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Deputies of Kentucky clerk jailed over gay marriage stance will issue licenses Deputies of Kentucky clerk jailed over gay marriage stance will issue licenses
(about 3 hours later)
A federal judge has placed a defiant Kentucky county clerk into the custody of US marshals for refusing to issue same-sex marriage licenses and ordered her office to begin processing the necessary paperwork again on Friday morning. A Kentucky county clerk’s office will issue marriage licenses once again on Friday after a federal judge placed the defiant clerk into the custody of US marshals for denying an order to provide the paperwork.
In a winding five-hour hearing on Thursday, five of six deputies at the Rowan County clerk Kim Davis’s office told US district judge David Bunning they would comply with his order – grudgingly, in some cases, as one said it was the “hardest thing” she had ever been asked to do. In a winding five-hour hearing on Thursday, five of six deputies at Rowan county clerk Kim Davis’s office told US district Judge David Bunning they would comply with his order – grudgingly, in some cases, with one saying it was the “hardest thing” to have to do.
Bunning ordered Davis into custody earlier in the day, saying her religious beliefs don’t supersede her mandate to comply with a court order. Their acquiescence opened a door Thursday afternoon for Davis to be released, a resolution Bunning sought after placing the the 49-year-old clerk behind bars. The judge said they were free to follow the law despite the contention of Davis’s attorneys that they could not act without Davis’s consent. Only the clerk’s son, Nathan, refused to comply.
The judge later sought a resolution that would keep Davis out of jail. He told her six deputies that they are free to follow the law, overruling an objection from her lawyer, who argued that they can’t act against the clerk’s authority. All but the clerk’s son, Nathan, later promised to comply. Through her attorneys, Davis declined. “We cannot represent to the court that Ms Davis would allow licenses to be issued,” her attorney said.
Davis was summoned back to court and offered the option to go free as long as she did not interfere with her deputies issuing the licenses. Through her attorneys, she declined. The judge then ordered her to remain in custody, freeing the deputies to begin issuing licenses on Friday. Davis was escorted through the back of the US district courthouse in Ashland and taken in an SUV to Carter County jail, where she was booked at 5.32pm.
“We cannot represent to the court that Ms Davis would allow licenses to be issued,” her attorney said. Bunning emphasized his court has authority over the matter, saying he “expects compliance” from Davis’s deputies to follow his order. Two couples named as plaintiffs in the suit said they would seek licenses as early as Friday.
The judge then ordered her to remain in custody, freeing the deputies to begin issuing the licenses on Friday. Upon the hearing’s conclusion, Bunning said he expects compliance, even with the clerk’s continued dissent. Despite the spotlight in recent days on the lifelong bureaucrat and Moreland resident, the incarceration of Davis doesn’t cap her intense legal battle. The clerk’s handling of marriage licenses has put her at the center of a firestorm surrounding an issue that divides not only her hometown of Moreland, but the state of Kentucky.
“I hope that everyone will be civil,” he said. Rand Paul, the US senator from Kentucky and 2016 presidential hopeful, said it was “hard to argue that government’s involvement in marriage has made it better, a fact also not surprising to those who believe government does little right”.
Davis has refused to issue licenses to any couples, gay or straight, since the US supreme court in June ruled that same-sex couples have the right to marry under the US constitution. But no public official – including Davis – was above the law, said Josh Earnest, the White House press secretary. “Certainly not the president of the United States, but neither is the Rowan County clerk.”
“On principle the success of our democracy depends on the rule of law.”
Related: Kentucky clerk is one of three in county refusing to issue marriage licensesRelated: Kentucky clerk is one of three in county refusing to issue marriage licenses
Davis had testified that four of her six deputies agree with her decision to not issue marriage licenses. Five later told Bunning that they would follow his order to issue the licenses, albeit with objection. Early on in Thursday’s hearing Davis, an Apostolic Christian, took the stand to argue why she shouldn’t be jailed. It was, her attorneys argued, a “factually impossible” order to follow.
Deputy clerk Melissa Thompson told Bunning that she doesn’t really want to, but she will comply with the law. Davis’s attorney Roger Gannam asked the clerk about the day she found God. Davis broke down in tears and faintly replied: “I did a lot of wicked things in my time.” When Gannam asked for her definition of marriage, she responded: “Marriage is a union between one man and one woman.”
She wept and said: “I’m a preacher’s daughter, and this is the hardest thing I’ve ever had to do in my life.” Asked if she was capable of believing otherwise, Davis said: “No.”
