Will Kentucky clerk's jailing move needle on debate over religious liberty?

On Friday, the Rowan County, Ky., clerk’s office will be open for business and issuing marriage licenses for the first time since June.

The clerk, meanwhile, is in jail. 

At a hearing Thursday in Ashland, Ky., Federal District Judge David Bunning found Kim Davis, an Apostolic Christian at the heart of the same-sex marriage controversy, in contempt for refusing to honor a United States Supreme Court ruling that made gay marriages legal throughout the country. Ms. Davis has cited “God’s authority” in her refusal to do her official duty.

Her arrest came after repeated refusals by Davis to heed Judge Bunning’s orders to commence signing marriage licenses for all eligible couples, including same-sex ones. Davis is one of three county clerks in Kentucky to refuse to issue marriage licenses since the Supreme Court ruling in June.

Before Davis became the first person to be jailed for failing to obey the Supreme Court’s Obergefell ruling, some 1,000 dueling protesters flocked to the courthouse in Ashland. “I’ve weighed the cost, and I’m prepared to go to jail, I sure am,” Davis told Fox News on Thursday. “This is a fight worth fighting.”

Bunning said Davis will remain in federal custody until she agrees to issue the licenses. According to state law, deputies can sign the documents if the head clerk is incapacitated.

Perhaps most crucially, Davis’s decision to stand her ground on what she says is a “Heaven or Hell decision” is already resonating around the country. At the least, she has galvanized politicians trying to appeal to the evangelical vote, a key primary audience in critical early Southern states. 

The legal case against Davis is simple: It says a government official can’t put their own private beliefs ahead of their official duties, no matter how personally repugnant they might find them. 

Yet Davis’s defiance has become the focal point for a broader debate over religious liberty. Her supporters say they are testing the breadth to which religious Americans can hew to a higher authority than the Constitution. The three Kentucky clerks note that their oath of office includes the words “so help me God,” first added to official oaths by President George Washington.

“I think [Davis’s arrest] moves the needle on the religious liberty debate,” says John Eastman, a Chapman University constitutional scholar, comparing Davis’s stance to civil rights leader Martin Luther King Jr.’s decision to spend time in a Birmingham, Ala., jail rather than abide by what he deemed an unlawful judicial order to stop picketing. “Remember, lot of other ministers chastised King for taking a stand in Birmingham, but he said that when you refuse to comply with an illegitimate law, you should be willing to take the consequences in hope that by doing so you will call attention to the injustice of the act.”

The stance of the elected, and thus difficult to remove, clerk – and now her jailing – has made Davis a pivotal figure among Americans who see same-sex marriage as a Biblical wrong, and the judicial legalization of it a federalist perversion. A jailed Davis could raise the stakes for an election where a struggle for “religious liberty” amid changing cultural and legal norms has galvanized critical evangelical voters. 

“There’s a very real sense that people of faith now need to be protected in some way to make sure they cannot be punished for acting in accordance with their faith,” Dan Holler, a spokesman for Heritage Action, told The Washington Post. “That’s something that resonates with conservative primary voters.”

As of Thursday, Republican presidential candidates Rand Paul, Mike Huckabee and Marco Rubio have all made statements of support. Senator Paul called her protest part of  “the American way,” Mr. Huckabee noted that “Davis is showing more courage and humility than just about any federal office holder in Washington.” 

But Bunning, a Republican appointee, said he had no other option than to take Davis into custody.

“The court cannot condone the willful disobedience of its lawfully issued order,” he said at the hearing. “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”

Bunning earlier had struck down Davis’s claims that she was exercising her First Amendment right of religious freedom by refusing to issue the licenses. Other courts, on up to the Supreme Court, which refused to hear her appeal, agreed with Bunning’s assessment that the government can’t function if its agents hold their personal beliefs above their duties. In the past, critics point out, religious liberty arguments have also been used (unsuccessfully) to defend segregation and laws banning interracial marriage.

On Thursday afternoon, Bunning offered a compromise: He would release Davis from jail if she would allow her deputies to issue the marriage licenses. Davis refused.

In that vein, Davis’s defiance has brought her withering critique from many Americans, who see her as openly flouting the fundamental contract of the country, which relies on government officials to carry out their legal duties, whether they personally agree with them or not. “Do your job!” has been a frequent cry of protesters. 

The Supreme Court has agreed with that view in the past. “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom,” the court said in a 2006 ruling.

On the whole, the notion of a government official facing sanctions for refusing to accept federal court rulings is “unusual, but not unprecedented,” says Douglas Laycock, a religious studies scholar at the University of Virginia and an expert on religious liberty.

But for many Americans, Davis’s decision to hold her strongly held beliefs above personal freedom is part of a broader look at what Senator Rubio, in a statement, called “a balance between government’s responsibility to abide by the laws of our republic and allowing people to stand by their religious convictions.” 

Rubio added that while Davis, as an elected court clerk, has a duty to carry out the law, “there should be a way to protect the religious freedom and conscience rights of individuals working in the office.”