LOUISVILLE, Ky. — A Kentucky county clerk who was recently jailed for denying same-sex couples marriage licenses filed an appeal Friday that asks for another delay in issuing the licenses.
Attorneys for Kim Davis, who objects to gay marriage on religious grounds, argued in their motion to the Sixth Circuit U.S. Court of Appeals that all the same-sex couples who sued Davis for a license received one from her deputies while she was in jail. Therefore, they said, her office should not be required to issue them to any more couples once she returns to work.
U.S. District Court Judge David Bunning wrote that his mandate to issue licenses applied to all couples, not only those who filed suit. But Davis’ lawyers allege that order was issued improperly, and again have asked for a delay.
“I hate to use a religious metaphor, given the circumstances,” said Sam Marcosson, a constitutional law professor at the University of Louisville, “but this strikes me as a Hail Mary pass.”
The American Civil Liberties Union filed a suit against Davis on behalf of four couples, two straight and two gay, who were denied licenses after the Supreme Court in June effectively legalized gay marriage nationwide. When Davis refused Bunning’s order to issue licenses, the judge declared the clerk in contempt of court and jailed her for five days.
In her absence, her deputy clerks issued licenses and both same-sex couples who sued her received one. But Bunning clarified his order to include all eligible couples who request a marriage license.
In the appeal filed Friday, Davis’ lawyers, with the Christian law firm Liberty Counsel, argued that Bunning issued the clarification improperly and once again asked the appeals court to delay the mandate that she issue licenses.
The appeals court has already dismissed Davis’ primary argument that her religious faith should exempt her from licensing a gay marriage. “It cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court,” a panel wrote two weeks ago when it rejected her last appeal.
If the court does not respond before Davis returns to work on Monday, she will have to choose whether to allow her office to continue issuing licenses or again disobey the judge who already sent her to jail.
The tension in Rowan County reached fever pitch last week, as protesters, presidential candidates and news crews from across the county descended on the small town of Morehead. To ratchet it up further, members of the Oath Keepers, a heavily armed civilian militia, announced they would travel to Kentucky to protect Davis and ensure she “will not be illegally detained again.” Any such protection could put the Oath Keepers in conflict with the U.S. Marshals, who were ordered to detain Davis after she defied a federal court order.
The Oath Keepers received national attention last year when they showed up in Ferguson, Missouri, amid the riots following the police shooting death of Michael Brown.
Rowan County Judge Executive Walter Blevins confirmed the Oath Keepers are already in Morehead.
“I think my sheriff is ready to handle the situation, but in a civilized and mannerly way,” Blevins said.
Late Friday, the group posted on its website that Davis’ lawyers declined its offer to protect her from the Marshals, and called on its “security volunteers” to stand down.
Since Bunning first ordered Davis to issue the marriage licenses, the clerk and her attorneys have made several attempts to legally get around it. One of their strategies was to ask Bunning to stop Democratic Gov. Steve Beshear and Library and Archives Commissioner Wayne Onkst from directing Davis to issue marriage licenses to same-sex couples. Bunning denied that request on Friday.