Lawyers for Rowan County Clerk Kim Davis filed a motion in in federal court on Wednesday arguing she should not be held in contempt for refusing to issue marriage licenses — even though a federal judge ordered the Kentucky official to do so in August and her attempts to keep that order on hold while she appeals has been rejected all the way up to the Supreme Court.
After those appeals had been rejected, a same-sex couple applied for a marriage license at Davis’s office on Tuesday morning. When Davis and her staff refused, attorneys at the ACLU of Kentucky — representing April Miller and Karen Roberts — filed a motion to hold Davis in contempt of court.
Judge David Bunning scheduled a hearing on the motion for 11 a.m. Thursday.
Davis's lawyers raise several defenses in Wednesday's filing, chief among them reiterating her longstanding argument that requiring Davis's office to issue marriage licenses to same-sex couples would violate her Christian faith.
Specifically, Davis said in Wednesday’s brief that she could not have complied with a judge's order she issue the licenses “because it irreparably and irreversibly violates her conscience by directing her to authorize and issue [same-sex marriage] licenses bearing her name and approval.” A contempt charge, which could include a fine, would “substantially burden Davis’ religious exercise for the same reasons.”
Since the Supreme Court ruled in favor of nationwide marriage equality, Davis has claimed to hold a religious objection to her name appearing on the marriage licenses of same-sex couples. Davis also barred all six of her deputies at the Rowan County Clerk’s Office from issuing marriage licenses to anybody — even though at least one deputy clerk was willing to issue licenses to same-sex couples.
In her brief Wednesday, Davis adds that she would be denied the right of due legal process if held in contempt because subsequent motions have been filed since the August 12 order.
Since contempt charges could result in financial penalties, the brief adds, being held in contempt would amount to a criminal sanction that thus entitles her to additional rights as a defendant.
“Davis has not been afforded all of the requisite constitutional protections for those facing criminal allegations and she therefore specifically demands herein and does not waive any and all rights of those accused of crimes, including but not limited to her right to a jury trial,” the brief states.
Finally, a contempt charge would be overkill when the state has other remedies, the brief said. For example, Davis contends that the state could allow her to opt-out of issuing licenses, a neighboring county clerk could be deputized to fulfill marriage licensing duties, or the state marriage license form could be revised so the name of the head clerk from each county does not appear on it.
As such, the brief says, “any contempt finding in this matter is premature and improperly intrusive and invasive into state affairs.”
The brief was filed by Liberty Counsel, a nonprofit law-firm and self-described Christian ministry that is representing Davis.