Nguyen: Clerk That Won’t Grant Marriage Licenses To Gay Couples May Be Held In Contempt

Wednesday, September 02, 2015
AiVi Nguyen, GoLocalWorcester MINDSETTER™

Update (Thursday, 9/3/15 1:55 PM EST): At her (Kim Davis) contempt hearing today, the court ordered that Davis serve jail time until she agrees to comply with the court’s mandate that she issue marriage licenses to all those who qualify, including same-sex couples.  The American Civil Liberties Union had only asked for a fine.  But the judge determined that her insubordination deserved jail time.  It will be interesting to see how long Davis stays in jail and whether she ultimately capitulates or if she simply resigns from her position.

By now you have heard of Kim Davis, the court clerk in Rowan, Kentucky who has refused to issue marriage licenses since June, when the U.S. Supreme Court legalized same-sex marriage. Well, her refusal may get her held in contempt of court come Thursday.

After Kentucky’s governor told county clerks that they were mandated to issue marriage licenses to all eligible couples, including same-sex ones, Davis announced that the Rowan County Clerk’s office was not going to issue marriage licenses to ANYONE. Davis wanted to avoid issuing licenses to same-sex couples without outright discriminating against them.

Davis claims that being an Apostolic Christian forbids her to sign her name to any document that endorses the authenticity of a gay or lesbian marriage. She claims that it is her First Amendment right to deny the marriages based on her religious beliefs.

A number of same-sex couples seeking marriage licenses in Rowan filed a lawsuit in federal court against Davis and the county. Davis argues that she should be excused from the obligation given her religious convictions.

On August 12, the federal court ruled against her and ordered her to immediately resume issuing marriage licenses, including to same-sex couples.

Among its many reasons, the court found that while it is important for the State to protect Davis’ religious freedom, it has a stronger interest in preventing violations of the Establishment Clause (keeping church and State separate). Davis is a government employee, and allowing her to promote her personal religious beliefs at the expense of the public arguably violates the Establishment Clause.

The federal court also held: “Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions. Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent.”

Davis appealed to the U.S. Court of Appeals for the Sixth Circuit. During her appeal, she was granted a stay pending the Sixth Circuit’s decision, which meant she did not have to issue the marriage licenses during that period. Last Wednesday, the Sixth Circuit ruled against Davis.

Davis appealed the decision to the U.S. Supreme Court. However, the stay she was granted expired on Monday, meaning she was obligated to issue marriage licenses to same-sex couples. She filed a request for an emergency stay from the Supreme Court pending its decision on her appeal. Her request was rejected. This means that Davis must comply with the federal court’s order and issue marriage licenses immediately, no excuses.

Well, as of Tuesday, she still refuses.

So in this country, you have to comply with court orders, even if you do not agree with them. By refusing to comply, Davis runs the risk of being held in contempt of court, which the plaintiffs are requesting. The court can assess fines against Davis or even throw her in jail.

The contempt hearing is scheduled for Thursday. Stay tuned.

AiVi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester.