Jailing of Kim Davis looks increasingly like a giant misstep

By Alec Rooney

Christian Action Network

A senior policy analyst for the Family Foundation of Kentucky believes that U.S. District Judge David Bunning cannot have had a very pleasant holiday weekend as he pondered actions he took last week: namely finding Rowan County Clerk Kim Davis in contempt of court for refusing to issue marriage licenses to gay couples, and sending her to jail.

Rowan County Clerk Kim Davis is booked into jail earlier this month.

Rowan County Clerk Kim Davis is booked into jail earlier this month.

Bunning lifted the contempt order Tuesday, freeing Davis.

“It must have sunk in over the weekend, while Judge Bunning was sipping lemonade by the pool, that he had made a huge political mistake,” said Martin Cothran of the Family Foundation of Kentucky. “He is forever going to be known as the judge who put religious freedom behind bars.”

Davis was released on the condition that she not interfere with her clerk’s-office deputies as they issue marriage licenses to gays. How this will play out is uncertain, and Cothran said that the whole controversy is far from over, and that there are “more shoes to drop.”

On Tuesday, for example, Kim Davis’ legal counsel proposed that any marriage licenses issued by those deputies, in the county clerk’s absence, were not valid. On Monday they had taken their case to a federal appeals court, asking that Davis be allowed to remove her name and title from marriage certificates issued in Rowan County so that she would not have to act against her religious beliefs.

Davis stopped issuing all marriage licenses in June, the day after the Supreme Court ruled that gay couples have the right under the U.S. Constitution to marry.

Two gay couples and two heterosexual couples sued her. Bunning ordered Davis to issue the licenses, and the Supreme Court upheld his ruling. But she still refused, and was held in contempt of court and sent to jail.

Her deputy clerks — except for her son, Nathan Davis — then began issuing licenses to gay couples with Davis behind bars.

Cothran also wondered if the drastic, high-profile step of putting a county official in jail was justified. “We wonder why she was left in jail over the weekend, and now is being released, when nothing materially has changed,” he said.

The issuance of same-sex marriage licenses remains at odds with Kentucky state law, which stipulates that marriage is between a male and a female:

02.005 Definition of marriage. 

As used and recognized in the law of the Commonwealth, "marriage" refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex. 

Effective: July 15, 1998
History: Created 1998 Ky. Acts ch. 258, sec. 4, effective July 15, 1998. 

Kentucky law also states that the license for a marriage must be filed in the county where the female of the couple is a resident — a requirement impossible to fulfill when both partners are men, and ambiguous when both are female.

Davis has quickly acquired martyr status among religious conservatives and others who stand for traditional marriage. Hers has been the most high-profile act of resistance by a public official yet to June’s Supreme Court ruling, and the holiday-weekend incarceration only expands the profile of the controversy and impact of her widely circulated jail mugshot.

“The left has, on this issue, formed a circular firing squad,” Cothran said.

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