Kentucky clerk asks Supreme Court to intervene in same-sex marriage case
MOREHEAD, Ky. -- Two months after it legalized gay marriage nationwide, the U.S. Supreme Court is being asked by a Kentucky county clerk for permission to deny marriage licenses to same-sex couples.
Rowan County Clerk Kim Davis objects to same-sex marriage for religious reasons. The Supreme Court says the constitution guarantees gay people have the right to marry, but Davis contends the First Amendment guarantees her the right of religious freedom.
She stopped issuing all marriage licenses the day after the Supreme Court effectively legalized gay marriage nationwide in June.
Two gay couples and two straight couples sued Davis, arguing she must fulfill her duties as an elected official. A federal judge ordered Davis to issue the licenses and an appeals court upheld that decision. Davis' lawyers said they petitioned the Supreme Court on Friday to delay that decision until her appeal is finished, a process that could take months.
Her attorneys with the Christian law firm Liberty Counsel wrote in their appeal to the court that Davis is seeking "asylum for her conscience."
Justice Elena Kagan, who joined the majority opinion effectively legalized gay marriage in the U.S., will hear Davis' case.
University of Louisville law professor Sam Marcosson said he believes Kagan will deny Davis' request based on the court's earlier decision.
Davis has refused to comply with several court orders in recent weeks, turning away gay couples over and over. She says they could easily drive to a nearby county to get a marriage license. But gay couples argue they have a right to get a marriage license in the county where they live, work and pay taxes.
Davis has said she will not resign her $80,000-a-year job and will never issue marriage licenses to same-sex couples -- even if the Supreme Court denies her request.
"If a (same-sex marriage) license is issued with Davis' name, authorization and approval, no one can unring that bell," she wrote the court. "That searing act of validation would forever echo in her conscience."
Her attorney, Jonathan D. Christman, wrote that forcing her to issue licenses is akin to forcing a person who objects to war into the battlefield, or forcing a person against capital punishment to carry out an execution.
Davis cannot be fired because she is an elected official. The Legislature could impeach her, but that is unlikely given that many state lawmakers share her beliefs. The Republican president of the state Senate spoke at a rally last week in support of Davis.
The gay couples that sued her could ask U.S. District Judge David Bunning to hold Davis in contempt. That would trigger another court hearing and would likely include testimony from Davis herself. The judge could then order hefty fines or even put her in jail until she complies with the order.
A familiar scene repeated itself at a rural Kentucky courthouse on Thursday: a gay couple marched into the clerk's office, requested a marriage license and insisted that a mounting pile of court orders proves they are entitled to one.
Then, Rowan County Clerk Kim Davis' office again turned them away Thursday morning. The standoff has now stretched into its second month.
CBS affiliate WKYT reports that Friday afternoon, Davis asked U.S. District Judge David Bunning to extend his stay on his marriage license order while she appeals to the Supreme Court.
"It's getting tedious. We get torn down, built back up, torn down, built back up," said David Ermold. He and his partner, David Moore, have been rejected by Davis' office twice. "It's emotionally draining."
Days after the Supreme Court's same-sex marriage ruling, Davis announced that her Christian faith prevents her from sanctioning a gay marriage. She has since refused licenses to any couple, gay or straight.
On Thursday a deputy clerk in Davis' office told William Smith Jr. and James Yates, a couple for nearly a decade, that the office believes Bunning's delay remains in effect until Aug. 31. He refused to give them a license.
Davis, meanwhile, sat in her office with the door closed, ignoring the commotion of television cameras surrounding Yates and Smith as they demanded answers.
Rejected for the third time, Yates and Smith left shaking their heads.
Lawyers with Liberty Counsel, the Christian law firm representing Davis, said the fight is far from over.
"The court of appeals did not provide any religious accommodation rights to individuals, which makes little sense because at the end of the day it's individuals that are carrying out the acts of the office," said attorney Mat Staver. "They don't lose their individual constitutional rights just because they are employed in a public office."
Davis's appeal to the nation's highest court would first be considered by Justice Elena Kagan, who oversees the 6th Circuit. Kagan, a liberal judge, sided with the majority this summer when it ruled gay marriage bans unconstitutional.
Kagan could reject it outright within days and exhaust Davis' options for appeal, said Marcosson.
"Once the stay is denied then the question will be right there on the front burner of whether she will comply because there will be no further avenue for her," Marcosson said.
The question will then become what Davis chooses to do.
She has said she will not resign and pledged to never issue a license to same-sex couples.
If she continues to defy court orders, the couples' attorneys are likely to ask Bunning to hold her in contempt of court. The law offers the judge wide discretion on how to force her hand: he can sanction her with fines or order she be jailed.
The couples waiting to be married think the end may be in sight.
"They're running out of options," Ermold said.
Activists with signs and rainbow umbrellas lined up Thursday on a street outside Davis' window, shouting "Do your job."
But she has her supporters, too.
Casey County Clerk Casey Davis, also opposed to issuing licenses to same-sex couples, got on his bike at 4:30 a.m. Thursday and began cycling more than 450 miles across the state to bring attention to her predicament.
"I cannot let my sister go to jail without my doing something to let others know about her plight," Casey's statement said. Although the two are not related by blood, The Family Foundation says they are bonded by religious conviction.
WKYT reports that early Friday several people showed up to the clerk's office to rally outside the courthouse. Their presence was strong early Friday morning, but it calmed down toward lunch time. A rally in support of gay marriage is scheduled for 9 a.m. to noon Saturday outside the Rowan County courthouse.