On Friday, Rowan County Clerk Kim Davis asked the U.S. Supreme Court to stay an order from a federal court for her to resume issuing marriage licenses while a lawsuit against her from four local couples makes its way through court.
The request represents an end stage of one part of the case of Davis, who stopped issuing marriage licenses after the Supreme Court made same-sex marriage legal nationwide in June. But it may still take months for the merits of the case against her to work through a federal court.
Late last week, U.S. District Judge David Bunning denied Davis’ request to extend a temporary stay on his order for her to resume issuing licenses while her appeal continues. The stay expires today, meaning if Davis still doesn’t issue any licenses, the judge could hold her in contempt for disobeying his order.
University of Louisville law professor Sam Marcosson, an expert in civil rights law pertaining to lesbian, gay, bisexual and transgender people, said a contempt finding could still be a ways away.
“In technical terms she probably does stand in contempt, but you have to have a proceeding, and due process requires that she be given an opportunity to show why she shouldn’t be held in contempt,” he said.
Davis, an Apostolic Christian, has said issuing marriage licenses to same-sex couples goes against her religious beliefs. She stopped issuing licenses to all couples, she has said, to avoid being accused of discrimination.
Davis is being sued by four Rowan County couples — two same-sex and two straight — who were denied marriage licenses. Represented by the ACLU of Kentucky, the couples are seeking damages and an injunction for Davis to issue marriage licenses to all qualified couples. Clerks in at least two other counties in Kentucky — Casey and Whitley — have also refused to issue licenses.
That injunction is what Davis has asked the Supreme Court to consider.
Marcosson said Bunning issued the temporary stay “with an abundance of caution” in case the Sixth Circuit Court of Appeals ruled in favor of Davis. He said the chances of the Supreme Court issuing a stay at this point are “slim.”
If Bunning ends up holding Davis in contempt, she could be fined or put in prison. Marcosson said judges will often start with fines that accumulate for every day a person remains in contempt.
“All you have to do to stop them from escalating per day is issuing marriage licenses,” Marcosson said.
As an elected official, Davis cannot be fired in a conventional way. She can be voted out (her term ends in 2018) or impeached by the General Assembly.
Many in the state legislature, including leaders of both chambers and from both political parties, support legislative proposals that would distance county clerks from having to issue marriage licenses.
One proposal would change the marriage license form so that clerks no longer have to sign them; instead, the form would require a notary signature before it’s filed with a clerk, much like a deed.
Unless Davis acquiesces or the plaintiffs drop out, the merits of the lawsuit brought against Davis will likely be argued for several months in U.S. District Court. At that point, the losing party would have the opportunity to appeal the case to the Sixth Circuit Court of Appeals, leading to many more months of litigation.
Meanwhile, we should know soon when — and how — couples in Rowan County can get marriage licenses again.