Rowan County Clerk Kim Davis turned away several gay and lesbian couples who sought marriage licenses — some for a fifth time — even though the Supreme Court turned away her last-ditch appeal the night before. “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision,” she said through her lawyers. “I was elected by the people to serve as the County Clerk. I intend to continue to serve the people of Rowan County, but I cannot violate my conscience,” her statement said.
For David Moore and David Ermold, it was their third rejection at the courthouse. Davis, facing the couples and a packed crowd of reporters and activists, told them to leave. “We’re not leaving until we have a license,” Ermold responded. “Then you’re going to have a long day,” Davis replied.
Davis then retreated into her inner office, where closed blinds sheltered her from the cameras and rival demonstrations outside.
“Praise the Lord!” her supporters shouted. “Stand your ground!”
Other activists yelled “Do your job!” They called Davis a bigot and said the government is not a theocracy. The sheriff moved everyone to the courthouse lawn, where each side tried to out-do the other with chanting, hymn-singing and sign-waving.
Davis stopped issuing all marriage licenses in June after the Supreme Court legalized gay marriage across the nation.
Four couples — two gay, two straight — then sued to force her to fulfill her duties as an elected official despite her personal religious faith, or step aside. Other couples also sued. A federal order to issue the licenses was upheld in appellate court. Her lawyers with Liberty Counsel then asked the Supreme Court for what they called “asylum for her conscience.”
After the full court declined to intervene Monday night, removing any remaining legal ground for Davis’ position, the couples decided to try again, only to be turned away. For James Yates and Will Smith Jr., it was their fifth rejection. “It’s just too hard right now,” Yates said, choking back tears and holding hands with Smith as they rushed to their car.
Despite the delays, the couples’ lawyers asked the judge to punish her with fines, not jail.
Supporters of Rowan County Clerk Kim Davis file into the Rowan County Courthouse in Morehead, Ky.
“Since Defendant Davis continues to collect compensation from the Commonwealth for duties she fails to perform,” they asked Bunning to
“impose financial penalties sufficiently serious and increasingly onerous” to “compel her immediate compliance without delay.”
Davis served as her mother’s deputy for 27 years before she was elected as a Democrat to succeed her in November. Davis’ own son is on the staff. As an elected official, Davis can’t be fired from her $80,000-a-year job. Impeachment would have to wait until the Legislature’s regular session next year, or a costly special session.
Davis refused to concede her religious freedom argument even after U.S. District Judge David Bunning ordered Davis and her six deputy clerks to appear at 11 a.m. on Thursday at the federal court in Ashland. Davis has said previously that four of her deputies share her beliefs, one was ambiguous and one did not have a problem with issuing licenses to same-sex couples.
Outside, activists lined up on either side of the courthouse entrance.
“At the end of the day, we have to stand before God, which has higher authority than the Supreme Court,” said Randy Smith, leading the group supporting Davis.
Ermold and Moore, together for 17 years, cried and swayed as they walked out to chants from the clerk’s supporters. “I feel sad, I feel devastated,” Ermold said. “I feel like I’ve been humiliated on such a national level, I can’t even comprehend it.”
The clerk’s husband, Joe Davis, came by to check on his wife. He said she has received death threats but remains committed to her faith and is “standing for God.” As for himself, he said he believes in the Second Amendment: “I’m an old redneck hillbilly, that’s all I’ve got to say. Don’t come knocking on my door.” He pointed to the gay rights protesters gathered on the courthouse lawn and said: “They want us to accept their beliefs and their ways. But they won’t accept our beliefs and our ways.”
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Associated Press writer Adam Beam in Lexington, Kentucky, contributed.
Posted by Roger Severino / September 04, 2015
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.