Kentucky Clerk Not Saved from the Horror of Having to Do Her Job

Most cities and counties in the US issue marriage licenses to same-sex couples. Photo: Bart Vis | FlickrCC.

Kim Davis, clerk of Rowan County, Kentucky, has lost her plea with Supreme Court for relief from having to issue marriage licenses, including those for same-sex marriage, on the grounds that same-sex marriage conflicts with her personal beliefs. Further, a federal trial judge in Ashland, KY, has issued an official order that Davis relinquish her no-licenses policy. Because Davis continues to resist federal orders that she issue marriage licenses, she is at risk of being held in contempt.

No Supreme Court justice publicly dissented at the denial of Davis’ plea, says The Washington Post, as the fact that same-sex marriage is now legal throughout the country would indicate. The letter of denial of stay for Davis’ case was one sentence. Kentucky Governor Steven Beshear has also ordered Davis—and all county clerks in the state—to issue marriage licenses, with which Davis has also refused to comply.

Though Davis very much has the right to live her life in the way she finds best suits her as well as to practice any religious belief she likes, but she does not have the right to her job as a county clerk, says Jonathan H. Adler. The position she fills reports and adheres to any judgment passed by the Supreme Court; it is a legal office, bound to legal practices, and if an employee of the law finds that they are unable to comply with the duties of their position, they are no longer fit to serve it. Justice Scalia explained this very principle in a 2002 article, writing that if he concluded that the death penalty were immoral, he should no longer be a justice.

“While my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all,” writes Scalia. “I could not take part in that process if I believed what was being done to be immoral.” Therefore, if Davis believes the orders of the federal courts to be immoral, she should no longer serve as a county clerk.

Davis’ case represents a frustrating intersection between federal mandates and religious freedom laws. Her lawyers say that the mandate is “trampling on her rights of conscience,” Davis’ refusal to do as the law instructs her will very likely lead to her resignation—or removal—from her office.