There have been many opinions expressed in the news and on social media recently regarding the situation with Rowan County Clerk Kim Davis, the county clerk in Kentucky who was jail while refusing to issue marriage licenses. There have also been many questions, and we attempt below to answer them from a legal perspective.

Q: What law did she break?

A: She was jailed on Thursday, 9/3/15, for civil contempt. After she was sued by 4 couples for not issuing marriage licenses and lost her case in U.S. District Court, Judge Bunning ordered her to issue marriage licenses. She has refused to comply with the order. There are two types of contempt: criminal and civil. Civil contempt is defined as a willful and intentional violation of an Order of the Court. Criminal contempt results in someone being jailed or perhaps fined for a specific length or amount. Civil contempt means that the person (Kim Davis) determines the duration of the punishment. Once the person stops defying an Order of the Court, the punishment stops.

UPDATE: Her office began issuing licenses signed by her deputy clerks on Friday, 9/4/15. She was released on Tuesday, 9/8/15, the next business day, but ordered not to interfere with the efforts of her deputy clerks to issue marriage licenses. In the order releasing her, Judge Bunning stated that the Court “is therefore satisfied that the Rowan County Clerk’s Office is fulfilling its obligation to issue marriage licenses to all legally eligible couples . . . .”

Q: Can she be fired instead?

A: No, she is an elected official. She can fire her deputy clerks who aren’t elected, but removing her from office would require an impeachment process by the Kentucky legislature, which will not be in regular session until January. She can resign, but she has stated that she will not do so.

Q: Kentucky law specifically prohibits gay marriage, so isn’t she just following Kentucky law?

A: No, the Kentucky law (part of the Kentucky state constitution) that defined marriage and being between one man and one woman is invalid because the U.S. Supreme Court struck it down as unconstitutional (under the U.S. Constitution). Therefore, it is invalid.

Q: Does it matter that the law regarding marriage changed after she took office?

A: No. The June 26, 2015 Supreme Court decision struck down state bans on gay marriage, just as Loving v. Virginia struck down bans on interracial marriage in 1967. Once a law is struck down, it is immediately invalid, and states cannot continue to follow the previous law that was struck down.

Q: The Supreme Court denied something. Did she already lose her appeal, or can she appeal any further?

A: She lost her case in U.S. District Court, and the District Court judge ordered her to issue marriage licenses. She has appealed to the 6th Circuit Court of Appeals. She also asked the 6th Circuit Court of Appeals to stay the Order (i.e., put Judge Bunning’s order on hold until they hear her appeal). The Court of Appeals denied her request (but still hasn’t heard her original appeal). She then asked the Supreme Court to stay the Order, but the Supreme Court denied her request as well. After she still refused to comply with Judge Bunning’s order, she was jailed for civil contempt. Her appeal is still before the 6th Circuit Court of Appeals, and she has amended it to include the contempt charge as well as the underlying suit.

Q: Why can people be “conscientious objectors” to avoid military service but not to issuing marriage licenses?

A: A conscientious objector in the military is someone who is opposed to participation in all wars. The person’s opposition must be based on religious belief and training, it must be a deeply held belief, and the person must not have been a conscientious objectors at the time of voluntary enlistment. Conscientious objection could also come up in the context of an involuntary draft. If a person convinces the military that he or she is a conscientious objector, the result is discharge. In other words they get to quit. However, in Kim Davis’ case, she is not willing to resign.

Of course, there are also examples of non-military employees being excused from certain job duties because of their religious beliefs. For example, under Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an “undue hardship,” meaning more than a modest cost, on the employer. However, Title VII expressly excludes elected officials. As a government official acting in her official capacity, Kim Davis basically is the state. The state acts through its officials. If the state is not allowed to do something (e.g., deny gay marriages), state officials are not allowed to do it while acting in their official capacity.

On the other hand, Kentucky’s Religious Freedom Restoration Act does not exclude elected officials. Nevertheless, Kim Davis’s case isn’t about a workplace rule. Refusing to issue marriage licenses is not simply seeking to get out of a job duty, like a person who objects to wearing a certain uniform or working on a certain day of the week. It is denying the couples’ constitutional right to marry. It is more accurately compared to the Arkansas governor refusing to integrate schools after Brown v. Board of Education or an Alabama probate judge refusing to recognize an interracial marriage after Loving v. Virginia.

It could certainly be reasonable for a government employee to request certain religious accommodations, but as the Supreme Court stated in in Garcetti v. Ceballos in 2006, when a citizen enters government service, the citizen must accept certain limitations on his or her freedoms.

Q: Why is the government even involved in marriage?

A: Marital status has an impact on many other areas of the law – from income tax filing status to property rights when someone dies. Other examples include laws that control who makes medical decisions for someone who is incapacitated and who gets workers’ compensation benefits when an employee dies in a workplace accident.

Q: Are pastors in danger of being jailed for not performing gay weddings?

A: This is highly unlikely. As University of Louisville constitutional law professor Sam Marcosson has explained in interviews recently, there is a broad spectrum of fact scenarios where marriage rights and religious freedoms could intersect. There will be easy cases and hard cases. The easy cases lie at opposite ends of the spectrum: the government end and the church end. On one end, states and their officials cannot deny gay marriages. On the other end, the First Amendment provides organized religions with protection from government intrusion. The harder cases will be in the middle of that spectrum with businesses and individuals who are not acting in official government or religious capacity.

Q: Courts can’t make laws, can they?

A: Yes, they can. Common law (also known as case law or precedent) is law developed by judges through decisions of courts that decide individual cases, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. In the U.S., 49 states use the common-law system. Only Louisiana uses the civil-law system. Merriam Webster defines common law as “the body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the English legal system and of the system in all of the United States except Louisiana.” Further, judges have to decide how to interpret statutes and constitutions, particularly when they are unclear or when different laws conflict with each other. Their decisions become precedent for future cases.

Q: Are the recent marriage licenses valid without her name and signature?

A: Yes. Although some people have argued that they may not be valid without her signature, her name and signature are not actually required by Kentucky statutes. KRS 402.100 specifies what must be on the marriage license. It must include (a) an authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite the parties in marriage [This is pre-printed on the state form.], (b) vital information for each party, and (c) the date and place the license is issued, and the signature of the county clerk or deputy county clerk issuing the license. The recent marriage licenses by her office state that they are issued “this 9/4/2015 in the office of ROWAN COUNTY, ROWAN COUNTY County Clerk, Morehead, Kentucky by BRIAN MASON [Brian Mason’s signed initials], DEPUTY CLERK.” The deputy clerks simply typed “ROWAN COUNTY” instead of Kim Davis’ name. Interestingly, the marriage license for Kim Davis’ current marriage (found here: http://media.graytvinc.com/images/Kim+Davis+Marriage+License.JPG) is not signed by the County Clerk either. It is simply initialed by a deputy clerk.

Q: Many people have mentioned the oath she took when she took office. What is that oath?

A: All Kentucky attorneys, public officials, and legislators take the same oath, which is from section 228 of Kentucky’s Constitution.

I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of …. according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.

So far, we are unaware of any reports that Kim Davis has participated in any duels since 1891.

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