Kim Davis stands her ground - in jail

ASHLAND, Ky. — Rowan County Clerk Kim Davis remained straight-faced as she was taken into federal custody Thursday, refusing to abandon her contentious policy on marriage licenses, even though most of her staff have now agreed to issue forms to same-sex couples.

At least two couples said they plan to request licenses at Rowan County Courthouse on Friday, possibly prevailing in a two-month standoff with Davis, who has turned away all couples since June in response to the Supreme Court ruling on same-sex marriage.

“We are saddened by the fact that Mrs. Davis has been incarcerated,” said April Miller, who is seeking to wed her long-term partner, Karen Roberts. “We look forward to tomorrow. As a couple, it will be a very important day in our lives.”

Jody Fernandez, who also is among the couples suing Davis, said she was still in a daze and did not expect the ruling, but felt excited to move on.

Attorneys for the couples had only asked U.S. District Judge David Bunning to pressure Davis with fines for contempt of court.

Bunning reasoned Thursday that Davis’ supporters are likely to step in with fundraising efforts, leaving fines ineffective and allowing her to continue to defying the preliminary injunction he issued against her in August.

Instead, he ordered U.S. Marshals to take her into custody until she agrees to issue licenses, and he indicated that he has no plans for releasing her on Friday because of concerns that she would return to the office and reestablish the policy.

Surrounded by reporters outside the courthouse, Roger Gannam, an attorney with the Liberty Counsel, which represents Davis, said the decision shows that elected officials no longer have religious liberties in light of the Supreme Court ruling — and that private citizens are next.

“Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is between one man and one woman,” he charged. “It’s unprecedented in American law and it answers the question 'what will same-sex marriage mean for people of faith.'”

Attorneys for the couples called the arrest regrettable, but argued that the ruling affirms that government may not impose religious views on others or use religious liberties to withhold public services.

Laura Landenwich, who represents four couples who are suing the clerk, said attorneys were hoping that fines would prove enough. But Davis is not above the law, she said, and holds the key to her own jail cell

“Mrs. Davis is in an unfortunate situation of her own creation,” Landenwich said. “She is not a martyr. No one created a martyr today. Kim Davis had two opportunities to comply with the law, and she chose not to.”

Six deputy clerks attended Thursday’s hearing and all but one — Kim’s son, Nathan Davis, who works in the office — indicated a willingness to provide the forms. However, they also expressed a least some concern. Some said same-sex marriage conflicts with their own beliefs, but that they would relent to avoid jail.

“I’m a preacher’s daughter, and this is the hardest thing I’ve ever had to do in my life,” said one deputy, Melissa Thompson.

Landenwich said she believes the deputy clerks were sincere and that tomorrow will tell for sure.

Davis, at times in tears, testified that her religious convictions rendered her incapable of following Bunning’s order, and she argued that God's law trumps the court.

"My conscience will not allow it," she said. "... God's moral law convicts me and conflicts with my duties."

Attorneys with the Liberty Counsel said she met a legal defense for protection under federal law because of her "factual inability" to issue licenses to same-sex couples. But Bunning disagreed, saying Davis' convictions alone were insufficient to meet the test.

He questioned what would prevent a Catholic clerk from denying licenses to couples with previous marriages that had not been annulled. "Her good-faith belief is simply not a viable defense," he said.

Later, when the deputies agreed to comply, Bunning said that could purge the contempt charge against Davis, and he offered to allow her back in the courtroom to discuss the matter. Davis apparently declined.

Gannam spoke with her briefly and said she refused to grant her staff any authority to provide the forms in her absence, so Bunning again ordered her to jail.

The judge also warned deputy clerks, particularly Nathan Davis, that his court would monitor the office closely for any interference.

“I hope there are no shenanigans,” he said. “The court will vigilantly oversee its orders.”

Bunning acknowledged that emotions are high on both sides and said the court had received about 2,000 calls on the case — so much that he had to direct all calls to voicemail.

He urged supporters and opponents to remain civil, but said “oaths mean things” and allowing Davis to defy his order would create a "ripple effect." He reiterated over and over that society depends on the rule of law.

The court "cannot condone willful disobedience," Bunning said. "If you give people opportunity to choose what orders they follow, that is what potentially causes problems."

At issue now is whether licenses issued by deputies are considered legally valid without Davis’ consent. Bunning said couples would have to judge that risk on their own, but Landenwich said statutes are clear that deputies have the authority to issue them.

Fernandez, who is trying to marry her fiancé, Kevin Holloway, said she has concerns over validity even though she still plans to apply tomorrow.

After the ruling was announced, cheers and chants erupted outside the federal courthouse in Ashland, where more than 100 protesters had gathered in advance of the hearing.

"I'm glad the court sent a strong message that you have to follow the law," said Timothy Love of Kentucky, one of the plaintiffs in the Supreme Court case that legalized gay marriage.

Those supporting Davis decried the decision, with one man falling on the courthouse steps to pray.

"It's very unjust," said the Rev. Randy Smith, of Morehead. "Religious liberty has been trampled on today."

Chris Hartman, head of the Fairness Campaign advocacy group, said he thought the judge would levy fines but hoped jailing Davis would act as a strong deterrent for others who might refuse to follow the law.

Some said the move could turn Davis into a martyr among gay-marriage opponents.

Taxpayers pay Davis around $80,000 a year, and her office issued more than 200 marriage licenses last year. Two other clerks -- Casey Davis in Casey County and Kay Schwartz in Whitley County -- have adopted a similar stance.

The ACLU is suing Davis on behalf of four couples and at least two other couples have filed similar cases.

Bunning indicated Thursday that he doesn't plan to certify the case for class-action status statewide since Davis is the only clerk being sued. He said, however, that he wanted to include all couples in Rowan County. Applying the preliminary injunction to other cases that are similar "just makes judicial sense."

Davis has filed for an injunction of her own, but Bunning said he will not rule on that before Sept. 11.

Reporter Mike Wynn can be reached at mwynn@courier-journal.com. Reporter Chris Kenning can be reached at ckenning@courier-journal.com.

Timeline of Kim Davis case