Uneasy Truce on Gay Marriage Is Shaken by Kentucky Clerk’s Defiance

WASHINGTON — Kim Davis did more than register a protest when she went to jail last week after defying a federal court order to issue marriage licenses to gay couples. Ms. Davis, the clerk in Rowan County, Ky., also helped unravel an uneasy détente in the nation’s culture wars that had prevailed since the Supreme Court declared a constitutional right to same-sex marriage in June.

Some Republican presidential aspirants rushed to the defense of Ms. Davis, a Democrat, and other public employees who say sanctioning same-sex marriage undermines their religious freedom. Her resistance seems certain to generate a burst of new legislation aimed at carving out exemptions for such employees, and it could spur others to risk jail in states like Alabama, where religious objections are strong.

Ms. Davis, 49, who has said she attends her Apostolic Christian church “whenever the doors are open” and who cited “God’s authority” in turning away gay couples who sought to marry, has emerged as a heroine to religious conservatives, many of whom feel deeply aggrieved by the Supreme Court’s 5-to-4 decision on same-sex marriage, in Obergefell v. Hodges. Her lawyer, Mathew Staver, called her “the poster child for why you need religious liberty exemption laws.”


Kim Davis has emerged as a heroine to religious conservatives. CreditCarter County Detention Center

Yet her jailing by a Federal District Court judge, David L. Bunning, a former federal prosecutor who was appointed to the bench by President George W. Bush, has also exposed divisions within the Republican Party. While all 17 Republican presidential contenders are opposed to same-sex marriage, not all of them embraced Ms. Davis.

Although polls show more than half of Americans support same-sex marriage, a survey released in July by The Associated Press found that Americans were split on whether state and local officials who have religious objections should be required to issue marriage licenses to gay couples. Forty-nine percent said officials should not be required to do so; 47 percent said they should.

Nonetheless, the Davis case has given fresh voice to religious conservatives, reawakening their anger over the Obergefell decision.

“This is a wake-up call,” declared Mike Huckabee, the former governor of Arkansas and a Republican presidential candidate, who plans to visit Ms. Davis in jail with Mr. Staver on Tuesday. He added: “The question that was always asked of us traditional marriage people was, ‘What difference does it make to you? So what? Why does it bother you?’ Well, maybe people are waking up and seeing why it bothers us. Now you have a county clerk sitting in jail.”

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 Barriers to same-sex marriage fell with astonishing speed after the ruling, and advocates for equal rights for gay people were quick to declare an end to the national same-sex marriage debate.

“Our opponents leading up to the decision were making the case that there would be a pretty massive backlash, that there would be very serious resistance, protests in the streets,” said Marc Solomon, the national campaign director of Freedom to Marry, an advocacy group, in an interview last month. “That certainly is not the case. Even people who are not with us are not fired up about this.”

Ms. Davis, who quit issuing marriage licenses to both heterosexual and same-sex couples after the Obergefell ruling, seems to have upended that relative quiet. From talk radio to the grassy plaza outside the brick-and-granite Rowan County courthouse — where Ms. Davis’s deputies issued licenses to gay and straight couples on Friday while she was in jail — conservatives vowed their fight to exercise their religious rights was just beginning.

“The homosexual side, they feel they’ve won,” said Randy Smith, a Freewill Baptist pastor who has been organizing rallies in support of Ms. Davis and pressing Gov. Steven L. Beshear of Kentucky, unsuccessfully, to issue an executive order giving her the exemption she is seeking. Mr. Smith, who was a speaker at a rally on Saturday, had 2,000 signatures on a petition that, he said, asks the governor to issue an executive order “giving protection to county clerks,” which he hopes to deliver this week.


Supporters of Kim Davis on Saturday at the jail in Grayson, Ky. CreditChris Tilley/Reuters

“If the governor refuses to meet with me,” he said, “I will make an unannounced trip down there, and I will have as much media coverage as I possibly can. I am not going to let this thing go.”

Twenty-one states have some form of religious-exemption law, but just one — North Carolina — has a specific measure exempting public officials from participating in same-sex marriages, according the Movement Advancement Project, which tracks gay-rights legislation. Some legal experts, including Katherine M. Franke, a law professor at Columbia University who studies religious freedom and sexual liberty, say the North Carolina statute will not hold up in court — for the same reason that Judge Bunning ruled that Ms. Davis must issue licenses.

Government officials, Professor Franke said, “don’t have a First Amendment right to pick and choose which parts of the job they are going to do.”

Other states, including Georgia, Minnesota, Oklahoma, South Carolina and Texas, this year considered passing religious exemption laws targeted to public officials but failed. Religious conservatives say they expect similar measures to be proposed as state legislatures reconvene in the coming months.

Other states are trying to tackle religious objections in other ways. In Alabama, probate judges in 13 of 67 counties are, like Ms. Davis, declining to issue marriage licenses to anyone. State Senator Greg Albritton, a Republican, said some of those judges were “preparing to go to jail” if ordered, as Ms. Davis was, to issue same-sex marriage licenses.

When the Legislature convenes a special session next this week, Mr. Albritton said, he intends to reintroduce legislation requiring couples to draft their own marriage contracts, which the state would simply record, putting Alabama out of the business of issuing marriage licenses.

“Kentucky is a precursor to where we are headed,” Mr. Albritton said.

On the presidential campaign trail, Senator Ted Cruz of Texas and Rick Santorum, the former senator from Pennsylvania, are among the Republicans who have taken up Ms. Davis’s cause.

After the Republican candidate Donald J. Trump said on MSNBC that the United States is a “nation of laws” that must be followed, Gov. Bobby Jindal of Louisiana, a fellow candidate, picked a fight on Twitter,telling Mr. Trump that “even really rich New Yorkers should oppose jailing Christians for their religious beliefs.”

Advocates for same-sex marriage, meanwhile, dismissed the hubbub over Ms. Davis, predicting the conservative efforts would go nowhere.

“We had a huge victory and the Supreme Court ruled for marriage,” said Rebecca Isaacs, the executive director of the Equality Federation, a national advocacy group. “This seems dramatic because she is obviously enjoying her role, but it’s really the last gasp of protest against marriage equality. It’s over.”

In Kentucky, the State Senate president, Robert Stivers, predicted bipartisan support for changing marriage laws when the Legislature convenes in January, and Ms. Davis’s backers have argued that although public officials were mostly complying with the Supreme Court’s ruling, many did so under duress.

Chris Jobe, the president of the Kentucky County Clerks Association, said that after the Obergefell decision, 60 of the state’s 120 county clerks agreed to sign a petition to the governor saying they objected on religious grounds.

“Not a day doesn’t go by, hardly, out on the street that I don’t run into two or three people that are upset by this,” Mr. Jobe said in an interview before Ms. Davis was jailed. “Our country is founded upon the principles of God, and we feel that every day our rights are taken away.”


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