ASHLAND, Ky. — A Kentucky county clerk who has become a
symbol of religious opposition to same-sex marriage was jailed Thursday after defying a federal
court order to issue licenses to gay couples.
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The clerk, Kim Davis of Rowan County, Ky., was ordered
detained for contempt of court and later rejected a proposal to allow her
deputies to process same-sex marriage licenses that could have prompted her
release.
Instead, on a day when one of Ms. Davis’s lawyers said she
would not retreat from or modify her stand despite a Supreme Court ruling
legalizing same-sex marriage, Judge David L. Bunning of United States District
Court secured commitments from five of Ms. Davis’s deputies to begin providing
the licenses. At least two couples planned to seek marriage licenses Friday.
“The court cannot condone the willful disobedience of its
lawfully issued order,” Judge Bunning said. “If you give people the opportunity
to choose which orders they follow, that’s what potentially causes problems.”
The judge’s decision to jail Ms. Davis, a 49-year-old
Democrat who was elected last year, immediately intensified the attention
focused on her, a longtime government worker who is one of three of Kentucky’s
120 county clerks who contend that their religious beliefs keep them from
recognizing same-sex nuptials. Within hours of Ms. Davis’s imprisonment, some
Republican presidential candidates declared their support for her, a sign that
her case was becoming an increasingly charged cause for Christian
conservatives.
“Today, judicial lawlessness crossed into judicial tyranny,”
Senator Ted Cruz, Republican of Texas, said in a statement.
A lawyer for Ms. Davis, Roger Gannam, sharply criticized the
ruling and portrayed it as a stark warning to Christians across the country.
“Today, for the first time in history, an American citizen
has been incarcerated for having the belief of conscience that marriage is the
union of one man and one woman,” Mr. Gannam said after a hearing that stretched
deep into Thursday afternoon. “And she’s been ordered to stay there until she’s
willing to change her mind, until she’s willing to change her conscience about
what belief is.”
In Washington, the White House press secretary, Josh
Earnest, said he had not discussed the judge’s decision with President Obama,
but he added that it was not up to Ms. Davis to defy the Supreme Court.
“Every public official in our democracy is subject to the
rule of law,” Mr. Earnest said. “No one is above the law. That applies to the
president of the United States and that applies to the county clerk of Rowan
County, Ky., as well.”
Judge Bunning’s decision went beyond the wishes of the
couples who sued the clerk this summer; their lawyers had asked that she be
fined. Some advocates for gay rights quickly expressed concern that Ms. Davis’s
jailing would make her a sympathetic figure to religious conservatives and
prompt lawmakers in Kentucky and elsewhere to push for new laws carving out
exemptions for public officials who oppose same-sex marriage. But they also
described Ms. Davis as an outlier.
“I think this is a tempest in a teapot,” said Marc Solomon,
national campaign director of Freedom to Marry, which was active in the push
for same-sex marriages to be recognized. “If the big backlash and the mass
resistance that our opponents promised is one clerk from a county of under
25,000 people, I think we’re in very good shape.”
Ms. Davis’s appearance before Judge Bunning, and her
subsequent detention, was a signal development in a case that surfaced soon
after the Supreme Court’s ruling in June. Faced with the ruling, Ms. Davis, an
Apostolic Christian, directed her office to stop providing marriage licenses to
any applicants.
“Marriage is between one man and one woman,” Ms. Davis said
during a frequently tearful turn on the witness stand on Thursday. When Mr.
Gannam, one of her lawyers, asked whether she approved of same-sex marriage,
she replied, “It’s not of God.”
The legal odyssey of Ms. Davis, who was being held Thursday
night at a county detention center, began with a ruling last month that ordered
her to issue licenses. The Court of Appeals for the Sixth Circuit and, on
Monday, the United States Supreme Court denied her requests to prevent the
order from taking effect.
Ms. Davis’s decision on Tuesday to refuse licenses to
same-sex couples led to the contempt hearing, and she testified that she had
not hesitated to maintain her opposition to licensing same-sex couples.
“I didn’t have to think about it,” Ms. Davis said. “There
was no choice there.”
