, a county clerk’s job includes issuing marriage licenses. Now, regardless of sexual preference, gay couples may obtain marriage licenses in Kentucky, as the U.S. Supreme Court declared that laws barring gay marriage are unconstitutional, including a Kentucky law barring gay marriage. Therefore, under Kentucky law both gay and straight couples are qualified to apply for a marriage license, if they meet other qualifications as to age, residence, etc. So, Davis is refusing to do the job as court clerk, for which she is paid $80,000 per year.

As a public official, Davis is supposed to abide by the law and perform her public duties, which are issuing marriage licenses to qualified couples. She took an oath of office to abide by and enforce Kentucky and U.S. law.

A judge cannot refuse to follow the law to impose a death penalty when the law of the state requires it, even if he religiously opposes it. The governor of a state who is anti-gay cannot deny government benefits to a gay person. A police officer cannot refuse to protect a gay person being beaten up by an anti-gay person, or help a person flying the confederate flag at a rally who is ill and about to faint. Either do your job or resign. What is she thinking? She is not above the law!

Davis is claiming that she should get the same accommodations as the Governor has afforded Kentucky Attorney General Conway. Kentucky Attorney General Jack Conway cited his own moral beliefs last year when he refused to defend the state’s gay-marriage ban in the federal appeals courts, without being criticized by Beshear. As an accommodation for his religious beliefs, Beshear hired private attorneys to replace Conway. No official has issued an order allowing Davis to be substituted by another person due to her religious objections to performing her job.

The issues in this case are actually complex and have legal subtleties that are hard for some lay persons to understand:

  1.  Davis can claim discrimination against Gov. Beshear for failing to have a procedure whereby employees will be substituted in their jobs when they have a religious objection to performing their job. She has filed this issue as a federal suit against Gov. Beshear which is pending.[i] She claims discrimination and violation of Kentucky’s religious-freedom law for failing to have a similar procedure to substitute someone else to do her job concerning issuing gay marriage licenses.

However, the Attorney General’s job to appeal or prosecute is legally discretionary so that there is no consequence to him if he refuses to do this job. Davis’ job duties are mandatory and not discretionary, so legally she is committing official misconduct for refusing  to perform the duties of her job.

  2.  Citizens who have been refused marriage licenses, gay and straight, can claim Davis is refusing to do her job, thus violating their due process rights to marry, and obtain a court order (injunction) forcing her to do her job. The federal district court has issued a temporary injunction ordering Davis to issue marriage licenses to gay and straight couples – i.e. perform her job.

Four couples, two gay, two straight, have been refused marriage licenses and have sued Davis and Rowan Count Kentucky in federal court for failure to do her job, violating their civil rights, which through the Fourteenth Amendment include the Fifth Amendment right to due process (read lawsuit here The right to marry became a matter of due process when a Kentucky State Statute was codified regarding procedures to obtain a marriage license and barring marriage without a license.


Kentucky Statute:

402.080 Marriage license required — Who may issue.

No marriage shall be solemnized without a license therefor. The license shall be issued by the clerk of the county in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person or by writing signed by her, in which case it may be issued by any county clerk.


Therefore, citizens have been granted a codified procedure, or due process, by the State of Kentucky, in regards to marriage. This fact allows these couples to go to federal court and seek relief, or an injunction ordering the countyclerk, Davis, to do her job.

   3.  Purposeful failure to do your job as a public servant is the Class A misdemeanor crime of official misconduct under Kentucky law. No one has made a criminal complaint against Davis as of this date, so she has not been arrested under state law.

4.  Davis is paid by all tax-payers of the county as an elected official to do her job, as a representative of the state. God does not control the law. The fact that she refuses to issue marriage licenses to anyone and also that she was just jailed for defying a federal court order to do her job proves misconduct.The Rowan County Chief Executive officer has the option to, as he Gov. Beshear did with the Kentucky Attorney General before, appoint a substitute to perform this duty and decide to request Kentucky House of Representatives to impeach and to remove Davis for misconduct.

The Kentucky House of Representatives should move expeditiously to remove Davis from office. A new Clerk must be appointed, or the Rowan County Chief Executive could decide to allow the assistant clerks to substitute for the elected clerk in cases where there is a religious objection to performing a statutory prescribed job. She should also be impeached and lose her salary and benefits, for collecting a salary but not doing your job cheats the tax-payers of the state.

   5.  The Kentucky House of Representatives could also impeach Davis for refusing to do her job because this is the crime official misconduct. In addition, this might mean that she not only loses her job and $80,000 salary, but also her benefits and retirement.

Gov. Beshear has stated that he refuses to call the legislature back into session. They return to session in January 2016. So this route of removing her from office would take a while.

    6.  Kim Davis has all sorts of religious liberty rights secured under the First Amendment. But they are not relevant in this case in regards to doing her job. Accommodating her religious beliefs could be made into a new state law, which allows for higher officials substituting another person to do an official act, when a public servant feels the act conflicts with their religious beliefs. However, under federal law, this is not a civil right when the state interests out way religious interests, unless the state makes it a due process right by codifying the right to have someone else appointed, on a limited basis, to do her job in the case of religious conflict into law.