And an attorney for deputy clerk Kristie Plank said she’s reluctant but will issue the licenses. The attorney cited Plank’s 11-year-old child and financial and family obligations, saying she can’t go to jail. Bunning wasn’t swayed. After listening to testimony from Morehead resident April Miller, one of the plaintiffs in the case, he declared: “The court finds that the plaintiffs have established that [Davis] has and will continue to disobey this court’s order.
The order to jail Davis prompted a fierce response outside the courtroom, where hundreds of protesters had gathered. Hundreds of people chanted and screamed “Love won! Love won!” as word of the decision reached the crowds outside the federal courthouse. “She’s failed to establish factually why she can’t comply,” he said; her sincerely held beliefs were “simply … insufficient” as reason to disobey the order.
The plaintiffs’ attorneys had requested financial penalties to coerce Davis into compliance, but Bunning said he “wasn’t convinced” that would suffice. “I’m not going to put a deadline on it,” the judge said of her incarceration.
Before exiting the courtroom, Davis turned to Bunning and said: “Thank you judge.”
The saga of Davis – a longtime bureaucrat and native of Morehead – attracted increasing attention last month, when a federal judge ordered her to abide by the supreme court’s June decision to legalize same-sex marriage. Kentucky governor Steve Beshear, a Democrat, has also ordered county clerks across the state to fall in line with the ruling.
Tension heightened last week after Davis continued to refuse licenses to couples; on Friday she filed a request to the supreme court to stay a lower court’s decision. Late Monday the high court denied her request in a one-sentence ruling.
Davis, a Democrat, earns $80,000 annually; she took office in January after winning a close election last fall. Bunning’s ruling doesn’t appear to strip her authority as clerk, but her deputies will handle day-to-day duties until Davis agrees to fall in line.
While calls for Davis to be fired have proliferated in recent days, the only means for her removal exist with the Kentucky general assembly, or if she resigns. Davis also faces a potential charge of official misconduct, a misdemeanor that could bring up to a year in jail. A request for a special prosecutor to review the allegations is pending before Kentucky attorney general Jack Donway, a Democrat. Conway’s office declined additional comment on Tuesday.
The order to jail Davis prompted a fierce response outside the courtroom, where hundreds of supporters and opponents of the clerk had gathered. A large group of same-sex marriage proponents chanted and screaming: “Love is not a sin!” as word of the decision trickled outside onto Greenup avenue.
Unlike Davis, her town of Morehead has “many churchgoers” who support equal rights, said Thomas Albert, 25, who waited in line Thursday morning to get a seat in the courtroom.
“Being a Morehead citizen and a taxpayer, I think it’s important she does her job,” Albert told the Guardian.
Expectedly, the ruling drew a sharp rebuke from Davis’s supporters and her counsel, the Christian non-profit Liberty Counsel.
“Everyone is stunned at this development,” said Mel Staver, founder and chairman of the counsel. “Kim Davis is being treated as a criminal because she cannot violate her conscience. While she may remain behind bars for now, Kim Davis is a free woman. Her conscience remains unshackled.”
The length of time Davis will stay behind bars is – for now – at her own discretion.
It’s not rare for someone to be jailed for contempt of court but it’s unusual for people to “refuse to comply with court orders”, said Adam Winkler, a UCLA law professor.
“The purpose of contempt is not punitive; the goal is not to punish the person, merely to enforce the court’s order,” Winkler told the Guardian. “The court is trying to gain compliance with its order. Sometimes threatening someone with jail is going to be the only thing that will prompt compliance.”
Winkler said Judge Bunning may have been concerned that Davis could have raised funds to cover any financial penalties he assessed, “and thus the fines would not have their coercive effect”.
Davis could remain in jail for years, Winkler said. He recalled a case where an individual jailed for contempt stayed locked up for 14 years. Eventually, he said, a judge will consider whether incarceration will “coerce compliance with the order.”
After a year, the person has “proven they’ll stay in jail forever”, Winkler said, “so judges will often allow someone out of jail, eventually, because they just don’t feel it’s … having the effect”.
Attorney Laura Landenwich, who represents the plaintiffs, said it was unfortunate the hearing’s outcome led to Davis’s incarceration but that doesn’t excuse her decision to defy a court order.
“She holds the key to her cell,” Landenwich said. “That’s the reality.”
Presidential candidate Hillary Clinton responded to the news on Twitter:Presidential candidate Hillary Clinton responded to the news on Twitter:
Marriage equality is the law of the land. Officials should be held to their duty to uphold the law—end of story. https://t.co/9WfxgULBgaMarriage equality is the law of the land. Officials should be held to their duty to uphold the law—end of story. https://t.co/9WfxgULBga
The White House, too, weighed in on Thursday, saying that no public official – including Davis – was above the law.