But after seeing their boss jailed, most of Ms. Davis’s
deputy clerks said Thursday that they were willing to break from her demands
and comply with Judge Bunning’s order, even if they did so with deep
reluctance.
“I don’t really want to, but I will follow the law,” one
deputy, Melissa Thompson, told the judge. “I’m a preacher’s daughter, and this
is the hardest thing I’ve ever done in my life.”
Another deputy clerk, Nathan Davis, who is also Ms. Davis’s
son, said he would not issue licenses, but Judge Bunning did not impose any
penalties against him.
On Friday, the focus of the case will shift back to
Morehead, where the clerk’s office is. Despite lingering disputes about whether
Ms. Davis’s deputies have the authority to act without her explicit consent,
couples are expected to begin receiving marriage licenses Friday morning.
“We expect at the end of the day for the court’s orders to
be complied with,” Judge Bunning told a crowded, quiet courtroom. “That’s how
things work here in America.”
Photo
Protesters opposing same-sex marriage gathered Thursday
outside the federal courthouse in Ashland, Ky. Credit Ty Wright/Getty Images
He later added, “I hope there’s no shenanigans.”
Amid complex questions about the scope of the judge’s
authority and the application of Kentucky law, it was unclear how long Ms.
Davis might remain jailed. Civil contempt is a murky area that is largely
dependent on the discretion of the judge whose will has been defied.
“Civil contempt is not supposed to be punitive; it’s
supposed to coerce the person to obey the judge’s order,” said Adam Winkler, a
law professor at the University of California, Los Angeles. “Once she promises
to obey, or once the judge determines that more jail time will not encourage
her to obey, they’ll let her out. But she could be in there for a year; it’s
conceivable. Judges really don’t like it when people disobey their order.”
Jurists like Judge Bunning have few options to prod
compliance, but they are powerful: fines or incarceration. The legal issue —
that no one, whether a government or an individual engaged in civil
disobedience has standing to flout a court order — is well established.
The standoff here, many law professors said, is somewhat
reminiscent of the 1960s civil rights battles, with Ms. Davis in the role of
George C. Wallace, the segregationist Alabama governor who stood in the doorway
of the University of Alabama to try to block its integration.
“In a way, she’s out George Wallace-ing George Wallace,”
said Howard M. Wasserman, a law professor at Florida International University.
“It does now feel like the civil rights era, with people ignoring court orders,
taking a stand and being held in contempt.”
Photo
Supporters at the federal courthouse. At a contempt hearing
inside, a judge jailed Ms. Davis for defying a court order on marriage licenses
for gay couples. Credit Ty Wright/Getty Images
And Judge Bunning’s decision to jail Ms. Davis, instead of
fining her as her challengers sought, came as a surprise in the courtroom and
well beyond Ashland.
“It’s unusual for the court to go beyond what the plaintiffs
asked for,” Suzanna Sherry, a law professor at Vanderbilt University, said.
Judge Bunning, however, said from the bench that he believed
fining Ms. Davis would “not bring about the desired result of compliance.”
With Ms. Davis jailed, the agreements by her deputy clerks
left gay and straight couples poised to receive marriage licenses in the county
for the first time in months.
“We’re going to the courthouse tomorrow to get our marriage
license; we’re very excited about that,” said April Miller, who sued after she
and her partner were denied a license. “We’re saddened by the fact that Ms.
Davis has been incarcerated. We look forward to tomorrow; as a couple, it will
be a very important day in our lives.”
A lawyer for the couples, William Sharp, said Thursday’s
ruling demonstrated that “religious liberty is not a sword with which
government, through its employees, may impose particular religious beliefs on
others.”
Outside the courthouse, protesters expressed disparate
messages. The rainbow flag, a symbol of the gay rights movement, was on display
along with signs that carried messages like “Sodomy is sin.” Some people
shouted their opinions through loudspeakers and megaphones, and faced off,
sometimes inches apart, with their opponents.
After the ruling, Ms. Davis’s husband, Joe Davis, was among
those unhappy with the proceedings inside.
“Tell Judge Bunning,” Mr. Davis said, “he’s a butt.”
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