Rowan Co. Clerk Kim Davis will stay in custody after federal judge finds her in contempt

09/03/2015 04:28 PM

UPDATED ASHLAND — Rowan County Clerk Kim Davis will remain behind bars in defiance of U.S. District Judge David Bunning’s order mandating her office resume issuing marriage licenses despite testimony from five of her six deputies Thursday that they will obey Bunning’s decision.

Only Davis’s son, Nathan Davis, said he would not issue marriage licenses.

Kim Davis was placed in U.S. marshals’ custody earlier Thursday for contempt, and Bunning gave her an opportunity to be freed later in the day so long as she would not interfere with the issuance of marriage licenses in Rowan County.

Her attorney, Roger Gannam of the Orlando, Fla.-based Liberty Counsel, said she would not. What’s more, she would not grant her deputies authority to resume issuing marriage licenses, he said.

Davis has refused to issue any marriage licenses in Rowan County after the U.S. Supreme Court legalized same-sex marriage nationwide June 26, citing her religious convictions against the practice.

After a day in which tempers flared outside the federal courthouse on the larger issue of same-sex marriage, Bunning said he hoped for “peaceful” discourse as the case moves through the justice system. He said he would monitor Rowan County deputy clerks to ensure his orders are followed.

“The court hopes and expects individuals to treat each other with respect,” Bunning said from the bench.

Bill Sharp, staff attorney for the American Civil Liberties Union of Kentucky, said his clients plan to seek marriage licenses in Rowan County on Friday.

“We think today’s ruling reflected, correctly, that Ms. Davis has been in contempt of court,” Sharp told reporters after court adjourned. “Regrettably, she chose to remain in custody rather than accept the suggestion that we proposed that she simply agree not to interfere with her employees’ willingness to issue marriage licenses to our clients and others who are legally entitled to receive them.

“This case and today’s ruling represents just as all the other rulings in the case have thus far, the fact that religious liberty is not a sword with which government, through its employees, may impose particular religious views on others, nor may it use religious liberty as a justification to withhold essential government services from the public.”

But the validity of such licenses under Davis’s continued protest has at least on plaintiff in the case concerned, although she said she and her fiancé will go to the clerk’s office sometime Friday for a marriage license.

“I do have that fear that is may not be valid, but we’ve been working a long time for this and we will be going tomorrow,” plaintiff Jody Fernandez said, referencing her fiancé Kevin Holloway.

Gannam, speaking to reporters after court, said his client “represents the best of us, and everyone should lament and mourn the fact that her freedom has been taken away for what she believes.”

“In light of the Supreme Court’s ruling, there are no religious liberties of conscience left for elected officials,” he said, “and regular citizens are next.”

Some may see Davis as a martyr of sorts after she chose imprisonment over issuing marriage licenses in violation of her religious beliefs. But Laura Landenwich, an attorney handling the case alongside Sharp and others, said, “No one created a martyr today.”

“Kim Davis had two opportunities to comply with the law, and she chose not to comply with the law,” Landenwich told reporters, adding that Davis “holds the keys to her jail cell.” “For every other citizen in this country, when you choose to break the law there are consequences and there are consequences for government officials. She is not above the law.”

Davis has appealed Bunning’s original injunction to the Sixth Circuit Court of Appeals, which declined her request for a stay on Bunning’s decision last week. The Supreme Court on Monday declined Davis’s petition for a review.

Top-of-the-ticket reaction

Davis’s case has attracted national attention and prompted many to suggest ways to alleviate clerks’ concerns with granting marriage licenses after the high court’s landmark ruling.

Attorney General Jack Conway, the Democratic gubernatorial nominee who has drawn criticism from state Republicans for not appealing a 2014 ruling that struck down the state’s ban on same-sex marriage, offered a succinct statement after Davis was taken into custody.

“I understand that passions are high on both sides of this issue, but we are nation of laws and no one can defy an order from a federal judge,” said Conway, who has cited prosecutorial discretion, likely legal defeat and his views on same-sex marriage bans in his decision against appealing U.S. District Judge John G. Heyburn’s ruling.

Conway has said he remains open to amending the licensing process as long as the proposal upholds the Supreme Court’s decision.

Republican gubernatorial nominee Matt Bevin, who has proposed making marriage licenses available online like other legal forms, called Davis’s imprisonment “utterly unnecessary … when there is a simple solution that would respect the rights of every Kentuckian.”

“I first put this solution forward many weeks ago,” Bevin said in a statement. “Why the cowardly silence from our Attorney General, Jack Conway? Jack Conway violated his oath of office as Attorney General when he refused to defend our state in court.

“Where was our Governor then demanding his resignation? The double standard applied in this case is reprehensible. Jack Conway refused to defend our state constitution and now he is refusing to stand up for the religious liberties of our county clerks.”

Gov. Steve Beshear, who has declined to call a special session or issue an executive order on marriage licensing, said Davis’s future “continues to be a matter between her and the courts,” noting that deputy clerks in Rowan County are expected to resume issuing licenses Friday.

“It appears that the citizens of Rowan County will now have access to all the services from the clerk’s office to which they are entitled,” the Democratic governor said in a statement. “Again, the legislature has placed the authority to issue marriage licenses squarely on county clerks by statute, and I have no legal authority to relieve them of their statutory duty by executive order.

“The General Assembly will convene in just four months and can make any statutory changes it deems necessary at that time. I see no need to spend hundreds of thousands of dollars of taxpayers’ money calling a special session of the General Assembly when 117 of 120 county clerks are doing their jobs.”

Attorney general candidates weigh in

State Sen. Whitney Westerfield, the GOP candidate for attorney general, pointed his finger at Beshear after the arrest of Davis on Thursday.

“How many of the 57 county clerks who agree with Kim Davis will have to be arrested before he is compelled to modernize the marriage licensing system in Kentucky?,” Westerfield, R-Hopkinsville, said in a statement. “I was surprised by Beshear’s veto of the Religious Freedom Restoration Act, but I am more surprised by his stubborn refusal to seize upon the many simple solutions available today.”

“All Kentuckians should be alarmed by what this means for our safety to express and hold fast to our beliefs,” Westerfield continued. “By acting today, he could reassure all Kentuckians with deeply-held beliefs and ensure that licenses are conveniently available to all couples who seek them.”

Andy Beshear, the governor’s son and the Democratic candidate for attorney general, said he respected Davis’s “strong convictions.”

“But we live in a nation governed by the rule of law,” Beshear said in a statement sent to Pure Politics. “Under the rule of law, federal Judge David Bunning has sole authority over matters before his court.”

Casey County Clerk Casey Davis and Whitley County Clerk Kay Schwartz have also declined to issue marriage licenses after the Supreme Court’s legalization of same-sex marriage.

Additional reporting by Pure Politics Managing Editor Nick Storm.

Kevin Wheatley

Kevin Wheatley is a reporter for Pure Politics. He joined cn|2 in September 2014 after five years at The State Journal in Frankfort, where he covered Kentucky government and politics. You can reach him at or 502-792-1135 and follow him on Twitter at @KWheatley_cn2.


Subscribe to email updates.

Subscribe and get the latest political intelligence delivered to your inbox.