“On principle, the success of our democracy depends on the rule of law. And there is no public official that is above the rule of law,” Josh Earnest, the White House press secretary, told reporters at his daily briefing. “Certainly not the president of the United States, but neither is the Rowan County clerk. That’s a principle that is enshrined in our constitution and in our democracy and it’s one that obviously the courts are seeking to uphold.”
Asked if Davis should be in jail, Earnest said he would not, from his vantage point, second-guess the decision of a federal judge.
Republican presidential candidate Mike Huckabee called the ruling “the criminalization of Christianity” and voted to travel to Kentucky next week.Republican presidential candidate Mike Huckabee called the ruling “the criminalization of Christianity” and voted to travel to Kentucky next week.
I'm headed to Kentucky on Tuesday to stand with #KimDavis. We must end the criminalization of Christianity! #ImWithKimI'm headed to Kentucky on Tuesday to stand with #KimDavis. We must end the criminalization of Christianity! #ImWithKim
Four couples filed a federal lawsuit in July challenging Davis’s office policy not to issue licenses and Bunning in August ruled for the couples, finding that Davis had to live up to her official duties as a county clerk despite her religious beliefs. The American Civil Liberties Union of Kentucky, which represents the couples who filed the original contempt order, said on Tuesday the law was clear. “The duty of public officials is to enforce the law, not place themselves above it,” it said.
Davis has appealed against his order to the US court of appeals for the sixth circuit, which turned down her request for a stay pending appeal last week. The US supreme court on Monday also turned down her request for an emergency stay.
“To me this has never been a gay or lesbian issue,” Davis said in a statement this week. “It is about marriage and God’s word. It is a matter of religious liberty.“
The American Civil Liberties Union of Kentucky, which represents the couples who filed the original contempt order, said on Tuesday the law is clear. “The duty of public officials is to enforce the law, not place themselves above it,” it said.
Related: Kentucky clerk denying licenses to gay couples has married four timesRelated: Kentucky clerk denying licenses to gay couples has married four times
Early on, Bunning indicated his office has been inundated this week with up to 2,000 calls regarding the case. Interested observers traveled from across the midwest to attend the hearing.
“In fact, I had to turn the phone off to voicemail,” he told a packed courtroom.
When the 49-year-old Davis took the stand at about 11.30am, she broke down at times, when asked about the day she found God.
“I did a lot of wicked things in my time,” she said through tears.
Davis, a Democrat, earns $80,000 annually; she took office in January after winning a close election last fall.
In court on Thursday, Bunning cycled through a series of motions filed in recent days by Davis’s attorneys from the Christian nonprofit Liberty Counsel, before addressing the contempt motion filed this week by the American Civil Liberties Union of Kentucky.
The 49-year-old clerk took the stand to argue why she shouldn’t be held in contempt of court. It was, her attorneys argued, a “factually impossible” order.
Davis’s attorney Roger Gannam asked the clerk for her definition of marriage. “Marriage is a union between one man and one woman,” she said.
Asked if she was capable of believing otherwise, Davis said: “No.”
Bunning wasn’t swayed. After listening to testimony from Morehead resident April Miller, one of the plaintiffs in the case, he said: “The court finds that the plaintiffs have established that [Davis] has and will continue to disobey this court’s order.
“She’s failed to establish factually why she can’t comply,” he said, adding her sincerely held beliefs fail to demonstrate a “factual impossibility”.
Davis is represented by Liberty Counsel, a Christian religious advocacy organization, which said in court papers on Wednesday an injunction would halt the “irreversible implications on Davis’ conscience” while she appeals the case.
Mat Staver, founder and chairman of Liberty Counsel, said: “Everyone is stunned at this development. Kim Davis is being treated as a criminal because she cannot violate her conscience. While she may be behind bars for now, Kim Davis is a free woman. Her conscience remains unshackled.”
Kentucky’s governor, Steve Beshear, a Democrat, ordered all county clerks to issue marriage licenses to same-sex couples, but has no authority over Davis’s office.
Before the hearing on Thursday morning, about 100 people stood outside the US district court in Ashland carrying signs that said “Kim Davis does not speak for my religious beliefs” and “My gay friends pay taxes, which pay your rent”.
Unlike Davis, her town of Morehead has “many churchgoers” who support equal rights, said Thomas Albert, 25, who waited in line to get a seat in the courtroom.
“Being a Morehead citizen and a taxpayer, I think it’s important she does her job,” Albert told the Guardian.
Across the street, a pair of middle-aged men took turns speaking out against homosexuality and shouting Bible verses at the crowd through a public-address system.