Family

Judge jails Rowan clerk for contempt; 5 deputies pledge to issue marriage licenses Friday morning

Rowan Co. Clerk Kim Davis was led away in custody from the U.S. Courthouse in Ashland.
Rowan Co. Clerk Kim Davis was led away in custody from the U.S. Courthouse in Ashland. Lexington Herald-Leader

ASHLAND — A federal judge sent Rowan County Clerk Kim Davis to jail Thursday for contempt of court after she testified that her religious beliefs against same-sex marriage made it impossible for her to comply with his order to resume issuing marriage licenses.

"My conscience will not allow me," Davis told U.S. District Judge David Bunning in a quiet voice. Davis, an Apostolic Christian, has refused to issue any marriage licenses in Rowan County since the U.S. Supreme Court legalized same-sex marriage in June.

After U.S. marshals took Davis into custody, where she is expected to remain until she agrees to comply with Bunning's order, the judge ordered her six deputy clerks to stand and tell him if they would comply with his order to issue marriage licenses, at the risk of facing their own contempt penalties.

All but one of the deputies — Nathan Davis, Kim Davis' son — said they would obey the judge, some more reluctantly than others.

"I'm a preacher's daughter," deputy clerk Melissa Thompson told the judge, crying. "This is the hardest thing I've ever had to do in my life."

Bunning said he would not hold the younger Davis in contempt since the rest of his colleagues were willing to obey the law.

So on Friday, the Rowan County clerk's office is set to open without its clerk, for the first time recognizing the Supreme Court's landmark gay marriage decision. At least two of the couples suing Davis for a marriage license said they planned to be at the county courthouse early Friday to apply yet again — with the expectation of success this time.

"It's sad in a way that Ms. Davis decided she wants to stay in jail," said Jody Fernandez, one of the plaintiffs, who is engaged to marry Kevin Holloway. "I never wanted her to be going to jail. But that was her choice today."

Outside the courthouse, Roger Gannam, one of Davis' lawyers, called the clerk's jailing "unprecedented in American law." Davis' legal team indicated they immediately planned to appeal Bunning's civil contempt finding.

"Today, for the first time in American history, an American citizen has been incarcerated for having the belief and conscience that marriage is a union of one man and one woman," Gannam said.

The judge rejected such arguments during the daylong set of hearings. Bunning said he has his own religious beliefs as a Catholic, and Kim Davis is welcome to hers. But she cannot, as a public servant, put her religious beliefs above a Supreme Court decision and his preliminary injunction of Aug. 12, ordering her to resume issuing marriage licenses, Bunning said.

Following Davis' logic, Bunning said, a Catholic county clerk could refuse to give a marriage license to a divorced applicant without proof that the previous marriage was annulled, as church doctrine requires.

Davis, who has said repeatedly she will not resign her elected office, appealed the preliminary injunction to the 6th Circuit U.S. Court of Appeals and the Supreme Court, both of which flatly denied her, Bunning noted. By continuing to flout the order this week after running out of appeals, Davis crossed a line, he said.

"The court doesn't do this lightly, ma'am," Bunning told Davis as he found her in contempt. "You don't strike me as someone who is contentious or combative.

"In this country, we live in a society of laws. Our system of justice requires citizens — and significantly, elected officials — to follow the rules of the courts."

Later in the day, after Bunning established that five of Davis' deputy clerks were willing to issue marriage licenses, Davis' lawyers asked the judge to reconsider sending her to jail. If the people of Rowan County can get a marriage license from the clerk's office, even if it's over Davis' objections, then surely the judge's order is satisfied, the lawyers said.

But Davis scotched that effort by informing Bunning, from a courthouse holding cell, that she would not agree to let her deputies obey the judge's order if she is released. With a shrug, Bunning said Davis would remain incarcerated for at least a week, until he can review how her office operates in her absence. She was taken to the Carter County jail but can free herself by agreeing to comply with his order, Bunning said.

Turning back to the deputy clerks, Bunning warned them that he would be unhappy if he learned of "shenanigans" at the clerk's office, like more refusals of service or a sign on the door Friday saying "Closed for computer repairs."

"I do expect compliance," the judge told the deputy clerks.

The Rowan County couples suing Davis asked Bunning on Wednesday to find her in contempt, although they recommended he levy stiff fines against her, as opposed to incarcerating her.

Bunning rejected the possibility of fines Thursday after Davis testified that Liberty Counsel, the religious advocacy group providing her with lawyers, also is collecting money on her behalf from her supporters nationally. Additionally, Davis and her lawyers insisted that fines would not compel her to obey the court order, which is supposed to be the point of a contempt penalty.

"This case is not about money at all," Jonathan Christman, one of Davis' lawyers, told the judge. "She has no amount of money in her conscience's bank account that would cover the cost to her if she had to issue one of these licenses."

Davis' lawyers questioned whether a Rowan County marriage license issued without Davis' authorization would be valid. But other lawyers in the courtroom, including Rowan County Attorney Cecil Watkins, said deputy clerks could issue marriage licenses, too.

Davis, a Democrat, began a four-year term as county clerk in January.

She can be removed from office only by impeachment in the Kentucky General Assembly, which seems unlikely, given the vocal support she has received from lawmakers. Senate President Robert Stivers, R-Manchester, filed a friend of the court motion late Wednesday in Davis' defense. Stivers asked Bunning to not find the clerk in contempt until the legislature could meet and rewrite marriage laws in a way that protected the religious liberties of county clerks.

Lawyers for Stivers and Democratic Gov. Steve Beshear were in the courtroom Thursday. Davis is suing Beshear over a letter he sent to all 120 county clerks in June, instructing them to comply with the Supreme Court's same-sex marriage decision. That part of the increasingly complex web of litigation around Davis — with at least three lawsuits at this point — has remained on hold while Bunning sorted out enforcement of his preliminary injunction.

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