Explainer: The Kentucky Clerk Marriage License Controversy
Religion & Liberty Online

Explainer: The Kentucky Clerk Marriage License Controversy

ap_220157184201What is the story about?

When the Supreme Court handed down the <Obergefell v. Hodges ruling, it made same-sex marriage legal throughout the U.S. and required every state to issue marriage licenses to same-sex couples. Kim Davis, the county clerk in Rowan County, Kentucky, said she could not issue marriage licenses to same-sex couples because of her religious objections. To avoid claims that she was discriminating, Davis stopped issuing all marriage licenses — to both same-sex and opposite sex couples.

Two gay couples and two straight couples sued her, arguing that her duties as an elected official required her to act, despite her personal religious beliefs. A federal judge ordered her to issue the licenses, and the Sixth Circuit Court of Appeals agreed. She appealed to the Supreme Court, which denied her request without explanation in a brief one-line order. Since then she has still refused to issue marriage licenses.

On September 3, Davis was found to be in contempt of court and was taken into federal custody.

Who is Kim Davis?

Davis has worked in the Rowan County Clerk’s office for 27 years as a Deputy Clerk (her mother was the clerk for decades). In 2014, she ran as a Democrat and was elected as Clerk. She is a member of congregation of the Apostolic Pentecostal Church.

What are Davis’s specific objections?

On September 1 Davis issued a statement that included an explanation for her act of civil disobedience:

I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word. It is a matter of religious liberty, which is protected under the First Amendment, the Kentucky Constitution, and in the Kentucky Religious Freedom Restoration Act. Our history is filled with accommodations for people’s religious freedom and conscience. I want to continue to perform my duties, but I also am requesting what our Founders envisioned – that conscience and religious freedom would be protected. That is all I am asking. I never sought to be in this position, and I would much rather not have been placed in this position. I have received death threats from people who do not know me. I harbor nothing against them. I was elected by the people to serve as the County Clerk. I intend to continue to serve the people of Rowan County, but I cannot violate my conscience.

Is Davis the first clerk to ignore the law regarding the issuance of marriage licenses?

No. In fact, a similar controversy erupted in 2004 when San Francisco Mayor Gavin Newsom directed the city-county clerk to issue marriage licenses to same-sex couples. The legal dispute over the issuance of marriage licenses to same-sex couples led to the 2008 In re Marriage Cases ruling by the California Supreme Court, which legalized same-sex marriage in California.

Davis is also not the only clerk to dissent since the Obergefell ruling, but she became the focus of media attention because of a video taken showing her office’s refusal to issue a marriage license.

Why doesn’t the county just fire Davis instead of putting her in jail?

Because Davis is an elected official, she can only be removed from office for impeachment. That would require the Kentucky House of Representatives to charge her with an impeachable offense and the Senate would then try her. Impeachment is unlikely since few citizens in Kentucky support same-sex marriage.

A poll taken in August found that 38 percent of the  state’s residents said county clerks who refuse to issue marriage licenses should be removed from office, 36 percent said clerks should be allowed to refuse, and 16 percent said the power to issue marriage licenses should be transferred to a state agency.

Should county clerks be able to refuse to issue marriage licenses?

Opinions differ among Christians about how exactly government officials should obey the law and still maintain the biblical witness on this issue.

Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, recently told the Baptist Press the government “ought to provide its employees with all protections possible to the furtherance of maintaining public order.”

“There are better solutions available than the one in Kentucky that needlessly pits the rule of law against freedom of conscience. The governor and legislature of Kentucky could act to accommodate county clerks whose consciences object to issuing same-sex marriage licenses while still maintaining the rule of law.”

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).