Why Kim Davis Is at Odds with the Law

September 9th 2015

Thor Benson

Kentucky clerk Kim Davis refuses to issue marriage licenses to same-sex couples, despite the June Supreme Court decision and despite being ordered to do so by a federal judge. Davis was sent to jail for disobeying the court order, and she was released on Tuesday. (She was greeted with a rally where the "Eye of the Tiger," played despite the band Survivor's complaints.)

With all of this transpiring, many are wondering is she allowed to deny marriage licenses due to religious beliefs? Did the court order impinge on her religious freedom? What's really going on?


Well this is a bit of a circus. So let us be clear: This woman is no hero to be celebrated. She broke her oath to uphold...

Posted by George Takei on Tuesday, September 8, 2015


A religious freedom issue?

"This is not a case of religious freedom being impinged, because it's the state that's being ordered to issue the marriage licenses, and she is a functionary of the state," Noah Feldman, a professor of constitutional and international law at Harvard University, told ATTN:. "She's sworn to uphold the law and to do her job as a functionary of the state. If she doesn't want to do that, she has a very simple and easy remedy, which is to resign from her job."

"She's under no obligation to perform that job," he said. Essentially, it's your choice to be part of a certain religion and also to pick a certain job that might conflict with that religion, but the conflict shouldn't negatively affect people who that job is meant to serve.

History explains.

Feldman explained that there have been several cases in the long history of the United States where elected officials have stood against changing laws that they saw as immoral or unconstitutional. He cited former Arkansas Gov. Orville Faubus and other governors who resisted the Supreme Court's Brown v. Board of Education (which in effect desegregated schools) in the 1950s. Segregation has remained unconstitutional and schools are integrated today. (Larry Wilmore made a similar point last night.)

More recently in 2010, you could look at the case of California's Gov. Jerry Brown refusing to defend Proposition 8—a proposition that banned gay marriage in California. (Feldman discusses the situation in a recent op-ed for Bloomberg View.) In that case, the proposition was eventually ruled unconstitutional by a federal court, and the Supreme Court refused to take the case. One could argue Brown was doing his job of defending the constitution, rather than just his personal beliefs.

No court order demanded Brown defend Proposition 8, making the situation distinct from Davis'. If the courts had asked him to defend Proposition 8, and he had refused to obey a court order, things could have been much different.

The type of government employee matters.

You might think of Davis as a soldier, rather than a general. Representatives like Gov. Brown have an obligation to uphold state laws and the U.S. Constitution, while Davis is simply expected to obey orders and carry out what the laws require. "If she's in her job, she's not herself, she's not a private individual," Feldman said. "She is an arm of the state, so therefore she has to enforce the law."


Congratulations to the first gay couple officially married in Rowan County, Kentucky, after County Clerk Kim Davis was jailed for refusing to license them.

Posted by ATTN: on Friday, September 4, 2015


Oaths of office and discrimination.

Government officials, even lower-level officials like Davis, swear on oath that they will not discriminate. Davis not only went against what the Supreme Court decided in Obergefell v. Hodges, but she also disobeyed a court order to issue licenses, due to a moral objection to other people's lifestyles. This is considered discrimination.

Feldman said Davis violated two clauses in the 14th Amendment: the equal protection clause, which says everyone gets equal protection of the laws, and the due process clause, which gives everyone the right to marry. "What she's doing is she's depriving citizens of their rights," he said. "Once the Supreme Court says something is my right, the government can't deprive me of it, so she can't deprive me of my right and say, 'I'm sorry to deprive you of your right, but my religion tells me to.' That's not relevant. What's relevant is what the Constitution tells her to do."

Kim Davis Made a Pretty Bold Exit From Jail.

Kim Davis made a pretty bold exit from jail while "Eye of the Tiger" played as she took the stage.

Posted by ATTN: on Tuesday, September 8, 2015


A defense for Kim Davis?

Bernadette Meyler, a constitutional law professor at Stanford University, told ATTN: that there may be some sort of defense for Davis in saying her state's religious freedom laws make it so she doesn't have to personally sign same-sex marriage licenses. However, in that case her office would have to designate another person to do this for same-sex couples. This would mean one of Davis' deputies would have to do it. Some of Davis' deputies started issuing licenses to same-sex couples while she was imprisoned. And she was allowed out of jail under the condition that she not interfere with the issuing of marriage licenses to same-sex couples. However, her legal team has claimed that the licenses are invalid without her signature.

"Her argument is that the deputies can't issue licenses, and I think that isn't really supportable," Meyler said. She said Kentucky's religious freedom laws don't make it so your personal religious freedoms apply to your subordinates. "I think one of the claims she was making was that they issued [the licenses] in her name, but my understanding is that they actually removed her name," she explained.

Mayler believes this conflict could end with some states making it so certain religious people in the government are exempt from having to issue marriage licenses to same-sex couples, but that might be a worrisome path to follow.

"What if someone is Catholic and refuses to issue a marriage license to someone who was already divorced?" Mayler asked. "It raises some complicated questions." With all of the actions that are prevented in the many religious documents that exist, you can imagine a situation where no one can get married.