All she is asked to do with couples that come before her is certify that they have met the state requirements for marriage. So her religious opposition to same-sex marriage is absolutely irrelevant in this context. What she is really doing is rendering her private religious beliefs public policy. So the same-sex couples in Kentucky are being asked to pay the price of her religious observance.

This affects other people not Davis. This is not a matter of religious freedom, under federal law; it is a matter of doing your job.

This is not the same as forcing Davis to fail to practice her religion by working on Christmas Day, which would violate her First Amendment rights to freedom of religion, but not affect others.

As Kentucky has no law against religious discrimination, if she had a private job or business, she would be allowed to discriminate. However, she is a public servant as a court clerk and cannot as a representative of the State discriminate against another person in providing services to them. If she has a religious objection to doing so, her only option is to resign, unless a higher official appoints someone specifically to substitute for her in performing this specific job when it conflicts with her religious belief.

These couples asked for a preliminary injunction from the federal court to force her to resign or issue the licenses. This was granted but stayed until the U.S. Supreme Court refused to hear the case by the Clerk to overturn the federal district court order, by Judge Bunning, for Davis to comply with the law.

The Kentucky Religious Freedom Act does not protect her. It is true that the state cannot unduly burden her religious beliefs. But it is also true that the state can subordinate your personal beliefs if there is a compelling state interest and the state is using the least restrictive means to carry out its objective. The state simply requires her signature on a form certifying that the couple meets the legal requirements to marry as set out by the state, which is not a profession of personal acceptance of gay marriage. This is not compromising her religious beliefs.

The only thing the county clerk does in regard to marriage is certify that they meet the qualifications under Kentucky law to obtain a marriage license and to issue the marriage license, as well as file the license once it is solemized by the appropriate minister or persons. Freedom of religion does not allow an official to disregard the law, who has sworn to uphold the law.

   7.  Davis has now defied a federal district court order, which is an act of contempt of court, to issue the licenses, [as well as now openly and contemptuously stated that she is above the law] so she was jailed for contempt of court by Federal District Court Judge Bunning. The assistant clerks have been told to promise to issue licenses and all but her son agreed to issue the licenses. They would also have been jailed for contempt if they refused to do their jobs. However, for unknown reasons, Judge Bunning did not jail Davis’ son, an assistant clerk, when he alone among the six assistant clerks stated that he also would refuse to issue gay persons marriage licenses. The federal court told them they do not need the Clerk’s approval to do their job.

The judge is also appropriately forcing the assistant clerks to do either their jobs and issue licenses or also go to jail for contempt. They do not deserve their salaries if they do not. The County Executive should fire any assistant clerk who fails to do his/her job. The County President should appoint a temporary clerk while Davis is jailed, as she is absent and unvailable to do her job. The County Executive is authorized to issue marriage licenses in her absence.


402.240 County judge/executive to issue license in absence of clerk.

In the absence of the county clerk, or during a vacancy in the office, the county judge/executive may issue the license and, in so doing, he shall perform the duties and incur all the responsibilities of the clerk. The county judge/executive shall return a memorandum thereof to the clerk, and the memorandum shall be recorded as if the license had been issued by the clerk.


There must be some law as to replacing an official who is temporarily incapacitated and unable to do their job.

Davis refused to agree not to interfere with the assistant clerks issuing marriage licenses, so Dunning, as a result ordered Davis jailed for contempt until she either resigns or agrees to do her job or not interfere with the assistant clerks doing their job and issuing licenses.

Fundamentally, this is the bottom line:

The issue is not about religious freedom; it is about a government official who has violated her oath of office to uphold the law and issue marriage licenses, which is her mandatory statutory duty. Outside of her job she can choose to personally discriminate against gays, but she must either resign or do her job. She has committed a crime under state laws in failing to uphold her oath of office and do her job. As such, she should be arrested and impeached and forfeit her job and its benefits.

The state could mitigate the consequences by passing a law allowing for automatic substitution for limited specific reason of conflict with religious belief when an employee of the State preforms a job, but they have not done so and Gov. Beshear has not chosen to call the legislature back into session or request that they act on this issue.

Freedom of religion does not mean that you can refuse to do your government job based on religious belief. If Davis is so rigid to believe that religion dictates the law of this land, despite the First Amendment, then she should resign. If she refuses to resign, then she should be impeached and forfeit her job and retirement for violating her oath of office to uphold the laws.

[i] Davis filed a federal lawsuit, in U.S. District Court, where she blamed Gov. Beshear for instructing the state’s 120 county clerks to comply with the U.S. Supreme Court decision in June striking down Kentucky’s same-sex marriage ban and legalizing gay marriage nationwide. Her suit claims that Beshear should have let Davis and other clerks opt out if they felt morally uncomfortable providing licenses to same-sex couples. A stay concerning her right to op-out due to religious preference in performing her job was lifted and her appeal of denial of this suit is pending.

Davis seeks protection under the state’s religious-freedom law, which is an issue under the Fifth Amendment as applied to the states by the Fourteenth Amendment of due process for her. It was passed by the Kentucky General Assembly in 2013 over Beshear’s veto. The law protects “sincerely held religious beliefs” from infringement unless there is “a compelling governmental interest.” Because her oath of office included the phrase “so help me God,” Davis said, she believed she never would have to “act in contradiction to the moral law of God.”

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