Politics & Government

Can judge make Kentucky clerk issue same-sex marriage licenses?

Rowan County, Kentucky, Clerk Kim Davis will stand before a federal judge on Thursday to explain why she should not be held in contempt of court, having violated an Aug. 12 court order by refusing to issue marriage licenses this week.

For a national audience, Davis has come to personify religious objections to the U.S. Supreme Court's landmark decision in June legalizing same-sex marriage. She faces the possibility of paying hefty fines out of her own pocket or even going to jail.

As Davis stands defiantly, the half-dozen local couples suing her — same-sex and opposite-sex — are in their third month of waiting to get a marriage license from the courthouse where they pay their taxes. In their county of 23,527 people, which includes Morehead State University, it's as if the Supreme Court never ruled this summer.

Here's a primer on the case so far:

Question: Who is this county clerk?

Answer: Kimberly Jean Bailey Davis, 49, began a four-year term on Jan. 5. Davis narrowly won a three-way Democratic primary last year, then more easily defeated her Republican opponent in the fall election. Her salary is about $80,000.

Davis succeeded her mother, Jean W. Bailey, who was Rowan County clerk for nearly 40 years until she retired. Davis served as one of her mother's deputy clerks for much of that time, just as her 21-year-old son, Nathan, now works as one of her deputies. This is legal. The Rowan County Fiscal Court enacted an ethics code in 1994 that permits local elected officials to hire their relatives.

Q: Why does she refuse to issue marriage licenses?

A: Davis says same-sex marriage violates her religious beliefs as an Apostolic Christian. She has refused to give marriage licenses to any couple since the U.S. Supreme Court legalized gay marriage.

"To issue a marriage license which conflicts with God's definition of marriage, with my name affixed to the certificate, would violate my conscience," Davis said in a prepared statement Tuesday. "It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will."

Q: Why doesn't someone fire her?

A: Davis was elected and cannot be fired. Rowan County voters can turn her out in four years, if they choose.

The Kentucky Constitution authorizes the legislature to impeach, try and remove from office "the governor and all civil officers," which includes Davis, typically in cases involving abuse of the public trust. But this would be an unlikely outcome for Davis given the legislature's conservative leanings. The Kentucky General Assembly has impeached four officials in 200 years — most recently, in 1991, Agriculture Commissioner Ward "Butch" Burnette, who had been convicted of felony theft. Burnette resigned partway through the proceeding, rendering it moot.

Q: Is it legal for an elected official to collect her salary but not do her job?

A: The state penal code includes a Class A misdemeanor called first-degree official misconduct, punishable by up to a year in jail and a $500 fine. That criminal charge can be applied to a public official who "refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office."

After hearing a complaint a week ago from a same-sex couple denied a marriage license by Davis, Rowan County Attorney Cecil Watkins asked Attorney General Jack Conway to appoint a special prosecutor to decide if Davis should be charged with official misconduct. Watkins said he can't pursue the case himself because he legally represents Rowan County in lawsuits filed by couples against Davis and the county government.

Conway's office says he is reviewing Watkins' request but has not made a decision.

Q: If the clerk is convicted of official misconduct, does she lose her job?

A: No, because it's not a felony. (And even a felony conviction doesn't immediately force out elected officials who appeal.)

"Since this is a misdemeanor, assuming you could even get a jury in Rowan County to convict her, it would be the equivalent of reckless driving. It's not an automatic disqualifier for holding office," said Scott White, a Lexington defense lawyer and former assistant deputy Kentucky attorney general.

Q: Who is this judge holding the contempt hearing Thursday?

A: David Bunning is a son of former U.S. Sen. Jim Bunning, R-Ky., and previously a federal prosecutor. He was appointed to U.S. District Court for the Eastern District of Kentucky by Republican President George W. Bush in 2002.

Q: What can the judge do to make the clerk obey his order on marriage licenses?

A: It depends on whether he considers Davis' refusal to be civil contempt or criminal contempt.

In civil contempt, a judge levies fines or imposes jail time painful enough to compel a person to obey a court order. Once the person agrees to obey, the penalties cease.

Criminal contempt is more serious.

"In this case, she's basically told the court, 'I don't respect your authority, I don't intend to do what you tell me to do,'" said White. "So the court can, on its own initiative, go down the road of criminal contempt, even without the U.S. attorney bringing charges. Then she just goes to prison, just like a drug dealer, and she no longer holds the keys to her own freedom, as they say in civil contempt proceedings."

However, a criminal contempt defendant gets the same due-process rights as any other criminal suspect, including the right to a trial by jury — for jail sentences of more than six months — and the right to not testify against herself.

Sam Marcosson, who clerked for a federal judge and now teaches constitutional law at the University of Louisville, said Bunning might attempt an innovative solution: restructuring Davis' office. Marcosson pointed out that Bunning has ordered all of the deputy county clerks to attend the hearing Thursday. According to Davis' previous testimony in court, at least one of her deputies does not object to issuing same-sex marriage licenses.

"I suspect — though this is just a guess — that Judge Bunning is going to consider the possibility of one or more deputies issuing marriage licenses in Kim Davis' place, without her personal policy standing in the way," Marcosson said. "He could order Kim Davis to not interfere. Again, I'm speculating here, but he has to move this case off square one, and this seems like one possibility to do it."

Q: If the judge fines the clerk, can't her supporters just raise the money for her?

A: Not necessarily, if the judge forbids it. Bunning could order Davis to be personally responsible for her fine, Marcosson said. Davis also might run afoul of state laws prohibiting influence-peddling by elected officials if she mounts a fund-raising campaign for her own personal benefit, he said.

But this area of the law seems unclear. White said the judge might be legally overstepping if he sets rules for how Davis pays her fine.

"My gut tells me he could do it, but he also could be setting up a real quick appealable issue," White said. "You really start down a slippery slope when you tell a party they can't access financial resources they normally could."

Q: Who is defending the clerk?

A: Lawyers for Liberty Counsel, a nonprofit religious advocacy group affiliated with the late Rev. Jerry Falwell's Liberty University in Lynchburg, Va. The group's founder and chairman, Mathew D. Staver, strongly opposes gay marriage. Staver compared the Supreme Court's marriage decision to Nazi Germany during a recent commentary on his Faith and Freedom radio program.

"It's like the Nazis coming to someone who is seeking out a Jew," Staver said. "You're hoping that they're not gonna come, but one day that knock on the door comes. And when it comes, here's the choice: Will I obey God and resist this evil opinion? Or will I ultimately continue in my complicit silence and just simply go along to get along?"

Q: Clerks in Casey and Whitley counties also are refusing to issue marriage licenses. Why aren't they in trouble?

A: Because nobody has sued them.

Eventually, when the Rowan County lawsuits conclude, the judge could issue a final order that instructs county clerks across the Eastern District of Kentucky to issue marriage licenses in compliance with the Supreme Court's gay marriage decision. However, Casey County sits in the Western District of Kentucky, which has its own judges. Whitley County, in the Eastern District, would be covered. But the clerk there would not be in contempt unless she was sued by one or more of her constituents and was made a party to a court action.

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