Punching Down

By Allen, Charlotte | First Things; A Monthly Journal of Religion and Public Life, June/July 2016 | Go to article overview

Punching Down


Allen, Charlotte, First Things; A Monthly Journal of Religion and Public Life


On January 20, a federal appeals court heard arguments in the highly publicized case of Kimberly Jean "Kim" Davis, county clerk of Rowan County (population 23,000) in mountainous northeastern Kentucky. There were many legal issues at stake-discrimination, sexual equality, religious liberty- but the whole affair had another component, rarely noted in popular accounts: Society's winners, those who believe themselves on the right side of progress and have the success to prove it, think little of humiliating and attempting to ruin those who are less fortunate and cling to old beliefs.

Davis, age fifty, served five days in jail in September 2015 over her refusal on grounds of her Christian conscience to issue marriage licenses to same-sex couples in the wake of the U.S. Supreme Court's decision in Obergefell v. Hodges. That decision, released on June 26, 2015, found a fundamental right to marry that the high court's five-justice majority said extended to same-sex as well as opposite-sex couples under the Constitution's due process and equal protection clauses.

On the very morning of the Obergefell ruling, Steve Beshear, a Democrat who was then the governor of Kentucky, ordered county clerks in all 120 Kentucky counties to begin issuing marriage licenses to same-sex couples immediately. His office generated a mandatory gender-neutral form for them to use that included the personal signatures of clerks on any licenses they issued. Because the Kentucky Constitution had been amended in 2004 to define marriage as solely between a man and a woman, there seemed to be some pent-up marriage demand among Kentucky gays and lesbians, several of whom rushed to county offices in Kentucky within hours of the Obergefell decision, on the theory that the Supreme Court had nullified the state constitutional amendment.

Davis, who had converted in 2011 to a small Evangelical Christian denomination that holds that samesex marriage transgresses biblical teaching, sent a letter to Beshear expressing her concern over his order and requesting an executive order exempting her and other Kentucky clerks whose consciences would be violated if they were forced to put their names onto documents recognizing unions that went against their religious beliefs. Meanwhile, she instructed her six deputies, working out of her offices in Morehead, Kentucky, the Rowan County seat, to deny marriage licenses, at first to gay and lesbian couples, and later, to any couples at all. Davis's office was an elective one (she had run for the clerkship in 2014, succeeding her mother), and she could not be fired from her clerkship, only impeached.

On July 1 the American Civil Liberties Union of Kentucky, representing four couples-a pair of lesbians (fifty-fouryear-old named plaintiff April Miller and her longtime partner, Karen Ann Roberts), a pair of gay men, and two opposite-sex pairs-who had been turned down for licenses in Morehead, filed a class-action lawsuit against Davis and Rowan County in the U.S. District Court for Eastern Kentucky. The suit sought an injunction that would require Davis to issue marriage licenses to all otherwise qualified couples. On August 12, after hearings on July 13 and July 20 in Miller v. Davis, U.S. District Judge David L. Bunning duly issued the preliminary injunction, rejecting Davis's claim of infringement of her religious liberty under the U.S. and Kentucky constitutions. Her lawyers, affiliated with Liberty Counsel, a nonprofit Evangelical Christian legal office based in Orlando, Florida, sought stays that would have put the injunction on hold pending an appeal, first from Bunning himself, then from the Sixth U.S. Circuit Court of Appeals (which has jurisdiction over federal courts in Kentucky), and finally from the U.S. Supreme Court. All those attempts were unsuccessful.

Bunning did, however, grant Davis a temporary stay that permitted her to continue to turn away couples through August 31, the day the Supreme Court denied her request for a longer stay. …

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