Kim Davis released from jail, ordered not to interfere with same-sex marriage licenses
By David Weigel, Abby Phillip and Sarah Larimer
URL of the original posting site: http://www.washingtonpost.com/news/post-nation/wp/2015/09/08/judge-orders-kentucky-clerk-kim-davis-released-from-jail/?tid=sm_tw
GRAYSON, Ky. — Rowan County Clerk Kim Davis has been released from jail, five days after she was held in contempt by a federal judge amid an escalating standoff over marriage licenses. Davis was jailed at the Carter County Detention Center on Thursday after she refused to issue licenses to same-sex couples. The following day, her deputies began issuing the documents in her absence. As a condition of her release on Tuesday, U.S. District Judge David Bunning ordered Davis not to interfere with the issuing of marriage licenses by her office.
“She will not violate her conscience,” Davis’ attorney Mat Staver said outside the jail. “Her conscience remains as clear today as it was when she first walked into these jail cells, and it will remain clear into the future.”
“She loves God, she loves people, she loves her work, and she will not betray any of those three,” Staver added.
A large crowd had gathered outside of the jail ahead of a planned rally Tuesday afternoon. Davis did not speak, but when asked whether it was “worth it,” she smiled and nodded her head: yes.
Five of the six clerks who work under Davis swore under oath that they could comply with the court’s order to issue marriage licenses. In a status report filed to Bunning’s court Tuesday, the couples who had filed suit against Davis after she first denied them marriage licenses said they were able to obtain them.
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In Tuesday’s order, Bunning said he is satisfied that the county clerk’s office is now complying with the court’s ruling. He also ordered that Davis “shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples” in Rowan County. If she does interfere, Bunning wrote, the court will consider “appropriate sanctions.”
The news of the judge’s order was slow to spread outside the Carter County Detention Center, where hundreds gathered for a 3 p.m. rally where Republican presidential candidate Mike Huckabee would speak. Some had gathered as early as 8 a.m. and had driven from as far away as Texas.
Following the new order from Bunning, Huckabee arrived at the jail to visit with Davis, who was elected as a Democrat. Republican presidential contender and Texas Sen. Ted Cruz also appeared outside of the detention center. After her release, Huckabee praised Davis for being willing to go to jail in order to maintain the “clarity of her conscience.”
“I feel that she has shown more courage than most any politicians I know and most any pastor that I know,” Huckabee said. “We stand with Kim today with gratitude and appreciation.”
In a statement to The Washington Post, the American Civil Liberties Union, which sued on behalf of several gay couples, said it achieved what it set out to do by suing Davis. “The goal was to get Ms. Davis to issue licenses, and to stop imposing her religious beliefs on the citizens she was elected to serve,” attorney Dan J. Canon told The Post in an e-mail. “That goal has been achieved, for now.” He added: “We are hopeful that Ms. Davis will comply with the Court’s orders and let her deputies continue to do their jobs.”
The licenses issued Friday were altered to remove Davis’s name. They now say they are issued in the office of “Rowan County, Rowan County County Clerk.” But an attorney for Davis argued last week that without Davis’s approval as county clerk, the licenses are invalid. “They are not worth the paper they’re written on,” Mat Staver said on Friday.
[Legally, ‘God’s authority’ is a tough issue]
The five clerks who complied with the court’s order to issue marriage licenses have now been ordered to file additional status reports to the court every 14 days.
In a statement, LGBT advocacy group Human Rights Campaign said Davis has “no legal basis” to refuse to comply with the Supreme Court’s Obergefell v. Hodges decision which legalized same-sex marriage. “The overwhelming majority of public officials across this country are following the law, and history will not judge her kindly,” said HRC Legal Director Sarah Warbelow. “It’s far past time for this needless ordeal to end.” 
Earlier on Tuesday, Davis’s attorneys had filed a document petitioning a U.S. Circuit Court to overrule Bunning’s contempt order.
