Kentucky county clerk toys with contempt

Timothy Kincaid

August 27th, 2015

Kim DavisKim Davis should not be forced to give out marriage certificates to same-sex couples. Davis has a right to her beliefs, religious or otherwise, and a constitutionally protected freedom to live by the dictates of her conscience.

However, governmental entities do not have the right to deny marriage licenses to same-sex couples. The Supreme Court of the United States has determined that to do so is a violation of constitutional protections of equality.

And Kim Davis is the County Clerk in Rowan County, Kentucky. Which might seem to set up a conundrum. Davis cannot be forced to violate her conscience, and yet the County cannot deny equality. Quite the paradox.

But not really. Because Kim Davis does not issue marriage licenses; the Rowan County Clerk issues marriage licenses. The marriage certificates bear the Seal of the State of Kentucky, not the Seal of Kim Davis.

Davis merely performs tasks as the physical representative of the county. Her official actions do not originate in Davis’ will nor are they performed for Davis’ benefit. What Davis believes is irrelevant and when she speaks on behalf of the county, “the relevant speaker is the government entity, not the individual”.

So said the Sixth Circuit Court of Appeals yesterday when denying stay to Davis in her legal challenge to her obligation to perform the duties of the county.

Two weeks ago Federal Judge David Bunning ordered Davis, in her official capacity, to issue a marriage licenses, including to same-sex couples. He had stayed his ruling so that Davis could appeal to the Sixth Circuit. But the Court’s response leaves no ambiguity.

In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court. There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal.

Which means that Davis and other employees of Rowan County cannot thwart the County in performing its duties to its residents. The County Clerk must issue marriage licenses to same-sex couples who request them without discrimination.

Yet the Clerk’s Office continues to refuse to do so. (

Rowan County Clerk Kim Davis continued to withhold marriage licenses from local residents Thursday, a day after a federal appeals court upheld an order telling her to end her protest.

James Yates and William Smith Jr. were turned away by a deputy clerk in Davis’ office Thursday morning when they asked for a marriage license. The deputy told the men Davis thinks she can legally withhold marriage licenses until Monday, Aug. 31, under an order issued earlier this month by U.S. District Judge David Bunning.

August 31st is the deadline Judge Bunning gave for Davis to appeal to the Sixth Circuit. Obviously the temporary stay given by Bunning expired upon the Sixth Circuit response and this is all but a game. Kim Davis is opening herself up to charges of contempt (though I doubt that happen).

Nevertheless, in a few days time there may be a showdown. Davis will need to decide whether the County Clerk’s Office will fulfill its duties, whether she will defy the orders of the court, or whether she will resign.

I suspect that Davis will continue to obstruct the operations of the county. Davis and her attorney, Mat Staver of Liberty Counsel, are using this situation as a form of public activism against same-sex marriage. Their desire is twofold: to carve away at the rights of gay citizens and to rally public support for their ‘religious freedom’ political endeavors.

But, as is so often true, Liberty Counsel and other anti-gay activists appear to have selected the wrong case to rally around.

Kim Davis is a particularly unsympathetic “victim”, one with whom it is difficult to empathize. She lacks a groomed appearance and her manner appears abrupt and harsh.

But, more importantly, her cause is not one that appeals to anyone other than those who are fiercely opposed to equality for gay people. The great middle population, that to which a thoughtful appeal for religious liberty could be effective, will likely not find “I want to block the county business because of my personal beliefs” to be compelling.

This just sounds to many people like another self-important bureaucrat seeking to interfere in others’ lives. Most people find dealing with governmental entities to be annoying enough without having to worry whether the person responsible for issuing fishing licenses is a vegan or if the county planner is an old hippy that favors quonset huts or if the person issuing business licenses is a teetotaler. Davis’ religious quest to obstruct marriages because of her religion feels like more of the same sort of nonsense.

Personally (though I know many here disagree) I think that there is a valid argument to be made for the religious liberty of individuals to operate their personal business according the their conscience. And that is an argument that can appeal to a broad spectrum, left or right, gay or straight.

But Staver and crew may turn off the public with their defense of the indefensible that they poison the well for any other more legitimate claims.


Staver says that he is going to appeal to the Supreme Court tomorrow for a stay until the case can reach them. I am not anticipating that said stay will be issued.

