Kentucky Clerk Kim Davis Released from Jail, Loses Appeal in Federal Court

Kentucky clerk Kim Davis was released from federal jail last week after a brief stint served for her ongoing refusal to issue marriage licenses.  Davis protested her duties as a county clerk citing religious objections to same-sex unions, and was found in contempt of court when she defied a federal order to issue marriage licenses or allow one of her deputy clerks to perform the obligation in her stead.  After a week in jail, Davis was released upon agreement that she would not interfere with her deputy clerks when they issued the licenses, but the issue is far from resolved as other state officials across the country have similarly protested the Supreme Court’s recent pronouncement that same-sex couples have a fundamental right to marry.

Kim Davis Released from Jail, Loses Federal Court Appeal

Last week Rowan County clerk Kim Davis was released from jail after serving one week for contempt of court.  U.S. District Judge David L. Bunning issued the order to incarcerate Davis after her continued refusal to issue marriage license despite a federal order to comply with the duties of her position. Davis was sued in August by four same-sex couples who sought a federal injunction that would force her to recognize gay marriage in compliance with the Supreme Court’s recent decision in Obergefell v Hodges.  Davis was ordered to comply with the law because her religious liberties were not infringed upon by the duties of her office, and her refusal to do so resulted in a short jail term for contempt.

As a condition of her release last week, Davis has agreed to not interfere with the duties of her deputy clerks, all of whom agreed to sign same-sex marriage certificates in compliance with the law.  Davis also agreed to replace her name on the certificates with the language “pursuant to federal law,” but issued a warning to same-sex couples that she has “serious doubts” about the legal legitimacy of the documents.  Because Kentucky officials have not weighed in, Davis’s concerns may be valid, but it is unlikely that she – or any other clerk – will be able to issue easily nullified marriage certificates without a viable legal remedy available to same-sex couples who are married in Rowan County.

This week, Davis’s legal position suffered another blow when she lost her appeal of the injunction against her in federal court.  Like the lower federal court before, the 6th Circuit Court of Appeals found no basis for Davis’s religious liberties or free speech arguments under federal law.  Federal law does not require exemption from generally applicable law unless a state does not have a rational basis for its administration of the federal mandate.  In this case, the federal court found it was reasonable that Kentucky should issue an order to its county clerks that they were to follow the Supreme Court’s order in Obergefell, and Davis does not have a viable federal claim.

Written into the appeal decision against her, the 6th Circuit pointed Kim Davis to seek reasonable accommodation from issuing gay marriage certificates under Kentucky’s Religious Freedom Restoration Act (RFRA), which does provide opportunity for state officials to receive exemption from certain duties due to religious objections.

Kim Davis’s Options in Kentucky State Court

A large part of Kim Davis’s objection to her continued duty as a Rowan County clerk was that her name appeared on marriage certificates of same-sex couples, tacitly endowing the union with her approval.  While Davis’s federal claims appear weak and unconvincing, she seems to have a better shot seeking reasonable accommodation – the removal of her name from marriage certificates – from a Kentucky state court under the states RFRA provisions.  Under the language of Kentucky law, state officials can earn reasonable accommodation citing religious liberties unless doing so is unduly burdensome on her employer.  Given that the change in form to remove Davis’s name from same-sex marriage certificates is not only simple, but has already been permitted she is likely to succeed when her request for religious accommodation goes before a state judge.

Despite the national attention paid to Kim Davis’s story, the question of whether or not a public official can be cite religious liberties to advance selective administration of marriage licenses seems settled in the eyes of the federal government.  Davis, and those like her across the country, are more likely to earn accommodation through adjustment of state law and marriage licensing procedures.  Across the country a number of judges, clerks, and legislators have either unilaterally acted to stop issuing marriage licenses of any kind or voted to allow low-level government officials to abstain from legalizing a same-sex union by citing religious objections.  Due to the sensitive nature of the topic, some of these actions will likely result in more federal court challenges down the road and are worth keeping an eye on.

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