Rowan clerk Kim Davis loses Supreme Court fight

The day of reckoning has come for Rowan County Clerk Kim Davis.

In a one-sentence order, the Supreme Court Monday night denied her request for a stay of an order that she issue marriage licenses to same-sex couples.

“The application for stay presented to Justice (Elena) Kagan and by her referred to the Court is denied,” the order said.

A stay issued earlier by U.S. District Judge David Bunning expired Monday.

Davis’ lawyers did not return phone messages Monday night and it is unclear if she will risk being found in contempt of court by continuing to deny licenses to same-sex couples on religious grounds.

Steven Shapiro, legal director of the American Civil Liberties Union, said the Supreme Court affirmed that government officials must carry out the duties of public office.

“By refusing to simply issue a form, Rowan County Clerk Kim Davis has prevented our clients, four loving couples, from obtaining marriage licenses in the county where they live and pay taxes,” he said Monday. “Davis has no basis for any further delay.”

In a separate development, the Kentucky attorney general is mulling whether to appoint a special prosecutor to investigate whether she violated the state official misconduct statute when her office refused to issue a license to a Rowan County gay couple.

Official misconduct is a misdemeanor punishable by up to 365 days in jail.

A public servant is guilty of it when, “with intent to deprive another person of a benefit,” he or she refrains “from performing a duty imposed upon by law or clearly inherent in the nature” of his office or “violates any statute or lawfully adopted rule or regulation” relating to it.

James Yates and Will Smith have been denied a marriage license three times, according to their lawyer, William Kash Stilz Jr., including the day after the 6th U.S. Circuit Court of Appeals last week denied Davis’ request for a stay.

Yates and Smith on Friday asked Rowan County Attorney Cecil Watkins to prosecute Davis, a request he referred to Attorney General Jack Conway’s office because Watkins is defending two suits filed against the county.

Allison Martin, a spokeswoman for Conway, said the office can appoint either a county or commonwealth’s attorney from another jurisdiction as special prosecutor or an assistant attorney general.

Special prosecutors are appointed if the allegations constitute a crime and the prosecutor in the requesting county has a legitimate conflict of interest.

Roger Gannam, one of Davis' lawyers, said earlier Monday: “Kim Davis is no criminal. It has never been a crime to exercise the rights of conscience guaranteed by the U.S. and Kentucky constitutions and the Kentucky Religious Freedom Restoration Act.”

Asked if the appointment would be sensitive for Conway because he is running for governor in a state where polls show most voters oppose gay marriage, Martin said the request “will be handled according to the protocol of our office and handled appropriately.”

Davis' lawyers filed a last-ditch appeal to the Supreme Court on Friday, asking that they grant her “asylum for her conscience.”

Justice Elena Kagan, who oversees the 6th circuit, referred Davis’ request to the full court, which denied the stay without comment. Kagan joined the majority in June when the court legalized gay marriage across the nation.

Davis has refused to grant marriages to any couples in the wake of the court’s June 26 ruling that states must recognize and permit same-sex marriages.

She says she cannot issues licenses to gay couples because of her personal religious beliefs or allow her deputies to do so because the marriage licenses bear her signature.

She also contends that same-sex couples can get licenses from clerks in adjoining counties.

In an Aug. 12 ruling, Bunning disagreed.

“Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions,” he said. “Davis is certainly free to disagree with the court’s opinion, as many Americans likely do, but that does not excuse her from complying with it.”

Critics and supporters of Davis continued to demonstrate outside the Rowan County Courthouse on Monday and are expected to return again Tuesday. Couples also have said they will come back to request the paperwork.

The issue is bigger than Davis’ policy, said Louie Whitt, one of the clerk’s supporters who stood outside Monday. “It’s actually about the future of our nation.”

Rachelle Bombe, who was demonstrating nearby on behalf of the couples, said she will be glad when the matter gets resolved. “I just want the couples who want to get married to be able to,” she said.

Carl Tobias, a law professor at the University of Richmond, said that although a number of clerks around the country say they are uncomfortable issuing licenses, the Rowan County case is the only one to have advanced so far in the courts.

“My reading is that the Supreme Court was pretty clear in late June about the notion of marriage equality,” he said. “I don’t think the religious freedom argument is that strong in this situation.”