KIM DAVIS, a devout Apostolic Christian employed as a rural county clerk in Kentucky, asked the Supreme Court on August 28th to give her a temporary bye from their landmark ruling expanding marriage laws to same-sex couples. Three days later, the justices curtly declined her request without explanation or dissent. But Ms Davis still refuses to issue marriage licences to gays. She is defying the Supreme Court, she explains, "under God's authority". She now sits in jail. In her plea to the justices, Ms Davis insisted that she cannot, in good conscience, sign a marriage document for two men or two women. Nor can she let any of her six deputies handle these nuptials, since her name still appears on the documents. To avoid being accused of discriminatory treatment, Ms Davis has refused to issue any marriage licences at all. But four couples (two gay, two straight) who returned from her office empty-handed sued the clerk on July 2nd. A federal judge, David Bunning, instructed Ms Davis to issue marriage licences to the couples and an appeals court upheld that order. There is “little or no likelihood”, the Sixth Circuit explained on August 26th, that Ms Davis will win her appeal. “[I]t cannot be defensibly argued” that she “may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.”

Rebuffed by two courts, Ms Davis filed an emergency stay of Judge Bunning’s ruling with Elena Kagan, the justice who oversees the Sixth Circuit. The clerk's lawyers argued that America’s promise of religious liberty compels the judiciary to respect her beliefs. Freedom-seeking colonists were, in Samuel Adams’s words, “driven from every other corner of the earth” and steered ”their course to this happy country as their last asylum”. All Ms Davis wants is ”asylum for her conscience.”

In their one-sentence order on August 31st, the justices offered Ms Davis no sanctuary from their ruling. They were unmoved, apparently, by Ms Davis’s contention that Obergefell v Hodges, the same-sex marriage ruling, contained an escape clause. In her application, Ms Davis quoted a line in the decision saying that religious people “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” And she noted that this general principle holds for anybody, including public servants, according to a Supreme Court ruling from 2014 that “citizens do not surrender their First Amendment rights by accepting public employment.”

But Davis v Miller, as the case is known, is not about whether public employees can be stripped of their personal freedoms of speech and religion. It asks whether someone employed by the state to perform a particular job has a right to refuse to fulfil that duty when the law runs counter to her beliefs. Ms Davis compares the requirement of issuing same-sex marriage licences to laws forcing “a person who religiously objects to wartime combat…to shoulder a rifle regardless of their conscience or be refused citizenship”. But Kentucky is not requiring Ms Davis to march a gay couple down the aisle or to dance at their wedding. It is only, in Judge Bunning’s words, asking her to apply the law: “the act of issuing a marriage licence to a same-sex couple merely signifies that the couple has met the legal requirements to marry. It is not a sign of moral or religious approval.”

A similar position is found in an essay by a figure writing over 200 years ago who was at least as devout as Ms Davis: the philosopher Immanuel Kant. In “What is Enlightenment?” Kant argued that although everybody should be free to develop novel perspectives on moral and political questions, state employees are not free agents in choosing whether to carry out their specified duties. “Argue as much as you want and about what you want,” Kant wrote, “but obey.”

It seems every level of the federal bench has much the same idea. Yet for now Ms Davis is not about to budge. After being found in contempt of court and sent to jail on Thursday, she refused a compromise proposal that would have released her from custody if she permitted her deputies to provide the licences. Impressive recalcitrance, indeed.