Davis, an Apostolic Christian who opposes same-sex marriage, has argued that she is exercising her religious freedom by refusing to issue marriage licenses to gay couples. She has also sought a “remedy” from state officials that would exempt her from the mandate that all Kentucky county clerks issue marriage licenses in the state.
[Ky. clerk’s attorney: New marriage licenses ‘not worth the paper they’re written on’]
Outside of the jail, her supporters cheered, waved American flags, carried crosses and signs. “If this goes through, if the Supreme Court continues to override society and what the majority thinks, then all you’ve got left is tyrannical authority,” said Leonard Stone, 65, a Christian minister from Wolf County, Ky. “She should be released. That’s simple. The Supreme Court doesn’t have the right to write laws. She’s in there unconstitutionally.”
What Did You Say? 
Rowan County, Ky., is a lesson for America in how not to resolve social conflict. The local head clerk is sitting in jail, and a judge has ordered her deputy clerks to issue marriage licenses to same-sex couples in her absence. When the Supreme Court redefined marriage for the nation in an activist decision this June, it took the issue out of the democratic process and made it much harder for citizens to navigate our differences on this fundamental institution. Both sides of the debate knew the decision would have significant social effects. For civil servants like clerks who issue marriage licenses, the implications were also immediately personal.
Rowan County clerk Kim Davis could not, as a matter of religious conviction, issue same-sex marriage licenses. Davis’ further dilemma is the fact that her name is attached to every county marriage license, and she believes issuing them to same-sex couples would constitute precisely the kind of endorsement of same-sex unions her faith forbids. Because of that, her office stopped issuing all marriage licenses after the Supreme Court decision.
A lawsuit followed and a federal court on August 12 ordered her to issue licenses despite her faith-based objections. She did not comply with the order, and at a hearing Thursday the judge sent
Davis to jail for contempt of court, even though the plaintiffs had specifically asked she be given fines instead of jail time. The judge ordered the deputy clerks to issue marriage licenses or also face contempt of court and five out of six said they would comply. Meanwhile, the judge has told Davis she will stay in jail because she will not comply with his orders.
This situation could have been avoided. This problem would not have even existed in Kentucky and many other parts of the country had the Supreme Court allowed states to deal with the marriage question democratically—with the give-and-take that naturally leads to compromises, the balancing of competing interests, and a diversity of solutions over time. Instead the Supreme Court redefined the institution for the entire country in one fell swoop but did not say how our constitutional guarantee of religious liberty would be reconciled with the new order of things.
Conflicts have been warned about for years, and all four dissenters to the Supreme Court’s marriage decision predicted dire consequences for religious freedom.
Given the inevitable challenges to this fundamental freedom, it is imperative that we seek solutions to navigate the complex road ahead. In this particular case, there are a number of potential ways forward so that same-sex couples can get licenses as required by the courts and Kim Davis can be released from jail without having to agree to resign or violate her conscience.
One help in finding the way forward is Kentucky’s Religious Freedom Restoration Act, which requires the government to avoid substantially burdening religious expression absent a compelling government interest. There is no compelling government interest in keeping Kim Davis’s name on the licenses instead of the name of the deputy clerks who are willing to issue them. If it’s “just a little form”—as Davis’ critics would like to suggest—then change the form, not the beliefs.
There are a number of other possible accommodations that could be adopted by the legislature, courts, or executive agencies in the state. Davis is not interested in stopping all same-sex marriages in her county. She is only asking that she not be forced to participate in them in a way that violates her beliefs.
Opt-out systems like this work in many walks of life. In fact, we already have examples of such options being adopted in the marriage licensing context. For example, North Carolina allows objecting clerks to choose to not get involved with marriage licensing at all, and the state will guarantee that someone will take their place if needed. Hawaii has an online registration system for marriage licensing that gets rid of many of these concerns.
Whatever the method, people of good will want a solution that leads to better outcomes than the impasse in Rowan County this week. Reaching such a solution in Kentucky is still feasible—and desirable, to respect the legally protected interests of the plaintiffs and the religious conscience of Kim Davis.