She has few legal options, with fines, impeachment or even criminal prosecution looming+ READ ARTICLE
A law clerk in Kentucky who refuses to issue marriage licenses to same-sex couples because of her religious beliefs remained defiant Tuesday, despite the Supreme Court effectively cutting off her legal avenues the night before. But even though Davis is essentially refusing to do her job, she can’t exactly be fired.
Rowan County Clerk Kim Davis, who did not respond to requests for comment by TIME, was elected to her position in November 2014. On Tuesday, she denied marriage licenses to two same-sex couples, just as she has refused to issue licenses to straight or gay couples since the Supreme Court legalized same-sex marriage in June. The Supreme Court dismissed an emergency motion on Monday to grant a stay of an earlier district court decision that also ruled against her, leaving Davis with few legal paths forward.
Because Davis is an elected official, she can only be officially removed through an impeachment, says University of Kentucky law professor Scott Bauries. But that isn’t likely. The Kentucky General Assembly, which would bring impeachment proceedings, currently isn’t in session. While Gov. Steve Beshear, a Democrat, could theoretically call a special session, experts say the divided legislature would side with Rowan. “She’s probably got enough supporters that she wouldn’t be impeached anyway,” Bauries says.
The federal courts, however, likely won’t stand by and allow her to defy the law of the land. Judge David Bunning of the U.S. District Court in the Eastern District of Kentucky can sanction Davis for being in contempt of court, which could include fines for each day she’s in violation. “It’s very likely Judge Bunning is going to sanction her sometime this week, likely a monetary sanction,” Bauries says.
Rowan County Attorney Cecil Watkins has also referred the case to the state attorney general to investigate whether Davis is engaged in official misconduct, specifically over her refusal to perform official duties. “We’re reviewing that matter,” says Leland Hulbert, a spokesperson for the Kentucky attorney general’s office. “Whether or not our office assigns a special prosecutor about possible criminal charges, that is probably yet to be determined.”
The clerk could resign of course — but she ruled that out in a statement released by her law firm Liberty Counsel. “Some people have said I should resign, but I have done my job well,” Davis wrote. “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. … I intend to serve the people of Rowan County, but I cannot violate my conscience.”
In June, the Supreme Court legalized same-sex marriage nationwide. Soon after, Davis began her standoff with federal judges, citing “God’s authority” and her Christian beliefs. She filed a lawsuit in federal court after Gov. Beshear ordered the state’s clerks to issue same-sex marriage licenses, but both a district court judge and the Sixth Circuit Court of Appeals ruled against Davis, who then appealed to the Supreme Court. A district court granted Davis a stay, which expired Monday, and the Supreme Court rejected an emergency motion filed by Davis to extend that stay.
The ACLU on Tuesday filed a motion against Davis on behalf of two gay couples in an attempt to hold Davis in contempt of court. An appeal against the federal court ruling ordering Davis to issue marriage licenses is still pending in the sixth circuit. But her appeal, experts say, will likely go nowhere.
“I think now she is basically out of options,” says Kermit Roosevelt, a University of Pennsylvania law professor. “If the Supreme Court had thought this was a serious issue here and there were any likelihood of success on the merits, it would have issued a stay.”
– With additional reporting by Eliza Gray