Priya Lynn

August 27th, 2015

“Personally (though I know many here disagree) I think that there is a valid argument to be made for the religious liberty of individuals to operate their personal business according the their conscience.”

I agree. However, when you’re operating a business open to the public be it to sell cakes, flowers, or rent wedding venues that is not your personal business, that is public business and you’re obligated to serve all of the public. The objection of such business people is not that they themselves are forced to engage in sex or marriages they consider sinful, it is that they object to others doing so. As such their being required to provide services to gay couples is a trivial or insubstantial infringment of their religious freedom in that it does not threaten actual religious beliefs or conduct.

Aaron Logan

August 28th, 2015

I’d be surprised if you have an argument for the religious liberty of individuals to operate their personal business according to their conscience that had not already been raised by opponents to the Civil Rights Act at the time it was debated in congress. Still, if you have a new argument to repeal the Act, I’d like to hear it.

Aaron Logan

August 28th, 2015

I’d also like to see an actual argument that certifying that two persons are legally entitled to marry, or have legally married, is a violation of a person’s constitutional rights. Frankly, it is ludicrous to argue that certifying that a couple is in compliance with the law, that is, certifying to the truth of a matter, can possibly violate someone’s conscience.


August 28th, 2015

Priya Lynn: Bingo.

Given the fact that the U.S. is, in spite of all protests to the contrary, a secular nation in its conception and in its fundamental principles, the idea that the owner of a business serving the public may pick and choose which members of the public said business will serve based on personal beliefs more or less cuts the whole concept of the rule of law off at the knees.

Which I suspect is the point.


August 28th, 2015

I have also heard that she is on her fourth marriage. So, if true, quite the hypocrite.


August 28th, 2015

Is Clerk Davis angling for a GoFundMe windfall when she gets fired? Or does she have delusions about becoming a religious right-wing spokesperson / rubber-chicken-dinner-circuit speaker? Hint – Davis needs to lose weight and get a serious makeover if she has those plans, image is everything for women in the PR biz.


August 28th, 2015

Rowan County has publicly stated this repellent scofflaw’s actions in no way reflect the County’s views and thus it does not want to pick up her legal tab. And while holding the position of County Clerk, I believe it is illegal for her to receive outside monies such as GoFundMe if she now faces contempt of court fines. Hopefully she will soon be personally held responsible for the full costs of suits plus hefty damages to the plaintiffs as soon as possible. I’m ok with jail, but would prefer the financial penalty first. Disgusting and evil this 4x wed hypocrite.


August 30th, 2015

NancyP, will GoFundMe allow such support? I thought they didn’t let people support others based on illegal activity.

(And this, to me is a reason to still support discrimination law. The fact that people could receive outpouring support for discriminating against others shows that the government still needs to step in.)

Priya Lynn

August 30th, 2015

Spunky, I speculate that GoFundMe wouldn’t fund someone wanting to perform an illegal activity, for example, someone setting up a fundraising campaign so they can buy 3 kilograms of cocaine so they can sell it in small quantities and make a profit but they would allow fundraising for Davis after she loses her job because it wouldn’t be funding her illegal action of denying gays wedding licenses but would instead be funding her to pay her bills, mortgage, etc. none of which is an illegal activity.


August 30th, 2015

Priya Lynn, I think I understand what you’re saying–that the fundraising wouldn’t be directly supporting discrimination, but that instead it would support someone who lost her job or other money as a result of said discrimination.

That said, I’m pretty sure GoFundMe still wouldn’t support Kim Davis based on their previous actions and statements.

The new policy, which includes a ban on campaigns in defense of “claims of discriminatory acts,” would appear to make it more difficult to raise money on behalf of businesses facing crippling civil damages awards after refusing to provide services for gay weddings for religious reasons.

This was after GoFundMe took down the funding request for the Kleins (although it let them keep the money that was already raised). Based on that, how would they ever allow Kim Davis to receive money?

Priya Lynn

August 30th, 2015

I see, Spunky.


September 1st, 2015

Spunky,Priya: However, “Christians” to the rescue: apparently, there are one or two similar outfits who would step into the breach, as they did for the Kleins, to the tune of half a million dollars or more.

But then, Davis would also be liable for the plaintiffs’ legal fees and court costs.

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