Kim Davis, the defiant Kentucky county clerk, was found in contempt of court and taken into federal custody — and she will be spending the night in jail.
U.S. District Court Judge David Bunning ordered Davis, the Rowan County clerk, to be jailed on the contempt charges until she agrees to comply with multiple court orders to issue marriage licenses to same-sex couples.
“The court cannot condone the willful disobedience of its lawfully issued order,” Bunning said. “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”
The judge ordered Davis held indefinitely because he did not believe fines would be enough to compel her to follow the law because he suspected her supporters would pay those penalties.
Her office refused to issue a marriage license to a same-sex couple as recently as Thursday morning, before Davis and her staff closed the office to make the half-hour trip from Morehead to Ashland.
Five of the six deputy clerks in Rowan County told Bunning in subsequent court hearings that they would agree to issue marriage licenses to same-sex couples. The one deputy who refused to comply was Davis’ 21-year-old son, Nathan, who works under his mother in the office.
Davis could have avoided jail time if she allowed the deputy clerks to issue licenses to same-sex couples, but she told the federal judge she would not grant her authority to her employees to do so.
Despite her refusal, her office will begin issuing licenses Friday morning. Couples, however, will be marrying “at their own risk.” It is unclear if the licenses will be legally valid.
“Davis is acting alone in her zealous mission,” wrote Shannon Ragland, of the Kentucky Trial Court Review. “Her conduct has terrorized not just her staff but everyone that works in the courthouse. And all for a foolish mission aided by out-of-state charlatan lawyers trying to raise money for their ‘religious liberty’ mission.”
Davis, an elected official and Democrat, has argued that she should be exempt from following the U.S. Supreme Court ruling in Obergefell v. Hodges because she objects to same-sex marriage for religious reasons.
Two other clerks, Casey Davis of Casey County and Kay Schwartz of Whitley County, are also still refusing to issue marriage licenses to same-sex couples.
She had asked the judge to delay his ruling until the Kentucky state legislature, which won’t be in session again until January, can pass legislation that would exempt her and other clerks who don’t wish to follow the law.
Gov. Steve Beshear, who leaves office at the end of this year, has said he will not call a special session on the matter because it’s a waste of taxpayer money.
But Kentucky’s Republican Senate president said the Supreme Court ruling in June invalidates nearly all of the state’s laws governing marriage and the process for obtaining a marriage license.
“The General Assembly will be compelled to amend many sections of Kentucky law, not just for the issuance of marriage licenses, to comply with the recent Supreme Court decision,” said Robert Stivers, the Senate president from Manchester.
Four couples have sued Davis, and they asked the federal judge to punish the county clerk by imposing fines against her, saying that she continues to draw a taxpayer-funded salary “for duties she fails to perform.”
Her attorney from the conservative Liberty Counsel argued Wednesday that Bunning should not punish her for disobeying his order because issuing a marriage license to a same-sex couple would “irreparably and irreversibly violate her conscience.”
“It is not as if Kim Davis the individual stops existing while Kim Davis is performing her duties as Rowan County clerk,” argued attorney Jonathan Christman.
Her attorneys argued that Davis should escape punishment for now because she has an appeal pending on a related issue, and they also argued that she has a right to a jury trial to determine whether she should be punished.
However, the top federal prosecutor in Eastern Kentucky said it was time for Davis “to follow the law,” arguing that she had presented her arguments “through the federal court system, all the way to the U.S. Supreme Court,” and lost each time.
“Government officials are free to disagree with the law, but not disobey it,” said U.S. Attorney Kerry Harvey in a statement.
Legal experts said it was unusual for a U.S. attorney to speak out on a case that does not involve his office, but they said federal prosecutors have a “vested interest in having federal court litigants comply with court orders.”
Bunning, the son of former U.S. Sen. Jim Bunning (R-KY), was appointed to the federal bench by former President George W. Bush and confirmed by the Senate in 2002.
Davis has been divorced three times and married four times, including twice to the same man — who adopted her twins born out of wedlock as the result of an extramarital affair.
The scofflaw clerk challenged critics of her “sordid past” to seek forgiveness for their own sins and become a Christian like she did four years ago.