Davis was sued shortly after the Supreme Court’s decision in June and in mid-August, U.S. District Court judge David Bunning ordered her to issue licenses to qualified couples. Davis appealed the injunction to the Sixth Circuit Court of Appeals, which issued a temporary stay that expired on August 31. Prior to its expiration, Davis asked U.S. Supreme Court justice Elena Kagan to extend the stay. Justice Kagan referred the request to the full court, which summarily rejected Davis’s petition:
The application for stay presented to Justice Kagan and by her referred to the Court is denied.
In the wake of the Supreme Court’s ruling, there was much speculation about what Davis would do next. Apparently, calmly accepting the outcome of the legal process and issuing marriage licenses was not one of the options. When her office opened on the morning of September 1, two same-sex couples entered and requested the issuance of marriage licenses. Both were told that Davis still refused to issue them licenses. When asked under what authority she was denying the lawful requests, she answered “Under God’s authority.”
Davis came out of office briefly to speak to couple (part 1) pic.twitter.com/lzuHysWi0T
— Hillary Thornton (@HillaryWKYT) September 1, 2015
One might hope that the Republican presidential candidates, who presumably are on the side of law and order, would acknowledge the fact that Davis is willfully defying the lawful authority of the federal courts. But one should not hold one’s breath. There has been a rising anti-authoritarian tide in the Republican party that rejects any institution that challenges its deeply-held beliefs (the courts, higher education, the federal government, even science itself). It’s more than a little ironic, given Davis’s insistence that God trumps the Supreme Court, that an anti-Sharia law organization is planning to sponsor a joint Trump-Cruz rally in Washington D.C. to voice opposition to the Iran nuclear deal negotiated by the Obama administration. The last I checked, no public official in the United States had refused to perform his or her legal obligations on the authority of Sharia law. It is apparently acceptable, at least to a portion of the country, for evangelical Christians to do so.
Let’s review, once again, the text of the First Amendment to the United States Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
There is nothing about the Supreme Court’s decision in Obergefell v. Hodges that in any way establishes a religion. Similarly, the Court’s decision does not in any way interfere with Davis’s “free exercise” of her religion on her own time. In her capacity as Rowan County clerk, however, she has an obligation to obey the law and provide all citizens with equal protection and due process, regardless of her personal beliefs. If she is incapable of doing so, then she is free to resign and devote herself to a campaign to reverse the Court’s decision.
Obviously, however, Davis prefers to remain in her position in the hopes of becoming a martyr to the cause of discrimination and a rallying point for others unwilling to accept the ruling of the Court. Her decision is a direct challenge to the system of checks and balances that has sustained this nation for more than 200 years. But then, one of the consequences of citing God as the ultimate authority is that there are no checks and balances short of wars fought in the name of religion. I think the founders of this nation had a more rational approach to governance.
It will be interesting to see how things proceed. The plaintiffs wasted little time asking the U.S. District Court to find Davis in contempt of court and to fine her in an amount “sufficiently serious and increasingly onerous to compel Davis’ immediate compliance without further delay.” The plaintiffs could have requested that she be jailed, but declined to do so at this stage (the court, however, could decide sua sponte to order Davis to jail).
There has been some discussion in the press that Davis and others in Kentucky were upset that the state’s Democratic governor, Steve Beshear, ordered clerks to immediately beginning issuing marriage licenses to same-sex couples following the Supreme Court’s decision, instead of waiting for possible action by the Kentucky legislature. Davis and others are hopeful that the Kentucky legislature, which convenes in January, will pass legislation creating a “religious beliefs” exception for Kentucky public officials, thereby allowing officials to selectively deny public services to Kentucky citizens based on their own personal religious tenets.
I don’t think that there is much question that such a law would be patently unconstitutional. More importantly, it would usher in an era of chaotic administration of public rights and responsibilities, all of which would be subject to the whim of the person responsible for providing them. Thomas Jefferson, who had a far clearer understanding of the intent of the Constitution and the Bill of Rights than many living today, made it clear in a letter to the Danbury Baptist Association in 1802 that religion and government inhabit separate realms:
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.