After Judge David L. Bunning of United States District Court ordered Rowan County clerk Kim Davis detained for contempt of court, she rejected a proposal that would have allowed her deputies to issue same-sex marriage licenses.
According to a report by the New York Times, after Davis was taken into custody, five of her deputies who attended the hearing on Thursday agreed to issue same-sex marriage licenses. The Judge then offered to drop the civil contempt charge against Davis, but she told her lawyer that she could not grant her staff the authority to issue same-sex marriage licenses.
Following her refusal to accept the compromise arrangement, authorities said she would remain in jail.
Although the five deputies indicated that they were willing to issue same-sex licenses, they expressed reservations on religious grounds and questions about the validity of licenses issued without Davis’ approval, according to U.S. News and World Report.
The sixth deputy who refused to issue same-sex marriage licenses was Davis’ 21-year-old son Nathan. But Judge Bunning said he would not hold the young man in contempt.
Following reports that five of six deputies agreed to issue marriage licenses to same-sex couples, two gay couples said they plan to request licenses at the Rowan County Courthouse on Friday.
With regard to the question of validity of marriage licenses issued without Davis’ approval, Judge Bunning said he would leave gay couples seeking to obtain marriage licenses to assess the risks on their own. But he indicated that even if the deputies begin issuing licenses he would not release Davis soon because she could return to her office and reinstate her policy.
In response to questions about the validity of marriage licenses issued without approval from Davis, Laura Landenwich, attorney for the gay couples, argued that the law authorizes deputies to issue licenses. But there appears to be no consensus among legal experts about the issue.
Davis, who identifies as an Apostolic Christian, had testified in court that her religious beliefs compelled her to refuse to grant marriage licenses to same-sex couples. She insisted that the Supreme Court order that she must issue same-sex marriage licenses violated her religious freedom.
But Judge Bunning said the county clerk’s grounds for disobeying court order was “simply insufficient” and that her “good-faith belief is simply not a viable defense.”
“It’s not physically impossible for her to issue the licenses. She’s choosing not to,” he said.
He then ordered Davis to be taken into custody.
“The court cannot condone the willful disobedience of its lawfully issued order. If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”
According the Courier Journal, the judge rejected entreaties from attorneys of the gay couples not to send Davis to jail but to impose fines for contempt. However, Judge Bunning was of the opinion that fines would be ineffective to force Davis to comply because her supporters would simply raise the funds while she continues to defy court order.
The attorneys for the gay couples were against Davis being jailed apparently because they believed that jailing her could only help to raise her profile as a martyr among religious conservatives who would then pressure state lawmakers to introduce legislation that would grant exemptions for public officials unwilling to issue same-sex marriage licenses.
“She is not a martyr. No one created a martyr today. Kim Davis had two opportunities to comply with the law, and she chose not to,” Laudenwich reportedly said.
Bunning had ruled on August 12 that Davis must issue same-sex marriage licenses. On Monday, the Supreme Court turned down her appeal against the ruling. But again, on Tuesday, Davis and her deputies at their office in Morehead refused to issue the licenses.
The decision by Judge Bunning drew criticism from Davis’ attorney Roger Gannam, who said it was the first time in U.S. history that anyone has been sent to jail for refusing to act in violation of their religious conscience.
“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, and she’s been ordered to stay there until she’s willing to change her mind…
This is unprecedented in American law.”
But William Sharp, attorney for the gay couples, said the ruling emphasizes that “religious liberty is not a sword with which government, through its employees, may impose particular religious views on others.”
Prominent GOP leaders, including Republican presidential candidates Senator Rand Paul (R-KY), Senator Ted Cruz (R-TX), and former Arkansas governor Mike Huckabee, have also criticized the judge’s decision.
Paul said it “was absurd to put someone in jail for exercising their religious liberties,” while Huckabee called on Americans to defend religious liberty, saying that the judge’s decision “removes all doubt of criminalization of Christianity in our country.”
Legal experts explained that fines and detention for civil contempt are not intended to be punitive but to coerce the offender to obey court order.
It is uncertain how long Davis could be kept in jail but experts said she could be in jail for up to a year depending on the judge’s assessment of the need to keep her in jail to prevent her from returning to her office to enforce her will.
Davis had expressed hope that the State Legislature would review Kentucky laws to accommodate her religious objection.
But the Legislature will not meet until January next year.